MURDER REFERENCE NO.43/2007.
CRIMINAL APPEAL NO.234/2007.
CRIMINAL REVISION NO.245/2007.
1
JUDGMENT SHEET
IN THE LAHORE HIGH COURT,
BAHAWALPUR BENCH, BAHAWALPUR.
(JUDICIAL DEPARTMENT)
MURDER REFERENCE NO.43/2007.
IFTIKHAR AHMAD, ETC. VS. THE STATE.
CRIMINAL APPEAL NO.234/2007.
ZAFAR IQBAL VS. ALTAF HUSSAIN.
CRIMINAL APPEAL NO.245/2007.
JUDGMENT
DATE OF HEARING: 20.10.2010.
APPELLANTs BY:
Mian Muhammad Tayyab Watoo and
Malik
Sadiq
Mehmood
Khurram,
Advocates.
RESPONDENT BY:
Mian Muhammad Afzal Watoo, Advocate
for the complainant.
Malik Muhammad Latif, Deputy Prosecutor
General.
…………………………………………………….
MUHAMMAD QASIM KHAN, J: - Iftikhar Ahmad alias
Taroo and Istikhar alias Papoo accused/appellants along with
co-accused were tried by learned Additional Sessions Judge,
Haroonabad in case FIR No.50/2006 dated 28.02.2006 police
station Khichiwala and on conclusion of trial vide judgment
dated 1.11.2007 the remaining co-accused were acquitted of the
charges against them, whereas, Iftikhar alias Taroo and Istikhar
alias Papoo were convicted under section 302(b)/34 PPC,
Iftikhar
was
sentenced
to
death,
whereas,
Istikhar
was
sentenced to imprisonment for life. Both were also directed to
pay Rs.100,000/- each to the legal heirs of deceased, in default
to further undergo S.I for six months, each. To challenge their
above conviction and sentence, Iftikhar and Istikhar have filed
Criminal Appeal No.234/2007, whereas, complainant has filed
Criminal Appeal No.245/2007 to assail the acquittal of coaccused and Murder Reference No.43/2007 has been sent by
MURDER REFERENCE NO.43/2007.
CRIMINAL APPEAL NO.234/2007.
CRIMINAL REVISION NO.245/2007.
2
the learned trial court in terms of Section 374 Cr.P.C. All these
matters are being decided by this single judgment.
2.
Briefly the facts of the case are that Zafar Iqbal
complainant got lodged the above FIR to the effect that on
28.2.2006 at about 6.00 p.m. he (the complainant) along with
his brothers Muhammad Amjad (deceased), Muhammad Afzal
and Muhammad Akram was present at his dera, when Iftikhar,
Istikhar armed with pistols, Altaf Hussain armed with 222-bore
rifle, Ghulam Jillani armed with hatchet along with three other
unknown persons armed with sotis came and challenged that
they had come to remove their notoriety. They hurled abuses,
the complainant and his brothers rushed towards the room, but
Iftikhar broke open the door and dragged out the complainant
and his brothers from the room Iftikhar fired a straight shot
hitting front \rigt side of chest of Amjad deceased. Istikhar fired
with his pistol which hit left upper arm of Amjad. Ghulam
Jillani inflicted hatchet blow at the left shoulder of Muhammad
Akram PW and then inflicted hatchet blow with its blunt side,
which hit Muhammad Akram PW on his right shoulder.
Muhammad Altaf accused fired with rifle 222 bore which hit left
upper arm of Zafar Iqbal complainant. Three unknown accused
persons also gave beatings to the complainant party by kicks
and fists. On hearing cries, Bashir Ahmad father of the
complainant,
Javaid
and
Muhammad
Yaqoob
PWs
were
attracted at the spot and accused decamped from the place of
occurrence. It was alleged in the FIR that aggression had been
launched on the abetment and with conspiracy of Ghulam
Ghaus and Asmat Ullah and motive was said to be that one
month
prior
to
the
occurrence,
Iftikhar
alias
Taroo
accused/appellant drunkard had struck his tractor with the
bicycle
of
Muhammad
Amjad deceased and
damaged
it
completely, due to which hot words were exchanged in between
them.
3.
On receipt of information about the commission of offence,
Ghulam Murtaza SI (PW-12) reached the place of occurrence,
MURDER REFERENCE NO.43/2007.
CRIMINAL APPEAL NO.234/2007.
CRIMINAL REVISION NO.245/2007.
3
recorded statement of the complainant, on the basis of which
formal FIR was chalked out. The Investigating Officer prepared
injury statement of Zafar Iqbal Ex.PN/1, injury statement of
Muhammad Afzal Ex.PO/2, injury statement of Muhammad
Akram Ex.PM/1, recorded statements of the witnesses and also
prepared injury statement of Muhammad Amjad Ex.PL/2.
Injured
were
sent
to
Hospital.
The
Investigating
Officer
inspected the site, took blood stained earth Ex.PC, secured two
empties of 30-bore P-1/1-2, two live cartridges P-2/1-2 and a
magazine of 30-bore along with five live cartridges P-3/1-5 vide
recovery memo Ex.PB, prepared rough site plan Ex.PQ.
Subsequently, he received information about the death of
Muhammad Amjad, whereupon, he proceeded to Hospital,
prepared inquest report Ex.PQ/3 and handed over the dead
body for post mortem. After post mortem, last worn clothes of
deceased i.e. Kameez P-4, Shalwar P-5 and Vest P-6 were taken
into possession vide memo Ex.PD. On 3.3.2006 complainant
and witnesses got recorded supplementary statements. Accused
persons were arrested, Iftikhar got recovered pistol 30-bore P-7
taken into possession vide memo Ex.PE and Istikhar alias
Papoo led to the recovery of Pistol 30-bore P-22 along with two
live cartridges P-12/1-2 taken into possessions vide memo
Ex.PI. After completion of other necessary formalities towards
completion of investigation, the accused persons were sent up
to face trial.
4.
On receipt of challan, the accused were charge sheeted, to
which the pleaded innocent and trial commenced with framing
of charge. The prosecution produced its witnesses which
including the statement of Dr. Muhammad Saeed Qamar PW-11
who
apart
from
medically
examining
all
the
injured,
subsequently also conducted autopsy over the dead body of
Amjad Hussain deceased and found the following injuries on his
person:1-
A lacerated punctured wound 1 ½ x 1 cm
situated on anterior surface of upper part of
right side of chest, 4 cm below the clavicle, 11
MURDER REFERENCE NO.43/2007.
CRIMINAL APPEAL NO.234/2007.
CRIMINAL REVISION NO.245/2007.
4
cm from the proginence of right shoulder, edges
were inverted, no burning or blackening was
present. Corresponding cut was present in the
kameez.
2-
There were two lacerated punctured wound on
left upper arm 8 cm above the elbow joint.
a) 1 x 1 cm on anterior lateral surface of left
upper arm, edges were inverted, no burning
or blackening was present.
b) 2 x 1 cm on posterior surface, edges averted,
no burning or blackening was present. Cut in
Kameez were present.
3-
A small lacerated wound 1 x 1 cm on posterior
surface of left side of chest. No burning or
blackening was present.
On close of the prosecution evidence, the accused were
examined under section 342 Cr.P.C., wherein they refuted the
entire
prosecution
evidence
and
pleaded
innocent.
On
conclusion of the trial, above conviction and sentence was
recorded against Iftikhar alias Taroo and Istikhar alias Papoo,
whereas, rest of the co-accused were acquitted of the charges
against them.
5.
In support of this appeal, it has been argued by learned
counsel for the appellants that motive has not been proved in
this case, therefore, false involvement due to ulterior motive
cannot be ruled out; the appellant did not repeat the fire shot
and during the trial story of the prosecution has been found
doubtful, as co-accused whom injuries were attributed to the
injured PWs have been acquitted. This fact alone creates doubt
to the prosecution case and in these circumstances, case
against Iftikhar alias Taroo is not of confirmation of sentence of
dearth. So far as Istikhar alias Papoo accused/appellant is
concerned, it is argued that during investigation he was found
innocent, recovery does not implicate him and being brother of
the principal accused, chances of his false implication cannot
be ruled out, therefore, on the role of abundant precaution he is
entitled for acquittal as alleged injury is also not contributive to
MURDER REFERENCE NO.43/2007.
CRIMINAL APPEAL NO.234/2007.
CRIMINAL REVISION NO.245/2007.
5
the cause of death or alone causative, therefore, appeal to his
extent may be allowed.
6.
The learned Deputy Prosecutor General assisted by
learned counsel for the complainant opposed the above
submissions on the grounds that it is a case of prompt
registration of FIR, injured PWs have supported the prosecution
case, the occurrence took place in the house/Haveli of the
complainant party and accused/appellants acted in a barbaric
manner and caused dearth of the deceased and inflicted injuries
to the other PWs. It is further argued that Iftikhar alias Taroo
has caused fire shot to the deceased Amjad and report of the
ballistic expert is in the posititive, therefore, the prosecution has
fully proved its case and it is a fit case for confirmation of
dearth sentence. So far as case of Istikhar alias Papoo is
concerned, it has been argued that police opinion is not binding
on the courts and insignificant report of the ballistic expert
carries no value because recovery is always to be taken as
corroborative piece of evidence. Istikhar caused injury to the
deceased and it is a case of common object, therefore, by virtue
of section 149 or 34 PPC, he is to be treated equally responsible
as principal accused. The learned counsel for the complainant
has also challenged the acquittal of Altaf and Ghulam Jillani by
arguing
that
their
acquittal
has
been
based
on
a
PANCHAYATNAMA, to which the complainant is not the
signatory, therefore, possibility of false and fake preparation of
said PANCAYATNAMA cannot be ruled out, therefore, they be
convicted and sentenced.
7.
We have considered the arguments of learned counsel for
the parties and perused the record.
8.
It is not a case of deep rooted enmity. Previous incident of
damaging the bicycle of deceased Amjad was not even reported
to any forum and during investigation the police did not collect
evidence about the motive incident. Although, the motive is not
to be treated as sine qua non for proof or disproof of the
MURDER REFERENCE NO.43/2007.
CRIMINAL APPEAL NO.234/2007.
CRIMINAL REVISION NO.245/2007.
6
allegations, but it is established law that once a motive has
been set out then it become incumbent for the prosecution to
discharge its onus. Since the prosecution has failed to prove its
motive, therefore, prosecution has to suffer for the same.
9.
During investigation the story of the prosecution has not
been found correct in its totality and even otherwise, co-accused
Altaf and Ghulam Jillani have been acquitted of the charges, to
whom injuries to the PW have been attributed. This fact coupled
with other facts create doubt in the prosecution version. In
these circumstances, so far as Istikhar alias Papoo accused/
appellant is concerned, no fatal shot is attributed to him;
alleged recovery of weapon is insignificant because report of
ballistic expert is in the negative, injury attributed to him is on
non vital part of the body and same has not contributed to the
cause of death and he was also found innocent during
investigation, therefore, false implication of Istikhar alias Papoo
cannot be ruled out. As such, this appeal to the extent of
Istikhar alias Papoo is allowed, he is acquitted of the charges
against him and shall be released forthwith if not required in
any other case.
10.
So far as the case of Iftikhar alias Taroo is concerned, the
prosecution has miserably failed to prove the motive. This is not
a case of deep rooted enmity; therefore, in the circumstances of
the case, we feel it appropriate to reduce the quantum of
sentence from death to life, as such, while dismissing this
appeal to the extent of Iftikhar alias Taroo, his death sentence is
commuted
to
life.
The
amount
of
compensation
and
imprisonment in lieu thereof, as ordered by the learned trial
court, shall remain intact. Benefit of Section 382-B Cr.P.C. is
extended. The record of the trial court be sent back and the
case property, if any, be disposed of in accordance with law.
11.
For the same reasons, Criminal Appeal No.245/2007
against the acquittal of Altaf Hussain and Ghulam Jillani fails
and is dismissed.
MURDER REFERENCE NO.43/2007.
CRIMINAL APPEAL NO.234/2007.
CRIMINAL REVISION NO.245/2007.
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MURDER REFERENCE IS ANSWERED IN THE NEGATIVE.
SENTNECE OF DEATH IS NOT CONFIRMED.
(MUHAMMAD QASIM KHAN)
JUDGE.
(MAZHAR IQBAL SIDHU)
JUDGE.
APPROVED FOR REPORTING.
Javed*
MURDER REFERENCE NO.43/2007.
CRIMINAL APPEAL NO.234/2007.
CRIMINAL REVISION NO.245/2007.
8
JUDGMENT SHEET
IN THE LAHORE HIGH COURT,
BAHAWALPUR BENCH, BAHAWALPUR.
(JUDICIAL DEPARTMENT)
ZAFAR IQBAL VS. ALTAF HUSSAIN.
CRIMINAL APPEAL NO.245/2007.
JUDGMENT
DATE OF HEARING: 20.10.2010.
APPELLANT BY:
Mian Muhammad Afzal Watoo, Advocate
for the complainant.
Malik Muhammad Hanif, Deputy
Prosecutor General.
RESPONDNETS BY: Mian Muhammad Tayyab Watoo and
Malik
Sadiq
Mehmood
Khurram,
Advocates.
…………………………………………………….
MUHAMMAD QASIM KHAN, J: - For the reasons detailed
in our judgment of even date passed in connected Criminal
Appeal No.234/2007, this Criminal Appeal No.245/2007 fails
and is accordingly dismissed.
(MUHAMMAD QASIM KHAN)
JUDGE.
(MAZHAR IQBAL SIDHU)
JUDGE.
Javed*