2025 PLP 1442 (YLR)

Muhammad Amjad Rafiq, J.

For committing murder of Maratab Ali, brother of the complainant and causing injuries on the persons of Amir Ali and Muazzam Ali, Appellant, Shahzad alias Sajjad alias Suli along with Muhammad Ishtiaq, Abdul Ghaffar and Ali Hassan alias Kalu was tried by the learned Additional Sessions Judge, Lahore in a private complaint under sections 302, 324, 34 P.P.C. emanating from FIR No.1984 dated 02.10.2018 under sections 302, 324, 34 P.P.C. registered at Police Station Kahna District Lahore and on conclusion of trial, the learned trial Judge while acquitting Muhammad Ishtiaq and Abdul Ghaffar and abating the proceedings to the extent of accused Ali Hassan (since died) vide judgment dated 30.11.2021, convicted and sentenced the appellant as under:- i). Under section 302 (b) P.P.C.: Imprisonment for life along with payment of Rs.5,00,000/- as compensation under section 544-A Cr.P.C to the legal heirs of deceased Maratab Ali recoverable as arrears of land revenue. In case of default, the convict was to undergo further simple imprisonment for six months. ii). Under section 324 P.P.C.: Rigorous imprisonment for seven years along with payment of fine Rs.50,000/-. In case of default, the convict was to undergo further simple imprisonment for three months. iii). Under section 337-D P.P.C.: For payment of arsh equal to 1/3 of diyat for the year 2021-22 i.e. Rs.14,20,000/- to injured Muazzam in toto or within a period of five years in installments. In case of non-payment, the convict shall be kept in jail and dealt with the same manner as of simple imprisonment. iv). Under section 337-F (i) P.P.C.: For payment of Daman Rs.10,000/- to injured Amir in lump sum or in installments within a period of five years. In case of non-payment, the convict shall be kept in jail and dealt with the same manner as of simple imprisonment. All the sentences were ordered to run concurrently. Benefit of section 382-B of Cr.P.C was extended to the convict/appellant. Being aggrieved with his above conviction and sentence, the appellant has filed this appeal. Whereas, the complainant has filed Criminal Revision No.81549 of 2021 for enhancement of sentence of the appellant and also a separate petition for special leave to appeal bearing No.81548 of 2021 against the acquitted accused. All the matters are being decided together through this single judgment.

2. Brief facts of private complaint (Exh.PA) filed by Nazar Hussain are that on 02.10.2018 at about 2:45 p.m. when complainant Nazar Hussain (PW.1) along with his younger brother namely Muratab Ali (deceased) was on his way to Haveli from house, they saw appellant along with his companion who in order to take over the possession of State land illegally were constructing a boundary wall over there and on forbidden by complainant and his brother, they became infuriated and on raising lalkara of Abdul Ghaffar (since acquitted), Sajjad Ali (convict) rushed to home in order to pick up rifle, accused Hassan Ali (since died) caught hold his brother Maratab Ali (deceased), in the meantime, Ishtiaq Ali and Abdul Ghaffar (acquitted accused) took brother of the complainant to their house while giving beating. Upon hue and cry of the complainant, witnesses Muazzam, Abid Ali and Amir attracted at the spot and when the complainant along with his brothers came forward to rescue their younger brother Maratab Ali, appellant Sajjad Ali alias Suli made a straight fire which hit on belly of Maratab Ali who fell on the ground; after that Sajjad Ali made repeated straight fires which hit on belly of Muazzam and leg of Amir who fell down. Said accused also made firing upon complainant and Abid Ali who escaped luckily. Accused Ishtiaq made aerial firing with pump action and they by spreading terror left the place of occurrence. Motive behind the occurrence was that of forbidding the accused persons from making illegal constructions over the State land. The complainant reported the matter to local police through a written application (Exh.PA), upon which FIR (Exh.CW-2/1) was registered, however, during investigation, accused Hassan Ali (since died) was not found involved in the occurrence, whereas, Shahzad alias Sajjad alias Suli (appellant), Muhammad Ishtiaq and Abdul Ghaffar (since acquitted) were placed in column-III of report under section 173 Cr.P.C; upon which complainant filed private complaint (Exh.PB) by narrating the same story as written down in FIR (Exh.CW-2/1).

3. After recording of cursory statements accused were summoned, charge was framed against them who denied the occurrence and claimed to be tried.

4. At the trial, prosecution examined as many as thirteen witnesses out of whom evidence of complainant, Nazar Hussain (PW.1), Muhammad Amir (PW.2) and Mauzzam Ali (PW-3) both injured witnesses, Muhammad Shafiq (PW.5) and Muhammad Imran (PW-6) both recovery witnesses, Dr. Saqib Nadeem (CW-4), who conducted examination of injured and Dr. Imran Nausher (CW.5) who conducted postmortem examination of body of deceased are of great significance and rest of the prosecution witnesses are formal in nature. Prosecution after tendering Forensic DNA, Serology Analysis report and firearms and tool marks examination report closed its evidence. Statements of accused under Section 342 Cr.P.C were recorded wherein they denied the prosecution version and though they all did not opt to record their own statements under Section 340(2) Cr.P.C. however, Sajjad alias Suli appeared as DW.3 and also produced Mst. Shakeela Bibi (DW.1), Mst. Najma Bibi (DW.2) in his defence. Ultimately, accused/appellant was convicted and sentenced as detailed in the opening paragraph, whereas, co-accused were acquitted.

5. Arguments heard. Record perused.

6. During arguments, learned defence counsel stated that in fact appellant being Mutwali of Darbar Baba Bulhay Shah was preparing for celebrating Urs which was objected by the complainant party and mounted assaulted upon them and during that occurrence, they have outraged the modesty of women of accused party, damaged their house, therefore, accused/appellant in retaliation resorted to firing to save his ladies, therefore, by all means, it is an occurrence erupted at the spur of the moment and in such circumstances, the appellant, at the most, could be convicted under section 302(c) P.P.C. and not under section 302(b) P.P.C.

7. It has been observed that none has entered into investigation in support of such contention though it was first version of accused before the Investigating Officer as conceded by Munir Ahmad ASI/L.O. (CW-7). Though defence has produced two DWs and appellant also appeared as his own witness and deposed that on 02.10.2018, deceased came in front of their house and forbade them from cleaning the street, gave slap on his face, they grappled and people separated them; after 25/30 minutes complainant being armed with pistol along with his companions namely Zubair, armed with pistol, Jamshed armed with Sariya, Abid and Sakhwat armed with iron rod, Amir armed with Kundala, Miraj armed with Daang and Muazzam with hatchet came there, broken the door and trespassed into the house; upon which, he bolted the door and his wife and sister sought forgiveness but they had given kick blows on the women of his house, committed torture upon them, torn their clothes, Maratab Ali (deceased) made 3/4 fire shots, dragged the women outside the house; upon which the appellant came out of room and made fire shot with his licensed weapon as he had lost control of his mind but during cross-examination, appellant (DW.3) admitted that he neither moved any application in this respect to the police nor filed private complaint and did not make any statement before the Sessions Court that he made fire shots on the person of Maratab Ali at the time of occurrence in self defence. He further admitted that even he did not try to call his relatives to resolve the matter when deceased left the place of occurrence after insulting him. The defence also failed to produce any medical in order to establish torture committed upon women of house of the appellant by the complainant side nor produced the torn clothes. Mst. Shakeela Bibi (DW-1), produced by the defence though deposed that Maratab Ali made 3/4 four fire shots on the door of the room of the house but recovery of such empties was not proved nor any effort in respect of such recovery was made as she admitted that she did not get her statement recorded before any forum except the court. Even the fact of grappling of appellant with the deceased was also not proved as deposed by the DWs because it finds no support from the postmortem of deceased due to absence of blackening in the injuries. This witness further admitted that she and Mst. Najma Bibi (DW.2) did not ask any police officer to take them to hospital for their medical examination, therefore, stance of appellant regarding torture committed upon the women of his house is also not established. The other witness namely Mst. Najma Bibi (DW.2) produced by the defence deposed that she along with her sister-in-law went to the office of Punjab (sic) and moved applications before the higher forum and also produced photocopy of said applications Mark-A and Mark-B but she admitted that such applications do not contain any diary number or name before whom same were moved. She though deposed that she moved applications (Exh.-DW.2/A and DW.2/B), however, perusal of such applications shows that they were addressed to Inspector General of Police, Punjab and Chief Minister, Punjab but original copies of such applications were not brought on record nor any witness was summoned to authenticate/verify the contents of such application, therefore, they cannot be considered as evidence in this case. Learned Additional Sessions Judge had wrongly admitted them into evidence. It was the stance of appellant that when Maratab Ali (deceased) was making aerial firing, appellant tried to snatch rifle but during grappling, fire hit on the body of deceased but according to postmortem report, deceased received ten firearm injuries on his person, therefore, such stance of the defence could also have not been proved. Therefore, by all means, defence of the appellant is after though which is rejected in toto.

8. On ocular account, prosecution has examined complainant, Nazar Hussain (PW.1) who deposed that on the alleged day of occurrence at the relevant time when he along with his brother Maratab Ali was going to their Haveli, accused persons were making illegal constructions over state land and on their forbade, accused Abdul Ghaffar raised lalkara, upon which Shahzad alias Sajjad alias Suli rushed to take rifle, rest of the accused namely Ali Hassan, Ishtiaq and Abdul Ghaffar took the deceased to their house and in the presence of complainant as well as other eye-witnesses appellant made straight fire of rifle which hit on belly of Maratab Ali who later succumbed to the injuries, whereas, Amir (PW.2) and Muazzam (PW.3) also received firearm injuries on their persons by the hands of appellant. Amir (PW.2) and Muazzam (PW.3) also deposed in the same lines as stated by complainant (PW.1). In their statements all the three witnesses fully involved the appellant with specific role. They were subjected to lengthy cross-examination but nothing favourable to defence could be extracted their mouths. Presence of eye-witnesses at the place of occurrence is admitted as same has not been objected, therefore, in such situation their testimony being natural witnesses can safely be relied upon.

9. Medical evidence is in line with the ocular account. The role assigned to the appellant by the eye-witnesses is confirmed through the postmortem report of the deceased as well as medico legal certificates of the injured/PWs and statement of Dr. Imran Nousher (CW-5) who conducted postmortem of the body of deceased, found injuries Nos.1-A to 10-A on his person; all the injuries were ante-mortem in nature, caused by firearm weapon and in his opinion injuries Nos.6 and 7 were sufficient to cause of death in ordinary course of nature which were attributed to the appellant. The other witness Dr. Saqib Nadeem (CW-4) who conducted the medical examination of injured witnesses namely Muazzam Ali and Amir had found a firearm injury on the person of Muazzam Ali measuring "1 cm x 1 cm at left flank, just above left inguinal region", such injury was declared as Jaifa and on examination of Amir he found injury No.1 a firearm injury measuring "05 cm x 0.75 cm at front of left thigh, about 06 cm above knee joint, with inverted margins" and its exit "01 cm diameter at posterior aspect of left thigh with everted margins" also corroborates the ocular account. Both these witnesses confirmed the role of causing injuries on the persons of injured PWs set by the prosecution through ocular account and during cross-examination, defence could not bring anything from their mouths adverse to the prosecution story. Therefore, by the statements of these two CWS prosecution has also proved its case through the medical evidence.

10. Weapon of offence (rifle 224-bore) along with live bullets (p/1-4) was recovered on the disclosure of convict-appellant which lends support from the statements of Muhammad Shafique/3884-C (PW-5) and the statement of other witness of recovery namely Muhammad Imran/C (PW.6) who deposed that on 02.10.2018, I.O. took into possession 11 cartridges of rifle 244-bore through recovery memo. (Exh.PF) and blood of deceased from the place of occurrence; weapon of offence along with recovered bullets and cartridges were sent to office of PFSA for analysis and report of PFSA (Exh.PJ) in this respect is positive, therefore, recovery effected from the accused also corroborates the ocular account.

11. Though motive was not proved, that was the reason learned trial court has considered the case of the appellant as one attracts mitigation yet his culpability has not been disturbed by the trial court nor this Court has found any loophole in the evidence to differ with the observation of the learned trial Court.

12. For what has been discussed, I am of the considered view that the prosecution has been able to prove the charge against the appellant through cogent, reliable and confidence inspiring evidence. The evidence available with the prosecution in the shape of ocular as well as medical account and recovery is sufficient enough to connect the appellant with the murder in issue. In such circumstances, I have no legitimate exception to differ with the conclusion arrived at by the learned trial Court qua the conviction and sentence of the appellant. As the prosecution has proved the charge against the appellant through the ocular account, medical evidence as well as through the recovery, therefore, by relying upon the case reported as "Ghaffar Ali v. The State and another" (2021 SCMR 354) and on another case reported as "Zahid Iqbal v. The State (2017 SCMR 1543), this appeal is dismissed. Conviction and sentence recorded by the learned trial Court are upheld in the circumstances.

13. Criminal Revision bearing No.81549/2021 for enhancement of sentence of the appellant is also dismissed.

14. So far as the criminal PSLA filed against acquitted accused is concerned, though they were present at the place of occurrence yet no specific role was given to them by the prosecution, therefore, learned trial court while extending the benefit of doubt had rightly acquitted them. Thus, P.S.L.A. No.81548/2021 also stands dismissed. JK/S-16/L Appeal dismissed.