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Petitioner: KHIZAR HAYAT AND 2 OTHERS VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Fazal-e-Mahmood Title: KHIZAR HAYAT AND 2 OTHERS vs THE STATE Case No.: Criminal Appeal No, 268 and Murder Reference No, 65 of 1980 Date of Judgment:1982-10-17 Reported As: 1984 P Cr. L J 54 Result: Order accordingly
JUDGMENT
JUDGMENT FAZL-I-MAHMOOD, J.-These there criminals appeals and murder reference arise out of the occurrence in village Pachiani five miles away from Police Station Jhawarian district Sargodha, wherein shortly before the Moazzan in the local mosque called the faithfuls for the morning prayers on 19th September, 1977 there were gruesome murders of five persons in two neighbouring houses and injuries to a tender age boy. The first incident took place in the house of Ghulam Rasool in which 11 assailants were named in the first information report. His wife and teen-aged son were slain but his tender age son escaped death after sustaining injuries. During the second incident in the nearby house of Ghulam Muhammad, his father and mother were shot dead while his wife put to death with hatchet blow. The number of assailants swelled in the second incident to 16 as a result of version given by Ghulam Muhammad. 2. The brief facts of the case are that the matter was reported to the police vide F. I. R. No, 49 of 1977 registered at 8 a.m. On 19th September, 1977 with Police Station Jhawarian. The F.I.R. (Exh. P.E.E.) was recorded on the statement of Ghulam Rasool (P. W. 12) by Manzoor Ahmad S.-I. S. H. 0. Police Station Jhawarian (P. W. 15). According to the F. 1. R. Version, in January, 1976 in village Pachiani, one Ahmad Yar son of Khunjar was murdered. In this murder case the complainant together with Ghulam Muhammad son of Muhammad Bakhsh (P. W. 13) and Ramzan son of Muhammad caste Kumhar, residents of the same village, were challaned. About four months after the said murder, these accused were released on bail and they came home. From the day they had come on bail, the brothers of the deceased Ahmad Yar, namely, Yaru, Inayat alias Natoo, Khan alias Khani, Hattars by caste, were planning to murder them
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with the result that they observed caution and did not go out of the village. The murder case was fixed for 20th September, 1977 for announcement of judgment. On the previous night, the complainant together with his wife Zubaida deceased and his son Abdul Ghafoor deceased aged 13 years and A bdur Rauf another son aged about 5 years were sleeping in the courtyard of the house. The complainant together with his brothers Ata Muhammad (not produced) and Muhammad Bakhsh (P. W. 11) were sleeping on the roof of the house. There was a lantern burning in the courtyard. A little before the streak of dawn, 11 of the accused, namely, Mahla Bodha, Abbas son of Lala, Massu son of Hayat, Inayat alias Natoo, all Hattars by caste, armed with guns, Muhammad Sharif s ln of Ibrahim, Khizar Hayat son of Umar Hayat, Umra son of Muhammad Khan and Ahmad Sher son of Muhammad Khan, armed with Kulharis and Khan alias Khani, Allah Bakhsh son of Gahna and Ahmad Yar son of Khuda Bakhsh, armed with sotas, suddenly entered the courtyard of the house. Inayat accused shouted a lalkara calling out Ghulam Rasool to get ready as they had come to avenge the murder of Ahmad Yar. The complainant who was in the company of his brothers on the roof, on hearing the voice, recognized the accused in the light of the lantern. Thereupon, Inayat alias Natoo fired a gunshot which hit his wife Mst. Zubaida on Iher head. Thereafter, Ahmad Yar gave a sofa blow on the right thigh of Mat. Zubaida and Khizar Hayat gave two kulhari blows on the back and the left wrist of the lady. Then, Umara, Ahmad Sher Hattars and Muhammad Sharif gave successive blows with kulharis to the complainant's son Abdul Ghafoor on his face, neck, head, chest and shoulder. The other son Abdur Rauf who was sleeping on the same cot with his mother was given blows by Khizar Hayat with a kulhari on his head. Then Khan alias Khani and Allah Bukhsh struck sota blows on his head, in the ribs, on the arm and shoulder. The complainant and his brother out of fear kept confined on the roof. The accused thereafter searched for the complainant in the room of the house and on not finding him there they ran away and reached the house of Ghulam Muhammad son of Muhammad Bakhsh (P. W. 13) which is located nearby. According to the complainant's further version, as he was present on the roof, he and his brothers saw the accused reaching the house of Ghulam Muhammad. Some of these accused climbed the wall and entered the house of Ghulam Muhammad and opened the door of the Haveli from inside whereupon the rest of the accused also entered that house and thereafter restored to indiscriminate firing. They then escaped towards the east shouting lalkaras. The complainant together with his brothers descended from the roof of his house and found his wife Mst. Zubaida and son Abdul Ghafoor dead while soaked in blood and Abdur Rauf in an injured condition. The complainant left his brothers Ata Muhammad and Muhammad Bakhsh in the house and himself ran towards the house of Ghulam Muhammad. He saw Ghulam Muhammad crying and in the courtyard he found his mother Mst. Jallan, his wife Mst. Alan and his father Muhammad Bakhsh dead with blood all around their bodies. Their bodies had injuries of gunshots and hatchets. The complainant left the said Ghulam Muhammad at his house and after observing caution and concealing himself reached the police station for laying the information. This version has been supported at the trial by three eye-witnesses, Muhammad Bakhsh (P. W. 11), Ghulam Rasool (P. W. 12) and Ghulam Muhammad (P. W. 13). The latter, however, furnished the ocular account of the crime in his house. 3. The investigation in this case was conducted by Manzoor Ahmed S.-I. S. H. 0. (P. W. 15). He reached the spot on the same day at 10 a.m. He visited the house of Ghulam Rasool complainant where he prepared the injury statement (Exh. P. U. U.) of Abdur Rauf injured son of the complainant and sent him for medical examination. Thereafter, he prepared injury statement (Exh. P. V. V.) and inquest report (Exh. P. V. V./1) in respect of Abdul Ghafoor deceased. Similarly, he prepared injury statement (Exh. P.X.X ) and inquest report (Exh. P.X.X./1)in respect of Mst. Zubaida deceased. He sent their bodies for post-mortem examination under the escort of Abdul Rehman alongwith the dead
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bodies of Mst. Jalan, Mst. Alan and Muhammad Bakhsh deceased. He then went to the house of Ghulam Muhammad (P. W. 13) and found the dead bodies of Muhammad Bakhsh, Mst. Alan and Mst. Jalan lying in the courtyard. He prepared injury statement (Exh. P.Y.Y.) and inquest report (Exh. P.Y.Y./1) of Muhammad Bakhsh deceased, injury statement (Exh. P.Z.Z.) and inquest report (Exh. P.Z.Z./1) in respect of Mst. Jalan deceased and injury statement (Exh. P.A.A.A.) and inquest report (Exh. P.A.A.A./1) of Mst. Alan deceased. He made over these dead bodies to Head Constable Abdul Rehman for taking them to mortuary alongwith the dead bodies of Abdul Ghafoo r and Mst. Zubaida. On return to the house of Ghulam Rasool (P. W. 12), the complainant, he inspected the spot and took into possession lantern (P. 32) which was hanging against the wall of the kotha in the courtyard vide memo. Exh. P.J.J. He also took into possession crime empty (P. 31) from near the charpai of Mst. Zubaida deceased and made it into a sealed parcel vide memo. Exh. P.H.H. He also took into possession pillow (P. 35) and charpai (P. 36) of Mst. Zubaida deceased having pellet marks on them vide memo. Exh. P. R. R. Collected blood-stained earth from under the charpai of Mst. Zubaida vide memo. Exh. P. G. G. And made it into a sealed parcel. He also collected blood- stained earth from beneath the charpai of Abdul Ghafoor deceased and made it into a sealed parcel. Vide memo. Exh. P. F. F. Similarly, blood-stained earth was collected from near the charpai of Abdul Rauf and made into a sealed parcel vide memo. Exh. P. B. B. B. ' He again visited the house of Ghulam Muhammad and inspected the spot. There he took into possession lantern (P. 34) which was found. Hanging against the wall of the kotha of Ghulam Muhammad, vide memo. Exh. P. 0. 0. He collected 12 crime empties (P. 33/1-12) lying scattered in the courtyard of Ghulam Muhammad's house and made them into a sealed parcel, vide memo. Exh. P. K. K. He also collected blood-stained earth separately from beneath the charpais of Muhammad Bakhsh, M. Alan and Mst. Jalan deceased and made three parcels vide memos. Exhs. P. L. L., P. M. M. And P. N. N. Respectively. He extracted 14 pieces of lead from the walls of the house of Ghulam Muhammad and collected 13 cardboard discs lying. Scattered in the courtyard and took them into possession vide memo. Exh. P. Q. Q. He made separate sealed parcels of all these lead pieces and cardboard discs. All these recoveries from the spots were witnessed by Ghulam Rasool . (P. W. 12) and Ghulam Muhammad (P. W. 13). After the autopsy of the deceassed in the case, he took into possession the blood-stained clothes of the murdered persons on 22nd September, 1977. 4. The Investigating Officer got prepared the site plan (Exh. P. M.) and its duplicate (Exh. P. M./1) in respect of place of murder of Abdul Ghafoor and M. Zubaida deceased from Noor Muhammad Draftsman (P. W. 8). He made red ink notes therein in his hand and signed them. He alio got prepared site plan (Exh. P. N.) and its duplicate (Exh. P. N./I) from the same Draftsman in respect of the place of murder of Muhammad Bakhsh, Mst. Jalan and Mst. Alan deceased. He also'made notes in red ink thereon in his hand and signed them. After completion of the investigation, he challaned the accused. 5. The details of the incident which took place in the house of Ghulam Muhammad (P. W. 13) were furnished by him in his statement under section 161, Cr. P. C. Recorded by the police on the date of incident. According to his version as well the background and the motive for the murder is the same as given by Ghulam Rasool. On the previous night, he alongwith his father Muhammad Bakhsh, mother Mst. Jalan and wife Mst. Alan were sleeping in the courtyard of the house. At dawn time, he heard fire shots coming from the direction of the house of Ghulam Rasul Mochi which woke him up. He climbed the roof of his house and lay down to escape detection by the accused. He kept looking in the direction of the accused. Suddenly, he saw 15/16 people armed with guns, kulharis and lathis coming running towards his house. Some of them entered his haveli from a corner and opened the gate of the haveli whereupon, all the accused entered the house. A lantern
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was burning and hanging by the wall of the house. In this light, he saw Mahla, Abbas, Massu and Natoo armed with guns while Muhammad Sharif, Khizar Hayat, Umra, Ahmad Sher, Sultan and Ghulam Rasool armed with hatchets and then Khan alias Khani, Allah Bakhsh, Ahmad Yar, Muhammad Khan, Manak and Muhammad Nawaz armed with lathis. Thereafter, Natoo shouted a lalkara that they had come to avenge the murder of Ahmad Yar. Simultaneously with this, Natoo, Massu and Abbas successively fired three shots at the charpai of his father which hit him on his head. Then Natoo and Mahla made one fire each at Mst. Jalan. Ghulam Rasool gave a hatchet blow to his father whereas Manak gave a lathi blow to Mst. Jalan. Muhammad Sharif and Sultan gave injuries to Mst. Alan with hatchets while Muhammad Nawaz and Muhammad Khan alias Mammi gave lathi blows to her. The accused wiped out inmates of his house within his sight. He explained that he could not dare to confront so many accused, therefore, he silently watched his mother, father and wife being slaughtered. After he was satisfied that the accused had gone away, he came down from the roof and found the aforesaid inmates of the house murdered. His testimony at the trial is also to the same effect. 6. We would like to pause here and for facility of reference analyse the prosecution case as it emerged consequent upon the completion of the trial. In the first incident which took place in the house of Ghulam Rasool complainant (P. W. 12), there are II accused. The gunshot is attributed to Inayat alias Natoo and hatchet blows to Khizar Hayat, Umra, Ahmad Sher and Muhammad Sharif. Sota blows are attributed to Ahman Yar (acquitted accused) for having given injuries to Mst. Zubaida and to Khan alias Khani and Allah Bakhsh for causing injuries to Abdur Rauf child. In so far as the three convict appellants Mahla, Ghulam Abbas and Massan alias Massu are concerned, no specific role or part is attributed to them in the F. I. R. Now coming to the second incident, there are five persons who are not mentioned in the F. I. R., namely, Sultan son of Bhai Khan, Muhammad Nawaz son of Muhammad Bakhsh, Ghulam Rasool son of Rehmat Khan, Muhammad Yar son of Mehra and Manak son of Bhai Khan but the names of all the accused including these five persons are provided by the eye-witness account of Ghulam Muhammad (P. W. 13). 7. A further analysis of the case of the prosecution would show that in the first incident four gunmen were involved out of which the overt act is attributed to Inayat alias Natoo for firing at Mst. Zubaida deceased. These four gunmen are common participants in both the incidents. In the second incident, however, the overt act is attributed to all the four gunmen inasmuch as Natoo, Massu and Abbas fired at Muhammad Bakhsh deceased father of Ghulam Muhammad (P. W. 13) whereas Natoo and Mahla fired at Mst. Jalan deceased mother of P. W. 13. 8. Coming now to the role played by the accused armed with hatchets, in the first incident Khizar Hayat caused hatchet injuries to Mst. Zubaida and similar blows to injured child Abdur Rauf while Umra, Ahmad Sher and Muhammad Sharif caused hatchet injuries to Abdul Ghafoor deceased son of Ghulam Rasool (P. W. 12). Thus, all the four accused armed with hatchets have been ascribed role. In so far as the accused armed with sotas are concerned, role is ascribed to Khan alias Khani and Allah Bakhsh for causing blows to child Abdur Rauf. Ahmad Yar is alleged to have caused sota blow to Mst. Zubaida. 9. In the second incident in the house of Ghulam Muhammad where three murders were committed, the number of accused armed with hatchets increased from four to six. The two additions are of Sultan Gondal and Ghulam Rasool both armed with hatchets. Out of these, overt act is attributed to four of them, namely, Ghulam Rasool, Sultan, Khizar Hayat and Muhammad Sharif. Thus, Khizar Hayat and Sharif are common for participating actively in the two incidents. No overt act is attributed in the second incident to two men armed with hatchets, namely, Umra and Ahmad Sher. Similarly, there were alleged to be six accused armed with sotas involved in the
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second incident. Out of them, Muhammad Khan alias Mammi, Manak Gondal and Muhammad Nawaz were the three additions. Active role is ascribed to all these three who are added in the second incident and consequently no role is attributed to Khan alias Khani, Allah Bakhsh and Ahmad Yar. This concludes the picture in so far as the overt acts in the two incidents are concerned. 10. We would, at this stage, like to take notice of the report of the Examiner of Fire-arms in the light of the recoveries of guns from four of the accused appellants. All the four respective guns recovered from the appellants. Inayat alias, Natoo, Mahla, Massan alias Massu and Ghulam Abbas were found to match with the various crime empties recovered from the scenes of occurrence. 11. Next as regards six hatchets, the report of the Chemical Examiner Punjab was made, vide Exh. P. D. D. D. Which showed that the contents of the packet i. e. a hatchet was stained with blood. The scrappings were sent to the Serologist, Islamabad for determination of the origin of the blood. The same Examiner, vide Exh. P. D. D./1 gave the opinion that the five hatchets he was led to examine contained in a separate parcel were stained with blood. Scrapping were being sent to the Serologist to determine the origin of the blood. In respect of blood stains on hatchets marked by the Serologist as 3565/3 to 3565/4, it was found by him that their origin could not be determined because of disintegration whereas the remaining items 3565/1 to 3565/2 were found to be stained with human blood (vide Exh. P.E.E.E./1). In so far as the scrappings from hatchet marked 3721/1 were concerned, the result of the analysis was contained in Exh. P.E.E.E./2 which was to the effect that the scrappings from that hatchet contained human blood. It would thus be seen that the Chemical Examiner found all the six hatchets stained with blood whereas the Serologist found the blood on four of the hatchets to be of human origin and the result of scrappings from the remaining two hatchets could not be given because of disintegration. 12. In so far as the recoveries of lathis are concerned, we are not dealing with this aspect as none of them admittedly were found to be stained with blood and thus have no corroborative value. 13. Now adverting to medical evidence it may be observed that Abdur Rauf the injured child was examined by Dr. Muhammad Azim Bajwa (P. W. I), on 19th September, 1977 at about 11 a. m. He found one incised wound 2+" into bone deep extending vertically in the middle of the forehead, 9 contusions in the areas of head, arm, shoulder and chest and one swelling. The incised wound was sharp while all other injuries were found to be with blunt weapon. Exh. P.A. Is the correct carbon copy of the medico-legal report. 14. Dr. Muhammad Azim Majoka, Medical Officer, D. H. Q. Hospital, Sargodha (P.W. 1) on 20th September, 1977 at 11-30 a.m. Conducted post-mortem examination on the dead body of Mst. Zubaida wife of Ghulam Rasool (P. W. 12) after due identification. Following injuries were found on her person :- (1) An incised wound 2' x 1" x brain deep on the right side of head, 3" above right ear with brain matter coming out and the bone cut. (2) A contused wound x 1/2' x 1/2" on right side of head 2' behind injury No, 1. (3) An abrasion 1" x 1" on left forearm lower one third back. (4) An abrasion 1' x 1/2" on left side of back upper 1/3". (5) A contusion mark 2" x 1" on front of left thigh upper 1/3". Death had occurred due to shock and haemorrhage caused by injury No, 1 which was sufficient in the ordinary course of nature to cause death. This injury was caused by a sharp-edged weapon and was grievous and dangerous. All the rest of injuries were simple and caused by a blunt weapon and were ante-mortem. The time between injuries and death was within two hours while between death and post-mortem was 24 to 48 hours. Exh. P. B. Is the correct carbon copy of post- mortem report while Exh. P. B./1 and P. B./2 are sketches of injuries duly signed and written by the doctor.
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Half an hour later on 20th September, 1977, the same doctor conducted post-mortem examination on the dead body of Abdul Ghafoor son of the complainant after due identification. He found the deceased to have suffered the following injuries :- (1) An incised wound 5"x 1/2"x bone cut on left side of forehead upto dorsum of the nose. (2) An incised wound 2" x 1/2" x bone cut on left side of face 1/2" below left eye. (3) An incised wound 1" x 1/3" x 1/4', 1/2" below injury No, 2. (4) An incised Wound If" ,x 1/2" x bone put on dorsum of nose 1" below the root. (5) An incised wound 5 X 1" x bone cut on front of chin. (6) An incised wound 3-1-" x 1 X throat and all soft tissues cut on front of neck upper one third. (7) An incised wound 21" x 1" x bone cut on left side of front of chest 1" below the neck. (8) An incised wound 2" x 1/2" x skin deep on right side of face 1" below the eye. (9) An incised wound 4" x 1/4" x skin deep on right side of face and upper lip. (10) An incised wound 2" x 1/4" x 1/8" on front of right shoulder. There was a cut fracture under injury No, 1, extending upward in frontal and parietal bone. The chest wall was cut on left side. The medial end of left clavicle was completely cut under injury No, 7. Larynx and trachea were cut by injury No, 6 and large blood vessels were also cut in front of neck. Death had occurred due to haemorrhage and shock caused by injuries Nos. 1 and 6 mainly and all injuries collectively. Injuries 1 and 6 were sufficient to cause death in ordinary course of nature. Injuries 1, 2, 4, 5, 6 and 7 were grievous while rest were simple, all caused by sharp-edged weapon and ante-mortem. Time between injuries and death was instantaneous and between death and post-mortem was 24 to 48 hours. On the same day at 12-30 p. m. The same doctor (P. W. 2) conducted the post-mortem examination on the dead body of Muhammad Bakhsh alias Muhammad son of Aziz Ahmad after due identification. He had suffered the following injuries :- (1) A gun shot wound x 1" x chest deep on front of lower end of neck just above the sternum with margins tattooed and directed backwards and to the left, existing out on back of left chest forming six holes over an area 4" x 3". (2) A gunshot wound 11. x 1/2" directed from below upwards on dorsum of lower end of penis and adjacent part of left thigh entering into thigh with margins tattooed. (3) A gunshot wound 2-i" x 1/2" X abdomen deep on left side of abdomen with margins tattooed just above the iliac crest causing fracture of ilium bone. 12 large pellets and pieces of cartridges were found in the skin of back and removed and sealed. (4) An incised wound 2" x 1/4" x skin deep on the top of head directed behind forward. Chest wall was punctured on left side and so was pleura punctured on left side and both sides contained blood. Trachea was injured and under injury No, 1. Left lung was injured and collapsed. Blood vessels were injured on neck and left side of chest and abdominal walls were punctured on left side. Intestines were injured at various points. Penis was damaged under injury No, 2. Death had occurred due to haemorrhage and shock resulting from injuries 1, 2 and 3, each one of which was grievous and caused by gunshots and were sufficient to cause death in ordinary course of nature. Injury No, 4 was simple and was caused by a sharp weapon. All the injuries were ante-mortem. Time between injuries and death was instantaneous and between death and post-mortem was 24 to 48 hours. Exh. P. D. Is correct carbon copy of post-mortem report while Exhs. P. D./1 and P. D./2 are the sketches written and signed by the doctor. Next, the same doctor conducted the post-mortem examination on the dead body of Mst. Jalan wife of Muhammad Bakhsh on the same day at 12-50 p. m., after due identification. She was found to have suffered the following injuries :- (1) A gunshot wound li" X 1" X skull deep on right tample with margins tattooed.
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(2) A gunshot wound 2" x Ii" on front of right thigh going backward and existing out from three holes one each on both buttocks and one in the centre, two large pellets were removed which were stuck in the vicinity. (3) Multiple abrasion on left cheek over an area 2" x 1", skull was fractured under injury No, 1 causing damage to brain and a collection of blood. Brain membranes were damaged under injury No, 1. Death had occurred due to haemorrhage and shock causediby injuries 1 and 2 collectively which were caused by fire-arm. Injury No, 1 alone was sufficient to cause death in ordinary course of nature. Injury No, 1 was grievous and the rest were simple injuries. Injury No, 3 was with blunt weapon. All injuries were ante-mortem. Time between injuries and death was within 2 hours and between death and post-mortem was 24 to 48 hours. Exh. P. E. Is correct carbon copy of post-mortem report and Exhs. P. E/1 and P. E./2 are the sketches written and signed by the doctor. Thereafter, the same doctor conducted the post-mortem examination on the dead body of Mst. Alan wife of Ghulam Muhammad (P. W. 13). She was found to have suffered the following injuries : - (1) A contused 4" x 1" x brain coming out on right side of head, about the right ear. (2) An incised wound 34" x 1" x all soft tissues cut on front and left side of neck just below thyroid cartilage. (3) An incised wound 1" x 1/3" x 1/8" on palm of right hand above the index finger. (4) An incised wound 6"x x bone cut on front of right upper arm upper 1/3". (5) An incised wound 2" x 1/2" on centre of back upper 1/3". (6) An incised wound 4" x 1" x bone cut on right side of :back of chest upper 1/3". (7) An incised wound n. x 1/2" x 1/2" on back of tight shoulder. (8) An abrasion 111 x 1" on back of right shoulder 1" above No, 7. (9) An abrasion 1" x 3/4" on left side of back of head. (10) A communuted fracture found under injury No, 1 causing multiple of pieces of skull bone and brain matter was pouring out. Membranes…
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