1994 P Cr (PLP)

Date of hearing: 30th October, 1993. RAJA AFRASIAB KHAN, J: -- The appellants, Zahid alias Gudda (23) (hereinafter to be called as Zahid), Faisal (23) and Tallat Mahmood (28) alongwith 11 others were tried by Mr. Justice (Retd.) Gulbaz Khan, learned Judge, Special Court for Speedy Trials No.II, Lahore in a case registered against them under section 302/324/34, P.P.C. The learned Judge convicted Zahid under section 302(b)/34, P.P.C. and sentenced him to death. He was ordered to pay Rs.50,000 (Fifty thousand), as compensation to the legal heirs of Imran deceased. Zahid was also convicted under section 324/34, P.P.C. and sentenced to R.I. for ten years plus a fine of Rs.20,000 (Twenty thousand) or in default thereof to undergo further R.I. for two years. He was directed to pay a sum of Rs.20,000 (Twenty thousand) as compensation to Irfan, injured P.W. Faisal and Tallat Mahmood were convicted under section 302(b)/34, P.P.C. and sentenced to imprisonment for life. Both were ordered to pay Rs.50,000 (Fifty thousand) as compensation to the legal heirs of Imran deceased. Faisal and Tallat Mahmood were further convicted under section 324/34, P.P.C. and sentenced to R.I. for ten years and a fine of Rs.20,000 (Twenty thousand) each or in default thereof to suffer R.I. for two years on 25-1-1993. The remaining accused were, however, acquitted by the learned Judge vide the same judgment.

2. The convicts, Zahid, Faisal and Tallat Mahmood have challenged their conviction and sentence by filing appeals before this Court. We propose to decide the said appeals together by this judgment.

3. The brief facts, are that Mst. Saleem Akhtar (complainant) is residing with, her family in House No.3, Shahid Street, Ghulam Muhammad Road Ichhra, Lahore. On 11-9-1992 at about 10 p.m. her son Imran Afzal (19-1/2) an employee of P.IA. returned home after performing his duty. He asked for his dinner. At that time, Muhammad Arshad, a brother of the complainant and Arshad son of Nawab Din, a friend of the family were also present in the house. They started to take their dinner when the bell of the house rang. On the call, Imran Afzal left his dinner and went out. All of a sudden, the complainant heard abuses and noise coming from the street. The lady, her son Irfan Afzal and Arshad rushed to the street. Zahid, Faisal and Tallat Mahmood while armed with pistols were present right in front of her house. The accused were already known to the complainant. Tallat Mahmood shouted, whereupon Zahid fired which hit Imran Afzal on the left side of his chest. He was, thus, grievously injured. Second shot was fired by Tallat Mahmood at Imran Afzal, which luckily missed. Third shot was fired by Faisal which injured the left thigh of Irfan Afzal. The injured fell down. In response, the complainant party threw bricks in exercise of their right of self-defence. They also raised an alarm. Several people of the locality gathered at the spot. The accused while firing left the place in their Alto Suzuki car of red colour. Imran Afzal and Irfan Afzal were immediately taken in an injured condition to the Services Hospital, Lahore. However, Imran Afzal died on his way to the Hospital. Irfan Afzal was admitted for treatment in the Hospital. The occurrence was witnessed by Mst. Saleem Akhtar, Irfan Alzal, Arshad Pervaiz and Arshad. The motive is that on 11-9-199 in the evening, Imran Afzal and Irfan Af7A were coming by riding their motor-cycle, which hit Alto Suzuki car on the way, wherein Zahid and his brother Faisal were coming home. On account of this incident, both the parties traded hot words and abuses. The people intervened and separated them. Zahid and Faisal, while leaving, issued threats that they would take revenge of their insult very soon. After some time, Zahid alongwith other two companions came at the spot duly armed and committed the offences in furtherance of their common intention as already mentioned above.

4. Zafar Iqbal Gorsi, S.H.O. Police Station Ichhra (P.Ws.17) was in on patrol duty on 11-9-1992 at about 11 p.m. at Chowk Shama when he received information about the incident. He immediately went to Services Hospital where he recorded the statement ECh.P.A. of Mst. Saleem Akhtar and sent it to Police Station Ichhra through Muhammad Nasir F.C. On receipt of statement Exh.PA., Ghulam Abbas S.I. P.W.15 registered the formal F.I.R. Exh.PA./1 under section 302/324/34, P.P.C. The Sub-Inspector prepared the injury statement Exh.P.H. and inquest report Exh.P.I. of Imran Afzal deceased. The dead body was sent to mortuary through Akbar and Liaqat F.Cs. Thereafter, the Police Officer went to the spot where Arshad Pervaiz and Muhammad Irshad were present. There was a lot of light having been arranged in the street on account of observance of Eid Miladun Nabi. He picked up six empties of .30 bore and kept them in a sealed parcel vide memo. Exh.P.B. The Police Officer prepared a rough plan Exh.P.S. of the place of occurrence. He recorded the statements of Arshad Pervaiz, Muhammad Irshad, Manzoor and Shahid P.Ws. Nasir Constable produced before the investigator, blood-stained Shalwar P.8 of Irfan. It was taken into possession vide memo. Exh.P.T. Liaqat Ali, Constable produced T-shirt P.6, trousers P.2, belt P.3, underwear P.4, vest P.5 of the deceased Imran which were taken into possession vide memo. Exh.P.L. At this stage, the Sub-Inspector received information from the concerned doctor on 12-9-1992 disclosing that injured Irfan was in a position to make statement and as such, he recorded his statement. On instructions of the Police Officer, Imran Bukhari, Draftsman (P.W.9) prepared a site plan Exh.P.D. and its duplicate Exh.P.D./1. lie arrested Zahid, Faisal and Tallat on 7-10-1992. Dr. Aamar Ali Hussain Khan who conducted post-mortem examination upon Imran Afzal deceased was not available to depose evidence in Court because he had gone abroad. This being so, Syed Muhammad Shah, Junior Clerk/Record Keeper, Department of Forensic Medicines, K.E. Medical College, Lahore (P.W.10) was produced to prove the post-mortem examination of the deceased. He deposed before the Court that he had been working with Dr. Aamar Ali Hussain Khan and that he fully knew his writing and signatures. The witness, therefore, correctly identified the handwriting and signatures of Dr. Aamar Ali Hussain Khan. He testified that post-mortem report Exh.P.E., Diagrams Exhs.P.E./1 and P.E./2, were written and signed by Dr. Aamar Ali Hussain Khan. The details of the injuries are as follows:- (1) An abrasion measuring 2 c.m. x 3 c.m. on right chest. 1 c.m. below outer corner of right eye and 6 c.m. from midline. (2) A lacerated wound oval in shape 0.5 c.m. x 1.00 c.m. with inverted margins going deep, 11 c.m. below left nipple and 8 c.m. from midline (to left) on the left side of the front of chest with collor of abrasion on the lower margin. According to the doctor, the injuries were ante-mortem. The death took place on account of haemorrhage and shock as a result of injury No.2 which was sufficient to cause death in the ordinary course of nature. Dr. Farooq Mustafa AM (P.W.8) X-rayed the skull and chest of Imran Afzal observing that there was no injury in the skull. Dr. Hamid Rehman, medically examined Irfan Afzal at about 10-30 p.m. on 11-9-1992 and found the following injury on his person:--14 An entry wound of size 1 c.m. in diameter on the front of upper thigh on the left side. The doctor opined that the injury was fresh and it was caused by a fire-arm.

5. Eye-witness account was furnished by Mst. Saleem Akhtar (P.W.1), Irfan Afzal (P.W.2), Muhammad Arshad Pervaiz (P.W.3) and Manzoor Ahmad (P.W.4)

6. The appellant, Zahid, in his statement under f section 342, Cr.P.C. denied the allegations levelled against him. He made a detailed statement on oath under section 340(2), Cr.P.C. According to him, he was standing at the Chowk of Tariq Abad on 11-9-1992 at about 8 p.m. Zaheer and Arif (acquitted accused) came there by an Alto Suzuki car. They asked him to supply them wine. He went with them in their car to Shakir Road from where he supplied them liquor. After shopping, when they were just passing on Muhammad Ali Road, they come across, Imran (deceased) and Irfan (injured witness) who were going on their motor-cycle. Their motor-cycle hit the car of Arif and Zaheer, whereupon both the parties hurled insults at each other. Thereafter, Imran and Irfan left for their house. It was deposed by Zahid that Imran and Irfan accompanied by 8/10 boys came at the spot. They pulled out Zaheer and Arif forcibly from a room where they were sitting and gave them a severe beating. An information was conveyed to the appellants by a girl of the locality that a fight had taken place between his two friends and the complainant party. He disclosed that he shook hands with Imran (decease at the place of occurrence. According to his statement; Imran and Irfan were caught and brought by him to the Chowk of the Road. Many people of the locality had also gathered there and on their intervention, the dispute was patched up. However, after some time, when the accused party was passing through Muhammad, Ali Road, the complainant party was already lying in wait there. Imran huled filthy abuses at Altaf who, in a fit of anger, fired which hit Imran on his chest. On receipt of the injury, he fell down. The deceased according to him, received the fire-arm injury when he was neat his house and the junction of Shahid Street of Muhammad Road. Imran asked his brother Irfan to bring his double barrel gun whereupon Altaf fired a second shot which hit Irfan on his thigh. In short, this is how Imran Afzal met his death and Irfan Afzal was injured. The appellant Faisal also denied the allegations in his statement under section 342, Cr.P.C. He made a detailed statement on oath saying that he was innocent. His plea was that he was not present at the time of occurrence. Similarly, Tallat Mahmood convict in his statement under section 342, Cr.P.C. denied the allegations thereby pleading his innocence. He also made a statement on oath and took the plea that on the night of occurrence he was present with hi: family at his residence and that he had falsely been involved in this case. In support of this plea, the accused produced Munir Ahmad D.W.1, Master Muhammad Amin D.W.2, Abdul Karim D.W.3, Mushtaq Ahmad D.W.4 Muhammad Mumtaz Khan D.W.5, S, Qalb-e-Abbas, S.P. D.W.6 and Shafqaai Ahmad D.S.P., D.W.7. D.W.1 to D.W.3 deposed before the Court that Faisal the convict was with them at the time of occurrence. Similarly, D.W.4 and D.W.5 supported the plea of alibi, having been raised by Tallat that he was no present at the spot during the incident. The remaining D.Ws. are the polio officials and they did not depose anything substantial in support of the case o the appellants.

7. It is contended by the learned counsel that the prosecution ha miserably failed to prove its case beyond seasonable doubt against the appellants. According to learned counsel, it was a case of two versions. In such a situation, it is argued that benefit of doubt arising out of the case of the prosecution had to be given to the appellants. It is maintained that Muhammad Arshad Pervaiz and Manzoor Ahmad, P.Ws. did not support the prosecution case. It is, therefore, contended that no conviction can be registered on the basis of testimony of interested witnesses namely Mst. Saleem Akhtar an Irfan Afzal. It is also argued that only testimony of Irfan Afzal, an injure witness was not enough to convict the accused, unless the prosecution case was corroborated by evidence of unimpeachable character which, according to the learned counsel, was missing in the case. Learned State counsel and the learned counsel for the complainant have opposed the appeals by adopting the reasons already given by the learned trial Judge in his judgment.

8. We have heard the learned counsel for the parties at considerable length and nave also perused the entire record with their assistance. We do not find any substance in the arguments of the learned counsel for the appellants inasmuch as it is established beyond doubt that the occurrence did take place in hunt of the house of Mst. Saleem Akhtar, P.W.1. She has made a detailed statement, undoubtedly, implicating Zahid, Faisal and Tallat in the commission of the crime. She had testified that in the first incident abuses were exchanged by the parties. The threats with dire consequences were issued by the accused appellants that they would take revenge of their insult. In consequence of the first incident, the appellants reached the spot in their Alto Suzuki car of red colour full, prepared and armed with deadly weapons and rang the bell of her house. At that time, her sons, Imran Afzal, Irfan Afzal, her brother, Arshad Pervaiz and Irshad, their family friend were present in the house and eating their dinner. In response to the call, Imran Afzal went out. According to the complainant, on hearing the abuses, she rushed to the street alongwith other witnesses and saw the appellants, Zahid, Faisal anti Tallat standing in the street while armed with pistols. Zahid fired which injured Imran Afzal at his chest. Second shot was fired by Tallat at Imran, which, however, missed the target. Faisal also fired hitting Irfan Afzal at his thigh. This testimony of Mst. Saleem Akhtar appears to be truthful and as such reliable. In our view, she was materially corroborated by Irfan Afzal an injured witness. Irfan Afzal was grievously injured during the incident. His presence at the spot, therefore, cannot at all be doubted. The learned counsel for the appellants also did not dispute his presence at the place of occurrence. There also existed no reasonable grounds to disbelieve Muhammad Arshad Pervaiz. All these witnesses were subjected to lengthy cross-examination but they remained true and loyal to the prosecution case. The medical evidence would also lend corroboration to the prosecution story. The prosecution had succeeded to prove its case against Zahid and his brother Faisal beyond any shadow of doubt on the basis of overwhelming evidence available on record. The learned counsel contends that another version had surfaced during investigation which supported the case of defence. Learned counsel in support of his plea relies upon the evidence of Manzoor Ahmad and Shahid P.Ws. Shahid Ahmad P.W.5 did not support the prosecution case. It may be mentioned here that Shahid Ahmad P.W. was not mentioned as an eye-witness by the complainant in the F.I..Z. He was also not subjected to cross-examination by declaring him hostile. This would not mean that the other reliable and trustworthy evidence as already discussed above would altogether be discarded. The evidence of Shahid Ahmad had to be kept aside. The testimony of Manzoor Ahmad P.W.4 shall also pale into insignificance inasmuch as he was not mentioned as an eye-witness by Mst. Saleem Akhtar P.W. in the F.I.R. This being so, his evidence, would also be of no avail to the defence In these circumstances, we are, therefore, left with no alternative but to accept the version already given by Mst. Saleem Akhtar and corroborated by Irfan Afzal and Muhammad Arshad. It is proved beyond doubt that it was Zahid who fired and killed Imran Afzal in a brutal manner. Similarly, it is established that Faisal, the second appellant grievously injured Irfan Afzal. There is no evidence to suggest that there was previous enmity between the parties. The incident took place near the house of the complainant in consequence of an earlier incident having taken place between the parties. The statement of Zahid on oath, by implication, indicated B that he was present and participated in the occurrence. We, therefore, hold that the prosecution succeeded to prove its case against Zahid and Faisal beyond any shadow of doubt. Zahid, in our view, does not deserve any leniency because he murdered Imran Afzal, an innocent citizen in cold blood. He was, therefore, rightly convicted and sentenced to death. We, accordingly confirm his death sentence. Similarly, Faisal was rightly convicted and sentenced under section 302(b)/324/34, P.P.C. by the learned trial Judge. In these circumstances, the appeal of Zahid and Faisal is hereby dismissed.

9. The case of the appellant, Tallat Mahmood, however, stands on a different footing and is distinguishable. According to the prosecution evidence, he fired a pistol shot which did not injure any body and instead it hit a window of the house of the complainant. We have seen the site plan which does not indicate that any window of the house of the complainant was hit on account of fire alleged to have been made by Tallat Mahmood with his weapon. It is also in the evidence that he did not repeat the fire although he could do so. The prosecution could not succeed to bring home the charge to Tallat Mahmood beyond a reasonable doubt. Accordingly by giving benefit of doubt, the appeal of Tallat Mahmood is accepted and he is acquitted. He was set at liberty by our short order dated 30-11-1993. The above are the detailed reasons in support of the aforesaid order. N.H.Q./115/SAC Order-accordingly.