Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD BUTA And 3 Others VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema, Muhammad Munir Farooqi Title: MUHAMMAD BUTA And 3 Others vs The STATE Case No.: Criminal Appeal No. 500/Murder Reference No. 211 of 1909 Date of Judgment:1971-01-13 Reported As: 1972 P Cr. L J 567 Result: Appeal accepted
JUDGMENT
JUDGMENT Muhammad Munir Farukee, J.--Muhammad Buta son of Nawab, Allah Ditta, Ghulain Rasul sons of Nawab and Ghulam Haider son of Rehmat Khan were tried along with Sardar Ali, Ghulam Rasul sons of Hayat and Abdul Ghani son of Muhammad Husain by the learned Additional Sessions Judge, Gujrat, on charges under sections 148-302/149, 326/149 and 325/ 149 of the Pakistan Penal Code for having committed the murder of Ata Muhammad and caused grievous and simple injuries with sharp and blunt weapons (as detailed below) to Khurshid Ahmad (P. W. 6), Mubashir Ahmad (P. W. 7) and Allah Ditta (given up P. W.) in prosecution of the common object of an unlawful assembly formed by them while armed with deadly weapons like swords and sticks on the 21st of November 1966, at about 3 p.m., in the field of aforesaid Ata Muhammad in village Dhirke Kalan, Police Station Gujrat. The learned trial Judge giving benefit of doubt to Sardar Ali, Ghulam Rasul and Abdul Ghani, acquitted them and finding the four appellants guilty convicted and sentenced them as under :-- Allah Ditta son of Nawab : Death under section 302/34, P. P. C. Rigorous imprison ment for two years under sec tion 326/34, P. P. C. Rigorous imprisonment for one year under section 325/34, P. P. C. with a direction that if the sen tence of death is commuted to any term of imprisonment then all the sentences of imprison ment shall run concurrently with each other. Ghulam Rasul, ") Transportation for life under Muhammad Buta y section 302/34, P. P. C. each. Ghulam Haider j Rigorous imprisonment for two years under section 326/34, P.P. C. each. Rigorous imprisonment for one year under section 325/ 34,
---
## Page 2
P. P. C. each with a direc tion that all these sentences shall run concurrently. They have questioned the correctness of their conviction by an appeal while the record is also before us on a reference under section 374 of the Criminal Procedure Code and both these matters are being disposed of by this judgment. (2) The occurrence culminating in the death of Ata Muhammad deceased and injuries to Khurshid Ahmad and Mubashir Ahmad P. Ws. has its origin in a dispute about the occupation of the land in Khasra No. 2786/1934 situate in the revenue estate of village Dhirke Kalan, Tehsiland District Gujrat, hereinafter referred to as the field in dispute. 3. The prosecution case in brief is that the field in dispute measuring one and a quarter kanal owned by Hayat son of Khan Muhammad was adjacent to the land of Ata Muhammad deceased but it was being cultivated on batai by Muhammad Buta appel lant, a nephew of said Hayat. Muhammad Buta did not honour his commitment and on being so deprived of the share of produce his uncle Hayat made it over to Ata Muhammad deceased five or six days before the present occurrence. Ata Muhammad deceased started tethering his cattle there, which annoyed Muhammad Buta appellant. He along with Ghulam Rasul, Allah Ditta sons of Nawab, Sardar Ali, Ghulam Rasul sons of Hayat went over to that land and untcthered the cattle of Ata Muhammad deceased proclaiming that he would not petmit anyone else to cultivate this field. Mubashir Ahmad (P. W. 7) was alone present at that time, so he could offer no resistence. On coming to know of it Ata Muhammad deceased in retaliation told Muhammad Buta appellant not to pass through his land while going to his fields, but he did not take any serious notice of this warning. On the eventful day Ata Muhammad deceased his sons Khurshid Ahmad and Mubashir Ahmad P. Ws. along with Allah Ditta son of Muhammad Khan (given up P. W.) were present in their field marked 'D' in site plan (Exh. P. J.) at about 3 p.m. when Muhammad Buta appellant was found passing through that field, so Ata Muhammad deceased reprimanded him telling him to refrain from trespassing on his land in that manner. Muhammad Buta appellant went back to the village and after about half an hour he reappeared on the scene along with Allah Ditta, Ghulam Rasul sons of Nawab, Ghulam Haider son of Rehmat Khan, appellants and Sardar Ali, Ghulam Rasul sons q.f Hayat and Abdul Ghani son of Muhammad Husain (the acquitted accused). Allah Ditta appellant and Ghulam Rasul son of Hayat (acquitted accused) were carrying sticks while the others were armed with swords. All of them raising lalkaras that they would a teach them a lesson attacked Ata Muhammad deceased and his companions. Muhammad Buta, Ghulam Haider and Ghulam Rasul appellants fell upon Khurshid Ahmad P. W. They were armed with swords and inflicted a blow each on him. Khurshid Ahmad P. W. warded of the blows on his hands. Ghulam Rasul son of Hayat (acquitted accused) gave a stick blow on his head. Sardar Ali and Abdul Ghani (acquitted accused) dealt with Mubashir Ahmad P. W. causing injuries to him with swords. They were joined by Allah Ditta (given up P. W.) Ghulam Rasul son of Hayat (appellant) gave him stick blows. Allah Ditta son pf Nawab appellant then attacked Ata Muhammad deceased and planted two lathi blows on his head which fell him on the ground and as a result became unconscious. Khurshid Ahmad and Mubashir Ahmad P. Ws. picked up a stick each from their field and caused injuries to Ghulam Rasul and Ghulam Haider appel lants in self- defence. Allah Ditta son of Muhammad Khan, Allah Ditta son of Muhammad Qasim, Muhammad Akhtar son of Gul Muhammad, Hassan Muhammad son of Muhammad Bakhsh were present and separated the parties. The last mentioned was added by Mubashir Ahmad P. W. Thereafter appellants and their companions went away from the spot. Khurshid Ahmad, Mubashir Ahmad P. Ws. Allah Ditta son of Muhammad Khan and others carried Ata Muhammad deceased in a tonga to Civil Hospital, Gujrat, where Dr. Taraq Rashid Toosi (P, W. 1) examined their injuries. He examined Ata Muhammad and found the following injuries (while he was still alive) on his
---
## Page 3
person :-- (1) Lacerated wound over the head situated 5" above the top of right ear, i.e., x " x bone deep, (2) Contusion over the* scalp on right side 3" in front of injury No. 1 that is 1 J" x J" around this is an area of swelling, i.e., 3"x2". He examined Khurshid Ahmad P--W. oil 21st November 1966, at 7-15 p.m., and found the following injuries on his person :-- (1) Incised wound over the back of left thumb, i.e., 1" x l/3"x 1/3". (2) Incised wound over the back of right index linger, i.e., (3) Incised wound over the back of right middle finger, i.e. r x r x (4) Lacerated wound over the interior part of middle of scalp, i.e., 1Y x J" x 1/6". (5) Incised wound over the palmar surface of distal middle .phalynx. Injuries Nos. 1, 2, 3 and 5 were caused with sharp-edged weapon while No. 4 was with blunt weapon. On the same day at 8-45 p.m., he examined Mubashir Ahmad P. W. and found the following injuries on his person :-- (1) Incised wound over scalp situated 4" above the top of right ear, i.e., 2|"xi"x bone deep. (2) Abrasion over the back and root of right thumb 1/3''x 1/3''. (3) Abrasion over the back of root of right index linger, i.e., i" x i/3". (4) Abrasion over the upper half of the front of right forearm. Le,,\"xY. (5) Contusion over the back of lower one-third of right arm, i. e., 3'xl'. (6) Contusion over the back of left scapula 2|" x (7) Contusion on the back of upper half of left arm, i.e. 2" x i". (8) Incised wound over the back of elbow-joint. The joint was open and tipper end of left ulna had been cut posteriorly as well as lower end of left humerous was also cut lasterly. (9) Incised wound over the upper part of front of nose. The bridge of the nose on the adjoining left side had been broken, i.e.,\Yx3l^x3l4f Injuries Nos. 8 and 9 were grievous while the rest were simple. Injuries Nos. 1, 8 and 9 were caused with sharp-edged weapon while the rest with blunt weapon. On the same day at 7 p.m., the doctor examined Allah Ditta son of Muhammad Khan and found the following injuries on his person :-- (1) Contusion over the front of left shoulder 2"x (2) Lacerated wound, i.e. * x Y x situated over the upper lip more towards the right side of middle. (3) Right upper incisor tooth was not in socket, the socket was full of blood while the other incisor tooth was shaky and painful on moving. Injuries Nos. 1 and 2 were simple, while No. 3 was grievous and had been caused with blunt weapon. Khurshid Ahmad P. W. taking the medico-legal reports then went to Police Station Sadar, Gujrat and lodged report Exh. P. A. about this occurrence at 10-30 p.m. on the same night. 3. Ch. Nabi Bakhsh, Station House Officer (P. W. 9) after registering the present case against the appellants and their com panions on the basis of the above report got removed blood stained chadar (P. 1) from the person of Khurshid Ahmed P. W. and took it into possession vide Exh. P. E. He then went to the hospital for the investigation of the case where he recorded the statement of Mubashir Ahmed P. W. and also took into possession his blood-stained shirt (P. 4) and blood- stained jarsi (P. 5) vide Exh. P. F. As Ata Muhammad was unconscious and unfit to make a statement according to the report Exh. P. K/l of the doctor on his query Exh. P. K., his statement could not be recorded at that time. The Sub-Inspector then proceeded to village Dhirke Kalan reaching
---
## Page 4
there in the early hours of the next morning. On inspection of the spot he took into possession blood-stained earth vide memo. Exh. P. O. and sealed it into a parcel and investigated the case for the whole day. On the next day, i.e. 23rd November 1966, he received an intimation from the doctor vide Exh. P. L. that Ata Muhammad had succumbed to his injuries at 10-30 a.m. on that day. He went back to the hospital and prepared injury statement Exh. P. M. and inquest report Exh. P. N. relating to the dead body and despatched it to the mortuary under the escort of Foot Constable Qadir (P. W. 3), where Dr. Taraq Rashid Toosi P. W. on the same day held autopsy over it and vide Exh. P. R. found the following injuries :-- (1) Lacerated wound over the head situated 5" above the top of right ear, i.e., 1 x 1 /3" x bone deep. (2) Contusion over the scalp on right side 3" in front of injury No. 1, i.e. l|"x V. Around this was an area of swelling, Le. 51" x 3". Scalp was injured, dark coloured coagulated blood collected under the scalp. There was depressed fracture of right temporal bone and depressed fracture of right parietal bone and disarticulation between frontal bones. Membranes were torn and congested, brain was congested and lacerated in the temporal bone. All the rest of the organs were healthy. Stomach contained 3 ozs. of partly digested food in liquid condition. Cause of death was fracture of skull and laceration of brain with haemorrhage. These injuries were sufficient to cause death of the deceased and were inflicted with blunt weapon. These were ante- mortem. Time between injury and death was 36-48 hours and between death and post-mortem 4 to 5 hours. 4. Ghulam Qadir Foot Constable P. W. brought back the last wearing apparels of Ata Muhammad deceased (Chadar (P. 6),jarsi (P. 7), Banyan (P. 8) and shirt (P. 9) and produced them before the Sub-Inspector, who took them into possession vide Exh. P. G. 5. On 24th November 1966, Muhammad Buta, Allah Ditta, Ghulam Rasul sons of Nawab, Ghulam Rasul son of Hayat and Ghulam Haider appeared before the Sub-Inspector at the spot, who arrested them. Ghulam Rasul and Ghulam Haider appellants were found to have some injuries on their person. They were accordingly sent to the hospital for their examination, where Dr. Muhammad Akhtar Hayat (P. W. 2) examined Ghulam Haider on the same day at 1-10 p. m. and found the following injuries on his person :-- (1) A contused would, l'x|' on the top of the shoulder- joint. (2) An abrasion / x on the lateral aspect of the left humerous near the lateral condyle. Both the injuries were simple and had been caused with blunt weapon. On the same day at 1-30 p.m. the doctor examined Ghulam Rasul son of Nawab and found an abrasion li"xC'on the forearm in the middle and pastero-medical aspect. It was simple and had been caused with a blunt weapon. 6. Muhammad Buta appellant produced sword (P. 2), which was taken into possession vide memo. Exh. P. D. As it was not stained with blood, so it was not sealed into a parcel. Shirt (P. 3) of Muhammad Buta was found to be stained with blood, so he got it removed from his person and sealed it into a parcel vide Exh. P. E. The sealed parcels were deposited with Fazal Karim, Moharrir Head Constable, Incharge of the Malkhana, on the same day for safe custody. The Sub-Inspector got prepared site plan Exh. P. J. and its duplicate Exh. PJ./l from the Patwari and putting his notes in red ink on the same signed it in token of its correctness. He arrested Abdul Ghani (acquitted accused) on 20th December 1966. On completion of the investigation and the magisterial inquiry that followed they were put on trial resulting as above.
---
## Page 5
7. The evidence of the aforesaid two doctors recorded by the committing Magistrate was transferred to this record under section 509 of the Criminal Procedure Code. Dr. Taraq Rashid Toosi, was, however, sent for his cross-examination and he stated as follows :-- "Allah Ditta son of Muhammad Khan, Mubashir Ahmed, Khurshid Ahmad and Ata Muhammad arrived at the Civil Hospital, Gujrat, at 6 p.m. on 21-11-1966. First of all I started examining Allah Ditta son of Muhammad Khan at 7 p.m. Rehmat Khan, father-in-law of Allah Ditta was accom panied with Allah Ditta as his friend. Khurshid Ahmad was examined by me at 7-15 p.m. He was brought by above- mentioned Rehmat Khan. Ata Muhammad was examined by me at 7-35 p.m. I examined Mubashir Ahmad at 8-45 p.m. All these examinations were private examinations because the above-mentioned persons were not produced by the police for examination. The medico-legal certificates were issued by me to Rehmat Khan mentioned above on completion of all the examinations mentioned above. Injuries Nos. 1 to 3 on the person of Allah Ditta stated in my M. L. Certificate Exh. P. Y. can be caused by a fall on the ground. Injury No. 1 can be caused by a fall on a soft surface while injuries Nos. 2 and 3 can be caused by a fall on a hard surface. Injuries Nos. 2 and 3 may be taken as a single injury. Injuries Nos. 2 and 3 can be caused by a hit by a brick-bat. Injury No. 1 cannot be caused by a hit of brick-bat. Injuries Nos. 2 and 3 given in my M. L. report P. V. can be self-inflicted with a shaving razor (blade) while injury No. 1 cannot be self-inflicted with a shaving razor. Most probably injury No. 1 cannot be self-inflicted but this injury can be caused by a knife. Injury No. 1 may be caused by a friendly hand. Injuries Nos. 1 to 3 can be caused by a heavy weapon as well as by a light weapon. I have seen sword (P. 2) in this Court today. If a blow is given with full force with the sword (P. 2) or with any other sword of this size injury No. 1 given in my M. L. report Exh. P. V. cannot be produced. Similar is the case with injuries Nos. 2 and 3. If the force of the blow of the sword is impeded by the time it is struck injury No. 1 can be caused with sword (P. 2) or the like. Injuries Nos. 2 and 3 cannot be caused with sword (P. 2) or the like even if the force is impeded by the time the blow is hit. Injuries Nos. 2 and 3 given in M. L. report Exh. P. V. is definitely the result of one stroke. Injury No. 5 in my M. L. report Exh. P. V. is so insignificant that I did not give its dimension. This injury can be self-inflicted by a shaving blade. Injury No. 5 can only be caused by a fall if one falls on the ground with his head down and legs up. Injury No. 4 can be caused by a strike against a hard surface like wall. Injury No. 4 can be caused by a hit with a brick-bat. Injuries Nos. 1 and 2 on the person of Ata Muhammad deceased given in my M. L. report Exh. P. S. can be caused if one is pushed with force and consequently he falls with force or strikes against a hard surface with momentum. The injuries Nos. 1 and 2 can be caused by a brick-bat also. The seats of injuries Nos. 1, 8 and 9 on the person of Mubashir Ahmad given in my M. L. report Exh. P. A. are such where the skin is thin and the bone is nearer. In case of a living person injuries caused on such seats with blunt weapon and with sharp- edged weapon are not similar. They can only be similar if caused on a dead body. Q.--Can you refer to any book on medical jurisprudence which makes such a distinction of living and the dead body ? A.--My above observation is based on the teaching of my professor. I am, however, positive from the examination of injuries Nos. 1, 8 and 9 that these injuries were caused by a sharp-edged weapon. I cannot refer to any book on medical jurisprudence in this respect. Injuries Nos. 2, 3 and 4 in Exh. P, X. can be the result of a fall, but injuries Nos. 5,' 6 and 7 cannot be caused by a fall. Injuries Nos. 5, 6 and 7 cannot also be caused by a blow with a brick-bat. These injuries cannot also be caused by list blows. Court Question :-- "(2---Can the injuries Nos. 1 and 3 on the person of Ata Muhammad deceased given in the M. L. report Exh. P. S. be caused by stick blows ? A.--Yes."
---
## Page 6
8. The ocular account of the occurrence was supplied by Khurshid Ahmad (P. W. 6), Mubashir Ahmad (P. W. 7) and Muhammad Akhtar (P. W. 8), who fully supported the above narration, while Ch. Nabi Bakhsh, Sub-Inspector deposed about the investigation held by him in this case. 9. The appellants when examined at the close of the prose cution evidence denying the allegations pleaded not guilty and averred that they had been falsely implicated in this case on account of their enmity with the prosecution witnesses. Muhammad Buta appellant made the following statement about the occurrence :-- "My paternal uncle Hayat made over his land measuring 1J kanals to Ata Muhammad deceased which was under my culti vation on the day of occurrence. Ata Muhammad deceased placed wooden mangers in that land and also tied pegs there for tethering cattle. He also tethered his cattle there. Ata Muhammad deceased and Khurshid Ahmad P. W. were smok ing Huqqa in that land at Peshiwla. First of all I went to that land and I uprooted the pegs from that land and I also pushed away the wooden mangers from that land. Mubashir and Allah Ditta P. Ws. also came there armed with sticks. Ghulam Haider Khan and Ghulam Rasul son of Nawab accused also came there. First of all Mubashir Ahmad P. W. gave a stick blow on my head. Ghulam Haider and Ghulam Rasul son of Nawab came forward to rescue me and Mubashir P. W. gave one stick blow each to them. I did not give any blow to Ata Muhammad deceased or to Mubashir and Khurshid Ahmed P. Ws. I do not know whether any of my co-accused gave them beating. The P. Ws. are inimical towards me and they have falsely implicated me in this case." Ghularn Rasul appellant admitting his presence at the spot and supporting Muhammad Buta appellant made the following state ment :-- "I was present at the place of occurrence. My co-accused Muhammad Buta had a dispute with Ata Muhammad deceased on account of land. When Mubashir Ahmad P. W. gave a stick blow on the head of my co-accused Muhammad Buta, I came forward to rescue my co-accused Muhammad Buta. Mubashir P. W. also gave me a stick blow. I did not give any blow to Ata Mumtmmad deceased or to Khurshid Ahmad and Mubashir Ahmad P. Ws. as I was empty-handed. I do not know whether any of my co-accused caused any injury to Ata Muhammad deceased or to any of the P. Ws. I have been falsely implicated in this case due to enmity with the P. Ws." Ghularn Haider appellant also admitted his presence at the spot and made the following statement in support of the above defence version :-- "I was present at the place of occurrence. My co-accused Muhammad Buta had a dispute with Ata Muhammad deceased on account of land. When Mubashir Ahmad P. W. gave a stick blow on the head of my co-accused Muhammad Buta, 1 came forward to rescue my co-accused Muhammad Buta. Mubashir P. W. gave me a stick blow. I did not give any blow to Ata Muhammad deceased or to Khurshid Ahmad and Muba shir Ahmad P. Ws. I do not know whether any of my co-accus- ed caused any injury to Ata Muhammad deceased or to any of the P. Ws. I have been falsely implicated in this case due to enmity with the P. Ws." Allah Ditta appellant had ..denied at the trial even his presence at the spot at the time of this occurrence although he had admitted it in unequivocal terms in his statement during the inquiry as under :-- "Neither I committed rioting, nor took part in the fight. Merely on account of enmity I have also been made an accused. As my brother Ghularn Rasul received injuries during this occurrence while I tried to rescue him, so 1 have also been made an accused, because I am a brother of Ghularn Rasul accused. 1 have no concern with the land which was mortgaged with Sardar Ali, nor I have any connection with the land which was cultivated by Muhammad Buta as a tenant of Hayat Muhammad and from which while forcibly ejecting the deceased, his sons and Allah Ditta P. W. received injuries." In short the four appellants had admitted their presence and participation in this occurrence in one
---
## Page 7
form or the other, but they had attributed aggression to the complainant party and impliedly set up the plea of self-defence, both of person and property. They, however, led no evidence in defence. 10. Learned trial Judge discarded the prosecution version in toto and dubbing the appellants as aggressors on the basis of their own admissions convicted them as above vide his order dated 12th June 1969, which has been assailed before us on the following grounds :-- (1) That the inordinate delay in lodging the report was the result of prolonged deliberations in fabricating a false case; (2) that the oral testimony was in conflict with the medical evidence; (3) that no. disinterested witnesses had been produced in support of the case except Muhammad Akhtar (P. )/. 8), who was admittedly a chance witness; (4) that their evidence had been disbelieved'in respect of three of the seven accused, the recovery of the blood-stained shirt (P. 3) from Muhammad Buta appellant and existence of any motive for the others in joining hands with him for this murder etc.; (5) that the independent evidence had been shut out with the set purpose of suppressing true facts; and (6) that even if this meagre evidence had been appraised properly the right of self-defence could certainly be spelt out from it. 11- On going through the record we find that the above contentions are not devoid of force. In fact the learned trial Judge had conceded most of these assertions in holding as under :-- * (1) That seven and a half hours delay in lodging the first information report was clearly borne out from the record which strengthened the doubt about the implication of the three (acquitted) accused; (2) that the medical evidence did not support the prosecution case that Muhammad Buta, Ghulam Rasul and Ghulam Haider appellants gave sword blows to Khurshid Ahmad P. W.; (3) that the prosecution had failed to bring home their accusation against Sardar Ali, Ghulam Rasul (sons of Hayat) and Abdul Ghani, who had been attributed sword blows to Mubashir Ahmad P. W.; (4) that except Muhammad Buta appellant none of the other accused including the three appellants had any motive to join hands with him in this affair; (5) that the evidence of recovery of blood-stained shirt (P. 3) from the person of Muhammad Buta appellant did not inspire confidence; and (6) that the evidence of production of sword (P. 2) was of no help to the prosecution. As a result of these findings the learned Additional Sessions Judge had altogether discarded the version of the prosecution and had acted on the admissions made by the appellants about the occur rence, which had changed the alleged scene of the occurrence from the field of Ata Muhammad deceased marked *D' in the site plan to that of Hayat, the held in dispute, as also the origin and the motive of the alleged light. Learned State Counsel has not challenged any of these conclusions of the learned trial Judge (including the acquittal of the three co-accused) and quite rightly as there was no material on the record to hold otherwise. 12. As regards the delay there was no explanation either in the first information report or in the examination-in-chief of the informant (Khurshid Ahmad (P. W. o)). The occurrence had taken place at about 3 p. m. according to the first informa tion report although Muhammad Akhtar (P. W. 8) had fixed it…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.