Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD KHALID AND Another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sardar Muhammad, Gulbaz Khan Title: MUHAMMAD KHALID AND Another vs THE STATE Case No.: Criminal Appeal Nos. 196, 796 and Murder Reference No. 83 of 1977 Date of Judgment:- Reported As: 1982 P Cr. L J 1176 Result: Appeal dismissed
JUDGMENT
JUDGMENT SARDAR MUHAMMAD, J.---The appeal is directed against the order dated 21st February, 1977 passed by Mr. Muhammad Amir Malik. Sessions Judge, Jhelum, whereby the learned Sessions Judge convicted the appellants Muhammad Khalid and Master Fazal Dad under section 302/34, P.P.C. For committing the murders of Muhammad Rafiq; Muham--mad Latif and Muhammad Nazir, real brothers, and sentenced each of them to death and a fine of Rs. 1,000 in default whereof to suffer 2 years' R, I., on each, count. The learned Sessions Judge has sent up Murder Reference No. 83/77 for confirmation of the death sentence and the State has filed appeal against Muhammad Akbar, Hashmat Khan, Parvez-Akhtar and Liaquat Hasan. The learned trial Court has also made reference under section 341, Cr. P. C. Regarding Fazal Dad appellant. As the Murder Reference, Criminal Appeal, the State Appeal and the reference under section 341, Cr. P. C. Arise out of the same judg--ment, they are being disposed of by one judgment. 2. The occurrence in this case .Had taken place at 10-00 p.m. During the night between the 29th and 30th of May, 1974 in the area of Chak No. 97 (Mogla). F. I. R. Exh. P.D/1 was drafted by Mirza Muham--mad Iqbal, Moharrir A. S. I. (Rtd.) Police Station, Duman (P.W. 6), it was based 94 statement Exh, P. D of Muhammad Rafiq deceased, recorded by Ababeel Khanzada, A. S. I. P. W. 15, Police Station Chakwal at Civil Hospital, Chakwal. Since Muhammad Rafiq died later on as a result of injuries received by him during this occurrence, his statement Exh. D. B. Was produced in evidence as dying declaration. 3. The prosecution case, according to Exh. P.D., statement of Muhammad Rafiq deceased, on the basis of which F. I. R. Exh. P.D./1 was prepared, is that the deceased Muhammad Rafiq was employed in the Army and was on leave, during the days of occurrence. Muhammad10 Bashir P. W.
---
## Page 2
12, his brother was also serving in the Army and during the days of occurrence he was posted at Rawalpindi. He had abducted Mst. Mahmuda Anwari, daughter of Muhammad Akbar (acquitted accused) resident of Bakra Mandi, Rawalpindi. Muhammad Akbar (acquitted. Accused) had arranged mailas (Jirgas) at village Mogla and had requested the complainants to return his daughter Mst. Mahmuda Anwari. The complainants stated that the girl is not with them, she will be returned, if she comes to them. 4. On the night of occurrence Muhammad Rafiq deceased was sleeping in his courtyard alongwith his real brothers Muhammad Latif and Muhammad Nazir (both deceased), Mst. Inayat Bibi, his mother and Mst. Huseena Begum, his sister-in-law (brother's wife), while Muhammad Bashir P. W. Who was apprehensive of his life, slept on the roof of the house. At about 10-00 p. m. When it was moonlit, Muhammad Akbar respondent, the father of Mst.Mahmuda Anwari, armed with a revolver, Fazal Dad Appellant, his sister's son armed with a revolver, appellant Khalid Budmuash of Samanabad, Rawalpindi armed with a revolver and rifle, Hashmat Ali respondent, brother-in-law of Muhammad Akbar respondent, armed with a revolver, a young person of wheatish colour and normal height, whose name was not given, armed with a revolver and normal(absconder) armed with a rifle and Chhura, entered the courtyard of Muhammad Rafiq deceased which was without a door. They woke up all the three deceased, namely Muhammad Rafiq, Muhammad Latif and Muhammad Nazir. The mother and sister-in-law of Muham--mad Rafiq deceased also got up. . The accused asked them, the where-- abouts of Mst. Mahmuda Anwari. When the deceased expressed ignorance, the accused put cloth around the necks of each of the three deceased and, started to go out of the village. The mother and sister-- in-law of the deceased raised alarm. When the accused had taken the three deceased a short distance away from the village they found Muhammad Anwar P. W. Passing: The accused took him also into custody and started towards the south; When they went about a furlong, Muhammad Bashir P.W. 12. Accompanied by other villagers followed them. Hearing their voices, the accused named above, made all the three deceased stand and started firing. Fazal Dad appellant and Muhammad Akbar (respondent accused) fired at Muhammad Rafiq deceased which hit him on his left flank, right buttock and in the chest. Muhammad Nazir and Muhammad Latif deceased, brothers of Muham--mad Rafiq deceased were also fired at by the accused. Ghani-ur---Rehman accused bad also inflicted injuries on the throat of Muhammad Latif deceased with the Chhura. When the villagers came near, the accused left the three deceased in. Injured condition and ran away. M6hammad Rafiq deceased and his two brothers Muhammad Latif and Muhammad Nazir were removed to Civil Hospital, Chakwal on 4 truck. Because of fear, no body proceeded to the Police Station to lodge the report. 5. All the three injured Muhammad Rafiq, Muhammad Latif and Muhammad Nazir were medically examined by Dr. Asghar Hameed Qureshi, P. W. 13 vide medico-legal reports Exh. P.S., P.R. And P.T. Respectively. Dr. Asghar Hameed Qureshi sent ruqqa Exh. P.U. To the Station House Officer, P. S. Chakwal informing him about serious condition of Muhammad Rafiq. Muhammad Latif and Muhammad Nazir and for necessary action, on the receipt of which Ababeel Khanzada, ASI P. W; 15 reached the Civil Hospital. In fact the doctor had sent ruqqa Exh.. P.U. Before the conclusion of medical exami--nation of all the three deceased. The A. S. I. After making entry in the daily diary register at Police Station Chakwal, proceeded to the hos--pital. He made query vide application Exh. P.D/2.From the doctor if Muhammad Rafiq was fit to make a statement and after receiving reply Exh. P.D./3 in the affirmative, he recorded statement Exh. P.D. Of Muhammad Rafiq in the presence of the doctor. The doctor also signed Exh, P. D. Fazal Dad, Sub-Inspector/S. H. O., P. S. Duman reached the hospital at about 9-45 a. m. On the information sent to him by the Moharrir, Police Station Chakwal vide Exh. P. V. He sought the opinion of the doctor whether. Muhammad Latif and Muhammad Nazir were fit to make a statement. The doctor, vide Exh. P. V./l opined that they are fit to make a statement. Fazal Dad, Sub-Inspector then recorded the statement of Muhammad
---
## Page 3
Latif Exh: P. E. E. And that of Muhammad Nazir Exh. P. F. F. He proceeded to the spot but he was transferred with immediate effect and so he handed over the investigation to Akhtar Hussain, A. S. I., P.W. 25. 6. Akhtar Hussain, A. S. I. After taking up the investigation; inspected the spot and took into possession blood-stained earth from three places vide memo. Exh. P.K, P.L. And P.M. He took into possession five -32 bore empties Exh. P. 8/1-5 and one .32 bore missed cartridge P. 9 vide memo. Exh. P. N. One crime empty of 7 m.m. (P. 10) was also take4 into possession vide memo. Exh. P. Q. From the spot. 7. On the 31st May, 1974 Mirza Muhammad Iqbal, Moharrir A. S. I. Police Station Duman on receipt of information about the death of Muhammad Nazir and Muhammad Latif, reached the Civil Hospital; Chakwal. He prepared the inquest reports Exh. P. F. And Exh. P.G. Respectively of the dead bodies of Muhammad Nazir and Muhammad Latif, and sent the same for post-mortem examination. 8. Mirza Muhammad Iqbal, A.S.I. (P. W. 25), as Moharrir had received three sealed parcels of blood- stained earth, one parcel of crime empties of '32 bore and the other of crime empties of 7 m.m. He kept the same in the Malkhana and sent these parcels to the office of the Chemical Examiner and Director, Forensic Science Laboratory, through Muhammad Aslam, Foot Constable. Later a parcel of revolver was also deposited with him. He sent the same also to the office of the Director, Forensic Science Laboratory, Lahore. 9. Liaquat and Parvez accused were arrested on 29th July 1974 by Nadar Ali, A.S. L He also formally arrested Inayat co-accused as be was on bail. 10. Muhammad Khalid appellant was arrested by Nasarullah Khan, A.S.I., Police Station Sarai Alamgir as a suspect under section 54 of the Code of Criminal Procedure. During interrogation on the same night he made disclosure about the present occurrence and so the A.S.I. Inform--ed the Jhelum Police and banded him over to Muhammad Siddiq, A. S. I. Of Jhelum Police. 11. On 28th June, 1974, Muhammad Khalid appellant while in Police custody led to the recovery of pistol P. 7 from the bushes at a distance of 1J furlongs from the place of occurrence, which was taken into possession vide memo. Exh. P.J. The recovery memo Exh. P.J. Was prepared by Muhammad Sharif. Sub-Inspector and attested by Rabnawaz P. W. 11 and Muhammad Ajaib P. W. 9. The other accused were also arrested but no recovery was effected at the instance of any other accused, including Fazal Dad appellant and Muhammad Akbar, Hashmat Khan, Parvez Akhtar and Liaquat Hasan respondents. Ghani-ur-Rehman accused could not be arrested, he was declared proclaimed offender. After completion of investigations the challan was put in Court. 12. At the trial, the prosecution examined in all vventy-five wit. Nesses, Muhammad Bashir P. W. 12, Muhammad Anwar P. W. 22 and Bagh Ali P. W. 23 were examined as eye-witnesses. The statement Exh. P. D. Of Muhammad Rafiq deceased made before Ababeel Khanzada, A.S.I. P. W. 15. Statement Exh: P. E. E. Of Muhammad Latif deceased and Exh. P. F. F. Of Muhammad Nazir deceased which were made by them before Fazal Dad Sub-inspector, were also tendered in evidence as dying declarations. 13. Muhammad Bashir P. W. 12 has stated that he was employed in the Pakistan Army and was posted at Rawalpindi in 1974. He was living in the rented house of Muhammad Akbar (respondent accused) in Bakar Mandi, Rawalpindi. Muhammad -Akbar was living in another house, one house away from the house occupied by Bashir. He has stated that he developed visiting terms with Muhammad Akbar accused and cultivated illicit connections with his daughter Mst. Mahmuda Anwari. Ghani-ur-Rehman (absconder) who was running a Kabab shop near the rented house, was also after Mst. Mahmuda Anwari, and had learned about his relations with Mst. Mabmuda Anwari., According to him he proceeded on 2-month leave in May, 1974 and started residing in his village. During vacation he went to Rawalpindi and met Mst. Mahmuda Anwari. As agreed between them, Mst. Mahmuda Anwari eloped with him and after spending two days at Rawalpindi she came
---
## Page 4
with him to his village Mogla. Muhammad Akbar, Hashmat (respon--dent accused), Muhammad Khalid and Fazal Dad appellants and Ghani-ur-Rehman (absconder) came to their village and asked for the return of Mst. Mahmuda Anwari. They had convened a Jirga but they were told by Muhammad Bashir P. W. 12, and his father that Mst. Mahmuda Anwari is not with them and in case she comes; she will be returned. These persons visited again on the following day and in the Jirga held on that day, the three deceased brothers of Muhammad Bashir, P. W. 12, and other people of the village also participated. According to him he entered into Nikah with Mst. Mahmuda Anwari on 29th May, 1974. After the Nikah Mst. Mahmuda was taken by Ajaib P. W. 9 and Muhammad Khan father of the three deceased to Jhelum to get her statement recorded. He has further stated that on the same day at about 10. p.m. When it was moonlit he was sleeping on the roof of his house. His deceased brothers Mubammad Rafiq, Muhammad Latif and Muhammad Nazir, Mst. Inayat Bibi his mother and Mst. Huseena his wife were sleeping in the courtyard which is without a gate. Appellant Muhammad Khalid armed with a pistol and rifle, Hashmat and Muhammad Akbar respon--dents armed with pistols, Ghani-ur-Rehman accused (absconder) armed with a rifle and chhura and one unknown person who was later arrested and whose name was known as Inayat, armed with a pistol, came into the house, hearing their voices be got up. The accused above-named asked from his brothers whereabouts of Mst. Mahmuda Anwari. When they replied that they do not know, the accused put clothes around the necks of the three deceased and went out with the. They did not listen to the entreaties of Mst. Safia wife of Muhammad Bashir P. W. 12 and Mst. Inayat his mother. When the accused had gone out of the house alongwith the three deceased, his mother, his wife and he himself raised alarm which attracted Bagh Ali and Rabnawaz P. Ws. Whom he told the occurrence. Bagh Ali, Rabnawaz P. Ws. And he started after the accused. There was commotion and alarm in the village. When these people had gone 21 furlongs out of the village, the three deceased were shot at by the accused. Muhammad Rafiq deceased was fired at by Muhammad Khalid, Fazal Dad appellants and Muhammad Akbar (acquit--ted accused). He fell down. Then all the accused named above fired at Muhammad Nazir and Muhammad Latif deceased, who also fell down, thereafter the accused ran away. At that time Muhammad Anwar P. W. 22, who is also a witness to the occurrence was standing at a distance of 20 yards. When the accused went away, Muhammad Bashir P. W. 12 accompanied by other persons went where Muhammad Rafiq, Muhammad Latif and Muhammad Nazir were lying injured. They were alive and in senses. With the help of others he transported them by arranging a truck to Chakwal Hospital. The doctor advised him that the three injured should be shifted to Jehlum as their condition was serious. When he returned with the truck the A. S. I. Of Chakwal Police had reached the Hospital and had recorded the statement of Muhammad Rafiq deceased. He placed the three injured in a truck and started for Jhelum. Latif and Nazir expired on the way. Their dead bodies were brought back to Chakwal Hospital while Muhammad Rafiq deceased who was employed in the Army Medical Corpse was got admitted in the Combined Military Hospital, Jehlum by him, where he also expired on 31st May, 1974. 14. He has further stated that P. W. Muhammad Anwar, Bagh Ali, Rabnawaz, Sahib Khan, Samundar Khan and Mehdi Khan of his village were present when the Jirga was arranged by the accused. According to him, he had stayed for one year in Bakar Mandi, Rawalpindi in the rented house where his relatives had been visiting him. He has stated that Hashmat respondent is maternal uncle of Mst. Mahmuda Anwari, Fazal Dad appellant is a relative of Muhammad Akbar respondent, father of Mst. Mahmuda, Muhammad Khalid appellant is their friend He has also mentioned in his statement that he had learnt after the registration of this case that Muhammad Akbar respondent had also reported against him for having abducted his daughter Mst. Mahmuda. P. W. 22 Muhammad Anwar and P. W. 23 Bagh Ali have corroborated the statement of Muhammad Bashir P. W. 12. Muhammad Anwar P. W. 22 has stated that he had seen appellants Muhammad Khalid and Fazal Dad and
---
## Page 5
respondents Muhammad Akbar, Hashmat and Ghani-ur-Rehman (absconder) when they had come to his village in connection with the search and return of Mst. Mahmuda. He has stated that he was present on both the occasions when Jirga was held. He has further stated that he has been visiting Muhammad Bashir P. W. 12 in Bakar Mandi, Rawalpindi and that he bad seen Muhammad Akbar and Hashmat respondents, Muhammad Khalid and Fazal Dad appellants and Ghani-ur--- Rehman (absconder): He has corroborated the narration of the actual occurrence given by Muhammad Bashir P. W. 12. Similarly, Bagh Ali P. W. 23 has stated that he bad seen Fazal Dad and Khalid appellants, Muhammad Akbar and Hashmat respondents and Ghani-ur-Rehman accused (absconder) when they had held Jirga in his village twice in connection with the search and recovery of Mst. Mahmuda Anwari. He has corroborated the account of the occurrence given by Muhammad Bashir P. W. 12 in detail. Muhammad Anwar P. W. 22 has also stated that he was caught hold of by Muhamniad Khalid and Fazal. Dad appellants, Muhammad Akbar and Hashmat respondents, Ghani-ur-Rehman (absconder) and one unknown person who later was found to be Inayat, while they were taking with them the three deceased, namely Muhammad Rafiq, Muhammad Latif and Muhammad Nazir, with clothes around their necks, when he was passing out of village abadi. When they, according to him, reached the land of Muhammad Anwar son of Jahan Khan, appellant Khalid asked his co-accused as to where the taxis were parked, to which Muhammad Akbar respondent replied that the taxis had been deputed to wait for them in a Jhangi (group of trees) near Adda Jheek. He has further stated that when they had covered a short distance, he beseeched them that as he had nothing to do with the abduction of Mst. Mahmuda Anwari, he should be spared. The accused then let him off. He has stated that when he was at a distance of 20 yards towards East from the accused, Muhammad Bashir, Rabnawaz and Bagh Ali P. Ws. Raised lalkaras. They were followed by other people of the village, hearing their voices the accused threw a ring around the three deceased and started firing. Muhammad Khalid and Fazal Dad appellants and Muhammad Akbar respondent fired their pistols at Muhammad Rafiq deceased hitting him on front and back, who fell down. Thereafter all the six persons named above fired at Muhammad Nazir and Muhammad Latif deceased who also fell down. Ghani-ur-Rehman (absconder) also gave two chhura blows on the throat of Muhammad Latif deceased, He has corroborated Muhammad Bashir's statement regarding other details also. 15. Muhammad Khan P. W. 10, father of the three deceased has corroborated the statement of Muhammad Bashir P. W. 12 regarding the motive of the occurrence. Muhammad Khan has stated that his son Bashir had brought Mst. Mahmuda Anwari to their house in village Mogla. Nikah of Muhammad Bashir was performed with Mst. Mahmuda Anwari, daughter of Muhammad Akbar respondent on 29th May, 1974 and that after the Nikah he along with Muhammad Ajaib P. W. 9 had taken Mst. Mahmuda Anwari to Jhelum for getting her statement recorded under section 164 of the Code of Criminal Procedure, but the statement could not be recorded on that day. He left Mst. Mahmuda Anwari in the custody of Muhammad Ajaib P. W. 9 and himself went to Sargodha. He has stated that Muhammad Akbar and Hashmat respondents, Ghani-ur-Rehman (absconder) and Muhammad Khalid and Fazal Dad appellants had approached him and hiss one for the return of Mst. Mahmuda Anwari. They had also arranged Mailas (Jirgas) in which the other P. Ws. Had also participated. He has stated that even though Mst. Mahmuda Anwari was with them yet he put the accused persons off, saying that if Mahmuda Anwari comes to their house, she will be returned. 16. The evidence of motive also finds corroboration from the fact that Muhammad Akbar respondent, father of Mst. Mahmuda Anwari had got a case registered against Muhammad Bashir P. W. 12. 17. The evidence of recovery of empty cartridges from the spot and of recovery of revolver from Muhammad Khalid appellant has also been led.
---
## Page 6
18. Dr. Asghar Hamid Qureshi P. W. 13 who had examined Muhammad Latif deceased in injured condition and had issued medico-legal report Exh. P. R.; conducted the post-mortem examination on the dead body of Muhammad Latif on 31st May, 1974. He noted eleven injuries on the dead body of the deceased, recovered a bullet from the dead body. The details of injuries has been given in the judgment of the learned trial Court. According to his opinion the death was due to injury to both lungs, liver, stomach, spleen causing bleeding and shock. Injuries Nos. 1 and 2 were fatal individually as well collectively and they were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 2, 3, 5, 6, 7 and 8 were found to have been caused by fire-arm weapons, injuries Nos. 10 and 11 by sharp-edged weapon and injuries Nos.4 and 9 by blunt weapon. The same doctor performed the post-mortem examination on dead body of Muhammad Nazir deceased on the same day and noted six injuries on his person. According to his opinion the death was due to bleeding and shock from ruptured kidneys, stomach, mesentry and pancereas. Injuries Nos. 1, 3 and 4 were thus fatal individually as well as collectively and they were sufficient to cause death in the ordinary course of nature. Other injuries were simple. All the injuries were opined to have been caused by fire-arm weapons. Before the post-mortem examination he bad medically examined Muhammad Nazir deceased and issued medicol-legal report Exh. P.S. He also stated that he had sent Ruqqa Exh. P.U. To the Station House Officer. Police Station Chakwal regarding the con--dition of the three deceased. He has stated that he had given opinion Exh. P.D/3. Regarding the fitness of Muhammad Rafiq deceased to make a statement and he had signed the statement Exh. P.D. Which according to him was recorded in his presence. He also stated that Muhammad Rafiq deceased remained conscious during the statement, and he signed in his presence. Dr. Major Mazhar Hussain P.W. 7 performed the post-mortem exami--nation on the dead body of Muhammad Rafiq deceased. He noted five injuries on his person Injuries Nos. I to 4 were found to have been caused by fire-arm weapons while injury No. 5 was the result of leprotomy performed by the doctor before the death of the deceased. According to him the cause of death was due to shock and haemorrhage caused by fire-arm injuries collectively. His post-mortem report is Exh. P H. 20. The plea of the appellants and respondents before the learned trial Court was that they have been involved falsely because of inimical relations with the P. Ws. Which developed because of the abduction of Mst. Mahmuda Anwari by Muhammad Bashir P. W. Appellant Fazal Dad about whom reference under section 341, Cr. P.C. Has been made, denied participation in the occurrence by signs and uttering words, Taubah-Taubah. 21. Learned counsel for the appellants and respondents have inter alia argued that the evidence of dying declaration of Muhammad Rafiq (deceased) should be discarded for the reason that in view of his condition, it is impossible to believe that he would have been able to make such a detailed statement. It has been argued that the injuries received by him were such that he would have bled so prefusely that the question of his remaining in conscience after one or two hours, was impos-- sible. Learned counsel have referred to the cross-examination of Dr. Major Mazhar Hussain P. W. 7 wherein he has stated that within one hour of the receipt of injuries Rafiq deceased must have gone unconscious, and he must have been in shock within few minutes of the receipt of injuries. It is argued that the dying declarations of Latif and Nazir Exh. P. E. E. And Exh. P. F. F. Respectively are not worth reliance because they are almost copies of the statement of Muhammad Rafiq deceased. It is further stated that the learned trial Court also discarded these two dying declarations. Learned counsel for the appellants and respondents have contended that Muhammad Bashir F. W. 12 could not have been present for the reasons that if he was available to the appellants, respondents and other accused, they would not have apared him. It is contended that it is impossible to believe that the accused would not have searched the house and would have felt contented about the non-- presence of Muhammad Bashir P. W. 12 merely on the information supplied to them by the three deceased or the mother or wife of Muhammad Bashir P. W. 12. It is also argued that even if this fact
---
## Page 7
is ignored, the presence of Muhammad Bashir P. W. 12 near about the occurrence would be more difficult to believe because in that case he would have been within their reach. It is further argued that bad Muhammad Bashir P. W. Witnessed the occurrence and had he taken his three injured brothers to Chakwal Hospital, he would have lodged the first information report himself, or he would have gone to his own police station or at least sent somebody for registration of the case. 22. With regard to the evidence of the other witnesses, it is argued that it was a night occurrence, the P. Ws. Had no ostensible contacts with the appellants and the respondents and as such they could not have identified the appellants and the respondents. Their presence at the spot also contested. 23. With regard to respondents Liaquat and Parvez, it is argued that there is no eye-witness account against them that the witnesses who have been produced against them had appeared before the Police after many weeks of the occurrence and there is no allegation that they had either entered into…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.