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Petitioner: QASIM KHAN AND Others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Khalil-Ur-Rehman Khan, Aftab Farrukh Title: QASIM KHAN AND Others vs THE STATE Case No.: Criminal Appeal No. 1274 of 1976 and Murder Reference No. 7 of 1977 Date of Judgment:1979-01-16 Reported As: PLD 1979 Lahore 621 Result: Order accordingly
JUDGMENT
JUDGMENT KHALILUR RAHMAN, J.-Qasim (37) son of Jafar, his wife Mst. Bhagan (37), Matah Khan (32), Ata Khan (40), Muhammad Khan (62), Gehna Khan (82), sons of Ahmad Khan, Ali Khan (23) son of Muhammad Khan and Muhammad Khan (62) son of Gehna Khan, all residents of village Kiran, appellants in Criminal Appeal No. 1274 of 1976 ; Muhammad Nawaz (25) son of Shahbaz Khan, Habib Khan (42) son of Sardar Khan, Rehman alias Rehmatullah (32) son of Sardar Khan and Ata Khan (42) son of Sardar Khan (not father of Rehman) all residents of village Mazari, appellants in Criminal Appeal No. 1282 of 1976 ; and acquitted accused Mst. Sardaran (25) wife of Muhammad Khan, Mst. Sattan (25) daughter of Ahmad Khan, Mst. Kaneez (39) wife of Matab Khan, Mst. Kaneez (28) wife of Gehna Khan (Gehna Khan son of Sher Khan, another accused died before the trial), were tried on charges under sections 148, 302/ 149, and 307/ 149, P. P. C. For, having formed themselves into an unlawful assembly while armed with lethal weapons and in execution of its common object, having committed the offence of rioting and the murders of Liaqat Ali, Ghulam Ali, Riaz Khan, Muhammad Khan, Mukhtar Khan and Mst. Iqbal Bibi and murderous assault on Zil-i- Hussain (P. W. 16), Murid Abbas (P. W. 22), Daim Khan, Muhammad Ashraf (P. W. 19), Mst. Kalsoom (P. W. 20), Mst. Allah Wasai (P. W. 21), Mst. Amiran (P. W. 17) and Wali. Muhammad, by the learned Sessions Judge, Jhang ; who by judgment dated 30-11-1976, acquitted a set of last mentioned persons and convicted the appellants and sentenced them thus : Appellant Qasim Khan to death and a fine of Rs. 1,000 or in default further rigorous imprisonment for one year under section 302/149,, P. P. C. For the murder of Mst. Iqbal Bibi ; life imprisonment under section 302/149, P. P. C. On five counts for the remaining five murders and a fine of Rs. 1,000 on each count, or in default further one year's R. I. ; seven years' R. I. And a fine of Rs. 500 on seven
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counts or in default further one year's R. I. Under section 307/149, P. P. C. For making murderous assault on the P. Ws. ; and one year's R. I. Under section 148, P. P. C. Appellant Mst. Bhagan to one year's R. I. Under section 323, P. P. C. For causing simple injury to Riaz Khan deceased; all the remaining appellants to life imprisonment under section 302/149, P. P. C. On each count for six murders, and a fine of Rs. 1,000 each on each count or in default further rigorous imprisonment for one year; under section 307/149, P. P. C. To seven years' R. I. And a fine of Rs. 500 or in default of payment of fine to suffer further one year's R. 1. Each on each of the seven counts ; and one year's R. I. Each under section 148, P. P. C. The substantive sentences in each case were to run concurrently. The amount of fine or a part of it, if realised, was to be paid to the heirs of the deceased or injured P. Ws. As the case may be. 2. Murder Reference No. 7 of 1977 ; Criminal Appeal No. 1274 of 1976 by Qasim Khan etc., Criminal Appeal No. 1282 of 1976 by Habib Khan etc. And Criminal Revision No. 673 of 1977 by Dost Muhammad Khan are being disposed of together. 3. Revision petition was ordered to be heard along with the connected appeals. After hearing some arguments, we were of the view that the question of enhancement of the sentences awarded to the respondents in the revision petition might arise and therefore, we issued notices to the respondents in this regard. Kh. Sultan Ahmed, Advocate accepted service of the notices on behalf of Habib Khan, Rehman, Ata Khan and Muhammad Nawaz, respondents while Mr. Shamim Abbas Bokhary, Advocate accepted service on behalf of the remaining respondents. Both the learned Advocates represent the respondents in the connected appeals and had undertaken, after consulting the relatives of the respondents present in Court to file formal power of attorney on their behalf. We, have therefore, decided to dispose of this matter along with the other connected matters. 4. The occurrence allegedly took place on 28-7-1974 at 6-00 a. m. In the area of village Kiran. The F. I. R. (Exh. PR) was lodged at Police Station Qadirpur, at a distance of eight miles, at 8-00 a.m. It was at the instance of Dost Muhammad P. W. 13 and recorded by S. 1. Ahmad Yar P. W. 26. 5. Prosecution case is that one Fateh Khan son of Lai, first cousin Q13 LsQ_,#6d) of the complainant Dost Muhammad owned land, comprised of Killa Nos. 11, 12, 13 of Square No. 43 in village Kiran. During the consolidation in 1967, it had gone to Gehna Khan son of Sher Khan, who it may be noticed, had died before the trial. As Fateh Khan had also died and his widow was a niece of the complainant, an appeal on her behalf was preferred in the Court of the Additional Commissioner (Consolidation) Sargodha which succeeded and the area restored to her. The complainant party, allegedly, had even obtained possession of the same under the due process of law. The accused party, on the other hand, insisted that they would not permit them to till the land. This provided a background to the occurrence which proceeds on a narration that on the fateful morning at about 6-00 a.m. Deceased Riaz Khan, Ghulam Ali, Muhammad Khan sons of Budha Khan, brothers of the complainant ; Muhammad Mukhtar, Liaqat Ali sons of Muhammad Nawaz, grandsons of Budha Khan, started ploughing the land. Appellants Qasim Khan, Matah Khan, Ata Khan, Muhammad Khan son of Gehna Khan, Habib Khan, Rehman, Ata Khan and Muhammad Nawaz armed with guns ; appellants Muhammad Khan, Ali Khan armed with hatchets ; and Gehna Khan son of Sher Khan and appellant Gehna Khan son of Ahmad Khan, armed with sticks, who were hiding nearby, appeared suddenly and opened the attack. First fire came from appellant Matab Khan, hitting Ghulam Ali deceased close to the left armpit. He fell down. Second shot was fired by Qasim Khan appellant and this hit deceased Muhammad Mukhtar on his right arm and right leg. Appellant Muhammad Khan son of Gehna Khan. Also fired at Muhammad Mukhtar hitting him on his left leg. He fell down, Muhammad Khan son of Abmad Khan, then gave a hatchet blow on his head.. Fourth shot bitting Liaqat Ali deceased on his nose and chest came from appellant Ata Khan son of Ahmad Khan. He (Ata Khan) repeated the fire hitting Liaqat Ali on his cheek, neck, right shoulder
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and left arm. He also fell down. Appellant Habib Khan fired two shots hitting Riaz Khan deceased on his chest and right arm. Riaz Khan deceased was also fired at by appellant Ata Khan son of Sardar Khan at his right thigh, buttock and left thigh. He (Riaz Khan) was also, given a sofa blow by Mst. Bhagan appellant, after be had fallen down on the ground. Appellant Rehman fired two shots hitting Muhammad Khan deceased on his left flank and left arm. Appellant Muhammad Nawaz also fired two shots hitting Muhammad Khan deceased on the left wrist and both the right and left thighs. Appellants Gehna Khan son of Ahmad Khan, Gebea Khan son of Sher Khan, Mst. Sardaran, wife of Muhammad Khan, Mst Kaneez Fatima wife of Gehna Khan, Mst. Kaneez wife of Matah Khan and Mst. Sattan, daughter of Ahmad Khan, gave stick blows to all the five deceased after they had fallen down. Injured P. W. Daim Khan and Wali Muhammad (not examined) tried to intervene but they were also fired at by appellant Qasim Khan. Murid Abbas and Mst. Iqbal Bibi were, also injured by his firing. The remaining accused had, also fired at them and had injured them with their hatchets and sticks. The incident, besides the complainant and the injured persons is stated to have been witnessed by Ghulam Abbas P. W. 23, Langer Khan son of Sikandar Khan of village Joke (not examined) and Manzoor Ali Khan P. W. 14. The injured persons were sent to the hospital while the complainant himself went to the Police Station for lodging the report. 6. S. I. Ahmad Yar after recording the F. I. R. Proceeded to the spot. On the way at bridge Semwali, he met Mst. Iqbal Bibi deceased who was then alive and the injured P. Ws. Mst. Kalsoom, Mst. Amiran, Mst. Allah Wasai, Zil-i-Hussain, Murid Abbas, Daim Khan, Muhammad Ashraf and Wali Muhammad. He prepared their injury statement, and recorded their statements under section 161, Cr. P. C. Exh. PZ/6 is the statement of Mst. Iqbal Bibi deceased. This has been used as dying declaration. He then reached the spot and prepared injury statements Exhs. PZ/5, PZ/7, PZ/8, PZ/9 and PZ/10 of deceased Ghulam Ali, Liaqat Ali, Riaz Khan, Muhammad Khan and Muhammad Mukhtar. He also held inquest and drew reports Exhs. PZ/18, PZ/19, PZ/16, PZ/20 and PZ/17, respectively. The dead bodies were then despatched to the mortuary for post-mortem examination. He collected blood-stained earth from five different places underneath the dead bodies of the above-mentioned five deceased. The same was taken into possession vide memos. Exhs. PZ/21, PZ/22, PZ/23, PZ/24 and PZ/15. He collected fourteen (14) '12 bore empties from different places and sealed them into five different parcels vide memos Exhs. PZ/26, PZ/27, PZ/28, PZ/29 and PZ/30. On 29-7-1974 he arrested appellants Qasim Khan, Matah Khan, Gehna Khan, Rehman, Habib Khan, Ata Khan son of Sardar Khan, Muhammad Khan, Ali Khan, Muhammad Khan son of Gehna Khan and Mst. Bbagan and co-accused Mst. Sattan, Mst. Sardaran, Mst. Kaneez Fatima wife of Gehna Khan and Mst. Kaneez wife of Matah Khan. Appellant Ata Khan produced gun P. 25 before him which was taken into possession vide memo Exh. PZ/41. Appellants Qasim Khan, and Rehman produced guns P. 24, P.27 while Matah Khan rifle P. 26. These were taken into possession vide memos Exhs. PZ/40, PZ/43 and PZ/42 respectively. The gun of appellant Rehman was a licensed gun. He made certain other recoveries from the acquitted accused and also from Gehna Khan, on the same day including lathi P. 28 from appellant Gehna Khan and lathi P. 33 from appellant Mst. Phagan. These were taken into possession vide memo. Exhs. PZ/44 and PZ/49. On 6-8-1974 appellant Habib Khan while in police custody led to the recovery of gun P.5 from his residential house. This was taken into possession vide memo Exh. PX and made into a parcel. On the same day appellant Muhammad Nawaz led to the recovery of gun P. 6 which was taken into possession vide memo Exh. PY. Last of all appellant Ata Khan led to the recovery of gun P. 7 which was secured and sealed into a parcel vide memo Exh. PZ. Appellant Ali Khan on 8-8-1974 led to the recovery of blood-stained hatchet P. t from within the courtyard of his house which was taken into possession and sealed into a parcel vide memo. Exh. PT. Appellant Gehna Khan also led to the recovery of blood-stained sofa P. 2 which was taken into possession vide memo Exh. PU. Appellant Muhammad Khan son of Ahmad Khan got recovered blood-stained hatchet P. 3 which was
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secured and sealed into a parcel vide memo. Exh. PV. On the same day Muhammad Khan son of Gehna Khan led to the recovery of gun P. 4 which was taken into possession vide memo Exh. PW. He got site plans Exhs. PZ/57 and PZ/58, prepared by Ahmad Nawaz C. W. 7. Dr. Abdus Sattar P. W. 1, the then Medical Officer, D. H. Q. Hospital, Jhang, conducted post-mortem examinations on the dead bodies of the deceased on 29-7-1974. His observations are as follows: Liaqat Ali deceased : He bore five injuries ; a lacerated wound with inverted margins ----- x ----- brain deep on the right side of nose. Nasal Frontal bone of the skull was also fractured. Found injured. A pellet was found lodged entrance 1/4' x 1/4' with inverted margins on below lower jaw. The wound of exit was 1/2' X 1 /4" side of face. There was fracture of lower jaw. The from below to upwards ; a lacerated wound 1/3--- x ----- x ----- on the right upper arm, at its upper most part outer of the wound were burnt ; a lacerated wound 1/3--- x ----- x muscle deep on the right side of chest. There was It was 4" above the right nipple ; anda lacerated wound ----- x ----- x perforating to the back side of left arm. It had part of the left chest. There was fracture of upper lobe of left lung was found blasted. There was the chest cavity. On X-ray a bullet was found lodged in column (seventh dorsal vertebra). Left pleura of the found injured. All the injuries bad been caused with fire-arm. Injuries Nos. 1 and 5 were individually fatal. Injury No. 2 was grievous and the rest were simple. In the opinion of the doctor death occurred due to injuries Nos. 1 and 5 which caused haemorrhage and shock and were sufficient to cause death in the ordinary course of nature. Time between injuries and death was immediate and between death and post-mortem examination about 24 to 30 hours. Ghulam Ali Khan deceased The deceased sustained a gunshot wound on the lateral aspect of left chest in axillary region, 1--- x 1--- circular. It was under the pectoral major muscle. The margins of the wound were scorched. It had no wound of exit. The third left rib was fractured in axillary region. Left pleura was found fractured. Trachea was found ruptured and also the right lung in the upper part. Left lung was also ruptured. Ascending aorta was also ruptured. Six pellets were recovered from the chest along with wads. Injury was fatal. In the opinion of the doctor, death occurred due to shock and haemorrhage. Time between injury and death was immediate and between death and postmortem was about 24 to 30 hours. Mst. Iqbal Bibi deceased ; She sustained multiple gunshot wounds, fourteen in number, on front of the chest. They were scattered. Each wound was 1/8' in diameter. Multiple gunshot wounds, six in number, on the lateral and back side of left arm ; Three gunshot wounds on the back of right chest ; and two wounds on the right hip. Pleura corresponding to the wounds of chest was found fractured at multiple places. Right lung was ruptured at multiple places. Peritonium at the level of ascending colon. Large intestines and liver were ruptured. All the injuries were caused with fire-arm. In the opinion of the doctor, the injuries were fatal in the ordinary course of nature. Death occurred due to shock and haemorrhage on account of rupture of lung and liver. Time between injuries and death was 12 hours and that between death, and post-mortem examination 12 to 24 hours. Riaz Khan deceased Six injuries were noticed on his person, ten fire-arm wounds on the-front of right chest and on its lateral part, mostly on lower part. The dimension of each wound was 1/6' x 1/6' ; nine fire-arm wounds, each 1/6' x 1/6', on the right arm. The wounds were scattered ; fire-arm wounds on the right side of abdomen, 3----- below and lateral to umbilicus, 13 wounds each 1/6' x 1/6' on the right hip and thigh in upper part ; three fire-arm wounds on the inner side of the left thigh in its upper one
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third, and a contused wound on the left side of head on its back part, 1" x 1/3' x scalp deep, 2' from the left ear. All the fire-arm wounds had scorched margins. The pleura 'was found injured on its right side. Right lung was ruptured on its lower lobe. Peritonium, large intestines and liver, were found injured. One pellet was removed from the liver. Injuries Nos. 1 to 5 had been caused with fire-arm while injury No. 6 was with blunt weapon. Injuries Nos. 1 and 3 were fatal. In the opinion of the doctor, death occurred as a result of injuries Nos. 1 and 3 which were individually as well as collectively, sufficient to cause death in the ordinary course of nature. Time between injuries and death was immediate and between death and post-mortem examination was 24 to 30 hours. Muhammad Khan deceased He sustained seven injuries on his person. A fire-arm wound 1----- ' X 1----- X skim deep on the left chest. The margins of the wound were scorched on its lateral aspect. It was 5----- from left nipple to lower and lateral aspect ; eight fire-arm wounds on the left side of the chest and on the left side of abdomen, each of the dimension of 1/6' x 1/6' X chest cavity deep. The margins of the wounds were scorched ; two fire-arm wounds, 1/6"X 1/6' each, on the left arm near elbow ; three fire-arm wounds on the left arm and wrist, 1 /6' x 1 /6' each ; Twelve fire-arm wounds, each 1/6' X 1 /6', on the front and lateral aspect of left thigh ; four fire-arm wounds with scorched margins on the left abdomen on its lower lateral part ; and three fire-arm wounds on the right thigh on its front upper part. Pleura was found injured on its left side. Left lung was ruptured at two places, one in each lobe. Pericardium was ruptured on its left side. Small intestines at many places, large intestines on left side, spleen at two places and urinary bladder were found ruptured. Injuries Nos. 2 and 6 were fatal while rest of the injuries were simple in nature. Four pellets were removed from the chest and abdomen. In the opinion of the doctor, death occurred due to injuries Nos. 2 and 6 which caused haemorrhage and shock. These were sufficient to cause death in the ordinary course of nature. Time between injuries and death was immediate and that between death and post-mortem examination about 24 to 30 hours. Muhammad Mukhtar Khan deceased He had, in all, sustained eight injuries, a lacerated wound 2--- x ----- x scalp deep on the back of head on its left side ; an abrasion 1" x ----- on the right forearm on the back in the lower part ; three gunshot wounds, ----- x ----- x muscle deep each, on the inner side of the right thigh just above knee. There was fracture of femur bone and blood vessels. One pellet was removed from this wound ; four gunshot wounds on the outer side of right knee muscle deep ; a fire-arm wound (wound of entrance) ----- x ----- x with inverted margins on the right leg in its middle part, outer aspect, with wound of exit 1/3' x ----- with inverted margins inner side of leg ; a fire-arm wound --- -- x ----- x muscle deep on the upper part of the right leg on its outer side ; a fire-arm wound on the left knee in its inner side, ----- x ----- x muscle deep; and wound of entrance on the left leg on its inner side and wound of exit on the left leg, outer side in middle part. Injury No. 3 was grievous and the rest of the injuries were simple in nature. Injuries Nos. 1 and 2 were caused with blunt weapon and rest with fire-arms. In the opinion of the doctor, death occurred due to injury No. 3 which caused haemorrhage and shock. This injury was individually sufficient to cause death in the ordinary course of nature. Time between injuries and death was immediate and between death and post-mortem about 24 to 30 hours. 8. The same doctor, examined the injured persons on the complainant side on 28-7-1974. His observations are as follows : Zil-e-Hussain (P. W. 16) He bore five injuries, a contusion 2" x 1' on the head (top of head); a lacerated wound ----- x 1/6" X skin deep on right shoulder with some burning margins ; a lacerated wound ----- x 1/6--- X skin
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deep on right supra clavicle region ; a blackened area with abrasion ----- x ----- just medial to injury No. 2 ; and a contusion 5" X 1----- on the right forearm. There were two corresponding cats on the, vest which was blood-stained. Injury No. 2 was kept under observation. Injuries Nos. 2 to 4 were advised to be X-rayed. They were later declared simple. Injury No. 5 was also found simple. Injury No. 1 was caused with blunt weapon and rest with fire- arm. Injury No. 1 was also declared simple. Duration of the injuries was 12 to 18 hours. Wali Muhammad (not examined) : He had an inlet wound 1/6' x 1/6" x muscle deep, on right leg on its upper part on the front side. It had an exit wound on the back of right leg, 1/4" x 1/6" with inverted margins. The injury was caused with fire-arm and was of the duration of 12 to 18 hours. There was a corresponding hole on the chaddar. On X-ray the injury was found simple. Muhammad Ashraf (P. W. 19) He had two injuries : A lacerated wound 1/8' x 1/8" X 1/8" on the right infra scapular region on the shoulder ; and a lacerated wound on right upper part 1/8" x 1/8" x skin deep with swelling around the wound. Margins of the wound were inverted and there was a hole on the shirt. All the injuries were caused with fire-arm. On X-ray they were declared simple. The duration was 12 to 18 hours. Murid Abbas (P. W. 22) He had as many as 10 injuries : A lacerated wound 1----- x ----- scalp deep 5 above the right ear, on right side of head ; a contused wound 1" x ----- x- scalp deep on the top of the head ; a reddish contusion 3 x 1----- on right scapular region ; there was swelling on the right forearm in an area of 3" X 1----- ; a contused wound 1/2" x 1/4" x skin deep on the back of left forearm near elbow ; a lacerated wound with inverted margins 1/6--- x 1/6--- x skin deep on left forearm inner side ; a contusion 2" x 1/2" on the left forearm in the middle part ; swelling on, the left hand in an area of 3' x 2" ; a lacerated wound 1/6" x 1/6--- x skin deep with inverted margins. There was redness around the wound. It was on the left thigh, upper part on the back side ; and a lacerated wound with inverted margins 1----- x 1/6-- - x skin deep on the right ankle, inner side. Injuries Nos. 6, 9 and 10 were caused with fire-arm while rest with blunt weapon, within the duration of 12 to 18 hours. All these injuries were found simple. Daim Khan (not examined) He was found to have sustained three injuries : A contusion 2----- X ----- on the right fore-arm near elbow; a reddish contusion on left thigh, on its back in the upper part, 3" x 1" ; and a lacerated wound with inverted margins, 1/6" x 1/6' x skin deep on the outer side of right leg lower part. Injury No. 3 was caused with a fire-arm while rest had been caused with blunt weapon, within the duration of 12 to 18 hours. All the injuries were simple. 9. Dr. Muhammad Hasnain Naqvi, P. W. 2, examined Matah Khan and Ghulam Qasim Khan, appellants, on 30-7-1974. Matah Khan was found to have a contusion 1" x 1/4" x bone deep on the top of head. The injury was simple and caused with a blunt weapon. Probable duration of injury was three days. Ghulam Qasim Khan appellant" had a lacerated wound 1--- x 1/5--- x skin deep on forehead ; an abrasion I/4' x 1/6' just on the left eye-brow. He complained of pain on the head. These injuries were simple and caused with a blunt weapon, within the duration of about three days. 10. Appellants at the trial, refuted the allegations and pleaded innocence. There are two different sets of appellants. Appellants in Criminal Appeal No. 1274 of 1976 are all residents of village Kiran, where the occurrence took place, whereas appellants in Criminal Appeal No. 1282 of 1976, are all
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residents of village Mazari. They have taken up the position that they are not related with the first set of appellants and had been implicated in the case due to enmity with Langar and Dost Muhammad P. Ws. They have however, admitted their relationship inter se. Habib Khan is the brother of Rehman appellant while Muhammad Nawaz and Ata Khan are their phuphair. Explaining their case, Matah Khan appellant made a detailed statement. He stated :- "I have been involved by Ikhtiar, Langar and ijost Muhammad P. Ws. Due to enmity. I have got no connection with the land in dispute nor am related to tire co-accused of village Kiran. Afzil, cousin of Ikhtiar Khan P. W. Had also involved me and Habib Khan and Rehman co-accused in a case under section 307/148/149, P.P.C. In which Langar Khan also appeared as a P. W. This case was also investigated by S. I. Rai Ahmad Yar P. W. Copy marked as Exh. D. R. Shows that all of us were discharged inthat case. Ikhtiar Khan is also inimical towards us because Habib Khan got a murder case registered against his relative in which Rehman co-accused and his mother also appeared as P. Ws. Copy of the Sessions Court's judgment is Exh. D. S. The prosecution has intentionally given up the said', Ikhtiar Khan and Langar Khan lest we should be able to establish the above- mentioned relationship as also our enmity with them. The police arrested me on 28-7-1974 and also searched my house but nothing incriminating was recovered." The remaining three appellants, out of this set, have taken up almost the same position as adopted by Matah Khan appellant. The first set of appellants have taken up somewhat different stand. They have admitted that they are related inter se. Muhammad Khan son of Gehna Khan appellant, in an answer to question No. 19. Has stated as follows :- "The occurrence took place during the night when I was present in my house situated in village abadi. My father was at his dera. He narrated the incident to the…
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