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Petitioner: MUHAMMAD KHAN AND 2 Others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema, Sheikh Anwarul Haq, Muhammad Afzal Zullah Title: MUHAMMAD KHAN AND 2 Others vs THE STATE Case No.: Criminal Appeal No. 321 and Murder Reference No. 158 of 1968 Date of Judgment:1970-07-13 Reported As: 1975 P Cr. L J 957 Result: appeal, set aside
JUDGMENT
JUDGMENT MUHAMMAD AFZAL ZULLAH, J.-Muhammad Khan, aged 33 years and his two younger brothers, Bashir, aged 29 years and Muhammad Ashraf, aged 25 years, have been convicted ; under section 302/34 P. P. C., and sentenced to death by the learned Additional Sessions Judge, Lyallpur, vide his judgment, dated 3rd April 1968. They were jointly tried with five others, namely, Salehon, aged 70 years their father, Umra, aged 70 years and Yousaf, aged 40 years, their brothers-in-law (sisters' husbands), Nur Ahmad, aged 25 years their maternal cousin and Mansha, aged 25 years a son of Salehon's nephew, for the murder of six persons, three of whom were their wives, the fourth a brother-in-law (brother of wives) and both parents-in-law the father-in-law being their real paternal uncle, on 15 October 1966. At about 7-00 a.m., in Chak No. 357 G. P. District Lyallpur. Tt:e last mentioned five accused persons have, however, been acquitted. The convicts have appealed and the reference for confirmation of the sen--tences of death under section 374, Cr. P. C., is also before us. The State has filed an appeal (No. 696/68) against the acquittal of the aforesaid five acquitted persons which was admitted on 5th February 1969 and notices were issued to them. All these matters are being disposed of together by this judgment. 2. Briefly stated the facts of the case, as disclosed in the statement of Muhammad Musa (P. W. 15) who is also the first informant, are as follows: Salehon accused is the brother of Haji Haibat deceased. Mst. Jannat, the daughter of Salehon, was married to the son of Haji Haibat, i.e., Manzoor deceased the three daughters of Haji Haibat, i.e.. Mst. Fateh Bibi, Mst. Aimna Bibi and Mst. Sahib Bibi, who are also deceased in the case, were married to Muhammad Khan, Bashir and Ashraf appellants respectively. Manzoor had no issue from Mst. Jannat. Therefore, he wanted to remarry. Mst. Jannat felt offended and came to live with herth
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brothers. On this the three daughters of Haji Haibat also left their husbands and went to stay with their brother and father. It all happened about 7 or 8 months before the occurrence. It may be mentioned that the houses of the two parties are adjacent to each other with an intervening wall. Two days prior to the occurrence, Jehana (P. W. 14), Yaqub (P. W. 17) and Muhammad Lambardar (P. W. 12) constituted themselves into a Panchayat and asked both the parties to send the ladies to their respective husbands. Salehon agreed to send his daughter to the house of Manzoor deceased provided some land was transferred in her name, presumably as a security for main--tenance because her husband wanted to remarry. This condition was not acceptable to his brother, I e., Haji Haibat. However, the negotiations were not broken and the Patchiest only postponed the matter for about six days when they promised to come again and patch up the matter between the two families. The Sub-Inspector reached the spot at 10-30 a.m. And conducted the usual investigation. Inquest reports were prepared and blood-stained earth from six places was taken into possession. Three crime empties (Exh. P. 1 to P. 3) were taken into possession vide memo (Exh. P H) from near the dead bodies of Manzoor and his mother. From that place a basket (Exh. P. 8) with swank (grass) (Exh. P. 9) was also taken into possession vide memo Exh. P. K) Four crime empties (Exhs. P. 4 to P. 7) were taken to possession vide memo. (Exh. 1' J) from the thata of Haji Haibat deceased. On the next day, i.e., 16th October 1966, he sent the parcels of he Police Station with an application that the crime empties be sent to the Forensic Science Laboratory. On the same day, i.e,, 16th October, five accuse, namely, Salehon, Bashir, Ashraf, Umra and Mansha were produced before the Sub- Inspector by Lal Khan Lambardar and were arrested. Muhammad Sher (P. W. 8)produced Muhammad Khan appellant before the police on the same day. On that very day, Muhammad Khan produced before the police, a double-barrelled gun (S & P 10) with five art ridges (Exh. P. 13/1- 5), a licence (Exh. P. 11) and a bandolier (Exh. P. 12) and also led to the recovery of a blood-stained chadar (Exh. P 14); Salehon accused led to the recovery of blood-stained hatchet (1xh. P 15) from his house; and Bashir accused also produced blood-stained hatchet (Exh. P.16) from his house. The memos of these recoveries are Exhs. P. L., P. M., P. N. And P. O. On 11th October, Bashir accused led to the house of his sister Mst. Jibi (wife and accused) and at his instance, she brought shirt (Exh. 17), chadar (Exh. P. 18) and shoes (Ex. P. 19) all blood-stained which ere taken into possession vide memo. (Exh. PP).'The sketches of the hatchets recovered from Salehon (Exh. P. 15) and Bashir (Exh. P. 16) were also prepared on 19October, Ashraf appellants, who was in police custody since 16tyh led to the recovery of a single barrelled gun (Exh. P.20) in his blood-stained garments (Exh. P. 11, P. 22 arid P. 23) from a sugarcane field. They were taken into possession vide memo. (Exh. PQ). Blood on the hatchet (Exh. P. 15) of Salehon and chadar (Exh. P. 14) of Muhammad Khan appellant was, on chemical examination, found to have disintegrated, while the source of blood on the hatchet (Exh. P. 16) of Bashir accused and the garments of Basbir and Ashraf appellant has been found, on chemical examination to be human. One crime empty (Exh. ^. 1) is shown to have been fired from the gun (Exh. P. 20) of Ashraf appellant. Due to lack of details, no opinion could be expressed by the Expert in respect of the remaining empties and the licensed gun (Exh. P. 10) of Muhammad Khan appellant. Dr. Habibur Rehman, Medical Officer, Jaranwala, who died in an accident, had performed the post- mortem examination on all the dead bodies on I5th October 1966 in the evening.. The reports are Exhs. PM M, PN.N, PoQ, PPP, PQQ and PRR and the, sketches are Exhs. PMM/1, PNN/l, Poo, PPP/l, PQQ/1 and PRR/1. He could not be examined as a witness. Therefore, Dr. Lftikhar Ahmad Piracha, A. M. O., Jaranwala (P. W. 9) who had worked for about 9/10 months with him and had seen him writing and was well aware of his signatures and handwriting, was examined at the trial. He proved the above rapist and sketches as having been prepared in the handwriting and under tire signatures of Dr. Habibur Rehman.th
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According to these reports, Manzoor deceased had suffered 17 injuries, they were eight incised wounds and nine gun shot wounds. Out of the gun shot wounds, four appear to be wounds of entry. Mst. Khan Bibi had five injuries. They were three incised wounds and two firearm injuries which appear to have been caused with one shot. The margin of entry wound were burnt and tattooed. The seventh cervical vertebra under this injury read shattered into pieces. Mst. Sahib Bibi suffered eleven injuries, seven incised and four with gunshot. Two of the gun shot wounds were of entry and the other two were of exit. Therefore, two shots were fired at Jannat Bibi suffered nine injuries, they were three it cased and the remaining with gun shot, three of which were entry and the other three were exit wounds. Mst. Fateh Bibi suffered seven injuries, three incised end four gun shot wounds; out of which two were of entry. Haji Haibat receive five injuries, two incised wounds and three with gun shot; out of which two appear to have been caused with one shot and the third one is exit wound. The margins of the entry wounds were burnt and tattooed. Deaths were due to shock and haemorrhage. The injuries were sufficient individually and collectively in the ordinary Eaourse of nature to cause deaths. The deaths were sudden and the post-mortem was conducted 12 hours thereafter. Vaginal swa bs were taken fro the dead bodies of the four ladies and were sent for chemical examination; with the result that except the swa bs taken from the dead body of Mst. Khan Oibi, all other swabs (from the other three dead bodies) were stained with women. The description of the injuries had been reproduced verbatim from he post-mortem reports in paragraphs Nos. 20, 22, 24, 26, 28 and 30 of the Judgment of the learned trial Judge. 3. At the trial, Muhammad Musa (P. W. 15), Isa (P. W. 16), Yaqub '' W. 17) and Muhammad son of Gshulam Muhammad (P. W. 18) appeared as eye-witness and supported tire prosecution case. Musa and Yaqub P. Ws. Naurang (P. W. 7) (in cross-examination) and Jehana (P. W. 14) deposed about the emotive alleged by the prosecution. Ahmad Khan (P. W. 10), in cross-examination made an admission about another motive that the wives of Muhammad and Ashraf appellants were carrying on illicit liaison with Yousaf and Gulla, and that the latter used to come to the house of Haji Haibat. Even at the protests of the appellants, Haji Haibat and his son Manzoor had refused to stop this liaison. This aspect of the emotive has the support of certain other circumstances which will be referred to at a later stage. Ahmad Khan (P. W. 10), Pehlwan (P. W. 11), Muhammad Khan (P. W. 1'`), Shah Muhammad (P. W. 13), Mir Zaman (A. S. I.) (P W. 19) and Raja Qurban Hussain (S. 1.) (P. W. 20) are the witnesses of different recoveries. Muhammad Sher (P. W. 8), a Lambardar had produced Muhammad Khan appellant before the police. Lie also deposed about an extra-judicial confession having been made by this appel--lant before the witness. The doctor who performed the autopsy on the dead bodies had died. Therefore, Dr. Iftikhar Ahmad Piracha (P. W. 9) proved the post- mortem examination reports and the sketches of injuries, as already noted above. Muhammad Akram, Firearms Expert, was not examined at the trial because he did not appear in spite of service, and for that reason alone the statement made by him before the committing Magistrate was used as evidence at the trial under section 33, Evidence Act. Both the learned counsel appearing before us ar reed that the aforesaid statement of the Firearms Expert is not legal evidence. The learned counsel for the State requested for the examination of that witness by this Court. Though this request was opposed by the learned counsel for the accused, yet by our order, dated 20th November -1969, we examined the Expert ourselves on 25th November 1969. The plea of all the accused was that of denial. The three appellants bad admitted before the committing Magistrate that on account of the fact that Manzoor wanted to remarry, their sister had come to reside with them; and on account of this, all three of them sent away their wives who started living with their father Haji Haibat deceased, about 7 or 8 months before the occurrence. However, at the trial though they admitted the relation--ship by way of marriages, yet showed ignorance about the fact that Manzoor deceased wanted to remarry. The remaining part of the
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motive was denied by the accused. About the reason for their implication. Muhammad Khan appellant stated that the in-laws of Haji Haibat wanted to grab the land; therefore, he had been falsely implicated. Bashir stated that it was due to enmity with the P. Ws. And Ashraf appellant explained that Muhammad Khan Lambardar (P. W.) wanted to usurp the property of Haji Haibat ; therefore, he concocted a false case. Salehon accused stated that the case was made against him due to enmity with the P. Ws. The remaining four accused persons, i.e., Umra, Mansha, Yousaf and Noor were not asked any question about the motive nor about their relationship with the other accused. They, however, denied all the allegations about the occurrence and explained that they had been falsely implicated on account of enmity with the P. Ws. No evidence in defence was produced. 4. The learned trial Judge acquitted Umra, Mansha, Yousaf and Noor accused (respondents in State appeal), on the finding that they had no motive, lived separately, were not dependent upon the family of Salehon and had no enmity with Haji Haibat and his family ; that no recoveries were effected from them ; that due to the admissions made by certain P. Ws. All four of them had pleaded alibi and Innocence and produced before the police evidence in support thereof ; and that they were not interrogated by the police thereafter. On this finding, they were held to, be innocent and having been falsely implicated in the case. Salehon accused was also acquitted, on the grounds that Le had no motive to cause the death of his close relations, particularly his nephew (also his son-in-law) and his brother; and further that the Sub-Inspector had admitted that Salehon had, in the very first instance "took the plea that he was studying Holy Quran when he came to know about the occurrence". The fact that no blood-stained clothes were recovered from him and that the hatchet produced by him was not stained with human blood, was also taken note of; and thus finding no corroboration of the ocular account given by the eye-witnesses qua Salehon, he was given the beneiit of doubt. With regard to the remaining accused (present appellants), namely, Muhammad Khan, Ashraf and Bashir, the learned trial Judge thought that there was no other infirmity in the evidence given by Musa and Isa, the two eye-witnesses, he believed, but due to the fact that they had, as he put it, "implicated at least four persons falsely", it was found necessary to look for some independent corroboration of their statements in respect of the remaining accused, i.e., the three appellants. Extra-judicial confession made by Muhammad Khan appellant; the recovery of the gun (Exh. P. 20) and crime empty (C. 1) together with the statement of the forensic expert and the recovery of garments stained with human blood, from Ashraf appellant; and the recovery of the hatchet and garments stained with human blood from Bashir, have been used as corroboration against them. Thus all three of them have been found guilty of murder on six counts. 5. Learned counsel for the accused raised the following main contentions - (i) That the occurrence is of early morning hours and was not witnessed by any of the P. Ws. And that the medical evidence and other circumstances contradict them; (ii) That five of the accused persons have been acquitted by the learned trial Judge with justifiable grounds and, therefore, the State appeal should not be accepted; (iii) That if the State appeal is dismissed and the acquittal is maintained, the credibility of the eye- witnesses being not divisible they should not be believed against the convicts, without independent corroboration; (iv)That items of corroboration used by the learned trial Judge are not supported by reliable evidence. In this behalf, he has in particular contended that the recoveries of weapons and garments from Ashraf appellant and Bashir accused are fake; and, in any case, it has not been proved that any of the so-called incriminating articles was stained with human blood, or that the gun said to have been reco--vered from Ashraf appellant, in fact, matched with the crime empty
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(Eah.C.1); and further, that the extra judicial confession said to have been made by Muhammad Khan appellant was a concoction; and (v) that in case the conviction of the appellants is maintained, the sentences of death awarded to them should not be confirmed because the murders appear to have been committed due to reasons referable to the sense of honour. 6. Mr. Saleem devoted considerable time to show that the occurrence took place before sunrise ; and according to his estimate, at about 5-30 a.m., the sunrise being at 6-6 a.m. He conceded that depending upon the distance of a witness, the identification of the culprits at that time was not impossible. His main purpose, in this behalf, was to show that the eye-witnesses, particularly Musa by giving the time of occurrence as 7 a.m., have not only told a lie but have also tried to give a false explanation for a delayed F. I. R. Recorded at 9-30 a.m. He brought to our notice the following pieces of evidence in support of his contention:- (a) Ahmad Khan (P. W. 10) stated that he heard the reports of fire shots about one hour before the sunrise and that it was still dark. If what he heard were the very first shots fired at Manzoor and if some time is added for the completion of the entire occurrence of six murders (at three places) the time can be placed at about 5-30 a. m. (b) Muhammad Khan (P. W. 12) who is a resident of a village one mile away, stated that just alter sunrise he reached the spot "on hearing the news of these murders". If it took twenty minutes for the news to reach his village and another twenty minutes for his reaching the spot, the occurrence may have taken place at about 5-30 a.m. (c) Jehana (P. W. 14), who is a resident of a village about a mile away, stated that he after coming to know of the murders through a boy, reached the spot after sunrise. This also would place the occurrence, as in the case of Muhammad Khan P. W. At about 5-30 a.m. (d) Isa (P. W. 16), an eye-witness, stated that the sun had risen about 15 or 20 minutes after the first shots were fired. 'This would place the occurrence at about 5-45 a.m. (e) Muhammad (P. W. 18), another alleged eye-witness, stated that "the sun was just rising when Mst. Sahib Bibi was being killed". This would place the time of occurrence at about 6 a.m., and its compel--petition at about 6-3a a.m. (f ) According to the post-mortem reports, the stomachs of all the deceased (except in the case of Mst. Fatah Bibi and Haji Haibat which had been shattered) were empty. The bladders excepting in the case of Haji Haibat, contained two to four ounces of urine. The small intestines contained semi- digested food while the large in--testines (excepting Mst. Fatah Bibi and Haji Haibat in whose case they were shattered) contained faecal matter. From all this, it was concluded by the learned counsel that excepting one or may be two, deceased about whom the evidence is not conclusive due to damage done to the organs, the deceased had not evacuated when the occurrence took place. This, also would show that the time was about half an hour before sunrise, i.e. 5-30 a.m. It may be straightway noted that this argument would not, in any way, contradict the supposition that the occurrence took place a little after sunrise. Therefore, it does not merit any serious and detailed consideration. (g) When the accused entered the house of Haji Haibat, it does appear that the inmates thereof were, and remained, calm; which would show that it was an early morning time before sunrise and the inmates of the house were absolutely unaware of what had happened outside. This, according to Mr. Saleem, in the light of the prosecution story was unnatural. But he expressed certain amount of difficulty in reconstructing or imagining as to what had actually happened. In any case, he argued that this would fix the time before sunrise and would further show that the story given by the eye-witnesses is riot true. As will be presently shown, the statement made by Ahmad Khan (p. W. 10) appears to have been inspired with a motive to help the accused. Therefore, much reliance cannot be placed upon him.
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About Muhammad Khan P. W. It is necessary to reproduce what he stated about time: "I live at a distance of one mile from the place of occurrence. On hearing the news of these murders I reached the place of occurrence. It was just after sunrise." It is not impossible to conclude from this that he reached the place of occurrence after sunrise; but it is not, at the same time, impossible to conclude that he heard the news after sunrise. Therefore, his statement also is not of much help. Similarly, Jehana P. W. Stated that he reached the spot soon after sunrise. This is not enough to fix the time with any definiteness. `Soon after sunrise', depending upon the estimate of the witness can go up to 6-30 a.m. Therefore, his statement also is not of much help, except that the occurrence may have taken place at about sunrise time. So far as the two eye-witnesses, namely, Isa and Muhammad, are con--cerned, their statements do give an impression that the occurrence started (according to Isa,) shortly before sunrise or at about the sunrise time. But it cannot be ignored that the occurrence started near the end of the village where two murders were committed. After that the culprits proceeded towards the house of Haji Hai bat and committed another murder on the way, and then having reached the house of Haji Haibat not only committed three more murders but also lifted away two children. This all must have taken about half an hour time. If that is so, the occurrence may have started shortly before sunrise and may have ended after the sunrise at about 6-30 a.m. This supposition is supported by the statement of Shah Muhammad (P. W. 13), a recovery witness, who is a resident of the village of occurrence. Accord--ing to him, "on hearing the news of these murders" he "proceeded to the place of occurrence at 6 or 7 a.m. Musa P. W. In his statement, gave the time as 7 a,m. He is a School-master and had to reach the school, two and a half miles away, at 8 a.m. The time of occurrence, was not given by him by the watch; nor is it shown that he had a watch at that time, Therefore, this would be according to his estimate. He being a School--master, the learned counsel argued, could not give a wrong estimate of time. The teachers in village schools are not, all of them, the type as imagined by Mr. Saleem. A great majority of them may still be working according to the general estimates of time, i.e., morning, chahwela, noon, peshiwela, etc. If Musa ventured an estimate of time in terms of hours of the day, he is wrong only by about half an hour even according to the evidence analysed above. This much margin in the estimate is not unnatural. Therefore, when Musa gave the time of occurrence as 7 a.m., even if it is wrong by half an hour, it cannot at all be considered to be a deliberate attempt to conceal the truth. With regard to the delay in the F. I. R., it may be stated that, the dis--tance of the police station is eight miles and Musa went on a bicycle. He explained in cross-examination that before starting for the police station, he spent about half an hour to an hour at the place of occurrence. It was not asked from him as to what did he do in that time. Had it been asked, he might have further explained it. However, it is not difficult to imagine that six murders having been committed, it might have taken that much time to cover the blood or other pieces of evidence. He might have con-- sidered it necessary to cover the dead bodies and to make arrangements for, at least three persons, to keep guard on the dead bodies at three places. In this, I have taken note o0ithe fact that the entire family of Fuji Haihat having been wiped out, whosoever was to go to the police for making the F. I. R., must have taken fairly long time in making the above arrange--ments before proceeding to the police station. The F. I. R. Was recorded (completed) at 9-30 a.m. It is a very lengthy document and must have taken considerable time to be completed. Therefore, in, my view, there is no unexplained delay in the F. I. R. While reading the evidence, Mr. Saleem brought to our notice the fact that according to Khadim Hussain, F. C. The police party went to the spot on a jeep which was brought by the complainant. This would prime facie contradict Musa P. W. But it was ell sited in his cross-examination that he got a jeep from Jaranwala which is also the police station. Therefore, his version remains consistent ; in that he went on a bicycle but having arranged the transport from Jaranwala, came back to the village on a jeep.
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7. It was next contended that the medical evidence contradicts the eye--witness account, and further that the account itself is discrepant qua the role attributed to some of the accused. Three shots are stated to have been fired at Manzoor on the contrary, according to the learned counsel, the details of injuries on his would show about five shots and further that they were fired from two sides. In my view, all the fire shot wounds which, of course, include five entry wounds, could be caused by three shots from .12 bore gun/guns. According to Musa P. W. Manzoor deceased had turned round on hearing the shout from Muhammad and was then fired by the latter. It is not known as to how and in what position the subsequent two shots were fired at him by Muhammad and Ashraf appellants. Therefore, this not only explains the so-called different directions qua the gun shot wounds…
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