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Petitioner: AMIR SULTAN and 9 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sh. Riaz Ahmad, Dr. Javed Iqbal Title: AMIR SULTAN and 9 others vs THE STATE Case No.: Criminal Appeal No. 563 and Murder Reference No. 179 of 1983 Date of Judgment:1984-11-24 Reported As: 1985 P Cr. L J 1834 Result: Order accordingly
JUDGMENT
JUDGMENT ' JAVID IQBAL, C.J.--(1) Muhammad Aslam, son of Fazal Elahi, aged 40, armed with Sota, (2) Amir Sultan son of Muhammad Zaman, aged 43, armed with Sota, (3) Muhammad Ashraf son of Dhuman Khan, aged 33, armed with pistol .12 bore, (4) Amir Sultan son of Dhuman Khan, aged 35/36, armed with gun .12 bore, (5) Asghar Ali son of Fazal Elahi, aged 45, armed with gun .12 bore, (6) Muhammad Ashraf son of Muhammad Khan, aged 48, armed with pistol .12 bore, (7) Safdar Ali son of Dhuman Khan, (injured), aged 45, armed with Sota, (8). Lal Khan, son of Bahadur Khan (injured), aged 62/64, armed with Sota, (9) Allah Dad son of Sondhey Khan, aged 55, armed with Sota, and (10) Anwar Sultan son of Muhammad Zaman, aged 28, armed with Sota have been convicted and sentenced vide judgment, dated 18-10-1983 of the Additional Sessions Judge, Sahiwal as follows: Convicts Nos. 1 and 2 stand convicted under section 302, P.P.C. For the murder of Khan Muhammad, aged 60, and No, 1 was sentenced to death plus fine of Rs,4,000 or in default to undergo one year rigorous imprisonment, whereas No, 2 was sentenced to life imprisonment plus the same amount of fine with the direction in both cases that if fine was realized from them, half of the same was to be paid as compensation to the heirs of the deceased. Convicts Nos. 3, 4, 5 and 6 have been convicted under section 307, P.P.C. For murderous assault on Muhammad Yasin (P.W.10) and Ghulam Haider (P.W.11) and each of them was sentenced to ten years rigorous imprisonment plus fine of Rs,2,000 or in default to undergo one year rigorous imprisonment with the direction that if the fine was realized from them, half of the same was to be paid equally to Muhammad Yasin and Ghulam Haider P.W. Convicts Nos. 7, 8, 9 and 10 have also been convicted under section 307, P.P.C. For murderous assault on Muhammad Ramzan (P.W.8) and Manzoor Hussain (P.W.9) and each of them was sentenced to six years rigorous imprisonment plus fine of Rs,1,000 or in default to
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undergo one year rigorous imprisonment. All of them have been convicted under section 148, P.P.C. And each of them was sentenced thereunder to one year rigorous imprisonment. The sentences in each case were ordered to run concurrently. ' Convicts Nos. 2 and 10 are brothers inter se and cousins of Convicts Nos. 1 and 5 who are also brothers inter se. Convicts Nos. 3, 4 and 7 are brothers inter se and collaterals of Convicts Nos. 2 and 10. Convict No, 8 is uncle of Convicts Nos. 3, 4 and 7. Convicts Nos. 6 and 9 are not related to the rest but are stated to be their partymen. The relationship of the complainant side is that Muhammad Ramzan (P.W.8) and Ghulam Haider (P.W.11) are brothers inter se and they are sons of the cousin of the deceased. Manzur Husain (P.W.9) is Sala of the brother of the deceased and Muhammad Yasin (P.W.10) is Sala of the cousin of Manzur Husain P.W. ' It may be pointed out at this stage that Convicts Nos. 7 and 8 have received injuries in the course of the occurrence on the accused side along with one Sarfraz Khan of their party who has not been included as an accused person. On the other hand, besides the deceased four persons have received injuries on the complainant side and who are eye-witnesses of this occurrence namely, Muhammad Ramzan, Manzur Husain, Muhammad Yasin and Ghulam Haider P.Ws. ' The appeal of the convicts as well as reference for the confirmation of death sentence awarded to convict No, 1 Muhammad Aslam son of Fazal Elahi are being taken up and heard together with Criminal Revision No, 731 of 1983 praying for enhancement of sentence awarded to Amir Sultan son of Muhammad Zaman, convict No, 2, to death and conviction as well as sentence under section 302/149, P.P.C. To be awarded to the remaining eight of the members of the accused party as well as increased of the compensation in respect of the death of the deceased and injured P.Ws. And these are being disposed of by this judgment. 2. The occurrence took place at about 5 p.m. On 23-10-1980 in the village Abadi of Chak No, 115/12-L at a distance of four miles from Police Station Kassowal, Tehsil Chichawatni, District Sahiwal. Statement (Exh. P.A.) was made by Muhammad Ramzan (P.W.8) at 10.45 p.m. On the same day and it was recorded by Qadir Bakhsh A.S.I. (P.W.14) outside the District Headquarters Hospital Sahiwal where he chanced to meet the first-informant when he was on patrol duty of another area i.e, Chak No, 90/6-R. On the basis of the aforesaid statement formal F.I.R. No, 187 (Exh. P.A/1) was registered at the police station at 11.55 p.m. On the same day by Niaz Ahmad M.H.C. (P.W.1). Initially the case was registered under section 307/148/149, P.P.C. But on the death of the deceased at 11 p.m. On the same day section 302, P.P.C. Was added thereto. ' It may be pointed out at this stage that cross F.I.R. No, 188 was lodged at Police Station Kassowal pertaining to the same occurrence by the other side on 26-10-1980 at the instance of Raja Nazir Ahmad against Ghulam Haider etc. (17 persons of the complainant party) under section 307/148/149, P.P.C. The defence as adopted in the present case by the appellants is the subject- matter of the cross-case which is not before us at present. 3. The motive from crime as stated in the present F.I.R. Is that on the fateful day half an hour before the present occurrence Manzur Husain P.W. And Muhammad Ashraf son of Dhuman Khan, appellant No, 3, quarrelled with each other. However, Ghulam Haider, Muhammad Yasin and Muhammad Ramzan P.Ws. Alongwith the deceased separated them. But it is stated that Muhammad Ashraf son of Dhuman Khan, appellant No, 3, then left the spot holding out a threat to the effect that he would avenge the insult. Another motive given in the F.I.R. Is that there existed previous enmity between the parties as there was a dispute as well as litigation pending between the parties over a Dera which had previously i.e, 3/4 months prior to the present occurrence, led to a fight resulting in cross-cases against both the parties. It is stated that it was in this background that the present occurrence took place. 4. The prosecution has produced five eye-witnesses of the occurrence namely, Muhammad Ramzan (P.W.8), Manzur Husain (P.W.9), Muhammad Yasin (P.W.10), Ghulam Haider (P.W.11) and
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Muhammad Waris (P.W.12). The first four are injured in the course of the present occurrence and their relationship with the deceased has already been indicated above. So far as Muhammad Waris (P.W.12) is concerned, he is not related to the rest but is stated to be a partisan and inimical towards the accused side. Bahadur Khan was another eye-witness cited in the F.I.R. But had been given up as unnecessary. 5. In the F.I.R. The occurrence is reported to have taken place in the following manner: As stated in the motive version half an hour earlier than the actual incident Manzur Husain (P.W.9) and Muhammad Ashraf, son of Dhuman Khan appellant No, 3 quarreled with each other and the deceased plus Ghulam Haider (P.W.11), Muhammad Yasin (P.W.10) and Muhammad Ramzan (P.W.8) had separated them. Appellant No, 3 while leaving the spot had held out a threat that he would immediately avenge the insult. Thereafter, it is stated in the F.I.R. That while Muhammad Ramzan, Manzur Husain, Ghulam Haider and Muhammad Yasin P.Ws. Were standing along with the deceased in front of the house of Manzur Husain P.W., the appellants armed as described above came there raising Lalkaras and launched an attack on them. Muhammad Aslam appellant No, 1 gave a Sota blow which fell on the right back side of the deceased who fell down on the ground. While he was in the fallen condition Amir Sultan appellant No, 2 gave a Sota blow which fell on the back side of the left arm of the deceased. Thereafter Allah Dad appellant No, 9, Lal Khan appellant No, 8 and Safdar All appellant No, 7 gave Sota blows to Manzur Husain (P.W.9) on his head, whereas the Sota blows of Safdar Ali appellant No, 7 fell on his left hand. Then Amir Sultan appellant No, 4 and Muhammad Ashraf appellant No, 6 fired through their respective guns on Muhammad Yasin (P.W.10) and the pellets hit different parts of his body. As a result Muhammad Yasin P.W. Fell down on the ground. Thereafter, Asghar All appellant No, 5 and Muhammad Ashraf appellant No, 3 fired through their respective gun and pistol on Ghulam Haider (P.W.11) who as a result sustained fire- arm injuries. Then Anwar Sultan appellant No, 10 gave a Sota blow which fell on the head of Muhammad Ramzan (P.W.8). On the alarm of the P.Ws. Were attracted to the scene of crime Bahadur Khan (given up as unnecessary) and Muhammad Waris (P.W.12) who were nearby and who witnessed the occurrence besides Muhammad Ramzan, Ghulam Haider, Muhammad Yasin and Manzur Husain P.Ws. Thereafter, the accused party de-camped. Then. Muhammad Ramzan P.W. Brought the deceased in an injured condition, Ghulam Haider, Muhammad Yasin and Manzur Husain P.Ws. Injured in the course of occurrence, to the Civil Hospital, Sahiwal and obtained medical certificates in respect of them. The deceased in an injured condition, Muhammad Yasin and Ghulam Haider P.Ws. Were admitted to the hospital as they were unconscious. It is stated in the F.I.R. By Muhammad Ramzan P.W. That at the time of the occurrence the members the accused party had also sustained injuries at the hands of the complainant side in the exercise of their right of self-defence. ' The deceased died at 11 p.m. On the same night when he was admitted to the hospital. 6. Amir Sultan appellant No, 2 and Muhammad Ashraf appellant No,3 were arrested by Mazharul Haq S.I. (P.W.18) on 28-10-1980. The rest of the appellants were arrested on 30-10-1980 by the same police officer. ' From the spot were recovered two .12 bore crime empties (Exhs. P.4 and P.5) and taken into possession vide Memo Exh. P.Q. Dated 24-10-1980. The attesting witnesses are Muhammad Ramzan (P.W.8) Bahadur Khan (not produced) and Mazharul Haq S.I. (P.W.18). ' It may be pointed out at this stage that from Amir Sultan appellant No, 2, Muhammad Ashraf appellant No, 6, Allah Dad appellant No, 9 and Anwar Sultan appellant No, 10 nothing was recovered and according to the police investigation conducted by three different police officers, including the Crimes Branch and verified by Sub Divisional Police Officer as well as S.P. They were found innocent in the course of the investigation and placed in column No, 2 of the challan (Exhs. P.W.18/A and P.W.18/B).
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' At the instance of Muhammad Aslam appellant No, 1 was recovered blood-stained Sota (Exh. P.9) and taken into possession vide memo. Exh. P.T., dated 9-11-1980. The attesting witnesses are Muhammad Ramzan (P.W.8), Bahadur Khan (not produced) and Mazharul Haq S.I. (P.W.18). It may be pointed out at this stage that according to the report of the Serologist (Exh. P.E.E.) at page 23 of the printed paper-book Sota (Exh. P.9) was found to be stained with human blood. ' From Muhammad Ashraf appellant No, 3 nothing was recovered. ' At the instance of Amir Sultan appellant No, 4 licensed .12 bore gun (Exh. P.6) was recovered and taken into possession vide memo. Exh. P.R, dated 9-11-1980. The attesting witnesses are the same as above. It may be pointed out at this stage that according to the report of the Fire-arms Expert (Exh. P.B.B.) at page 19 of the printed paper-book crime empties (Exhs. P.4 and P.5) picked up from the spot were found to have been fired through each of the barrels of gun (Exh. P.6) recovered at the instance of Amir Sultan appellant No, 4. ' At the instance of Asghar Ali appellant No, 5 was recovered licensed .12 bore gun (Exh. P.11) and was taken into possession vide memo. Exh. P.V., dated 14-11-1980, The attesting witnesses are the same as above. ' At the instance of Safdar All appellant No, 7 who is injured himself was recovered Lathi (Exh. P.10) (not blood-stained) and taken into possession vide memo. Exh. P.U., dated 9-11-1980. The attesting witnesses are the same as above. ' At the instance of Lal Khan appellant No, 8 who himself is also injured was recovered Sota (Exh, P.8), not blood-stained, and taken into possession vide memo. Exh. P.S, dated 9-11-1980. The attesting witnesses are the same as above. ' In the light of what has been recorded above learned counsel for the appellants wants us to note at this stage that since there is background of enmity between the parties and even previously they had been involved in a fight which resulted in cross-cases, corroboration would be necessary of the ocular testimony .Qua each of the members of the accused party and their version. He further submits that four of the appellants, namely, Amir Sultan No, 2, Muhammad Ashraf No, 6, Allah Dad No, 9 and Anwar Sultan No, 10, were found innocent in the course of the investigation and have been placed in column No, 2. Nothing had been recovered from them and that since no corroboration was coming forth so far as these four appellants are concerned, they might have not been present at the time of occurrence and might have not participated in the occurrence. He next points out that Lathi (Exh. P. 10) and Sota (Exh. P.8) recovered from Safdar All appellant No, 7 and Lal Khan Appellant No, 8, respectively, were not blood-stained and, therefore, these recoveries were of no consequence from the point of view of corroboration. It is next submitted that licensed .12 bore gun (Exh. P.11) recovered at the instance of Asghar All appellant No, 5 was not found matching with any of the crime empties picked up from the spot and that that recovery also was of no consequence as it had no corroborative value. He also wants to point out to us that from Muhammad Ashraf appellant No, 3 was likewise nothing recovered and, therefore, there was no corroborative evidence forthcoming in respect of this particular appellant. 7. The appellants in their statements before the trial Court put forward their own version of the incident. This version is noted specifically from the statement of Safdar All appellant No, 7 who himself was injured in the course of occurrence. It has already been pointed out that two of the members of the accused party, namely, Safdar Ali appellant No, 7 and Lal Khan appellant No, 8 sustained injuries in the course of occurrence alongwith one Sarfraz Khan, a partisan of the accused party, who had not been named as an accused person and a cross-case had also been registered by them as against the complainant side. The version of the occurrence given by Safdar All appellant No, 7 has been adopted by the rest of them and it is as follows:-- "I have been falsely involved in this case due to enmity. In fact I alongwith Sarfraz son of Ashraf Pathan accused had gone to the shop of Khaliq Dad Sial for the sale of goods. After Maghrib prayer
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when it was dark, in the meanwhile Muhammad Ramzan complainant, Manzoor Husain, Ghulam Haider, Yasin P.Ws. And Khan Muhammad deceased etc. Variously armed with hatchets, sticks and fire-arms reached there and attacked me and Sarfraz and tried to abduct us through force and also caused us injuries. Lal Khan accused was attracted to the spot on the alarm of Sarfraz and myself and when he intervened, he was also injured by the complainant party. Muhammad Nawaz, who is related to the complainant party and whose house is just opposite to the place of occurrence, has got a licensed gun, also arrived there. He fired indiscriminately with his licensed gun and the pellets hit Yasin and Ghulam Haider P.Ws. Due to the darkness. Lal Khan etc. Caused injuries to Khan Muhammad deceased, Ghulam Haider, Manzoor Husain and Muhammad Ramzan P.Ws. In self-defence. Actually the complainant party was aggressor. My other co-accused were not present at the spot at the time of occurrence." ' From the defence version it appears that only two members of the accused party, namely, Safdar All appellant No, 7 and Lal Khan appellant No, 8 alongwith one Sarfraz Khan were present on the spot when they were attacked by the four eye-witnesses who are injured plus the deceased and that those of them who had sustained injuries had either received those injuries while these members of the accused party were exercising their right of self-defence or from the fire shot by one of the relatives of the complainant side whose house was nearby. It may be pointed out at this stage that the defence also produced Dr. Allah Ditta Rana (D.W.1) at page 103 of the printed paper- book, wh medically examined 'Safdar Ali and Lal Khan appellants Nos. 7 and 8 as well as Sarfraz Khan. According to his statement he medically examined Lai Khan appellant No, 8 at 1-30 a.m. On 23-10-1980 and found on. His person a contused wound on the right side of head, a bruise on the back of head, abrasion on the right middle finger of hand, abrasion on the right ring finger of the hand, bruise on the back of left side of chest, bruise on the back of right shoulder, bruise on the back of left side of chest lower part arid bruise with swelling on the outer aspect of left arm. Two of the injuries were kept under observation and the rest of the injuries were found simple. These had been caused by blunt weapon. Subsequently the two injuries kept under observation were also declared as simple. ' On the same day at 1-45 a.m. He medically examined Safdar All appellant No, 7 and found on his person six injuries in the form of lacerated wound on right side of head above right ear, lacerated wound on the right head, lacerated wound on left side of head, swelling on the left hand, bruise on the back of chest and bruise on the back of right shoulder. All the injuries were declared simple and had been caused with blunt weapon. ' On the same day at 1-50 a.m. He medically examined Sarfraz Khan and found on his person an incised wound on the right side of head and a bruise on the back of right shoulder. Both the injuries were declared simple. The first injury was caused with sharp-edged weapon and the second with a blunt weapon. ' It may be repeated here that on the basis of the injuries sustained by these members of the accused party a cross-case was filed under section 307/324/148/149, P.P.C. Against the members of the complainant side. 8. Dr. Muniruddin (P.W.5) medically examined Khan Muhammad deceased while he was still alive at 8-00 p.m. On 23-10-1980 and found on his person a lacerated wound on the back of right side of head and a lacerated wound on the back of lower left forearm. The patient was getting convulsion and he was unconscious. He subsequently died at 11 p.m. On the same night. ' At 3-00 p.m. On the following day i.e, 24-10-1980 he conducted post-mortem examination on the dead body of the deceased and noted the same injuries on his person. The death in his opinion was due to antra-craneal haemorrhage and shock caused by the first injury on the head which was sufficient to cause death in the ordinary course of nature. The second injury was grievous. Both the injuries had been caused by blunt weapon. Probable time that elapsed between injuries and
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death was about six hours and between death and post-mortem examination about 16 hours. It may be pointed out at this stage that the first injury on the head of the deceased is attributed to Muhammad Aslam appellant No, 1 and the second injury is attributed to Amir Sultan appellant No, 2. ' On 23-10-1980 at 8-30 p.m. He medically examined Ghulam Haider (P.W.11) and found on his person seven injuries in the form of lacerated wounds on different parts of the body including abdomen, umbilicus, buttocks, thighs etc. These injuries had been caused with fire-arm. The 4th and 6th injuries were exit wounds but they were all simple in nature. ' On the same day he performed medico-legal examination of Muhammad Yasin (P.W.10) and found on his person seven injuries in the form of lacerated wounds on different parts of the body in the chest region, 6th and 7th injuries being exit wounds. All the injuries had been inflicted with firearm. The first four injuries on the chest were found to be grievous and the rest simple. The grievous injuries had led to the fracture of 5th, 6th, 7th and 8th right side chest ribs. ' On the same day he conducted medico-legal examination of Muhammad Ramzan (P.W.8) and found on his person a lacerated wound scalp deep on the top of head. The injury was subsequently declared to be simple and had been caused with blunt weapon. ' On the same day he medically examined Manzoor Husain (P.W.9) and found on his person three injuries in the form of swelling on the back of left hand, swelling on the back of left ring finger and multiple lacerated wound on the right side of head. All the injuries were caused with blunt weapon. Injury on the left ring finger was declared grievous as it had led to fracture, whereas the other two injuries were found to be simple. ' To sum up all the injuries sustained by Ghulam Haider P.W. Are simple in nature although they are caused by firearm attributed to the shots of Asghar All appellant No, 5 and Muhammad Ashraf appellant No, 3. The injury sustained by Muhammad Ramzan P.W. Is also simple in nature attributed to Sota blow of Anwar Sultan appellant No, 10. Manzur Husain P.W. Has sustained one grievous injury on his finger and the other two are simple and these injuries are attributed to the Sota blows of Allah Dad appellant No, 9, Lal Khan appellant No, 8 and Safdar All appellant No, 7. Muhammad Yasin P.W. Has received four grievous injuries on his chest caused by fire-arm and these injuries are attributed to Amir Sultan appellant No, 4 and Muhammad Ashraf appellant No, 6. Learned counsel wishes to point out that in the light of the medical evidence the possibility could not be ruled out that injuries sustained by Muhammad Yasin and Ghulam Haider P.Ws. Were caused by one shot each. 9. We have heard learned counsel for the parties and carefully perused the record. The first argument of learned counsel for the appellants is that admittedly both the sides have long- standing enmity existing between them. It is stated in the 'F.I.R. That there even previously existed a dispute and litigation between the parties over a Dera and 3/4 months before the present occurrence this dispute led to a fight resulting in cross-cases against each other. It is further pointed out by learned counsel that so far as Muhammad Ramzan, Manzur Husain, Muhammad Yasin and Ghulam Haider P.Ws. Are concerned, they were all related to the deceased and partisan eye-witnesses. Learned counsel does not doubt their presence on the spot because all the four of them have received injuries in the course of occurrence but states that since they were partisans, they should be considered as interested witnesses and their testimony should not be accepted without corroboration. In respect of Muhammad Waris P.W. It is stated that he too is partisan and inimical and that his testimony should also not be accepted without corroboration. Since the eye- witnesses produced in the instant case are interested, according to learned counsel for the appellants, it would not be safe to rely on the ocular testimony without going through and examining carefully the recovery evidence in the instant case in order to find out as to whether or not corroboration is forthcoming of their version through an independent source. In this connection
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learned counsel's second argument is that human blood-stained Sota (Exh. P.9) is stated to have been recovered at the instance of Muhammad Aslam appellant No, 1. Muhammad Aslam appellant No, 1 is stated to have given a blow therewith which fell on the right back head of the deceased and according to the medical evidence it is this injury which proved fatal. Learned counsel submits that ocular testimony in this case is to the effect that Muhammad Aslam appellant No, 1 gave a Sota blow which fell on the head of the deceased. It is submitted that in the instant case admittedly the occurrence took place on 23-10-1980. Muhammad Aslam appellant No, 1 was arrested on 30-10- 1980 i.e, seven days after the occurrence. Thereafter the recovery of human blood-stained Sota (Exh. P.9) is alleged to have been made from him on 9-11-1980 i.e, ten days thereafter. According to the attesting witnesses Sota (Exh. P.9) was found standing in a corner in his room and which was visible and not hidden. It is then submitted that Sota (Exh. P.9) was sent for chemical examination ten days thereafter i.e, on 19-11-1980. The reasoning of learned counsel is that after such a long delay Sota (Exh. P.9) could have not been found to have stains of human blood on…
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