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Petitioner: IQBALUR REEIMAN AND 6 OTHERS Convict VS Respondent: THE TATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Kamal Mustafa Bokhari Title: IQBALUR REEIMAN AND 6 OTHERS Convict vs THE TATE Case No.: Criminal Appeal No, 209 and Murder Reference No, 120 of 1976 Date of Judgment:1977-06-05 Reported As: 1978 P Cr. L J 35 Result: Appeal allowed.
JUDGMENT
JUDGMENT ' KAMAL MUSTAFA bOKHARY, J.--Iqbal-ur-Rehman (aged about 45 years), his real brother Altafur Rehman (aged about 55 years), both sons of Abdul Aleem, Ayub (30/32 years son of Hameed, employee of Rehman Transport Company of Altaf-ur-Rehman etc., Abdur Rehman alias bhana (61/62 years son of Amir Dad, transferee of the house in dispute, Muhammad Ashraf (30 years) son of Muhammad Yasin, Shams-ud-Din alias Shammoo (aged 76 years) son of Habib Khan and Ikhlaq-nr-Rahman (18/19 years) son of Altaf-ur Rahman, were tried for the murders of Muhammad Yaqoob alias Leela, aged 36 years, Muhammad Khalid, aged 45 years, and Islam-ud- Din, aged 36 years and for murderous assault on Muhammad Shafi (P. W. 19), Ghulam Haider (P. W. 16), Noor Muhammad (P. W. 17), Abdul Ghaffar (P. W. 20) and four other persons, not examined, namely Din Muhammad, Mahmood Murad Bakhsh since dead and Suleman and also for rioting after forming themselves into an unlawful assembly in prosecution of their common object after criminal trespass into the house of the complainant party. The learned Additional Sessions Judge, Mianwali, vide his judgment and order passed on 13-2-1976, convicted all the seven of them under section 302/149, P. P. C. on three counts but sentenced Iqbal-ur-Rahman, Altaf-ur-Rahman and Abdur Rahman alias Bhana to death on three counts subject to confirmation by this Court while the remaining four aforementioned persons were sentenced to suffer imprisonment for life each on all counts. All the seven of them were also sentenced to pay a fine of Rs, 1,000 each which if recovered was ordered to be paid as compensation under section 544-A, Cr. P. C. to the heirs of the three deceased persons. All the seven aforementiond accused were further convicted under sections 307/149, P. P. C. and were sentenced to suffer R. I. for seven years each on eight counts plus fine of Rs, 500 each which if recovered was to be paid as compensation under section 544-A, Cr. P. C. to the injured P. Ws. and in default of payment of fine all the seven of them were ordered to
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further suffer six months' R. I. each. All the seven of the a were also convicted under section 148, P. P. C. and were sentenced to undergo one year R. I. each and to pay a fine of Rs, 200 each or in default of its payment to further suffer two months R. I. each. All of them were also convicted under sections 448/149, P. P. C. and were sentenced to suffer six months rigorous imprisonment each and to pay fine of Rs, 100 each or in default of its payment to further suffer one month's R. I. each. The sentences in this case were ordered to run concurrently. All the convicts filed appeal against their convictions and sentences while the learned Additional Sessions Judge sent reference for confirmation of death sentences of Iqbal-nr-Rahman, Altaf-ur-Rehman and Abdur Rehman alias Bhana. This judgment will dispose of both the matters. 2. The occurrence in this case is alleged to have taken place on 21-6-1972 at 10 a.m. in Kallurkot Town, District Mianwali and the place of occurrence was two furlongs away from the Police Station, Kallurkot. The F. I. R., was registered at the aforementioned police station on the same day at 10-30 a.m. on the basis of statement (Exh. P. D.) of Muhammad Khalid deceased recorded at the Government Civil Hospital, Kallurkot at 10-20 a.m. on the same day by Dr. Muhammad Mushtaq Ahmad, Medical Officer (P. W. 11) on which formal F. I. R. (Exh. P. D/1) was registered at the police station by Saeed Ak bar, Sub-Inspector (P. W. 22). 3. The motive alleged by the prosecution was that enmity on account of civil litigation between Abdur Rehman alias Bbana appellant on one side and members of party of Muhammad Khalid deceased on the other side existed regarding houses which were in occupation of the complainant party. At the time of occurrence the accused party reached that house armed with guns and rifles in order to take forcible possession and attacked the complainant party as a result of which three persons including Muhammad Khalid first informant died while eight others suffered injuries. 4. The prosecution case as disclosed in the F. I. R. was that on the day of occurrence at about 9-45 a.m. the appellants armed with guns and rifles reached the house in dispute of the member of party of deceased and attempted to take possession of that house upon which the complainant party requested the appellants to resist but the appellants got enraged and climbed the roof tops. Iqbal- ur-Rehman fired from his gun while standing on the roof top of the room belonging to the lohars which hit Yaqoob alias Leela deceased who fell down and died at the spot. Abdur Rehman alias Bhana fired the second shot which bit Muhammad Khalid first informant deceased on the left side of his chest. Then Altaf-ur-Rehman fired shot and injured Islam-ud-Din deceased on his face, chest and head who died at the spot. Thereafter, Abdur Rehman alias Bhana, Iqbal-ur-Rehman appellants and their companions opened fire as a result of which number of persons of the complainant party suffered injuries. That was stated in his dying declaration by Muhammad Khalid deceased first informant on the basis of which formal F. I. R. was registered and therein he also stated that Muhammad Khalid in injured condition was carried on a charpai by his relations to the civil hospital where the medical officer recorded his statement during which period Muhammad Khalid remained conscious. That statement was recorded by Dr. Muhammad Mushtaq Ahmad P. W. who wrote on it the date as 21-6-1972 and time as 10.20 a.m. 5. During investigation some recoveries were made. Sneed Akbar S. I. (P. W. 22) who had earlier registered the F. I. R. at the police station reached the spot at 10-40 a.m. on the same day where he found dead-bodies of Islam-ud- Din and MuhammI Yaqub and also found present at the spot all the injured prosecution witnesses. He sent the dead bodies for autopsy after completing formalities. In the meantime all the injured prosecution witnesses left for the hospital on their own accord because the hospital was hardly 200 yards away from the spot. Daring inspection of the spot he secured blood-stained earth from three different places where Yaqub deceased, Islam-ud-Din deceased and Muhammad Khalid who later died in the hospital zespectively were injured, vide memos, Ella P. S., P. T. and P. U. He also 38 PAKISTAN CRIMINAL LAW JOURNAL [VOL. XL] took into possession from over the roofs of kothas of Ghulam Haider and Muhammad Shafi P. Ws. 12 crime empties of '12 bore (P. 10/A/1-12), vide memos. &h. P. R. and also secured two other crime empties (P. 11/1-2) of '303 bore from the ground near the
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western wall of the kotha of Ghtillam Haider P. W., vide memo.- Exh. P. V. He secured one brick (P. 12) two brick bats (P. 1311-2) and many wads and namdas and three pellets (P. 14/1-3), vide memo. Exh. P. X. from inside the courtyard of the house of Yaqub and Islam-ud-Din deceased and Mahmood. Those recoveries were made by him in the presence of Rana Muhammad Khurshid (P. W. 10). He also secured last worn clothes of Islam-ud-Din and Yaqub deceased and pellets extracted from their dead bodies which had been brought to him by Feteh Khan (P. W. 8) and Gul Muhammad (P. W. 7) Foot-Constable from the hospital. Muhammad Khalid first informant, who had been taken to the D. H. Q. Hospital, Mianwali in injured condition, died there on the same day and the Investigating Officer also secured his last worn clothes, a phial con taining bullet and post-mortem examination report brought by Ranbaz khan. F. C. (P. W. 6) on the same day at 7-40 p.m. after autopsy at Mianwali where other formalities bad been completed by Rafiq Ahmed Khan A. S. I. (P. W. 5). The Investigating Officer had also visited the hospital where he prepared injury statements of the eight injured persons who had survived. On the day of occurrence he arrested lqbal-ur-Rahman, Ayub, Muhammad. Ashraf, Abdur Rebman and Shams-ud-Din appellants out of whom Iqbal-ur Rahman was arrested from the bus-stand of Rehman Bus Service, Kallurkot while Muhammad Ayub and Muhammad Ashraf were produced before the Investigating Officer at the same bus-stand by Ayyaz Ahsan A. S. I. who had been deputed for the job. Abdur Reitman alias Bhana and Shams-ud- Din appellants were arrested by Saeed Akbar P. W. from inside the residential house cf the former. Iqbal-ur-Rehman, Ayub and Muhammad Ashraf were arrested by the Investigating Officer between 4 and 4.30 p.m. while Abdur Rehman alias Bhana and Shams-ud-Din were arrested by him between 6 and 6-30 p.m. on the very day of occurrence. Altaf-ur-Rehman appellant himself appeared and was arrested on 22-4-1972. On 25-6-1972 Altaf-ur Rehman led Sated Akbar S. I. P. W. to the recovery of his licensed gun (P. 15), bandolier (P. 16) five live cartridges (P. 17/1-5) and his gun licence (P. 18) from his house through his wife wnich were secured vide memo. Exh. P. Y. On the same day Abdur Rehman alias Bhana appellant led the Investigating Officer to the recovery of his unlicensed rifle (P. 19) from the tube-well of Dr. Shamshad where it was found lying concealed in a heap of bhoosa on the southern side of a kotha which was secured vide memo. Exh. P. 2. A separate case under the Arms Ordinance was registered against Abdur Rehman appellant. On the evening of the same day of 25-6-1972 Saeed Akbar S. I. P. W. handed over investigation to the D. S. P., bhakkar. On 30-6-1972 Gul Khan, draftsman delivered the site plan prepared by him in which red notes were given by Saeed Akbar S. I. P. W. Bashir Hussain Shah A. S. I. (P. W. 21) partly investigated this case. On 29-6-1972 Ayub appellant while in custody led him to the recovery of gi.n (P. 20) from inside the residential house of Abdur Rehman alias Bhana appellant where it was lying concealed in an earthen pot (Gahi) which was secured vide memo. Exh. P. A A. On the same day Rana Muhammad Kbursbid (P. W. 10) was given fire arm licence (P. 21) as well as shooting licence (P. 22) of Abdul Rehman alias Bhana appellant by the wife of said appellam which the witness produced before Bashir Hussain Shah, investigat ing Off cer a bo secured the same. According to the opinion (Exh. P. YY/1 cf Muhammad Ciulder Malik, Firearm Expert (P. W. 1) one crime empty (P. 10. A/11 recovered from the spot had been fired from the left barrel of gun (P. 15) of Altaf-ur-Rehman appellant but no shot had been fired from the right barrel of that gun and rest of the eleven crime empties of 12 bore recovered from the spot did not match with that gun. No opinion could be expressed about the shot fired from Rifle P. 19 of Abdur Rebman alias Bhana, appellant for lack of sufficient data. ' Syed Mahmoed All Shah D. S. P. (P. W. 18) formally arrested Ikhlaq-ur Formally appellant on 19-7-1972 because he had previously been admitted to bail by the High Court. The witness also supervised the investigation of the case in his capacity as Sub-Divisional Police Officer. On completion of inves tigation the appellants were challaned for trial in Court. 6. Dr. Muhammad Mushtaq (P. W. 11) medically examined Muhammad Khalid deceased, first informant, aged about 45 years, on 2t-6-1972 at 10-25 a.m. while in injured condition and recorded five injuries
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on his person out of which injury No, 1 was caused by fire-arm on the left chest lower end and rest of the injuries were caused by fall or by rubbing with some object within duration of 1/2 an hour. At the trial the doctor deposed to have recorded his dying declaration Exh. P. D. at 10-20 a.m. on 21-6- 1972 which was in the handwriting of the doctor and was deposed by him to be true. The doctor also deposed at the trial that before recording the dying declara tion he satisfied himself that the injured was mentally competent to give the statement. The doctor proved his medico legal report (Exh. P. E.) of Muhammad Khalid and that he referred Muhammad Khalid to D. H. Q. Hospital at Mianwali on the same day. Muhammad Khalid died on arrival in the Mianwali hospital on the same day at 2 p.m. and post-mortem examination on his dead body was conducted by Dr. Ashiq All Chaudhury (P. W. 12) on 21-6.1972 at 5-45 p.m. in which age of the deceased was given as 45 years and five injuries were recorded in the post-mortem examination report out of which injury No, 1 was deposed by the doctor to have been caused by fire-arm. In his opinion cause of death of Muhammad Khalid was shock and haemorrhage on account of injury No, 1 which was sufficient to cause death in the ordinary course of nature. That injury was the same as described as injury No, 1 in the medico-legal report and was entrance wound of fire-arm on left chest 1/2 by 1-4 size in the mid axillary line in the lower part and there was no blackening and tattooing. tie gave the probable time between injury and death as about six hours and that between death and post-mortem as 3 hours 45 minutes. He was subjected to lengthy cross-examination at the trial. 7. The post-mortem examination on the dead body of Islam-ud-Din deceased, aged about 36 years, was conducted by Dr. Muhammad Mushtaq Ahmed (P. W. 11), on 21-6-1972 at 2.45 p.m. who recorded 16 injuries on his dead body. All the injuries were caused by fire-arm. The stomach of the deceased contained fluid, small and large intestines had fluid and the bladder was full of urine. In the opinion of the doctor death had occurred on account of shock and haemorrhage due to fire-arm injuries. He gave probable time between injuries and death as 15 minutes and between death and post-mortem as about five hours. He deposed that five pellets had been recovered by him from dead body of the deceased which were sealed in a bottle and were handed over to the police. ' The same doctor on the same day conducted post-mortem examination on the dead body of Muhammad Yaqub alias Leela deceased, aged about 36 years, and recorded nine fire-arm injuries on his dead body although injury No, 1 was described as 14 entrance wounds, injury No, 2 was mentioned as 13 enterance wounds, injury No, 3 was stated to be 3 enterance wounds and injury No, 4 was shown as 4 enterance wounds. All the injuries :sere caused by fire-arm on the vital parts of the body of the deceased like chest, neck, forehead and cheek. The stomach, small intestine and large intestine contained fluid. In the opinion of the Doctor death of the deceased had been caused on account of shock and haemorrhage as a result of fire-arm injuries. He gave the probable time between injuries and death as instantenous and that between death and post-mortem as within five hours. The Doctor deposed that 13 pellets were recovered from dead body of the deceased and were handed over to the police alongwith his last worn clothes. 8. The same Doctor, Muhammad Mushtaq (P. W. 11), had medically examined eight other persons injured in the same occurrence apart from medical examination of Muhammad Khalid who subsequently died on the same day on arrival in D. H. Q. Hospital, Mianwali. On 21-6-1972 at 1 p.m. he examined Muhammad Shafi (P. W. 19) and found five injuries on his person all of which were simple caused by blunt weapon within duration of 3 hours. ' The same Doctor on the same day at 12.40 p.m. medically examined Din Muhammad (given up as unnecessary) and recorded 4 injuries on his person simple in nature caused by blunt weapon within one hour duration. ' The same Doctor on the same day at 12-45 p.m. medically examined Mahmood (given up as won over) and recorded 16 injuries simple in nature on person caused by fire-arm within one hour duration. He proved the medico-legal report Exh. P. H. and deposed that he had recovered five pellets from the body of said Mahmood which were handed over to the police in a sealed bottle. ' On the same day at 1-15 p.m. the same Doctor
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medically examined Suleman (given up as unnecessary) and recorded five injuries on his person out of a which injury No, 1 on right hand and No, 4 on upper part of the left forearm were declared grevious in nature while rest of the injuries were described as simple, all caused by blunt weapon within duration of three hours. He proved the medico-legal report as well as X-ray report of Suleman. ' The same Doctor on the same day at 1-30 p.m. medically examined Murad Bakbsh, who had died his natural death before trial and had recorded five injuries on his person all simple in nature caused by blunt weapon within duration of 3 hours. He proved medico-legal report Exh. P. K. of Muted Bak h sh. ' The same Doctor on the same day at 1-45 p.m. also medically examined Ohulam Haider (P. W. 16) and recorded two injuries on his person out of which one was on the left temporal region and the other on left upper incisor which was slightly bleeding but both the injuries were simple in nature caused by blunt weapon within two to three hours. He proved his medico- legal report Exh. P. L. ' The same Doctor on the same day at 1-55 p.m. medically examined Abdul Gbaffar (P. W. 20), who was real brother of Islam-ud-Din deceased, and recorded one abrasion on the external side of middle of his right leg which injury was described as simple in nature caused by blunt weapon within 2 to 3 hours. ' The same Doctor on the same day at 12-30 p.m. medically examined Noor Muhammad (P. W. 17) and noted 9 injuries in his medico-legal report (Exh. P. N.). The Doctor deposed that all injuries were kept under observation and the patient was referred to District Headquarters Hospital, Mianwali on 24-6-1972 and that injuries Nos. 1, 2, 3, 5, 6, 7, 8 and 9 had been caused by fire-arm while injury No, 4 was caused by blunt weapon, but all injuries had been caused within duration of one hour. ' In cross-examination of Dr. Muhammad Mushtaq Ahmed (P. W. 11) at the trial the defence questioned him that the medico-legal reports of the injured including Muhammad Khalid deceased first informant were on plain papers or had been tampered with otherwise the printed papers Nos. 10 to 14 had been torn off by the same doctor or by some body else on which subsequently medico-legal reports of Din Muhammad (not examined), Mahmood (not examined), Muhammad Shafi (P. W. 19) Woman (not examined), Murad Bakhsh (since dead), Abdul Ghaffar (P. W. 20) and Ghulam Haier (P. W. i6) had been prepared by that doctor but the doctor denied to have done so or to have manipulated the printed register for the purpose of medico-legal reports of the prosecution witnesses including that of Muhammad Khalid deceased. The doctor admitted it as correct in his cross-examination that medico-legal report of Muhammad Khalid deceased was written on page 9 of the register whereas it should have been written on page h thereof which page was missing from the register and appeared to have been torn off. The doctor also deposed that Islam-ud-Din deceased was brought to the hospital alive in unconscious condition and expired within his view. 9. At the trial prosecution examined 22 witnesses in all and relied on the dying declaration which comprised of statement of Muhammad Khalid deceased recorded by Dr. Muhammad Mushtaq Ahmedd (P. W. 11) in the Civil Hospital while still alive. The ocular evidence was given by the injured prosecution witnesses. Ghulam Haider (P. W. 16), esoor, viuhammad (P. W. 17), Muhammad Shafi (P. W. 19) and Abdul Ghaffar (P. W. 20). The motive was also given by them. The recoveries from the spot as well as of the gun (P. 15) with licence from Altaf-ur-Rehman and Rifle ;P. 19) from Abdur Rehman alias Bhana appellants were proved by Rana Muhammad Khurshid (P. W. 10) and Saeed Akbar (P. W. 22) and recovery of gun (P. 20) with licence at the instance of Ayub appellant was proved by same Rana Muhammad Khurshid (P. W. 10), Bashir Hussain Shah A S. 1. (P. W. 21) and the same Saeed Aar S. I. (P. W. 22). Muhammad Gulsher Malik (P. W. 1) proved his: pinion Exh P. YY/1 and deposed that one crime empty recovered from the spot had been fired from the double barrel shot-gun (P. 15) of Altafur- Rehman appellant but no opinion could be expressed about the rest of the weapons and crime empties. The Investigating Officers proved the investigation conducted by them. Other formal witnesses were also examined. ' They all supported the prosecution case. The statements of two doctors who conducted post-mortem examination on the dead body of the three deceased and
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medically examined nine injured persons including Muhammad Khalid first informant deceased when alive and four other prosecution witnesses were transferred to the Sessions record and they were cross-examined at the trial. 10. The appellants pleaded not guilty to the charge. When examined under section 342, Cr. P. C. all of them denied the allegations of the prosecu tion including motive and recoveries alleged against them and stated that they were not present at the spot at the time of occurrence. Abdur Rehman alias Bhana appellant alone admitted the motive in reply to question No, 3 according to which house No, 597 situated in Ward No, 6, Kallurkot, was transferred to him and was in occupation of Sharif Jhandu, Suleman and Nasibud Din at the time of occurrence and that about three years before the present occurrence said appellant had filed an applica tion for their ejectment in the Court of the Rent Controller, Bhakkar which application was decided in favour of said appellant and since passing of that ejectment order Abdur Rehman alias Bhana appellant was making unsuccess ful attempts for executing that ejectment order. In reply to question No, 4 Abdur Rehman alias Bhana appellant stated that he had pursued his remedy in respect of house No, 597 and denied that had wanted to grab house No, 595 occupied by Murad Bakhsh and his children. He admitted that Mst. Balqees, Mit. Fatima and Nasibuddin bad filed a revision at the instance of occupants of house in dispute in order to flout the ejectment order passed by the Rent Controller. He denied recovery of unlicensed rifle (P. 19) at his instance. ' In reply to question why the case against him he stated that he was pursuing his remedy in connection with house No, 597 for the last seven years and the Bailiff of the civil Court had twice earlier visited the house in dispute for ejectment and on the day of occurrence also the Bailiff had come for execution of the Court's order. He continued to state that the deceased and the injured persons had been violently resisting the execution earlier as well He further stated that on the day of occurrence the appellant was not present but his son Khushi Muhammad was with the Bailiff and the Bailiff also obtained police help for his protection but the deceased who were armed with spears and the injured persons who had lathis apart from Muhammad llyas son of Suleman, Aziz- ud-Din son of Khurshid and Yamin who had guns, assaulted son of the appellant named Khushi Muhammad and three tenants of the appellant who happened to be in Kallurkot because of the mela-mandi and fired at them on account of which the tenants were injured and they fired back in self-defence. Abdur Rahman alias Bhana appellant also stated that the injured persons on the side of appellants were got examined by the doctor but later on the record was altered because of the influence of the complainant with the Police and consequently Abdur Rehman alias Bhana appellant and other appellants were falsely involved. The Police ran away after seeing resistence by the complainant party and Bailiff also ran away when the firing started. Abdur Rehman alias Bhana further stated that he had noth ing to do with the incident in which three persons were killed and eight persons were injured he was innocent and had been falsely implicated in the case. He tendered in evidence certified copy of the order of the Civil Judge, Bhakkar, dated 4-1-1969 (Exh. D. P.), copy of the report of the Bailiff of the civil Court, dated 19-4-1969 (Exh. D. P./1), copy of the report of the Bailiff, dated 12-51972 (Exh. D. P./2), copy of the report of the Bailiff, dated 21.6-1972 (Exh. D. P./3) copy of the kalendera under section 107/151, Cr. P. C. (Exh. D. P./4), certified copies of the judgment and decree, dated 15-10-1975, passed by Additional District Judge, Mianwali (Exhs. D. P./5 and D. P./6) and photostat copy of interlocutory order passed for execution after rejecting objections of the Civil Judge, Bhakkar, dated 6-5-1972 (Exit. D. P./7). He did not lead any oral evidence in his defence. ' Shamsuddin alias Shamoo son of Habib Khan appellant was related with Abdur Rehman alias Bhana appellant. The daughter of…
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