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Petitioner: ASPAIN GUL AND 3 Others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Karam Elahi Chauhan Title: ASPAIN GUL AND 3 Others vs THE STATE Case No.: Criminal Appeal No. 377 and Murder Reference No. 131 of 1970 Date of Judgment:1973-11-28 Reported As: 1973 P Cr. L J 345 Result: Order accordingly
JUDGMENT
JUDGMENT JAVID IQBAL, J.---Aspain Gul son of Maseen Khan aged 33 years, Zar Gul son of Maseen Khan aged 20 years, Raees Khan son of Fateh Khan aged 40 years and Abbas Khan son of Mian Noor .Khan aged 70 years, have been convicted under section 302134, P. P. C. And each of them sentenced to death for the murder of Ghaffar Khan; they have also been convicted under section 307/34, P. P. C. On three counts and sentenced to five years' R. I. Each for the attempted murders of Muzaffar Khan P. W. 11, Hawas Khan P. W. 14 and Niamat Khan P. W. 15 vide judgment dated the 11th of June 1970, of Mr. Bashir Ahmad, Sessions Judge, Lyallpur. Their appeal as well as reference for too confirmation of death sentence are being taken up and disposed oftogether by this judgment. Criminal Revision No. 956 of 1972 filed by Muzaffar Khan P. W. Shad considered and disposed of along with the aforementioned appeal as well as reference. 2. The relationship between the appellants is as follows: Aspain Gul and Zar Gul appellants are brothers. Races Khan appellant is father-in-law of Zar Gul appellant whereas the daughter of Abbas Khan appellant is married to a brother of Aspain Gul and Zar Gul appellants. Abbas Khan appellant is also a consanguine brother of Ghaffar Khan deceased. 3. The occurrence is stated to have taken place on the 8th of July 1969, at 7-15 a. m. In the area of Chak No. 659/G-B., District Lyallpur, at a distance of 3--miles in the direction of South from Police Station Dejkot. The F. I. R. Annex. (Exh. P. C.) is stated to have been lodged at 8-20 A. m. On the same date at Police Station Dejkot by Muzaffar Khan P. W. 11, maternal uncle of Ghaffar Khan deceased and it was recorded by Akhtar Saeed Farooqi, S. I. P. W. 16. 4. The motive for the offence as stated in the F. I. R. Is that about 7/8 years ago Sahib Gul brother of Muzaffar Khan P. W. Abducted Mst. Guldan Begum sister of Aspain Gul and Zar Gul appellants and
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she had not been returned on account of which the relations between the parties were strained. Furthermore, 5/6 months prior to the occurrence Amir Gul nephew of Aspain Gul and Zar Gul appellants had been injured by gunshot and consequently a case was registered under sec--tion 307, P. P. C. Against Ghaffar Khan deceased, Khawas Khan, Hawas Khan P. W. And Muzaffar Khan P. W. Which was pending. In addition to the above Ghaffar Khan deceased had been accused in a case under section 13 of the Arms Ordinance XX of 1965, for the possession of unlicensed gun. Abbas Khan appellant was one of the prosecution witnesses in that case. The date of hearing of that case was the 8th of July 1969, when the occurrence took place. It is stated that a few days prior to the occurrence Ghaffar Khan deceased had dissuaded Abbas Khan appellant from appearing as P. W. In that case. But Abbas Khan appellant refused. This led to exchange of hot words and abuses between the two. 5. According to the F. I. R. The occurrence took place in the following manner: Muzaffar Khan P. W. Was coming to Dejkot along with his two nephews, namely, Ghaffar Khan and Hawas Khan P. W. And Niamat Khan P. W. 15 because his nephew Ghaffar Khan who had been challaned for the possession of unlicensed gun under section 13 of the Arms Ordinance XX of 1965, had to appear before the Magistrate Dejkot on the 8th of July 1969. At about 7-15 a.m. When they had reached near the dera of Sheru P. W. 13 opposite the canal bridge Gogera Branch, all the four appellants, each being armed with single---barrelled .12 bore gun came out from their hiding in Rajbah Korn minor canal and attacked them. The first gunshot was fired by Abbas Khan appellant which hit Ghaffar Khan on the right side. The second gunshot was fired by Raees Khan appellant which hit on the right side of Niamat Khan P'. W. The third gunshot was fired by Zar Gul appellant which hits the right knee of Hawas Khan P. W. Then Aspain Gul appellant fired a gun shot which did not hit any one. Muzaffar Khan P. W. Hawas Khan P.W. Niamat Khan P. W. And Ghaffar Khan ran in order to save their lives. They were chased by the four appellants who went on firing their guns. Aspain Gul appellant fired another gunshot in the process of chasing them. The shot hit on the back side of the head of Ghaffar Khan. Aspain Gul appellant fired one gun shot more from close range which hit Ghaffar Khan on the back. Thereupon Ghaffar Khan fell down'- on the ground at a site which was at a distance of 4 kanals in the direction of south from the dera of Sheru P. W. 13. Niamat Khan injured P. W. Fell down further away at the dera of Yusuf. On the hue and cry of these P. Ws. Sheru P. W. And Fayyaz Ahmad P. W. 12 were attracted to the scene of occurrence and also witnessed the same. On the alarm raised by them the appellants discontinued the chase and ran away. The result was that Ghaffar Khan died whereas Hawas Khan and Niamat Khan P. Ws, sustained injuries at the hands of the appellants. 6. From the perusal of the F. I. R. It is clear that the injury caused to Niamat Khan P. W. Is attributed to Races Khan appellant whereas the injury caused to Hawas Khan P. W. Is attributed to Zar Gul appellant. Both these appellants did not fire towards Ghaffar Khan deceased who is stated to have been injured by the gunshots fired by Aspain Gul and Abbas Khan appellants. 7. There are five eye-witnesses of the occurrence, namely, Muzaffar Khan P. W. 11, maternal uncle of Ghaffar Khan deceased and held to be an interested witness by the Sessions Judge; Fayyaz Ahmad P. W. 12, held to be an independent witness by the Sessions Judge but according to learned counsel for the appellants he was also an interested witness being tractor driver of Khawas Khan, a brother of Ghaffar Khan deceased. Sheru P. W. 13 held to be an independent witness by the Sessions Judge but according to learned counsel for the appellants an interested witness as he was brother-in-law of Fayyaz Ahmad P. W., Hawas Khan P. W. 14 a brother of Ghaffar Khan held to be an interested witness by the Sessions Judge and Niamat Khan P., W. 15 being husband of the sister of Ghaffar Khan deceased and found to be an interested witness by the Sessions Judge. Out of these five eye-witnesses Hawas Khan and Niamat Khan P. Ws. Are injured. 8. The relevant recoveries made in this case are as follows:------
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(i) Blood-stained earth taken into possession from the place where the dead body of Ghaffar Khan was lying on the 8th of July 1965, vide memo. Exh. P. D. Witnessed by Hashmat Khan P. W. 10, Akhtar Saeed Farooqi S. I. P. W. 16 and Muhammad Yusuf (given up as unnecessary). (ii) On the same date i. e. The 8th of July 1969, a pair of Shy P. 1/1-2, and a loin cloth P. 2 belonging to Ghaffar Khan deceased and taken into possession from inside the dhari (Haven) of Sheru P. W. Vide memo. Exh. P. E., the recovery witnesses being the same. (iii) On the same date i.e. The 8th of July 1969, four crime empties P. 3/1-4 and one live cartridge P. 4 of T2-bore gun were taken into possession from near the dhari of Sheru P. W. Vide memo. Exh. P. F., recovery witnesses being the same. Zar Gul appellant was arrested on the 9th July 1969, Aspain Gul and Raees Khan appellants were arrested on the 10th of July 1969, and Abbas Khan appellant was arrested on the 11th of July 1969, by Akhtar Saeed Farooqi S. I. P. W: After their arrest the following recoveries were made at the instance of Zar Gul and Aspain Gul appellants: (iv) At the instance of Zar Gul appellant from his house in Chak No. 535/G. B., gun P. 7 and two live cartridges taken into possession vide memo. Exh. P. O. Dated the 9th of July --1969, recovery witnesses being Misri Khan F. C. P. W. 5. --Muhammad Ismail F. C. P. W. 6 (in his statement he does not' depose in respect of this recovery), Hashamat Khan P. W. 10 and Akhtar Saeed Farooqi S. I. P. W. 16. (v) At the instance of Aspain Gul appellant, 11 days after his arrest i.e. On the 21st of July 1969, from near his hour gun P. 8 taken into possession vide memo. Exh. P. Q recover' witnesses being Muhammad Ismail F. C. P. W. 6, Akhtar Seed Farooqi S. I. 'P. W. 16 and Muhammad Ali F. C. (not produced). At pages 45 and 46 of the Paper Book there are opinions of the Examiner of the Fire-arms, contained in two reports dated the 31st of July 1969. The report respecting gun P. 7 is to the effect that in its present condition it was not in working order as its firing pin was damaged which was self-induced. Respecting gun P. 8 the report is to the effect that crime empties P. 3/1-4 had not been fired from it. Anyway, although these reports were produced in the trial Court, they were neither proved nor exhibited because a Forensic Expert had not been summoned or examined in this case. According to learned counsel, therefore, these recoveries were not of much value. Although Raees Khan appellant was arrested on the 10th of July 1969, and Abbas Khan appellant was arrested on the 11th of July 1969, no recovery had been made at their instance. 9. Dr. Safdar Ali P. W. 1 conducted the post-mortem examination on the dead body of Ghaffar Khan at 6-00 p. m. On the 8th of July 1969, and found on his person seven fire-arm wounds, viz. (1) on the back of head, brain deep, occipital region, making a hole in the left occipital bone and membranes of brain and brain matter were injured on left side; (2) on the back of right fore-arm fracturing the radius; (3) on the back of abdomen, left side near the spine, blasting left kidney and owing to the pellets entry in the left chest, perforating the left lung and heart; (4) on the back, on the abdomen, back side of lumber spine; (5) on the front of `right chest; (6) entry and exit wound on the front of right thigh and (7) entry and exit wound on the front of left hip. In his opinion death had resulted from injuries Nos. 1 and 3. Injury No. 2 was grievous. Injuries Nos. 4 and 5 were dangerous. Injuries Nos. 6 and 7 were simple. All the injuries had been caused by fire-arm. Injuries Nos. 1 and 3 were sufficient to cause death in the ordinary course of nature. 10. Dr. Anwar Hussain P. W. 2, medically examined Niamat Khan P. W. At 10-00 a. m. On the 8th of July 1969, and found six gunshot wounds on his person, on the right renal region, on the right hip back side, on the front of right thigh (entry wound), slanting gunshot wound (exit wound), on the right side of anus and on the left side of anus. In his opinion these injuries had been caused by fire- arm. All the injuries were grievous in nature.
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On the same date and at the same time he medically examined Hawas Khan P. W. And found gunshot wound on his right knee-joint (which was a wound of entry). In his opinion the injury was grievous in nature and had been caused by fire-arm. 11. At the trial the prosecution witnesses, namely, Muzaffar Khan, Fayyaz Ahmad, Sheru, Hawas Khan and Niamat Khan introduced an account in the prosecution version which was omitted in the F. I. R. As well as the statements of these witnesses recorded by the committing Magistrate. The Additional account was to the effect that while the P. Ws. Were being chased by the appellants Ghaffar Khan deceased entered the dera of Sheru P. W. By scaling over 3' or 3--' high wall on the eastern side and then ran out of the dera by jumping over the southern wall of the same height, that Abbas Khan and Aspain Gul appellants who were chasing him did not enter the dera but they followed him from the outer side and that Ghaffar Khan deceased crossed four kanals by running when he was fired at twice and injured in the head and the back at the hands of Aspain Gul appellant and he fell down on the ground and died. In the process of passing through the dera of Sheru P. W., the shoe's and loin cloth of Ghaffar Khan deceased went off his body and were subsequently recovered therefrom by the police. According to Muzaffar Khan P. W. Abbas Khan and Aspain Gul appellants did not enter the dera but according to Fayyaz Ahmad P. W. They chased him through the dera. According to Sheru P. W. Ghaffar Khan deceased entered his dera by scaling over the eastern wall while the other P. Ws. Entered the same from the gate of his dhari. According to Hawas Khan and Niamat Khan P. Ws. All of them scaled over the wall of le Sheru P. W. While the appellants were running after them. 12. The appellants denied the charge. Abbas Khan admitted his relationship to Zar Gul, Aspain Gul and Raees Khan appellants. He admitted the enmity between the complainant and the accused parties. Before the committing Magistrate he also admitted that few days prior to the occurrence Ghaffar Khan deceased had requested him to depose against him in the case under section 13 of the Arms Ordinance of 1965 and that he refused to oblige him on which there had been an exchange of abuses. He stated before the trial Court that he appeared in the Magistrate's Court as a P. W. In the Arms Ordinance case against Ghaffar Khan deceased on the day of occurrence. He further stated that the sister of Aspain Gul and Zar Gul appellants was abducted by the brother of Muzaffar Khan P. W. But later on a compromise was effected and Hawas Khan P. W. Married his sister to Aspain Gul appellant although Aspain Gul appellant turned her out from his house suspecting her chastity. He also stated that few, days prior to the occurrence Ghaffar Khan deceased was drunk 'and in a state of intoxication he said to him that he would not let him collect the land revenue and also abused him, and that he made a complaint to the S. H. O. But he did not request him to refrain from appearing as a witness against him. He denied participation in the occurrence and stated that the report of Medical Superintendent on his bail application was to the effect that his left elbow was injured and he was not capable of wielding a gun. He further stated that he was weak that he was a T. B. Patient, that both his eyes were operated upon and that his eye-sight was weak. He also stated that his father had gifted his land situated in Chak No. 535/G. B. Along with Lambardari of that village to him, that Hawas Khan P. W., Khawas Khan and Ghaffar Khan deceased were given the land in village Kanjur, District Campbellpur as well as Lambardari of that village and they were also given the residential land and shops situated in Dejkot. He stated that this was resented by them as well as their mother. They brought a declaratory suit against him in 1946 but that suit was dismissed. He produced copies of the plaint Exh. P. E., khasra girdawari Exh. D.F. And jamabandi Exh. D. C. In order to prove his contention. According to him the P. Ws. Wanted him to transfer that land in their names which he was not willing to do and thereupon they took illegal possession of the same and owing to enmity they falsely involved him in this case. He further stated that all the P. Ws. Were interested witnesses.
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Aspain Gul appellant disowned gun P. 8 However he admitted that his sister eloped with Sahib Khan brother of Muzaffar Khan P. W. And maternal uncle of Ghaffar Khan deceased and had not been restored at all. He further stated that the sister of Ghaffar Khan deceased Mst. Nek Bakht was married to him. But he turned out her from his house because of her loose character and contracted a second marriage whereupon the complainant party became their enemies and had involved them in this case. He stated that his sister was also the wife of Khawas Khan brother of. Ghaffar Khan deceased but they were not on visiting terms with the complainant party. He stated that he was granted pension from Army in 1962 as he was declared unfit stated that his right leg was defective and he could not run. Zar Gul appellant also stated that after the elopement of his sister with Sahib Khan a compromise was effected according to which the sister of Ghaffar Khan deceased was married to his brother Aspain Gul appellant who turned her nut from his house because of her immorality. He disowned gun P. 7 and stated that he had been involved in this case due to enmity of P. Ws. With him and his brother Aspain Gul appellant. Races Gul appellant stated that he was not present at the time of occurrence but had been involved due to enmity. 13. Ch. Nazir Ahmad Khan learned counsel for the appellants argues that the enmity between the complainant and the accused parties is clearly established from the record, that the eye- witnesses produced by the prosecution are highly interested and that, therefore, it is necessary that the rule of caution should be applied while assessing their testimony. There is no doubt in our mind that the parties are inimical to each other. Three of the eye-witnesses produced in this case, namely, Muzaffar Khan, Hawas Khan and Niamat Khan P. Ws. Are closely related to Ghaffar Khan deceased and have also been held as interested witnesses by the Sessions Judge. The remaining two, namely, Sheru and Fayyaz Ahmad P. Ws. Arm related to each other and since Fayyaz Ahmad P. W. Was the tractor driver of Khawas Khan another brother of Ghaffar Khan deceased. According to the testimony of Hashmat P. W. 10, in our view they too are interested witnesses although the Sessions Judge has held them to be independent witnesses. We, therefore, agree with learned counsel that since the eye-witnesses are highly interested their testimony should be assessed with great caution and should be accepted only so far as it is supported by corroborative evidence. It may however be noted that in the instant case the recoveries made, namely, gun P. 7 at the instance of Zar Gul appellant and gun P. 8 at the instance of Aspain Gul appellant are of no value at alt because according to the reports of the Examiner of Fire-arms gun P. 7 was not in working order as its firing pin was damaged whereas crime empties P. 3/1-4 taken into possession from near the dera of Sheru P. W. Had not been fired from gun P. 8. Furthermore the aforementioned reports were neither proved nor exhibited because the Forensic Expert had not been summoned or examined in this case. Thus the only corroborative piece of evidence we are left with is the medical evidence. 14. Learned counsel further argues that the testimony of Muzaffar Khan P. W. Is totally unreliable for had he been present at the time of occurrence he would have certainly been murdered at the hands of the appellants. According to learned counsel he could have not accompanied Ghaffar Khan deceased but was made an eye-witness due to his cleverness and experience in order to act as the first informant. It is further argued that Sheru and Fayyaz Ahmad P. Ws. Might also have not witnessed the occurrence but were introduced as eye-witnesses so that their testimony could be believed as that of natural witnesses. The testimony of Muzaffar Khan P. W. Indeed does not inspire confidence. He sustained no injury at the hands of the appellants. It is clear from his statement that he was a history---sheeter and en inmate of Register No. 10, that there were numerous decoity cases pending against him in Gujranwala District, that he was convicted and sentenced to imprisonment for 161 years which was
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subsequently reduced to 9J years by the appellate Court, that he was an approver in two decoity cases, that there were four decoity cases pending against him at Lyallpur, that he was one of the accused in a murder case relating to one Noora deceased but was acquitted, that he abducted the daughter of one Kasar Masih, that he along with others had been bound down under section 107, Cr. P. C. On the 19th of March 1970, that he had no source of income, and that he made his sister file a suit against Abbas Khan appellant for a declaration that the gift of land in Chak No. 535/G. B., made in favour of Abbas Khan appellant was illegal. It is in evidence that his brother had eloped with the sister of Aspain Gul and Zar Gul appellants and that it was at his instance that the gift of some land made in favour of Abbas Khan appellant had been challenged and that square No. 87 in Chak No. 535/G. B., gifted to Abbas Khan appellant by his father was under illegal possession of Hawas Khan P. W., Khawas Khan and Ghaffar Khan deceased his nephews. We have no doubt that if he had accompanied Ghaffar Khan deceased he would have certainly been the first target of the appellants. According to his own statement he is a history-sheeter, inmate of Register No. 10, a previous convict under dacoity charges and an accused in a murder case. In the circumstances his testimony is not worthy of any credit. We, therefore, agree with learned counsel that he may have not been present at the time of occurrence but because of his cleverness and experience was called in order to file the F. I. R. In this case. His testimony is accordingly discarded. In regard to the testimony of Sheru and Fayyaz Ahm9d P. Ws. We are of the view that it is doubtful if they had witnessed the first part of the occurrence in which Abbas Khan appellant is stated to have fired the first gunshot which hit the right side of Ghaffar Khan deceased, the second gunshot was fired by Raees Khan appellant which hit on the right side of Niamat Khan P. W. And the third gunshot was fired by Zar Gut appellant which hit the right knee of Hawas Khan P. W. According to the statement of Sheru P. W.; his dhari was at a distance of 3/4 kanals from the Foot Bridge of Gogera Canal where the first part of the occurrence took place. He has stated that he was sitting at the thara of his dhari towards the West and was looking towards the direction of East where the occurrence took place. According to him his dhari was also known as haveli and it was open without containing any room although there were two rooms outside the dhari adjoining its western wall and that the thara on which he was sitting was in front of those two rooms. According to the statement of Fayyaz Ahmad P. W. He resided at the dera of Sheru P. W. And was putting fodder to his buffalo at the time of occurrence. According to him Sheru P.W. Was near the toka at the time of occurrence. He has stated that the dhari of Sheru P. W. Had only one room where nobody resided. There is nothing on the record to Show that Sheru and Fayyaz Ahmad P. Ws. Could not be present at the dera of Sheru P. W. At the time of occurrence. It is probable that their attention was directed to the scene of occur--rence on the report of gun-fire which constituted the first part of occurrence. We, therefore, are inclined to agree with learned counsel that they may have in fact not witnessed the first part of the occurrence. But there is no reason why it should be held that they did not see the subsequent part of the occurrence i.e. The chasing by the appellants of Ghaffar Khan deceased as well as Hawas Khan and Niamat Khan P. Ws. Consequently their testimony respecting the first part of occurrence is discarded. 15. Learned counsel further argues that the testimony of Hawas Khan, Niamat Khan, Sheru and Fayyaz Khan P. Ws. Must be rejected in its entirety for the following reasons:- ---. (i) They all have falsely deposed that Muzaffar Khan P. W, was present at the scene of occurrence whereas it has already been observed by us that his presence was doubtful. (ii) They all have falsely deposed that Ghaffar Khan deceased along with his injured companions entered the dera of Sheru P. W. By scaling over the wall and then exited therefrom leaving behind his shoes and loin cloth. This account of the eye--witnesses was an afterthought and had been introduced so that the testimony of Sheru and Fayyaz P. Ws. Be considered as that of natural witnesses.
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(iii) They all have falsely deposed respecting the participation of Abbas Khan appellant in the occurrence who could have not been present for no recovery was effected from him, he was 70 years old; there was evidence on record that he could not wield a gun owing to a permanent injury sustained by him on his left elbow, the injury attributed to him (that gunshot fired by him hit on the right side of Ghaffar Khan deceased) did not tally with the medical evidence and that he was roped in only because be was an elder of the family and had refused to accede to the request of Ghaffar Khan deceased for not deposing against him in the Arms Ordinance case. (iv) They all have deposed falsely respecting the participation of Raees Khan appellant in the occurrence from whom no recovery was effected and who had also been roped in because of being another elder of the family. He is father-in-law of Zar Gut appellant and is not directly connected with the motive. We have indeed held that the presence of Muzaffar Khan…
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