Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD ASIF VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sardar Muhammad, Gulbaz Khan Title: MUHAMMAD ASIF vs THE STATE Case No.: Criminal Appeal No, 400 of 1982 Date of Judgment:1983-12-19 Reported As: 1984 P Cr. L J 544 Result: Order accordingly
JUDGMENT
JUDGMENT GULBAZ KHAN, J.-Muhammad Asif son of Jahan Khan aged thirty years was tried alongwith his father Jahan Khan, maternal and paternal-cousins Fazal Dad and Muhammad Shafi sons of Muhammad Khan, Muhammad Azam son of Rehmat Khan, Muhammad Ashraf and Muhammad Afzal sons of Pola Khan, for offences under sections 148, 302/149 and 307/149, P. P. C., for committing rioting armed with deadly weapons, for committing murders of Muhammad Asif son of Hakim Ali and Nawab son of Shah Muhammad 4nd for making murderous assault on Bahadur Khan (P. W. 4), Lal Khan (P. W. 6), Muhammad Khalid (P. W. 8) and Muhammad Nawaz (P. W. 9), on 27th May, 1981 at about 6-00 p. m., near the house of Ashraf Ali, situated in village Gorsiyan, at a distance of eight miles from Police Station Kunjah, District Gujrat. The case was tried by the learned Additional Sessions Judge, Gujrat. Muhammad Asif appellant was convicted under section 304, Part I, P. P. C. And sentenced to undergo rigorous imprisonment for seven years' and a fine of rupees five thousand on each of the two counts or in default in payment of fine to undergo rigorous imprisonment for six months on each count. He was further convicted under section 308, P. P. C. And sentenced to undergo rigorous imprisonment for four years and a fine of rupees one thousand or in default in payment of fine to undergo rigorous imprisonment for three months. All the sentences were ordered to run concurrently. Muhammad Asif was acquitted of the other charges. The remaining six accused were acquitted of all the charges. The judgment was announced, on 3rd May, 1982. Muhammad Asif filed appeal against his convictions and sentences. Hakim Ali complainant filed revision petition against all the seven accused, which was admitted by this Court, on 19th July, 1982 against all the accused, except Muhammad Azam. The State also filed appeal under section 417, Cr. P. C. Against the judgment of the learned Additional Sessions Judge.
---
## Page 2
This appeal was admitted on 13th February, 1983 against all the accused, except Muhammad Azam. Since the criminal appeals' and the revision petition arise out of the same judgment, the same are being disposed of together. 2. On 27th May, 1981 at about 6-00 p. m., Muhammad Asif deceased, Nawab, deceased, Hakim Ali complainant (P. W. 5) Bahadur Khan (P. W. 4), La! Khan (P. W. 6), Muhammad Khalid (P. W. 8) and Muhammad Nawaz (P. W, 9) were present at their baithak situated towards southern side of village Gorsiyan, Muhammad Asif deceased accompanied by his cousin Nawab deceased left for his house followed by the above-mentioned five witnesses. When the two deceased reached near the house of Ashraf Ali son of Pola Khan, the seven accused, namely, Muhammad Asif, Fazal Dad, Jahan Khan, Muhammad Shah, Muhammad Ashraf, Muhammad Afzal and Muhammad Azam came from the front side. Muhammad Asif and Fazal Dad accused were carrying 7 mm. Rifles while the remaining accused, except Muhammad Azam, were armed with .12 bore guns. Muhammad Azam accused was having pistol with him. Jahan Khan accused gave out lalkara that _Muhammad Asif and others should be done to death, whereupon Muhammad Asif appellant fired shot which hit Nawab deceased on the left side of the chest. Fazal Dad accused fired shot which hit Muhammad Asir deceased on the left side of the chest. Jahan Khan accused fired shot at Lal Khan P. W. Hitting him on the right leg and right arm. Muhammad Shafi accused caused injuries to Lal Khan P. W. On the buttocks with fire shots. Muhammad Ashraf accused fired shot at Muhammad Nawaz P. W. Which hit him on the right thigh. Muhammad Afzal accused fired shot at Muhammad Nawaz P. W. Which hit him on the right arm and left ankle. Muhammad Asif appellant fired another shot which hit Bahadur Khan near the left armpit. Fazal Dad accused also fired another shot hitting Muhammad Khalid P. W. On the left shin. Muhammad Azam fired shots with his pistol. Hakim Ali complainant fired in self-defence with his 12 bore licensed gun causing injuries to Muhammad Asif appellant. Muhammad Asif and Nawab died at the spot on account of injuries while Bahadur Khan, Lal Khan, Muhammad Khalid and Muhammad Nawaz received fire-arm injuries but survived. 3. The motive for the occurrence was that Jahan Khan accused contested election against Akbar Ali, a first cousin of Hakim Ali complainant. Akbar Ali was declared successful. Due to that election, the relations between the parties had become strained. 4. Hakim Ali complainant left for the Police Station. He met Muhammad Fazal A. S.-I. (P. W. 15) at Octroi Post, Nagrianwala, at a distance of three furlongs from Police Station, Kunjah, on 27th May, 1981 and made statement Exh. P. C., which was completed at 9-45 p. m. This statement was sent at the Police Station and formal F. I. R. Was recorded. 5. After sending the statement of Hakim Ali complainant at the Police Station, Muhammad Fazal A. S.-1., on reaching the spot, prepared inquest reports of Muhammad Asif deceased and Nawab deceased and sent their dead bodies for post-mortem examination. He collected blood-stained earth from two places where the dead bodies were lying and sealed them into separate parcels. Separate memos. Were prepared. Akbar Ali P. W. (not examined) produced blood-stained clothes of Muhammad Khalid, Lal Khan, Bahadur Khan P. Ws., which were taken into possession by Muhammad Fazal A. S.-I. Muhammad Iqbal F. C. Produced the clothes of the two deceased before the said A. S.-I., which were taken into possession. The site plan was prepared by the Draftsman. Muhammad Fazal A. S.-I. Arrested all the seven accused on 1st June, 1981. He noticed injuries on the person of Muhammad Asif accused. He prepared his injury statement and sent him for medical examination. 6. On 5th June, 1981, Muhammad Shafi and Muhammad Ashraf accused produced .12 bore gun and a cartridge each, Which were taken into possession, vide separate memos. The memos. Were prepared by Muhammad Fazal A. S.-1. And attested by Muhammad Khan (P. W. 10) and Akbar Ali (not produced).
---
## Page 3
On 10th June, 1981 Muhammad Afzal accused produced 12 bore gun and a cartridge which were taken into possession. This memo. Was prepared by the same Police Officer and attested by the same witness. On 14th June, 1981 Muhammad Asif accused produced 7 mm. Rifle alongwith two 7 mm. Bullets, which were taken into possession. The rifle was sealed into a parcel. The relevant memo. Was attested by Riasat Ali (P. W. 11) and Akbar Ali (not produced). Muhammad Azam produced 12 bore revolver and two cartridges before Muhammad Fazal A. On 14th June, 1981 and those were taken into possession. 'The relevant memo. Was attested by Riasat Ali (P. W. 11) and Akbar Ali (not produced). Challan was submitted against the accused after the investigation was completed. 7. Since the injuries on the persons of the two deceased, the four prosecution witnesses and Muhammad Asif appellant are of great signiticance and have lot of bearing on the result of the case, the same are being mentioned in detail. Dr. Muhammad Iqbal conducted autopsy on the dead body of Muhammad Asif, on 28th May, 1981 at 10 a. m., and found the following injuries on his person :- (1) A fire-arm entrance wound 1.5 x 1.5 c. In. On the front of chest, 4 c. m. From mid-line, 7 c. m. From the nipple upward and inner side of the third intercostal space. (2) (a) A fire-arm entrance wound 1.5 x 1.5 c. m. On front of left shoulder, upper 1/4 of left upper arm. (b) A fire-arm exit wound 2 c 2 c. m, on the back of left shoulder. (3) (a) A fire-arm entrance wound 1.5 x 1.5 c. m. On the front of right shoulder. (b) A fire-arm exit wound 2 x 2 c. m. On the back of right shoulder. On dissection, it was found that the seat of injury No, 1 was the chest cavity through the intercostal space. It had pierced the heart from the right atrium to left atrium and had passed through the upper lobe of left lung and found lodged subcutaneously on the left side of the chest below the inferior angle of scapula. The stomach was half full with semi-digested fluid. In the opinion of the doctor, the death was on account of injury No, 1, which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused with fire-arm. The death had occurred immediately. The time between the death and post-mortem was about 16 to 20 hours. The doctor extracted bullet from the dead body and sealed it into a parcel. He handed over the sealed phial containing the bullet and clothes of the deceased to the police. 8. On the same day, at 11-00 a. m., the same doctor conducted post, mortem examination on the dead body of Nawab and he noticed the following injuries :- (1) (a) A fire-arm entrance wound 1.5 x 1.5 on front of left chest, 3 c. Tn. From mid-line, 5 c. m., from the nipple in the 5th intercostal space. (b) A fire-arm exit wound 2 x 2 c. m. On the left side of the chest below inferior angle of scapula. On dissection, injury No, 1 was found to have entered the chest cavity through the 5th intercostal space. It had pierced the heart, right ventricle, lower lobe of lung on left side and then passed out from the posterior wall of chest cavity at the left of inferior angle of left scapula. Stomach was found half full with semi-digested fluid. In the opinion of the doctor injury No, 1, which was ante- mortem and caused by a fire-arm, was sufficient to cause death in the ordinary course of nature. The time between injury and death was immediate and between death and post-mortem about 16 to 20 hours. It was contained in the post-mortem report that the injury had caused extreme haemorrhage and the death was due to haemorrhage and shock. 9. Dr. Ghulam Mujtaba medically examined Muhammad Khalid P. W., on 27th May, 1981. In his medico-legal report Exh. P. D., the time of examination was recorded as 9-50 p. m. The doctor found the following injury on his person :-
---
## Page 4
(1) A fire-arm wound of entry 1.8 x 1.6 c. In. With blackening around and lacerated inverted margins about 10 c. In. Below left patella. It was bleeding profusely. There was corresponding hole in the Dhotti On examination, a small hapatraze metallic foreign body was removed. The injury was kept under observation and X-Ray was advised. This injury was declared grievous after the X-Ray report. The injury was caused with fire-arm and it was fresh. 10. The same doctor medically examined Bahadur Khan P. W., the same day. The time of his examination in the medico-legal report Exh. P. E. Was recorded as 10-00 p. In. The following injury was found on his person :- A fire-arm wound of entry 1.5 X 1 C. m. On front of left chest near anterior border of left axilla about 8 c. In. Near left clavicle. This injury was kept under observation and X-Ray was advised. After X-Ray, it was declared grievous. It was fresh at the time of examination and caused by a fire-arm. 11. On the same day, the same doctor medically examined La! Khan P. W. The time of his examination was recorded in medico-legal report Exh. P. G. As 10.15 p.m. Following injuries were found on his person :- (I) Multiple fire-arm wounds (26 in number) of the dimension of <0.2 x 0.1 cam (wrongly recorded as 0.2 X 1 c.m.) ,.About round in shape in an area of 45 c.m. x 22 c.m. (wrongly recorded as 454m. x 42 c.m.) on front of back of right thigh starting from riMiliac crest anterior prominance up to back of right patella with corresponding holes in the chadar. (2) A fire-arm wound 0.2 c.m. x 0.1 c.m. (wrongly recorded as 2.00 x 1 c.m.) in mid outer portion of right leg. (3) Fire-arm wounds 0.2 c.m. x 0.1 c.m. (wrongly recorded as 2 x 1 c.m.) round in shape in an area of 10 c.m. Of outer mid of right forearm. (4) Fire-arm wounds 4 in number and of the dimension of 0.2 x 0.1 c.m. (wrongly recorded as 2 x 1 c.m.) in an area of 14 c.m. x 4 c.m. "outer quadrant" of left buttock. (outer quadrant missing in the Paper Book as well as in the statement of the doctor). (5) 3 fire-arm wounds 0.2 x 0.1 c.m. (dimension omitted in the Paper Book as well as in the statement of the doctor) round in shape in an area of 11 c.m. x 6 c.m. Outer right "quadrant" buttock (outer right quadrant missing in the Paper Book as well as in the statement of the doctor). (6) A fire-arm wound 0.2 c.m. x 0.1 C.m. (wrongly recorded as 0.2 X 1 c.m.) on the inner side of the left thigh. All the injuries were kept under observation. They were fresh and caused by fire-arm. X-Ray was advised for the injuries. After the receipt of X-Ray report, the injuries were declared grievous in nature. 12. The same doctor medically examined Muhammad Nawaz P. W., the same day. According to the medico-legal report, the time of his examination was 10-25 p.m. The following injuries were found on his person :- (1) A fire-arm wound 0.2 c.m. x 0.1 c.m. (wrongly recorded as 2 X 1 c.m.) in dimension round in shape on the right bicep (upper arm). (2) A fire-arm wound 0.2 c.m. x 0.1 c.m. In dimension round in shape on the right ankle. (3) A fire-arm 'wound 0.2 c.m. x 0.1 c.m. (wrongly recorded as 2 c.m. x 1 c.m.) front mid of right shin. (4) 3 fire-arm wounds (wrongly recorded as a fire-arm wound in the Paper Book as well as in the statement of the doctor) mid and front of right thigh in an area of 12 c.m. x 2 c.m. Of the dimension of 0.2 c.m. x 0.1 c.m. (dimension wrongly recorded as 2 x 5.1). (5) 4 fire-arm wounds 0.2 c.m. x 0.1 c.m. On the outer of right patella in an area of 10 c.m. x 3 c.m. Injuries were kept under observation. X-Ray was advised. The injuries were fresh and caused by fire-arm.
---
## Page 5
12. Dr. Muhammad Iqbal medically examined Muhammad Asif accused,-on 1st June, 1981 at 11-20 a.m. He was taken to the doctor by Zakaullah F. C. No, 60 of Police Station Kunjah. Following injuries were found on his person :- (1) A scabbed wound 0.2 x 0.2 cm. With reddish margins mid 1/3rd of left upper arm outer aspect (1/3rd omitted in the Paper Book as well as in the statement of the doctor). (2) A scabbed wound 0.2 X 0.2 c.m. With reddish margins on the left side of the cheek. (3) A scabbed wound 0.2 x 0.2 c.m. On the right cheek outer angle of mouth. The margins were reddish. (4) A scabbed wound 1 X 0.2 c.m. (wrongly recorded in the Paper Book as well as in the statement of doctor 0.2 x 0.2 c m.) on the right forehead on its junction with hair. (5) A scabbed wound 0.2 x 0.2 c.m. On the bed of left thumb nail. (6) A scabbed wound 0.2 x 0.2 c.m. On the inner side of the bed of the thumb nail. (7) A scabbed wound 0.2 X 0.2 c.m. On the back of the left thigh with reddish margins. (8) A scabbed wound 0.2 x 0.2 c.m. On the front of lower 1/3rd of left thigh (wrongly-recorded as left leg in the Paper Book as well as in the statement of the doctor). The injuries were kept under observation. X-Ray was advised. The duration of the injuries was a few days. After X-Ray report, the injuries were found simple and to have been caused with fire-arm. 14. The prosecution examined fifteen witnesses including Hakim All complainant, four injured witnesses, namely, Bahadur Khan, Lal Khan, Muhammad Khalid and Muhammad Nawaz, the three doctors, the Draftsman, the recovery witnesses, the Investigating Officer and the Constables. The complainant and the four eye-witnesses fully supported the prosecution case and involved the accused in their statements recorded by the trial Court. 15. Muhammad Asif appellant admitted in his statement recorded under section 342, Cr. P. C. That Jahan Khan accused was his father ; Fazal Dad and Muhammad Shafi accused were sons of the real sister of his father ; Muhammad Azam accused was his first paternal-cousin ; Muhammad Ashraf and Muhammad Afzal were the sons of first paternal-cousins of his father. He also admitted that in the last local council election, his father was one of the contesting candidates and he lost the election. He gave this answer when a question was put to him that in the local union council election, Akbar Ali first cousin of Hakim Ali complainant contested election from one side whereas his father Jahan Khan was a candidate in the said election on the other side and in that contest, Akbar Ali was declared successful, whereas Jahan Khan was defeated and due to this the relations were strained. The appellant stated that the election did not lead to any strained relations between them and Akbar Ali. He added that Akbar Ali continued to draw his ration from the Ration Depot of his father lie denied that he was a member of an unlawful assembly and had committed rioting. He further denied to have committed the murders and made murderous assault on the eye- witnesses. He denied the presence of Hakim Ali complainant at the spot. When asked if he produced rifle and two cartridges before the police on 14th June, 1981 he stated that he produced lisensed gun of his father on the very first day of his arrest, which was falsely planted upon Afzal accused and on the last day of his remand, a rifle was planted upon him, which was supplied by the complainant party. He gave the following detailed answer :- "On 27th May, 1981 at about 4-00 p.m. I was present alongwith Muhammad Arshad son of Mehdi Khan at the shop of Khushi Muhammad cobbler in the area of village Gorsiyan and were chatting and joking with each other. Muhammad Nawaz P. W. Happened to pass that way and thought that I had cut a joke with him. He started abusing me and when I stopped him he became enraged and started grappling with me. Fazal Dad accused was attracted to the spot and he separated us. He gave 2/3 pushes to Muhammad Nawaz and asked him to hide his face. Muhammad Nawaz left the scene while threatening that he would take revenge of his insult.
---
## Page 6
' After Maghrib prayer while I was on my way to my baithak and had not yet reached the turnin of the lane, where the baithak is situated when suddenly Asif and Nawab deceased, Bahadur, Lal, Nawaz and Khalid P. Ws. Emerged from the baithak of Hakim Ali and started firing at me. As the distance between the assailants and myself was more than 120 feet I received some pellet shots on the front of my body. I started running and when I was taking a turn towards the lane leading to our baithak I was hit by another shot fired by the aforesaid persons, which hit me on the left cheek and left arm. In the meantime I heard gunshot reports from the house of Ashraf Ali son of Pola, but I cannot say if the firing was aimed at any particular person or was being made in the air. I got inside my baithak and took out the licensed gun of my father. I loaded it and peeped out of the baithak. As no one was visible in the lane I came out of the baithak and started running towards. The west. Suddenly another shot was fired from my back, which hit me on the left thigh. I turned round and saw all the six persons mentioned above running towards me armed with fire-arms. Seeing grave danger to my life at the hands of my pursuers I fired with my gun and saw two of my pursuers falling down. The rest of the pursuers started attending to them. Finding an opportunity I took to my heels and with great difficulty managed to save my life. As the aforesaid persons were firing indiscriminately while chasing me it is just possible that some of them may have been injured by the shots of their own companions. I did not stay inside the baithak as I was being pursued by Asif, Nawab and others, who were armed with fire-arms and there was no outlet from the said baithak, which is situated adjacent to the house of Akbar Ali and Ashraf Ali sons of Pola, who are first cousins of Hakim Ali P. W.1 and my co-accused have been falsely involved after a distorted version was concocted by the complainant party in connivance with the police. Had I not acted in the exercise of the right of my self-defence, ' my assailant would have killed me on the spot." He did not lead any evidence in defence. 15. Fazal Dad appellant denied the prosecution allegation and stated that he was involved falsely because he divorced Mst. Noor Begum niece of Hakim Ali complainant. He further stated that on the day of occurrence at about 4-00 p.m. He found. Asif accused and Nawaz P. W., grappling with each other in the shop of Khushi Muhammad cobbler in village and he separated them and gave 2/3 pushes_Lo Nawaz asking him to go and hide his face. He further stated that while leaving Nawaz P. W. Threatened to avenge himself. 16. Jahan Khan accused professed innocence and attributed his involvement to the effect that in 1978, Mst. Sharifan daughter of one Bahadur Khan was abducted and a case under section 366, P. P. C. Was registered against Sardar Khan, a first cousin of Hakim Ali P. W. And in that case the daughter, the son and the wife of the said Sardar Khan were also challaned. Rehmat Khan (father of Azam accused), Sardar Khan (real brother of Ashraf) and Afzal accused appeared as witnesses against the relatives of Hakim Ali complainant. He produced certified copy of the F. 1. R. Exh. D-3. He added that he was an old man with cataract in his eyes and as such he could not go to the extent of firing. 17. Muhammad Shafi appellant attributed his involvement due to his relationship with Asif accused. He denied to have produced the gun. He explained that the licensed gun of his brother Fazal Dad had been planted upon him. 18. Muhammad Ashraf and his brother Muhammad Afzal accused denied to have taken part in the occurrence. According to them, they were involved on account of their relationship with Asif accused. Muhammad Ashraf stated that the licensed gun of his brother Latif was falsely planted upon him. Muhammad Afzal did not admit the recovery of gun. 19. Muhammad Azam accused stated that his father was a witness in the case against Sardar Khan, first cousin of Hakim Ali complainant in the abduction case of Mst. Sharifan daughter of Bahadur Khan. ' No evidence was led in defence.
---
## Page 7
19-A. We propose to dispose of the legal objection raised by the learned counsel for Muhammad Asif appellant. It was argued by the learned counsel that the State appeal was incompetent as the District Magistrate had declined to file the appeal and it was after his refusal that the complainant filed the revision petition alongwith the order of the District Magistrate, dated 25thh. May, 1982, declining to file the appeal. It was pointed out by the learned counsel that the complainant moved the Advocate-General and the matter was referred to the Law Department but the case was not found fit for filing the appeal. In support of his submissions, the learned counsel referred to Rule 1-A, Part A (b) Chapter I of the Lahore High Court Rules and Orders. Vol. V, and cited case titled The Crown v. Sultan Mehmmood and others and PLD 1955 FC 20, in the matter of Sh. Abdul Karim, an Advocate . This objection was met by the State counsel who urged that even after the refusal by the District Magistrate, the Provincial Government was still competent to file State appeal. Case titled Mul Singh v. Emperor was cited in support of this submission. For the decision of this legal objection, sections 417, Cr, P. C. And 439, Cr. P. C. Would be relevant. It is provided in section 417(1), Cr. P. C that subject to the provision of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. Under the aforesaid provisions of law it is the Provincial Government, which can direct Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. Under Rule 1-A, Part A (b), Chapter I, of Lahore High Court Rules and Orders Vol. V, Deputy Registrar has been directed with reference to section 439 (5), Cr. P. C. Not to receive any petition for revision of an order of acquittal unless it is accompanied by a copy of an order of the Magistrate of the District, refusing to move the Provincial Government to appeal under section 417, Cr. P. C. It is provided in section 439 (5), Cr. P. C. That where under the Code of Criminal Procedure, an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the parties, who could have appealed. Jn cognizable cases, the State becomes the complainant although the cases are registered on the statement of some individual persons. In cognizable cases, the right of filing appeal against the judgment of acquittal rests with the Provincial Government and not with the person who lodges the report. Where a case is instituted upon a complaint and the judgment of acquittal is A…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.