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Petitioner: ASHIQ ALI and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sardar Muhammad Sarfraz Dogar, Sh. Riaz Ahmad Title: ASHIQ ALI and others vs THE STATE Case No.: Criminal Appeal No, 267 and Murder Reference No, 139 of 1985 Date of Judgment:1989-01-10 Reported As: 1989 P Cr. L J 983 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' SARDAR MUHAMMAD DOGAR, J.-- Ashiq All (55), Mukhtar Ahmad (34) real brothers, Mahmud Ahmad (28) and Abdul Sattar (18) sons of Ashiq Ali, Abdul Majid (25) and Muhammad Iqbal (32) nephews of Ashiq All were tried by Additional Sessions Judge, Gujranwala along with Waris Ali brother of Ashiq Ali, Akhtar Ali son of Waris Ali and Abdul Ghaffar nephew of Ashiq Ali, under section 302/307/148/149, P.P.C. For having formed unlawful assembly, for having murdered Muhammad Sarwar and Abdul Rauf real brothers and for having launched murderous assault and inflicting injuries to Nabi Ahmad (P.W.15) and Sarnawaz (P.W.16) on 22-6-1982 at 6-30 p.m. In the fields in the area of village Nangal Doona Singh, at a distance of 12 miles from Police Station Wandho, District Gujranwala. Learned trial Judge acquitted Waris Ali, Akhtar All and Abdul Ghaffar vide judgment, dated 27-4-1985 and convicted Ashiq Ali, Mukhtar Ahmad, Mahmud Ahmad, Abdul Sattar, Abdul Majid and Muhammad Iqbal, vide same judgment, under sections 148, P.P.C. 307/149, P.P.C. (on two counts) and under section 302/149, P.P.C. (on two counts), and awarded the ' Under section 148, P.P.C. ' All the six appellants namely, Ashiq Ali, Mukhtar Ahmad, Mahmud Ahmad, Abdul Majid, Muhammad lqbal and Abdul Sattar to undergo one year's R.I. Each. ' Under section 302/149, P.P.C. (i) For the murder of Muhammad Sarwar, Ashiq Ali appellants has been sentenced to death, while the other five have been sentenced to imprisonment for life. Each of the appellants has been sentenced to pay a fine of Rs,5,000 in default whereof to suffer R.I. For one year each. They have also been directed to pay a sum of Rs,10,000 each as compensation to the heirs of Muhammad Sarwar deceased, in default of payment of which to suffer further R.I. For six months each.
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(ii) For the murder of Abdul Rauf, Mukhtar Ahmad and Mahmud Ahmad appellants have been sentenced to death. The other four, namely Ashiq Ali, Abdul Majid, Muhammad lqbal and Abdul Sattar have been sentenced to imprisonment for life. All the six appellants have been sentenced to pay a fine of Rs,5,()00 each, in default whereof to suffer R.I. For one year each. They have also been directed to pay a sum of Rs,10,000 each as compensation to the heirs of deceased, in default whereof to suffer R.I. For 6 months each. ' Under section 307/149, P.P.C.-- ' All the six appellants have been sentenced to undergo R.I. For 5 years and to pay a fine of Rs,5,000 each, in default whereof to suffer further R.I. For 6 months each, for murderous assault on Nabi Ahmad P.W. ' They have been sentenced to undergo the same imprisonment and to pay the same amount of fine, for having launched murderous assault on Sarnawaz P.W. They have also been directed to pay a sum of Rs,2,000 each to Nabi Ahmad and Sarnawaz P.Ws. Each, as compensation. In case of failure of payment of compensation amount, they have been directed to undergo R.I. For 3 months each. ' The sentences of imprisonment awarded on different counts have been ordered to run concurrently. ' They have also been given the benefit of the provisions of section 382-B of the Code of Criminal Procedure. 2. Learned Sessions Judge has made a reference for confirmation of sentences of death awarded to Ashiq Ali, Mukhtar Ahmad and Mahmud Ahmad. The convicts have filed appeal. The complainant has filed Criminal Revision wherein prayer has been made for enhancement of sentences of imprisonment for life, to death. As all the matters arise from one judgment, they are being disposed of together. 3. F.I.R. Exh.P.B. Was recorded at Police Station Wandho at 6-20 a.m. On 23-6-1982 by Amjad Karim Butt, S.I./S.11.0. (P.W.17) on the statement of Muhammad Salch (P.W.14) real brother of both the deceased. ' According to F.I.R. The complainant was residing in Kotli Korotana, Police Station Narang, District Shcikhupura. He owned land in village Sanian Afghana also, which was under his self-cultivation. This land was irrigated through canal water. The watercourse (Khaal) for the use of canal water originated and passed through the area of village Nangal Doona Singh, District Gujranwala. Scarp had installed a tuhewell on the left side of the watercourse in the area of village Nangal Doona Singh. The water of the said tuhewell irrigated the land on the western side of the watercourse but on the eastern side of the watercourse Mukhtar Ahmad etc. (accused) Rajputs of village Nangal Doona Singh used to take water of the tubewell through the watercourse of the complainant which used to result in the loss of canal water of the complainant. This was in practice since 4-5 years prior to the occurrence. The complainant used to object and say that they should take the water by constructing a syphon so that none suffers but Mukhtar Ahmad etc. Insisted that the syphone should he constructed by them (the complainant). This was a cause of dispute between the parties. Permanent turn of water of the complainant used to he from Tuesday morning till midnight. On Tuesday previous to the day of occurrence, Mukhtar Ahmad, etc. Tried to take the water of the tuhewell through the watercourse, in which the canal water was flowing, whereupon Muhammad Sarwar deceased stopped them sternly which resulted in dispute, between the parties. Mukhtar Ahmad and Ashiq All appellants went away issuing threats of taking revenge. On Tuesday (the day preceding the day of lodging the F.I.R.) the complainants had started watering their fields in the morning per their turn. In the afternoon the complainant, his two deceased brothers Muhammad Sarwar and Ahdur Rauf, Nahi Ahmad P.W.15 also their brother, Sarnawaz P.W.16, and Muhammad Yusuf P.W.13 went to have a round of the watercourse. In the evening they were returning after
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seeing Nakkas etc. Muhammad Sarwar, Ahdur Rauf, Nabi Ahmad and Sarnawaz were walking ahead of the complainant and Muhammad Yusuf P.W.13. When Muhammad Sarwar, Abdul Rauf, Nabi Ahmad and Sarnawaz reached near the Scarp tubewell at 6-30 p.m. They were confronted by Ashiq Ali, Mukhtar Ahmad, Waris Ali, Muhammad lqbal, Abdul Majid armed with guns, Abdul Sattar armed with a rifle, Abdul Ghaffar, Akhtar All and Mahmud Ahmad armed carbines, after coming out from near around the Scarp tuhewell. Mukhtar Ahmad and Ashiq All raised a Lalkara that they had come to avenge the insult hurled on Tuseday last and that none of them shall be allowed to escape. Ashiq Ali appellant then fired a shot which struck Muhammad Sarwar on the left side of abdomen and hip. The shot fired by Mukhtar Ahmad struck Abdur Rauf on the left side of chest and abdomen. Muhammad lqbal fired a shot which hit Nahi Ahmad P.W. On the right arm and ribs. Abdul Majid gave a blow with the butt of his gun on the head of Muhammad Sarwar. The complainant and Muhammad Yusuf P.W. Took shelter by lying down in the watercourse. The other assailants also started firing from their respective weapons, as a result of which Muhammad Sarwar, Abdul Rauf and Nabi Ahmad fell down after suffering injuries. The assailants ran away from the spot. 4. The occurrence, apart from the complainant and the two injured witnesses, was also seen by Abdul Ghaffar and Allah Ditta, who were given up at the trial as unnecessary. 5. Muhammad Sarwar, Abdul Rauf, Nahi Ahmad and Sarnawaz were removed to Mayo Hospital. Muhammad Sarwar and Rauf were declared dead while Nabi Ahmad and Sarnawaz were admitted to the hospital. Leaving the dead bodies of the two brothers in the hospital, the complainant went to the Police station and lodged the F.I.R. 6. Amjad Karim Butt, S.I./S.H.O. P.W.17 after recording the FIR. Deputed Munir Ahmad H.C. And Naseer Ahmad Constable to reach the place of occurrence and protect the spot, while he himself went to the Mayo Hospital alongwith other Constables and the complainant. He prepared inquest reports Exh.P.X. And P.Z. Of the bodies of Muhammad Sarwar and Abdul Rauf, and injury statements Exhs.P.Y. And P.AA. Of both respectively. The dead bodies were entrusted to Zulfqiar Ali and Mukhtar Constables for post-mortcm examination. He recorded statements of Nahi Ahmad and Sarnawaz P.W. Under section 161, Cr.P.C., who were admitted to the same hospital, after obtaining opinion about their fitness, vide applications Exhs.P.C. And P.D. Respectively. Thereafter he went to the spot, wherefrom he collected blood-stained earth from three places, i,e, the place where Muhammad Sarwar deceased had fallen, the place where Abdur Rauf deceased had fallen and the place where Nahi Ahmad P.W. Had fallen after receipt of injuries, vide memos. Exhs.P.R. P.S. And P.T. Respectively. He also collected 8 crime empties P.13 to P.20 during the inspection of spot and took the same into possession vide memo. Exh.P.U., after sealing them in a parcel. Statements of Abdul Ghaffar, Allah Ditta and Muhammad Yusaf were recorded by him at the spot. ' All the accused were arrested by him on 10-7-1982 on their appearance before him. On 17-7-1972 Ashiq Ali led to the recovery of gun P.8 from his residential house. The same day, Muhammad Ahmad led to the recovery of carbine P.9 from his house. Mukhtar Ahmad also led to the recovery of gun P.10 from his residential house on the same day. Muhammad lqbal then got recovered gun P.11 from his house on the same day. Abdul Majid also got recovered gun P.12 the same day. The recovered weapons were taken into possession vide memos. Exhs.P.L. P.M. P.N., P.O. And P.O. Respectively after sealing the same into parcels. ' Gun P.7 was got recovered by Waris Ali (acquitted accused) on 24-7-1982, which was taken into possession vide memo. Exh.P.K. The challan was submitted to Court after the completion of necessary investigation. 7. Statements of nineteen prosecution witnesses were recorded at tho trial. Exh.P.DD report from the office of the Chemical Examiner, Exh.P.EE from the Office of the Serologist and Exh.P.FF from the
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office of Forensic Science Laboratory were also tendered in evidence. The other P.Ws. Were given up as unnecessary. 8. Dr. Capt. Muhammad Bashir who had medically examined P.Ws. Sarnawaz and Nabi Ahmad on 22-6-1982 in the hospital, appeared as P.W.7. He had noted a bullet injury on the person of Sarnawaz, which was of 1 c.m. Diameter in front of middle part of right thigh. The duration of injury was opined to be fresh. On the person of Nabi Ahmad, he had noted the following injuries:- (1) Bullet injury 1 c.m. Diameter on the right posterior axilliary fold below right axilla. (2) Bullet injury 1 c.m. Diameter right side of chest at level of 6th rib. (3) Bullet injury on right wrist 1 x 1 c.m. Diameter. ' The nature of injuries was kept under observation while the duration was opined to be fresh. ' During cross-examination the doctor stated that by 'fresh' he meant `within 24 hours'. He admitted that he had not received medico-legal education specifically and had only 5-6 months' experience in that field. He stated that he had been serving with the A.M.C. Prior to joining the present service. 8. Dr. Anees Sheikh who had performed autopsies on the dead bodies of Muhammad Sarwar and Abdul Rauf on 23-6-1982 at 4-30 p.m. And 3-00 p.m. Repsectively, was examined as P.W.R. He had noted following injuries on the body of Muhammad Sarwar deceased:- (1) Oval lacerated wound 2 c.m. x 1 c.m. With contused irregular inverted and abraded margins on the left of lower abdomen 18 c.m. Outer and in line with umblicus. (2) Abrasion 3 c.m. x 2.5 c.m. 4 c.m. Outer to injury No,1. (3) Four rounded to oval lacerated wounds varying in size 1 c.m. x 1 c.m. To 2.5 c.m. x 2 c.m. On the outer upper left hip around the anterior superior iliac spine within an area of 12 c.m. x 12 c.m. Margins were inverted and irregular. (4) Circular lacerated wound 1.5 c.m. x 1.5 c.m. With inverted irrgular contused and abraded edges on the outer upper left thigh. (5) Lacerated wound 3 c.m. x 0.5 c.m. x scalp deep on the mid top of head. ' On exploration, injuries Nos. 1 and 3 were found to have entered the abdominal cavity while small and large intestines were found perforated. Two metallic pieces were recovered from the peritonial cavity. A small metallic piece was also recovered from beneath injury No,4 which had resulted into fracture of left thigh. ' Injuries Nos. 1, 3 and 4 were opined to have been caused by fire-arm while injuries Nos. 2 and 3 were opined to have been caused with blunt weapon. Injuries Nos. 1, 3 and 4 were individually opined to be sufficient to cause death in the ordinary course of nature. The death was opined to have resulted due to excessive bleeding and shock. Probable time between death and post- mortem was opined to be within 12 to 24 hours. ' Following injuries were noted on the dead body of Abdul Rauf deceased:- (1) Oval lacerated wound 1.5 c.m. x 1 c.m. With contused, irregular and inverted margins on the outer mid left arm. (2) Lacerated wound with averted and irregular abraided margins 2.5 c.m. x 2 c.m. On the inner left arm. On exploration, injuries Nos. 1 and 2 were found communicating each other under the humorous bonds. Injury No,1 was the entry wound, whereas injury No,2 was the exit wound. (3) Circular lacerated wound 1 c.m. x 1 c.m. With irregular abraided contused and inverted margins on the back of left elbow. (4) Lacerated wound with irregular inverted margins 2 c.m. x 2 c.m. On the inner aspect of lower left arm. On exploration, injury No,3 and injury No,4 were found communicating each other. Injuries Nos. 3 and 4 were entry and exit wounds respectively. (5) Oval lacerated wound 2 c.m. x 1.5 c.m. With inverted irregular abraided and contused margins on the left upper outer front chest, in the mid axilliary line.
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(6) Circular lacerated wound with inverted irregular and contused margins on the upper outer left chest, 4 c.m. Inner and lower to the injury No,5. (7) Circular lacerated wound 1.25 c.m. x 1.25 c.m. With inverted irregular and contused margins on the front left chest 12 c.m. Below and in the line to the left nipple. (8) Rounded lacerated wound with inverted irregular abraided and contused margins on the outer lower left abdomen. (9) Two rounded lacerated wounds with inverted irregular shattered edges on the front upper right chest on the anterior axilliary line. Wounds were varying in size from 2.5 c.m. x 2 c.m. To 3 c.m. x 2 c.m. (10) Circular lacerated wound 1.5 c.m. x 1.5 c.m. With inverted contused and irregular margins on the front right chest 10 c.m. Below and in line to the right nipple. ' On exploration, injuries Nos. 5 and 6 were found to have perforated the upper lobe of left lung and heart through the through. Injury No,7 after going through and diaphragm and abdomen, had shattered the liver. A metallic piece was recovered from the liver region. Injury No,8 had also caused multiple perforation in the small intestines. A metallic piece was also recovered from abdominal cavity. Injury No, 10 had perforated the right arm and had gone upto posterior chest wall where a metallic piece was found embedded. ' All the injuries were opined to have been caused by fire-arm. ' Injuries Nos. 5, 6, 7, 8 and 10 were opined individually to be sufficient to cause death in the ordinary course of nature. Cause of death was opined to be excessive bleeding and shock. Probable time between death and injuries was opined to be almost immediate. ' During cross-examination the doctor staid.' that the deceased might have taken meals 2-3 hours prior to the occurrence. He stated that he had given the time of death of Muhammad Sarwar as 10- 45 p.m. And of Abdur Rauf as 10-43 p.m. Per death certificates. He explained that by 'almost immediate' he meant `within 5 to 10 minutes'. He expressed inability to say the number of shots fired at each of the deceased. He expressed inability to give the exact distance from where the deceased were fired at. He, however, categorically stated that it would have been more than 3 feet. In answer to another question he stated that he had been delivered the inquest reports and the injury statements by the police before he had performed the post-mortem examination. He Beni, d the suggestion that post-mortem had been performed at late hours of the night. He explained that injuries having been caused within 3 hours of the medical examination are described to be fresh and of duration of more than that are described as having been caused within 12 hours, and the injuries of still more duration are described as within less than 24 hours. In answer to another question he stated that injuries Nos. 1, 3 and 4 on the person of Muhammad Sarwar had been caused by pellets. ' Muhammad Shafi Constable who appeared as P.W.4 stated that he had deposited the sealed parcel containing empty cartridges in the office of the Forensic Science Laboratory on 1-7-1982. He explained that the parcels had been entrusted to him on 29th but he could not deposit them earlier as he had to get the necessary documents prepared in that regard. ' Abdul Haq, Constable who had appeared as P.W.2 verified the fact of having deposited six sealed parcels pertaining to this case in the office of the Forensic Science Laboratory on 9-8-1982. He explained that the parcels had been entrusted to him on 8-8-1982 but he could not deposit the same on the said date as he got late in getting the docket prepared. ' Bashir Ahmad, Moharrir A.S.I. With whom the parcels pertaining to this case had been deposited and who had made over the parcels to Abdul Haq Constable P.W2 and Muhammad Shafi P.W.4 for onward transmission, appeared as P.W.S. All the three P.Ws.Stated that the parcels remained intact so long they had remained in their custody.
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' Muhammad Yusuf P.W.13 verified the fact of collection of blood-stained earth from three places at the spot, and of collection of eight crime empties by the S.H.O. During spot inspection. He stated that he was present at the spot to protect the same when the S.H.O. Had arrived. He also stated having attested the relevant memos. ' During cross-examination he stated that the crime empties were spread around the place of occurrence in 2/2 and 3/3, on its southern side and the same were recovered from a point at a distance of 5-6 Karams from the place of occurrence. He admitted that his father was real brother of father of the complainant. He denied the suggestion that he had made a false statement on account of relationship. 9. The ocular account was narrated by Muhammad Saleh complainant (P.W.14), Nabi Ahmad P.W.15 and Sarnawaz P.W.16 ' Muhammad Saleh complainant repeated the facts given by him in the F.I.R. During cross- examination he stated that the accused originally were residents of village Dinga in District Sheikhupura. He admitted that Mukhtar Ahmad was a school teacher but expressed lack of knowledge about place of his posting. He admitted that first time the accused came into connection in village Nangal Doona Singh when Mukhtar Ahmad had purchased 64 Acres of land in that village. He denied the knowledge that the land was purchased by him for Rs,40,000. Although he denied that Munshi Khan father of Abdul Ghaffar had filed a suit for pre-emption at their instance against Mukhtar Ahmad challenging the purchase of said land and also denied the knowledge that the suit was dismissed or that during appeal a compromise was effected wherein 5 Acres of land were given to Munshi Khan free of cost, but he admitted that out of the 64 Acres of land, 5 Acres which were adjacent to their land, were in their possession and they were cultivating the same as tenants of Munshi Khan. He expressed lack of knowledge that the share of water of said land was not transferred to Munshi Khan by Mukhtar Ahmad accused. He denied the suggestion that real motive for the occurrence was their attempt to forcibly take the share of water for the said 5 Acres of land from the turn of water of Mukhtar Ahmad appellant. He admitted that none of their land was irrigated from the tubewell from which the accused used to water their land. He gave the distance of the tubewell from the place of occurrence to he 8 Acres. He expressed lack of knowledge that the accused used to take the turn of water from the tubewell at 8-(X) p.m. Till 4- (X) a.m. He denied the suggestion that on the day of occurrence the two deceased alongwith their injured companions had gone to forcibily take the turn of water for the land which was in their possesion and the occurrence took place as the servants of Mukhtar Ahmd accused resisted, resulting into cross-firing. He admitted that the incident of previous Tuesday had not taken place in his presence but added that the same had been narrated to him by Muhammad Sarwar deceased. He explained that the watercourse which irrigated their land was in existence before installation of the tubewell by the Scarp. In reply to another question he stated that normally one man diverts the water to his fields but on the day of occurrence they had gone in large numbers because of previous Tuesday's incident. He admitted that his father was a licence-holder of .12 bore double barrel gun. ' In answer to another question he stated that on the day of occurrence the accused were not diverting the water illegally to their fields as their turn of water had not yet started. 10. Nabi Ahmad P.W.15 and Sarnawaz P.W.16, both of whom had suffered injuries during the occurrence, corroborated the statement made by Muhammad Saleh complainant. The suggestions put to Saleh Muhammad during cross-examination were also put to these witnesses but they too denied like Muhammad Saleh. Nabi Ahmad P.W. Specifically stated about Abdul Sattar having fired a shot from the rifle and of having hit him on the thigh. This was stated by Sarnawaz P.W. Also.
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11. Learned trial Judge before recording the statement of Nabi Ahmad P.W. Made a note that, 'the witness has been brought in Court on a cot. He is unable to stand. His evidence is being recorded while lying on the cot'. ' The witness after narrating the whole occurrence, specifically stated that, `due to the injuries, I sustained, I have become disabled and am unable to move'. 12. Amjad Karim S.I. Who had recorded the F.I.R., the statements of the P.Ws. Taken into possession the blood-stained earth and empties from the spot, and during whose custody the appellants other than Abdul Sattar had led to the recoveries of weapons of offence, appeared as P.W.17. His statement about the recoveries from the spot has been corroborated by Muhammad Yusuf P.W.13 while his statement about the recoveries of weapons of offence at the instance of the appellants other than Abdul Sattar has been corroborated by Muhammad Sarwar Khan P.W.12, the gist of whose testimonies has been noted earlier. ' Amjad Karim, S.I. During cross-examination admitted that Akhtar Ali (acquitted accused) and Mukhtar Ahmad appellant had pleaded innocence on appearance before him. He admitted that the investigation of the case had been conducted by D.S.P., Daska also and he had directed the S.H.O. Police Station Wandho (who had succeeded him) to place the names of Akhtar Ali and Mukhtar Ahmad in column No,2 of the challan. He admitted that after recording the F.I.R. He had not noted the names of all the accused in the Roznamcha register while giving brief facts of the case but added that he had mentioned therein that the case was registered against Ashiq Ali and others, nine in number. He denied that the F.I.R. Was recorded after preliminary investigation, after he had visited the hospital, where the deceased were lying and Ahe injured P.Ws. Stood admitted, and the spot. ' He denied the suggestion that all the accused had appeared before him on 25-6-1982 but he had not shown their arrest till 10-7-1982 and that he had recorded their formal arrest after application was made to the Superintendent of Police and the Deputy Inspector-General of Police in that regard. He admitted that in the certificate of identification of Abdul Sattar appellant his age was given as 16/17 years, while Abdul Ghaffar was mentioned to 17/18 in regard to the certificate prepared on his arrest. He denied the suggestion that no recoveries were effected from the accused and that he had planted the same and had falsely challaned them. 13. Ch. Sultan Ahmad, D.S.P. P.W.18 stated that he had partly investigated the case while being posted as D.S.P. Crime Branch when the same was entrusted to him by the Superintendent of Police, Crime Branch. He stated that he had directed the S.H.O. Police Station Wandho to challan all the nine accused by placing their names in column No,3 of the challan. ' During…
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