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Petitioner: KHADIM HUSSAIN and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Khizar Hayat Title: KHADIM HUSSAIN and others vs THE STATE Case No.: Criminal Appeal No. 80 of 1982 Date of Judgment:1984-02-14 Reported As: 1985 P Cr. L J 32 Result: Appeal accepted
JUDGMENT
JUDGMENT ' Khadim Hussain (34), Muhammad Sharif (22) and Bashir Ahmad (45) were tried and convicted by Additional Sessions Judge-VI, Sahiwal, for murdering Ranjha aged 20/22 years and making attempt on the lives of Nazar Muhammad and Muhammad Salim P.Ws. And sentenced to imprisonment for life plus fine of Rs, 2,000 each, in default of payment of fine one year's rigorous imprisonment each under section 302/34, P.P.C. And to 5 years' rigorous imprisonment and a fine of Rs, 1,000 each, in default to undergo 6 months' rigorous imprisonment each under section 307/34, P.P.0 vide judgment dated 28-1-1982. The convicts have filed joint Appeal (Cr. A. No, 80 of 1982) against their convictions and sentences. 2. The incident took place on 16-8-1978 at 7-30 p.m., in Killa No, 2, Square No, 48 of Basti Jhuggian Kundan Lal, in the suburbs of Pakpattan town, at a distance of about one mile from Police Station Pakpattan Sharif where report was made by Muhammad Salim (P.W.5) at 8-45 p.m., vide F.I.R. Exh. P.H. Recorded by S.I. Muhammad Bakhsh (P.W.9) who has since retired. 3. Mst. Bashiran mother of Muhammad Anwer and Nazar Muhammad P.Ws resident of village Daulatpur of district Sheikhupura owned some land in Basti Jhuggian Kundan Lal, district Sahiwal. She had a dispute about the ownership of about 2-3/4 Acres of land (descirbed as 22 Kanals in the F.I.R.) in Square No, 48 of the said Basti with All Muhammad father of Khadim Hussain, appellant. The parties fought for their claim over this land in various Courts. According to the F.I.R. The complainant party was in possession of the disputed land and about 7/10 days before the occurrence, Khadim Hussain, appellant, obtained a stay order and on the basis of that started making efforts to get possession of the said land. On the eventful day at 7-30 p.m., Muhammad Anwer and Nazar Muhammad P.Ws with their cousin Muhammad Salim (described as friend at the
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trial) and their servant Ranjha (deceased) were present in their tent fixed on the disputed land when Khadim Hussain and Muhammad Sharif armed with sticks and Bashir Ahmad with a pistol came in Killa No, 2 of Square No, 48 with a tractor in order to take possession of the land forcibly. Muhammad Salim, Muhammad Anwer, Nazar Muhammad P.Ws. And Ranjha deceased went up to them and stopped them from doing so whereupon Muhammad Sharif dealt Dang blows to Muhammad Salim (P.W.-5) and Khadim Hussain gave a stick blow to Nazar Muhammad (P.W.7). Muhammad Salim P.W, however, snatched Dang from Muhammad Sharif, appellant, and injured Khadim Hussain, appellant. At this, Bashir Ahmad fired at. Nazar Muhammad P.W. Hitting his leg. Ranjha, deceased, raised alarm who too was fired at by Bashir Ahmad, appellant, which hit the backside of his shoulder as a result of which. He fell down. They raised alarm which attracted Mistri Nazir Ahmad P.W. (not produced) and other villagers. Seeing them approaching all the appellants decamped with their weapons. Ranjha succumbed to his injuries then and there. Nazar Muhammad P.W. Was removed immediately to the hospital in an injured state. Muhammad Salim then went to the police station and lodged report Exh. P.H. S.I Muhammad Bakhsh after registering the F.I.R. Proceeded to the spot and started investigations. He found dead body of Ranjha lying in Killa No,22 of Square No,35, adjoining Square No,48. He collected blood from there and after preparing inquest report Exh. P.N and injury statement Exh. P.H/1 sent the dead body for post- mortem examination. 4. On the following day (17-8-1978) during the spot inspection the Sub-Inspector picked up crime empty P.4 from there. He arrested Khadim Hussain and Muhammad Sharif, appellants, the same day, and got them medically examined as they had injuries on their persons. Muhammad Salim P.W. Was also got examined medically. Khadim Hussain, appellant, and Muhammad Salim P.W. Produced a Dang each before him which were secured although they did not bear blood-stained. 5. On 1-9-1978 Bashir Ahmad, appellant, appeared before the Sub-Inspector and also produced .12 bore pistol P.6. He was arrested and the pistol was taken into possession vide memo. Exh. P.M. Site plan Exh. P.F. Was got prepared from Javid Majid Patwari (P.W.2) in triplicate on 16-9-1978. 6. The crime empty P.4 recovered from the spot on 17-8-1978 was sent to Forensic Science Laboratory on 31-8-1978 and the .12 bore pistol P.6 recovered from Bashir Ahmad, appellant, on 1-9- 1978 was sent to the Laboratory on 19-9-1978 for analysis and report if the empty P.4 had been fired from pistol P.6. Fire-arm Expert reported in positive vide his report (attested copy) Exh. P.U. The Chemical Examiner and the Serologist vide their reports Exh. P.S. And Exh. P.Y., respectively found the earth collected from underneath the dead body as stained with human blood. 7. Dr. Mushtaq Ahmad (P.W.1) conducted post-mortem examination on the dead body of Ranjha at 9 a.m. On 17-8-1978 and found following injuries thereon:- (1) A circular lacerated wound of entry I" x 1" on the left side of back of chest in the middle. On the internal examination I found a pellet lying in the sub-putaneous tissue on the left side of front of chest close to the middle, which was removed and sealed in a bottle and was handed over to the police. (2) A circular lacerated wound of entry i" x +" on the back of right ear with a lacerated wound of exit 1/3" x I" on the front of right ear. ' In the opinion of doctor these injuries were antemortem. Of them, injury No, 1 proved fatal and No, 2 was simple in nature. 8. On the same day, the same doctor medically examined Muhammad Salim and Nazar Muhammad P.Ws. He found a lacerated wound on the head of Muhammad Salim and an abrasion on his left shoulder caused with blunt weapon. On the person of Nazar Muhammad P.W. He found circular wound on the left buttock caused by fire-arm an abrasion on the shoulder and swelling on the back of the chest caused with blunt weapon which were of 12 hours duration and simple in nature.
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9. Muhammad Sharif and Khadim Hussain, appellants, were also examined by the same doctor on the same day, who noted three injuries on the person of Muhammad Sharif, i.e, a swelling on the left side of the head, a lacerated wound on the back of left hand and a red contusion on the back of left fore-arm caused with blunt weapon within duration of 24 hours. A fracture of his fore-arm was detected in X-Ray, so it was declared as grievous hurt and the rest as a simple. Khadim Hussain had three injuries, i.e,, a lacerated wound on the right side of head, a red contusion on the right side of chest and a swelling on the right thumb caused with blunt weapon of the same duration. 10. At the trial, nine witnesses were examined and the prosecution mainly relied on the ocular account furnished by Muhammad Anwer (P.W.6) and Nazar Muhammad (P.W.7); incriminating recoveries deposed to by Muhammad Anwer (P.W.6) and S.I. Muhammad Bakhsh (P.W.9); medical evidence provided by Dr. Mushtaq Ahmad (P.W.1) and the report of the Fire-arms Expert Exh. P.U. But this report has not been used by learned trial Judge against the appellants. It may also be stated here that Muhammad Salim, the first informant and an eye-witness of the occurrence was declared hostile and was cross-examined by the Public Prosecutor. 11. At the conclusion of the prosecution evidence Bashir Ahmad, appellant, denied his presence at the time of occurrence while Khadim Hussain and Muhammad Sharif, appellants, pleaded self- defence of person and property and put forth a counter-version which is embodied in answer to question No, 5 given by Khadim Hussain, appellant, reproduced as under:- "The land falling in Killa Nos. 1, 2, 9 and 10 in Square No, 48 in the area of village Jhuggian Kundan Lal, Tehsil Pakpattan Sharif, District Sahiwal was given to us by the order of the Honourable High Court, Lahore, as a result of compromise between Mst. Bashiran, mother of Muhammad (Anwer) and Nazar Muhammad P.Ws. And my father Ali Muhammad. The physical possession of this land was delivered to me by the field Revenue Staff at the spot through Kalba-Rani on 2-8-1978 and since then I was continuously in its cultivating possession. On the day of occurrence after sunset when it was sufficient dark Nazar Muhammad and Muhammad Salim P.Ws. Accompanied by Ranjha deceased, who was hired by them came to take forcible possession of the land in my possession. They caused injuries to me and my co-accused Muhammad Sharif. We acted in self- defence and the villagers also came at the spot on hearing the alarm. They helped us in maintaining our possession of the land in dispute. Ranjha deceased, who was a bad character of district Kasur was also hit by stray fire. My co-accused Muhammad Bashir was not present on the spot at the time of occurrence. The P.Ws mentioned above did not reside at all in any tent or house in the area of Jhuggian Kundan Lal, rather they are residents of village Doulat Pur in district Sheikhupura from where they came to take forcible possession." ' This statement was also adopted by Muhammad Sharif, appellant and none of them examined any witness in their defence. 12. Muhammad Salim, the first informant and an eye-witness of the occurrence who was declared hostile stated that he and his party fought with the appellants when they came there to plough the land. As a result both sides were injured but he could not say as to who had actually fired during the occurrence. Muhammad Anwer, the other eyewitness, stated that at 7-30 p.m., on the fateful day, he was sitting in his tent with his brother Nazar Muhammad P.W., his servant Ranjha (deceased) and Muhammad Salim P.W. When the appellants came there with a tractor. At that time Khadim Hussain and Muhammad Sharif, appellants, were armed with Sotas while Bashir Ahmad had nothing in his hand. Khadim Hussain tried to plough the land with tractor whom he (the witness), Ranjha (deceased), Nazar Muhammad and Muhammad Salim, (P.Ws.) prevented from doing so whereupon Muhammad Sharif, appellant, inflicted Dang blow to Nazar Muhammad P.W. At this, Muhammad Salim P.W. Snatched Dang from Muhammad Sharif. Khadim Hussain then inflicted Dang blow on the person of Nazar Muhammad P.W. And also asked Bashir Ahmad to open
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fire whereupon he fired a shot from his pistol which hit Nazar Muhammad P.W. Ranjha (deceased) raising hue and cry ran but he was also fired at by Bashir Ahmad who was hit in the back and had fallen down. He also deposed that crime empty P.4 recovered from the spot was seized and made into a sealed parcel. The same day, Khadim Hussain produced his Sota P.5 before the Investigating Officer. Some nine days after the occurrence Bashir Ahmad, appellant, appeared before the police at Nagina Chowk, Pakpattan, and produced pistol P.6 in his presence which was taken into possession by the Investigating Officer. In cross-examination he admitted that during the days of occurrence they had their residential house at Daulatpur but they resided on their land in Jhuggian Kundan Lal in a tent. They had agricultural land in village Daulatpur. He conceded that there had been long litigation between his mother Mst. Bashiran and All Muhammad father of Khadim Hussain appellant regarding the title of land comprising Killa Nos. 1, 2, 9 and 10 of Square No, 48 in Jhuggian Kundan Lal. He admitted that prior to the occurrence, during the proceedings in a writ petition (W.P. No, 546-R-78) filed by All Muhammad father of Khadim Hussain appellant, a compromise before the High Court was effected between the parties wherein they (complainant party) had accepted title of the father of the appellant on the aforesaid disputed land. He also conceded that previously Square No, 48 was described as Square No, 50. He, however, denied that in pursuance of the said compromise in the writ petition the revenue department delivered physical possession of Killa Nos. 1, 2, 9 and 10 of Square No, 48 to Khadim Hussain, appellant on 2-8- 1978. He denied that he was not present at the spot on the day of occurrence. He further denied if Ranjha (deceased) was a Ghunda, employed by them for taking possession of the disputed land forcibly. He asserted that he stated to the police in his statement recorded under section 161, Cr.P.C., that Khadim Hussain, appellant, asked Bashir Ahmad, his co-appellant, to fire at Nazar Muhammad P.W. But on confrontation it was not found recorded in Exh. P.A. He also admitted that on an application moved by Khadim Hussain, appellant, security proceedings under sections 107/151, Cr.P.C., were taken against him and his father Fazal Muhammad some 3 months before the occurrence. The other eyewitnesses, namely, Nazar Muhammad who was allegedly injured during the occurrence also made a similar statement with slight variations. While trying to explain injuries of the appellants he stated that during the occurrence Muhammad Salim P.W. (declared hostile) snatched Dang from Muhammad Sharif, appellant, and inflicted a blow with it on the person of Khadim Hussain, appellant, whereupon the later asked Bashir Ahmad appellant, to open fire. As a result of exhortation Bashir Ahmad fired at him hitting his illiac-crest region. He however, did not state that Ranjha (deceased) was running away when he was fired at by Bashir Ahmad, appellant. He also admitted in cross-examination that a compromise was effected regarding the disputed land before the Lahore High Court but volunteered that compromise was actually effected by their counsel and they had no information about it at the time of occurrence and that they had since filed an appeal against that compromise in the Supreme Court. He denied that as a result of the compromise in the Lahore High Court, Khadim Hussain, appellant, obtained possession of Killa Nos. 1, 2, 9 and 10 of Squate No, 48. According to him when he first saw Bashir Ahmad, appellant, he did not have pistol in his hands. Describing the manner in which they suffered the fire-arm injuries he stated that he was fired at by Bashir Ahmad, appellant, from a distance of 2/21 Karams and Ranjha (deceased) having received the fire-arm injury fell `about 2/3 Karams away from the place where he was hit. He denied that the dead body of Ranjha was removed from Killa No, 2 of Square No, 48 to Killa No, 22 of Square No, 35 by them to create evidence that the occurrence had taken place there. He asserted to have mentioned in his police statement that at the instigation of Khadim Hussain, Bashir Ahmad fired at him but on confrontation with Exh. D.C. This statement was found missing. 13. In view of the dispute about the possession of the land between the parties, statement of Javid Majid, Patwari (P.W.2) is quite material. He prepared the site plan Exh. P.F/1 in triplicate. In cross-
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examination he stated that the occurrence took place in Killa No, 2 of Square No,48. He proved Exh. P.W.2/D.A, a copy of report No, 561, dated 2-8-1978 of Rozenamcha Waqiati by comparing it with the original before the Court. He conceded that according to the said report, possession of Killa Nos. 1, 2, 9 and 10 of Square No, 48 was handed over to Khadim Hussain, appellant, on 2-8-1978 under the orders of Assistant Commissioner, Pakpattan, through Kalba Rani. He further conceded that eastern 4 Kanals of Killa No, 1 of Square No, 48 were shown by All Muhammad father of Khadim Hussain appellant, therefore, price of sugar-cane crop standing there at the time of delivering the possession was not asessed. 14. Muhammad Bakhsh, retired S.I. (P.W.9) narrated various stages of the investigation. He admitted that he did not indicate in map Exh. P.R. Drawn up by him, the place from where the crime empty P.4 was found lying. He also admitted that he did not mention the names of the witnesses thereon who allegedly saw the occurrence. He took into possession the copy of report Rozenamcha Waqiati, dated 2-8-1978 from Javid Majid, Patwari, during the investigation as it came to his knowledge that prior to occurrence the Patwari and the Kanungo had delivered possession of the disputed land to Khadim Hussain, appellant. He denied that he had called Muhammad Anwer P.W. From his village and made him a witness in the case or that pistol P.6 was planted on Bashir Ahmad, appellant, for strengthening the case. 15. Learned trial Court wrote a laboured judgment and believing the prosecution evidence held that report Rozenamcha Waqiati Exh. P.W.2/ D.A. Showing delivery of possession of the disputed land to Khadim Hussain, appellant, was manoeuvred by the accused party in collusion with the revenue staff which was one-sided and illegal in the sense that neither proper assessment of the crop standing on disputed land was made nor its price was deposited in the treasury before the delivery of its actual possession being a condition precedent under the law, therefore, the complainant party resisted under the bona fide assumption to protect their possession. Further, observed that the explanation about the injuries of Khadim Hussain and Muhammad Sharif, appellants, could not be brought on record because Muhammad Salim (P.W.5) had been declared hostile and, therefore, failure to explain the injuries of said appellants by the prosecution cannot be treated as dishonest concealment of material facts by the eye-witnesses; that the plea of self-defence of person and property raised by the appellants stood falsified because the fatal gun-shot injury was received by Ranjha (deceased) on his back while he was running away and the nature of his injury further shows that he was shot at from a longer distance, so there was no imminent danger of grievous hurt or death to any of the accused from him. He also believed statements of S.I. Muhammad Bakhsh (P.W.9) and Muhammad Anwer (P.W.6) regarding the recovery of crime empty P.4 from the place of occurrence and pistol P.6 from Bashir Ahmad, appellant, and used them against the appellants as corroborative evidence. In view of these findings, learned trial Court held the appellants guilty on the charges of murder and murderous assault committed by them in furtherence of their common intention and sentenced them, as indicated in paragraph 1 of this judgment, now being challenged through the instant appeal. 16. I have heard learned counsel for the appellants as well as for the State and also perused the record. 17. Learned counsel appearing on behalf of the appellants submitted that learned trial Court has misread the evidence. He maintained that there is overwhelming evidence on record to show that the complainant party neither resided in village Jhuggian Kundan Lal nor was in possession of disputed land during the days of occurrence, rather Khadim Hussain, appellant , had taken possession thereof weeks before the occurrence in pursuance of an agreement arrived at between the parties in the High Court during the proceedings of a writ petition (W.P. No, 546-R-78), hence learned trial Court erred in holding that the complainant party was in possession of the disputed land or that it were the appellants who committed aggression and for taking possession of the
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land forcibly committed murder of Ranjha and caused injuries to Nazar Muhammad and Muhammad Salim P.Ws. Further argued that the ocular evidence was not worth reliance for the reason that the eyewitnesses had deliberately suppressed the injuries (including grievous hurt) suffered by Khadim Hussain and Muhammad Sharif, appellants, which fact alone is sufficient to discard their testimony. He also attacked genuineness of the recoveries of pistol P.6 and crime empty P.4 sought to have been proved through the same eye-witness. As against this, learned State counsel has supported the impugned order of conviction. 17-A. First of all, proceed to dispose of the recoveries, that is, the recovery of empty P.4 from the spot and pistol P.6 from Bashir Ahmad, appellant, which were found by the Fire-arms Expert vide report Exh. P.0 as wedded to each other. According to the prosecution said empty was picked up from the spot on the following day of occurrence and after preparing its parcel it was secured through memo. Exh. P.L attested by Muhammad Anwer (P.W.6), Muhammad Shafi P.W. (not produced) and S.I. Muhammad Bakhsh (P.W.9) while pistol P.6 was produced by Bashir Ahmad appellant, when he surrendered before the Investigating Officer on 1-9-1978 at Nagina Chowk, Pakpattan, in the presence of Muhammad Anwer (P.W.6) and Rana Muhammad Sadiq P.W. (not produced) which was also secured after making a sealed parcel through memo. Exh. P.M. The only public witness who attested these recoveries is Muhammad Anwer who is also an eye-witness and brother of the other injured eye-witness Nazar Muhammad. Admittedly, the dispute over the possession of the land existed between mother of the witness and father of Khadim Hussain, appellant, so they were obviously pitched against each other and locked into litigation long before the occurrence fighting for their claim an the disputed land before various Courts. Muhammad Anwer (P.W.6) is also an eye-witness and it is well-settled that a witness cannot corroborate his own evidence. Apart from these objections, the recovery of pistol P.6 from Bashir Ahmad, appellant, is highly doubtful. According to Muhammad Anwer P.W. 8/9 days after the recovery of crime empty P.4, Bashir Ahmad, appellant, appeared before the police and produced piitol P.6. Empty P.4 was allegedly picked up from the spot on 17-8-1978. This would mean that the pistol P.6 was recovered on or about 26-8-1978 whereas the relevant recovery memo. Exh. P.L. Shows its recovery on 1-9- 1978. Again, the record shows that the crime empty remained in the Malkhana of the police station till 30-8-1978 and the pistol was recovered a day later. The empty recovered on 17-8-1978 was detained for so long in the Malkhana without any explanation whatsoever. It appears, therefore, that the police having procured pistol P.6 prepared empty P.4 from it and then sent the same to the Forensic Science Laboratory for obtaining a favourable result in support of the prosecution case. In these circumstances, I am of the view that neither these recoveries nor the expert's report Exh. P.U. Though showing positive result can be safely relied upon hence ruled out of consideration. 18. In this case most important piece of evidence from prosecution point of view is the ocular testimony of Muhammad Anwer (P.W.6) and Nazar Muhammad (P.W.7). Of them, Nazar Muhammad is the injured witness and his presence as well as of deceased Ranjha at the spot cannot be doubted. Khadim Hussain and Muhammad Sharif, appellants, have also admitted their participation in the occurrence claiming that they had acted in self-defence but denied the firing at Ranjha (deceased) and Nazar Muhammad (P.W) saying that someone from amongst the villagers who gathered there in order to help maintaining their possession had fired which hit the deceased and Nazar Muhammad P.W. 19. In order to determine as to who was the aggressor it is essential to find out which of two parties was in actual possession of the disputed land at the time of occurrence. Admittedly, there existed a dispute about the title of Killa Nos. 1, 2, 9 and 10 of Square No, 48 between All Muhammad father of Khadim Hussain appellant and Mst. Bashiran mother of eye-witnesses Muhammad Anwer and Nazar Muhammad. It is also admitted that Ali Muhammad had filed a writ petition (W.P.No, 546-R- 78) against Mst. Bashiran and the parties effected a compromise before the High Court prior to the
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occurrence wherein the complainant party (Mst. Bashiran) conceded the title of the disputed land in favour of father of Khadim Hussain appellant yet they denied that in pursuance of that compromise the possession of the disputed land had been delivered by the revenue staff to Khadim Hussain, appellant, on 2-8-1978, i.e,, some 15 days before the occurrence vide report Rozenamcha Waqiati Exh. P.W.2/D.A. 20. Learned trial Court while discussing as to which party was in actual possession of the disputed land in paragraph 20 of its judgment observed,- "The plea of defence of the property in the circumstances of the case is also not available to the accused party for the simple reason that if at all they had taken possession in result of the report Rozenamcha Waqiati Exh. P.W.2/D.A. That too was one-sided and illegal in the sense that no proper assessm ent of the standing crops was made on the spot. It may be pointed out that in case of standing crops on agricultural land it is condition precedent that first the assessment of standing crops is made, which is duly…
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