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Petitioner: Niaz Abbas alias Muhammad Nawaz, etc, The State VS Respondent: The State, etc, JUDGMENT
Court Name: Lahore High Court Judge(s): Syed Shahbaz Ali Rizvi, Shakil Ahmad Title:Niaz Abbas alias Muhammad Nawaz, etc, The State vs The State, etc,
JUDGMENT
Reported As: 2023 LHC 5215 Result: Murder Reference Answered in Negative Judgment JUDGMENT SHAKIL AHMAD, J. By filing Criminal Appeal No.36092 of 2019, appellants Niaz Abbas alias Muhammad Nawaz, Muhammad Asif, Muhammad Aslam alias Mehnga and Muhammad Zahoor Ahmad have challenged their convictions and sentences. They were indicted and tried by learned Additional Sessions Judge, Shahpur on the charge under Sections 302, 324, 337-A(i), 337-D, 337- F(ii), 337-F(iii), 337-F(vi), 337 L(2), 109, 148, 149, P.P.C. in case F.I.R. No.148 of 2015 dated 30.10.2015, registered at Police Station Shahpur City, Sargodha. Learned trial court, on conclusion of trial, vide judgment dated 17.05.2019 (impugned judgment) convicted the appellants and sentenced them as under:- i. Under section 302(b)/34 P.P.C. to death each on three counts (for causing triple murder of Muhammad Ashraf, Muhammad Sher and Tahir Mehmood) with payment of Rs.3,00,000/- each to the legal heirs of deceased, in default whereof to further undergo simple imprisonment for six months. ii. Under section 324/34 P.P.C. to seven years R.I. each for attempting to commit qatl-i-amd of the injured persons Mubasher Rehman and Khadim Hussain with fine of Rs.20,000/- each, in default whereof to further undergo simple imprisonment for two months. iii. Under section 337-A(i)/34 P.P.C. to two years R.I. each for causing injuries to Mubashar Rehman and Khadim Hussain with fine of Rs.5,000/- each to the injured. iv. Under section 337-F(iii)/34 P.P.C. to three years R.I. each with daman of Rs.5,000/- each to injured Mubashar Rehman.
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v. Under section 337-F(vi)/34 P.P.C. to seven years R.I. each with daman of Rs.5,000/- each to injured Khadim Hussain. Benefit of section 382-B, Cr.P.C. was extended to the convicts. The learned trial court, however, vide same judgment acquitted Fazal Abbas, Muhammad Amjad, Muhammad Aslam son of Muhammad Iqbal, Muhammad Iqbal, Habib, Rabnawaz, Muhammad Zafar and Usman by extending them benefit of doubt. Crl. Appeal No.36090 of 2019 filed by complainant against acquittal of aforementioned accused persons before this Court has already been dismissed for non-prosecution vide order dated 24.05.2022. It may not be out of context to mention here that one of the accused persons namely Raja Ijaz Ahmed who was assigned resorting to first fire shot that landed on the forehead of Muhammad Ashraf (deceased) was indicted and tried separately and at the end of trial earned acquittal and PSLA No.63729 of 2020 filed by the complainant was dismissed as having been withdrawn vide order dated 08.06.2023. Murder Reference No.150 of 2019 has been sent by learned trial court under section 374 Cr.P.C. for confirmation of death sentence awarded to appellants. Since all the matters have originated from the impugned judgment dated 17.05.2019, the same are being decided through this single consolidated judgment. It is pertinent to mention here that being dissatisfied with the investigation of instant case F.I.R, the complainant Qadir Bakhsh filed private complainant under section 302, 324, 337-F(ii), 337-F(vi), 337-L(2), 148, 149, P.P.C. against same set of accused which was dismissed vide order dated 14.02.2019. 2. Qadir Bakhsh, complainant got recorded his statement at police station and on the basis of that statement F.I.R. (Exh.PV) was lodged. As per contents of Exh.PV complainant was resident of Ichar and on 31.10.2015 at about 04:30 p.m. Muhammad Ashraf, Tahir Mahmood, Mubashar Rehman, Khadim Hussain, Muhammad Sher, Muhammad Sajid were on their way to home situated in Mouza Ichar on a white coloured car bearing registration No.LEA/1540 after being relieved from their personal work and complainant along with Haq Nawaz and Muhammad Altaf who was behind them at a little distance on his car; that when Muhammad Ashraf and others reached at Adda Ichar Muhammad Ejaz, Fazal Abbas, Muhammad Aslam all armed with Kalashnikov, Amjad, Muhammad Asif both armed with gun 12-bore repeater, Muhammad Aslam alias Mehnga armed with gun 12-bore double barrel, Muhammad Iqbal armed with pistol 30-bore, Habib armed with 12 bore double barrel, Rab Nawaz armed with pistol 30-bore, Muhammad Zafar armed with 12-bore repeater, Muhammad Usman armed with gun 12-bore, Niaz Abbas armed with pistol 30-bore and Muhammad Zahoor armed with gun 12-bore who were lying perdue suddenly came in front of them and got stopped the car of Muhammad Ashraf etc whereafter Muhammad Ejaz exhorted that Muhammad Ashraf etc should not be left alive and in the meanwhile complainant along with Haq Nawaz and Muhammad Altaf reached at Adda Ichar at a slight distance from behind when Muhammad Ejaz made a straight fire shot with his Kalashnikov in order to kill Muhammad Ashraf that landed on his forehead; second fire shot was made by Fazal Abbas with his Kalashnikov that landed on right side of chest of Tahir Mahmood; Muhammad Aslam made a fire shot with his Kalashnikov hitting on left side of head of Muhammad Sher; Amjad made a fire shot with his 12- bore repeater hitting on the left side of chest of Tahir Mahmood; Muhammad Asif fired a shot with gun 12-bore repeater hitting on the left side of head of Khadam Hussain and they fell down in the car thereafter all accused persons with their respective weapons resorted to indiscriminate firing on the car of Muhammad Ashraf in the result of which Tahir Mahmood received injuries on his left shoulder near the neck, middle of the back, on the left wrist and left armpit in the middle of back and Muhammad Sher received injuries on his left side of back, Muhammad Ashraf sustained injuries on the index finger and thumb of his right hand and on the right side of ear and right side of neck, Mubashar Rehman received on his right flank, right and left elbow of both arms; Khadam
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Hussain received injuries on his left arm, face and middle of left eye, right shoulder and right arm. According to complainant he along with Haq Nawaz and Muhammad Altaf remained present there by taking the shelter of walls and witnessed the whole occurrence. As per him, when Muhammad Ejaz etc got themselves satisfied that Muhammad Ashraf has been done away with they all managed their escape good from the spot by resorting to firing and brandishing their respective weapons and he along with Haq Nawaz and Muhammad Altaf attended injured and found that Muhammad Ashraf, Tahir Mahmood and Muhammad Sher had succumbed to the injuries at the spot whereas Mubashar Rehman, Khadam Hussain and Muhammad Sajid became seriously wounded. Motive according to complainant was that they had previous enmity over the murders, therefore, all the accused persons murdered Tahir Mahmood, Muhammad Sher and Muhammad Ashraf and injured Mubarshar Rehman, Khadam Hussain and Muhammad Sajid. According to him, he by leaving Haq Nawaz and Muhammad Altaf to guard the dead bodies had come to report the matter, therefore, proceedings be initiated. 3. Imtiaz Ahmad, SI (PW.-17) who was posted at police station Shah Pur City claimed to have recorded the statement of complainant Qadir Bakhsh and on his direction F.I.R. (Exh.PV) was registered which was duly signed by him. After registration of FIR, investigation was conducted by Imtiaz Ahmad S.I (PW.17), who proceeded to place of occurrence along with other police officials where, according to him, dead bodies of Muhammad Ashraf, Muhammad Sher and Tahir Mahmood were present and injured were already sent to THQ Shahpur Sadar for medical treatment. He after examining the dead bodies prepared injury statement (Exh.PD/2) of Muhammad Ashraf (deceased), injury statement (Exh.PE/2) of Muhammad Sher and injury statement (Exh.PF/2) of Tahir Mehmood (deceased). According to him, he also prepared inquest reports of deceased Muhammad Ashraf, Muhammad Sher and Tahir Mahmood as Exh.PF/2, Exh.PD/3 and Exh.PE/3, respectively. He then said to have handed over dead bodies of three deceased along with police papers to Masood Akhtar 1508/C. He also recorded statements of witnesses under section 161, Cr.P.C. He secured three parcels of blood stained soil vide recovery memos Exh.PW, Exh.PW/1 and Exh.PW/2 relating to Muhammad Ashraf, Muhammad Sher and Tahir Mehmood, respectively. Vehicle No.LEA/1540 (P.22) was also taken into possession vide recovery memo Exh.PX attested by Haq Nawaz and Muhammad Altaf. According to PW.17 he also took into possession 115 crime empties of Kalashnikov (P.23 to P.137) vide recovery memo Exh.PY, five alive bullets of Kalashnikov (P.138 to P.142) vide recovery memo Exh.PZ, nine crime empties of pistol 30-bore (P.163 to P.171) vide recovery memo Exh.PAA, fifteen crime empties of gun 12-bore (P.142 to P.157) vide memo Exh.PBB, five cartridges of 12-bore (P.158 to P.162) vide recovery memo Exh.PCC. According to Imtiaz Ahmad (PW.17), at 11:30 p.m. Masood 1508/C after postmortem of the dead bodies handed over to him last worn clothes of deceased Muhammad Ashraf, Muhammad Sher and Tahir Mahmood which he secured vide recovery memos Exh.PM, Exh.PN and Exh.PO, respectively. On 02.11.2015, he after getting permission of Medical Officer, DHQ recorded statements of the injured under section 161, Cr.P.C. According to PW.17, he arrested Niaz Abbas, Muhammad Asif and Muhammad Aslam accused on 30.12.2015. He further stated that accused Niaz Abbas, after making disclosure, got recovered Kalashnikov (P.1) along with ten alive bullets (P.2/1-10) on 06.01.2016, which were taken into possession vide recovery memo Exh.PG and Muhammad Asif accused got recovered gun 12-bore (P.3) along with five alive cartridges (P.1/1-5), secured vide recovery memo Exh.PH. According to him, on the same day, Muhammad Aslam also got recovered 12-bore double barrel gun (P.5) along with four alive cartridges (P.6/1-4) which he secured vide recovery memo Exh.PJ. On 12.01.2016 he prepared report under section 173, Cr.P.C. to the extent of accused Niaz Abbas, Muhammad Asif and Muhammad Aslam alias Mehnga by mentioning their names in column No.3 of said report. On 16.02.2016 he claimed to have arrested
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eight accused persons including Muhammad Aslam, Muhammad Amjad, Muhammad Iqbal, Habib, Rabnawaz, Muhammad Zafar, Muhammad Usman and Fazal Abbas and after interrogation concluded that they were neither present at the place of occurrence nor made any firing, however, they abetted the occurrence and prepared report under section 173, Cr.P.C. to their extent on 04.03.2016 by placing their names in column No.2. According to PW.17 accused Zahoor (already declared P.O) was arrested by Mushtaq S.I. on 18.10.2016, who during investigation after making disclosure got recovered gun 12-bore repeater (P.20) along with five alive cartridges (P.21/1-5) which he secured vide recovery memo Exh.PU. On 05.11.2016 he prepared report under section 173, Cr.P.C. by mentioning the name of accused Zahoor in column No.3. Appellants along with acquitted accused were indicted for the offences under sections 302, 324, 337-A(i), 337-D, 337-F(ii), 337-F(iii), 337-F(vi), 337-L(2), 109, 148, 149, P.P.C. They pleaded not guilty and the trial commenced. 4. At trial, eighteen PWs were got examined whereas Masood Akhtar 1508/C, Muhammad Altaf, Haji Abdul Rauf, Hassan Sher, Muhammad Iftikhar, Mumtaz 871/C and Zahid Abbas, 803/C were given up being unnecessary. 5. Ocular account in this case was furnished by Qadir Bakhsh (PW.12), Mubashar Rehman (PW.13), Khadam Hussain (PW.14) and Haq Nawaz (PW.15). Parvez Ahmad 1853/C (PW.5) was witness of recoveries got effected from accused Imran alias Mani and Arif alias Haji. Sadaqat Ali (PW.6) is witness of recovery got effected by accused Rab Nawaz. 6. Medical evidence in this case was furnished by Dr. Shahid Akhtar (PW.1) and Dr. Muhammad Yousaf Siddiqui (PW.18). on 31.10.2015 Dr. Shahid Akhtar medically examined Mubashar Rehman injured and noted the following injuries on his person:- i. A multiple firearm wound on top of head average size is about 0.5 x 0.5 cm. ii. A lacerated firearm wound of entry measuring 2.5 x 1 c.m. on upper part of right hip bone. Bone not exposed. No would of exit. iii. Lacerated firearm wound of entry 0.5 x 0.5 c.m. on back of right forearm. There is no wound of exit. No Burning. According to PW.1, probable duration of injuries was about half hour and all the injuries were kept under observation for C.T. Scan, X-ray and ultra sound. He opined that there was no possibility of fabrication and all the above said injuries were by firearm weapon. Exh.PA is correct carbon copy of the Medico Legal Certificate and Exh.PA/1 is that of pictorial sketch. On the same day at 06:00 p.m. he also medically examined Khadam Hussain and noted following injuries:- i. Incised wound measuring 1cm x 0.5 cm on front of head. ii. Crushed wounds due to firearm burst on lower left forearm. Both radius and ulna were severly crushed and fractured. There was slight burning on wound. iii. Incised wound measuring 1.5 x 1 cm near left eyebrow. iv. Swelling measuring 4cm x 3cm on upper part of right shoulder and lower arm. In his opinion, injuries No.1 and 2 were declared as Shajjah Khafifa and injuries No.2 and 4 were kept under observation for x-rays of left forearm and right shoulder. Probable duration of injuries was about half hour. Exh.PB was carbon copy of Medico Legal Report and ExhPB/Z was pictorial diagram which bears his signature and seal. Muhammad Sajid, injured was also medically examined by Dr. Shahid Akhtar (PW.1) on 31.10.2015 at 06:15 p.m. who noted following injuries: i. Firearm wound of entry 0.5 x 0.5 cm on upper part of right back. No burning tattooing. ii. Incised wound measuring 3 cm x 1 cm on right upper back. Injuries were kept under observation for x-rays of chest. According to doctor, probable duration of injuries was about half hour and there was no possibility of fabrication. Exh.PC was carbon copy of Medico Legal Report and Exh.PC/1 was that of pictorial diagram.
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Postmortem examination of Muhammad Ashraf (deceased) was conducted by Dr. Shahid Akhtar (PW.1) on 31.10.2015 at 10.15 p.m who noted following injuries on his person: i. Lacerated wound 4cm x 3cm on index finger of right hand. It was also fractured. ii. Lacerated wound 3 cm x 1cm on base of right thumb. Bone ix exposed. iii. Lacerated wound 4cm x 4cm on outer side of right hand. Bones were fractured. iv. Lacerated firearm wound measuring 6.3 cm x 1cm on right side of outer part of chest with burning and tattooing. Bleeding profusely and ribs were fractured. Right lung was severely damaged. No wound of exit. v. 4cm x 1cm lacerated wound on right side of outer part of chest. Ribs were fractures. vi. Lacerated firearm wound 1.5 x1.5cm on upper part of right side of chest with blackening and tattooing. vii. Lacerated firearm wound 10cm x 2cm on right side of neck and face with burning and tattooing present. viii. Lacerated wound 6cm x 4cm on right side of face including right ear+pinna was badly damaged. Facial bones and right mandible were fractured. ix. Lacerated wound 10cm x 6cm on back of left forearm. Radius and ulna were fractured. x. Lacerated wound of firearm measuring 0.5x0.5cm on upper part of left forearm with blackening and tattooing. xi. Lacerated firearm wound of entry measuring 0.5x0.5cm on front of left thigh but no wound of exit. A metallic foreign body was recovered from site of injury No.4. In his opinion, injuries No.3, 4, 5, 6, 7 and 8 were cause of death due to excessive blood loss shock and cardiopulmonary arrest. These injuries were ante mortem in nature and were sufficient to cause death in ordinary course of life. Probable duration between the injuries and death was immediate and between death and postmortem was about 5 hours. Exh.PD was correct carbon copy of postmortem report and Exh.PD/1(1-2) was that of pictorial diagram. Dr. Shahid Akhtar (PW.1) also conducted postmortem examination on the dead body of Muhammad Sher and noted following injuries: i. A lacerated wound measuring 8cm x 2cm on right side of heard. 9cm from right ear. Skull bones were fractured and on dissection meanings of brain and brain matter was badly damaged. Metallic foreign body was recovered from skull. ii. Lacerated firearm wound of entry measuring 0.5cm x 0.5 cm on lower part of right shoulder with burning and tattooing. iii. Lacerated wound of exit measuring 1cm x 1cm on upper part of right shoulder. iv. Lacerated wound measuring 3cm x 1cm on ring finger of left hand. Fracture of ring finger of left hand. v. Lacerated wound measuring 2cm x 1cm on right back bleeding profusely. vi. Lacerated wound measuring 4cm x 2cm on right back. Bleeding profusely. According to doctor injury No.1 was the main cause of death due to head injury damaged the membranes and brain matter. These injuries were ante-mortem in nature and sufficient to cause death in ordinary course of life due to cardiopulmonary arrest and death. Probable duration between injury and death was immediate and between death and postmortem was about 6 hours. Exh.PE was correct carbon copy of postmortem report and Exh.PE/1(1-2) was that of pictorial diagram which bears his signature and seal. According to Dr. Shahid Akhar (PW.1) he also conducted autopsy on the dead body of Tahir Abbas (deceased) on the same date at 11:45 p.m. and noted following injuries: i. Lacerated firearm wound of entry 1.5 cm x 0.5 cm on left side of chest near left nipple at level of heart with burning. ii. Lacerated firearm wound of exit measuring 5cm x 4cm near left side of neck.
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iii. Lacerated wound of entry measuring 0.5cm x 0.5cm in the middle of chest with burning. iv. Lacerated wound 2cm x 1cm in the inner side of left forearm. v. Lacerated wound of entry 0.5cm x 0.5cm on left shoulder with burning. vi. Lacerated wound 3cm x 2cm in the middle of back bleeding profusely (exit wound of injury No.3). vii. Lacerated wound measuring 1cm x 1cm on right back (wound of entry). viii. Lacerated wound of exit 4cm x 2cm on left back. (exit wound of injury No.7). ix. Lacerated wound 6cm x 2cm on the back of neck. Cervical Vertebra is broken. Opinion of Dr. Shahid Akhtar (PW.1) was as under: "In my opinion, injuries No.2, 3, 6, 8 and 9 are main cause of death. Injury No.3 was at heart level badly damaged heart. There was profession of blood from these injuries. This led to shock and cardiopulmonary arrest and death. These injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature. Probable time that elapsed between injury and death was immediate and between death and postmortem was about 7 hours. Probable time that elapsed between injury and death was immediate and between death and postmortem was about 7 hours." 7. Muhammad Ashraf, A.S.I. (PW.2) was witness of recovery got effected from the appellants. Muhammad Khalid 344/MHC (PW.3) being Moharar received case property for safe custody in Maalkhana. Nasar Hayat (PW.4) identified the dead body of Tahir Abbas deceased. Muhammad Hafeez, Draftsman (PW.5) prepared scaled site plan Exh.PL and Exh.PL/1. Saji Ullah (PW.6) collected mobile data of 8 accused persons and handed over to Masood Akhtar 1508/C. Masood Akhtar (PW.7) escorted dead bodies of deceased persons to hospital. Arshad Hussain, A.S.I. (PW.9) deposited three sealed parcels of blood stained earth in the office of Punjab Forensic Science Agency, intact. Nasar Hayat (PW.10) identified dead body of Muhammad Sher deceased. Muhammad Razzaq, A.S.I. (PW.11) deposited in the office of Punjab Forensic Science Agency sealed parcel of repeater 12-bore along with five alive cartridges. Mushtaq Ahmad, S.I. (PW.16) arrested accused Zahoor on 18.10.2016. Rest of the witnesses are formal in nature. 8. Learned Deputy District Public Prosecutor after tendering in evidence reports of Punjab Forensic Science Agency regarding firearms (Exh.PHH) and (Exh.PJJ), closed prosecution evidence. 9. Statements of appellants and the accused who were acquitted were recorded under section 342, Cr.P.C on 09.05.2019. All of them controverted and denied the allegations of facts so put to them from the evidence of PWs and mainly professed their innocence. The appellants did not opt to appear as their own witness under section 340(2) Cr.P.C., however, some of them opted to produce defence evidence and learned defence counsel by producing copy of application by the complainant to DPO, Sargodha for recovery of two repeaters, bags, sixty cartridges and a license as Mark-A, copy of statement of Muhammad Ashraf s/o Haji Abdul Rehman as Mark-B, copy of complaint under section 324, 148, 149, Police Station Shahpur City as Mark-B/1, copy of report No.17 dated 24.08.2014 of Police Station Shahpur City as Mark-B/2, copy of F.I.R. dated 24.08.2014 u/s 324, 148, 149, P.P.C., Police Station Shahpur City, mark-B/3, certified copy of F.I.R. dated 03.02.1973 under section 307, 34, P.P.C. Police Station Shahpur Sadar, Esh.DD, certified copy of F.I.R. No.62 dated 19.03.1973 u/s 307, 320, 34, P.P.C. , Police Station Shahpur Sadar as Exh.DE, certified copy of F.I.R. No.130 dated 18.07.2005, under section 302, 324, 148, 149, 109, P.P.C., Police Station Shahpur Sadar Exh.DF, certified copy of F.I.R. No111 dated 05.09.2004, under section 302, 324, 34, P.P.C., Police Station Shahpur City Exh.DG, certified copy of complaint titled Qadir Bakhsh v. Muhammad Ijaz and others under section 302, 324, 148, 149, P.P.C., Police Station Shahpur City as Exh.DH, certified copy of application under section 22-A and 22-B Cr.P.C. for registration of case Exh.DI, certified copy of report of RESCUE 1122 with regard to the occurrence dated 31.10.2015 as Exh.DJ closed defence
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evidence vide his statement recorded on 13.05.2019. In answer to the question "Why this case against you and why the PWs deposed against you", all the appellants replied as under:- "I have been falsely implicated in this case and the PWs have deposed against me being close relative of one Allah bakhsh since dead, head of his party and main opponent and rival of Qadir Bakhsh complainant. Detailed answer had been given in response to question No.2." 10. On conclusion of trial, appellants were convicted and sentenced as detailed in the opening paragraph of this judgment. 11. We have heard learned counsel for the parties, learned Deputy Prosecutor General and gone through the record with their able assistance. 12. The tragic incident in which three persons lost their lives and three became seriously wounded as per prosecution case took place on 31.10.2015 at about 04:30 p.m. and F.I.R. was shown to be lodged at 05:00 p.m. on the same day on the statement of Qadir Bakhsh and after registration of case Imtiaz Ahmad S.I. (PW.17) said to have proceeded to the spot along with other officials and on his arrival he found three dead bodies lying at the spot whereas Mubashar Rehman, Khadim Hussain and Muhammad Sajid injured were already sent to THQ Hospital Shahpur Saddar for medical treatment. Haq Nawaz (PW.15), however, during the course of his examination-in-chief stated that they took the injured from the car and then police reached at the place of occurrence and police took the injured to hospital on rickshaws. Qadir Bakhsh (PW.12), in his examination-in- chief stated that after the occurrence when accused persons managed their escape good from the spot, he along with Haq Nawaz and Muhammad Altaf attended the injured and deceased. According to him, Sajid Butt, Khadim Hussain and Mubashar Rehman when were attended by them, they were in serious injured condition and shifted to hospital for medical treatment. According to PW-12, he after leaving Haq Nawaz and Muhammad Altaf with the dead bodies went to police station to report the matter. This PW, during the course of his cross-examination contradicted his own stance qua shifting of injured to hospital for treatment in the way that during the course of cross-examination, he deposed that police reached at the place of occurrence at about 5:00 P.M and when police reached at the place of occurrence, the injured were there in senses and crying and they were transported through a rickshaw to hospital in the company of police. If it was so, then non-recording of any statement of the witnesses including three injured persons at the spot would indeed be fatal to the prosecution story qua the presence of complainant and PWs at the spot. One of the injured witnesses namely Mubashar Rehman when appeared as PW-13, he in his examination-in-chief merely gave a vague statement qua the shifting of injured witnesses including himself to hospital for medical treatment; he did not state at all the mode, manner and the persons who shifted them to hospital. He, however, during the course of his cross-examination stated that having received…
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