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Petitioner: MUTTAL AND 15 OTHERS VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Aslam Mian Title: MUTTAL AND 15 OTHERS vs THE STATE Case No.: Criminal Appeal No, 377 of 1982 Date of Judgment:1983-09-14 Reported As: 1984 P Cr. L J 209 Result: N/A
JUDGMENT
JUDGMENT ' Muttal son of Kameer (55), his sons Rustam (22), Taja (25) and Mohsin (31), his brother Shahadat (65) ; Amir (35), Rehman (25) sons of Raja Abbas (17), son of Amir, Malik (21), Zohra (30), Shaukat (22), Niaz (20), Sarfraz alias Guddi (18) and Munir (30) all sons of Shahadat, Shera (48) son of Karam, Sadi Ahmad (25) son of Humayon all Awan by caste residents of Chak No, 595/GB District Faisalabad were tried alongwith Asghar, Riaz, Abbas son of Muttal and Hanif, by Ch. Muhammad Akram Magistrate section 30 Faisalabad under section 452/307/148/149, P. P. C. The learned Magistrate vide his judgment dated 1st July, 1982 while acquitting Asghar, Riaz, Abbas and Hanif, found them guilty and sentenced them as follows :- ' Shaukat, Rustam, Niaz, Abbas son of Amir and Sarfraz were convicted and sentenced under section 326/149, P. P. C. To seven years' R. I. And kfine of Rs, 5,000 each. They were further sentenced to five years' R. I. And a fine of Rs, 2,000 each under section 307/149,P. P. C., one year's R. I. And a fine of Rs, 1.000 each under section 452, P. P. C. One year's R. I. Under section 148, p. P. C., Zohara, Sadi, Munir, Mohsin, Taja, Muttal and Shahadat were convicted and sentenced to two years' R. I on each count and a fine of Rs, 5,000 each under section 326/149, P. P. C. Under section 307/149, P. P. C. To a fine of Rs, 1,000 each under section 452, P. P. C. To a fine of Rs, 1,000 each. ' Malik, Amir, Rahma and Shera were convicted and sentenced to one year's R. I. Under section 148, P. P. C. Each ; one year's R. I. And a fine of Rs, 2,000 each under section 307/149, P. P. C. And one year's R. I. On each count and a fine of Rs, 1,000 each under section 452, P. P. C. In default of payment of fine in each case they were further to undergo R. I. For six months each. All the sentences were ordered to run consecutively.
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2. The convicts have filed an appeal (Crl. Appeal No, 377/82) against their conviction and sentences. Rustam Ali, complainant has also preferred a revision petition (Criminal Revision No, 21 of 1983) for the enhancement of the sentences of the appellants and for awarding compensation under section 544-A, Cr. P. C. To the injured P. Ws. This judgment will dispose of the appeal as well as the revision petition. 3. The occurrence allegedly took place on 3rd January, 1982 at 2.30 p. m. In the area of Chak No, 595 at a distance of six miles from Police Station, Bahlak District Faisalabad. Muhammad Fazil A. S.- I. (P. W. 7) recorded the statement Exh. P. C. Of Rustam Ali (P. W. 5) on the same day at 4 p. m. On the basis of which F. I. R. Exh. P. C./1 was recorded by Muhammad Shamir Moharrir Head Constable at the police station under section 307/326/324/452/148/149, P. P. C. 4. The brief facts of the case are that on the day of occurrence at 2.30 p. m. Rustam Ali (P. W. 5) went over to the khal in order to take his turn of water. He saw Muttal armed with sota ; Rustam, Mohsin and Taja sons of Muttal, Shahadat, Shaukat, Raja, Niaz, Abbas son of Amir, Amir and Sarfraz armed with kulharis, Abbas acquitted accused armed with a pistol, Zohra, Sadi Ahmad and Shera armed with guns lying in an ambush in the reeds towards the opposite side of the khal. As soon as the complainant reached there Muttal appellant raised a lalkara that he would not be spared that day. All the accused came running near him. Sadi Ithmad appellant fired a shot with his gun which hit his right calf. Zohra appellant also fired hitting the complainant also on his right calf. Mohsan, Tao, Shahadat and Munir one after the other attacked the complainant and gave kulhari blows hitting him on the left leg on receiving which he fell down. When he was lying prone Muttal appellant gave him sota blows hitting his right foot and right elbow joint. Then Sarfraz, Abbas and Shaukat inflicted hatchet blows on his left foot, the big toe of left foot and therefore toe of the left foot. Niaz appellant inflicted a kulhari blow on the calf of the right leg. Muttal appellant continued raising lalkara to the effect that the complainant should be done to death. Shera and Abbas appellants continued firing in the air so that nobody should have come near. Shahadat, Sikandar and Allah Ditta P. Ws. Who were there near the place of occurrence witnessed the incident who after entreating the appellants got the complainant freed from the clutches of the appellants. In the meantime many a people including women were attracted to the spot on hearing the noise. The aforesaid P. Ws. Took the complainant to the house of Allah Ditta P. W. And put him on a cot. Mst. Saidan, the mother of the complainant arrived in the courtyard of the house of Allah Ditta P. W. After a while all the appellants alongwith Asghar, Riaz (acquitted accused), Rahman, and Malik sons of Raja came there empty handed, Amir appellant and Hanif acquitted accused armed with guns and Muttal appellant armed with Aar (an instrument for mending the shoes) entered the house of Allah Ditta. Muttal appellant inflicted Aar blows in the eyes of Rustam complainant in order to gouge his eyes out. The remaining accused gave him fist blows. When his mother Mst. Saidan P. W. Stepped forward in order to save her son Rustam complainant, Rustam son of Muttal appellant gave a kulhari blow on her right leg whereas Sarfraz appellant inflicted a hatchet blow on her head. Shera and Abvoo gave blows with the Butt of their guns on her chest. The rest of the accused continued raising laikara that the complainant should be done to .Death. Believing that the complainant had died all the accused went away. ' The motive for the crime is that an year prior to the occurrence the complainant caused injuries to Muttal appellant with his gun. 5. Muhammad Fazil A, S.-I. (P. W. 7) after recording the statement Exh. P. C. Of Rustam Ali P. W. Started investigation in the case. He collected the blood-stained earth Exh. A. 1 and Exh. A 4 from two differ rent places and made them into a sealed parcel, vide memo. Exh. P. A. And P. C. Respectively. From the place where initially the incident took place he found a toe Exh. A. 2 alongwith finger A/III which he took into possession, vide memo. Exh. P. B. He prepared site plans of the place of occurrence Exhs. P. G. And P. H. Respectively and inserted his own notes. He prepared
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injury statements Exh. P. E./1 and Exh. P. F./1 in respect of Rustam Ali and Mst. Saidan P. Ws. Respectively. Abbas son of Amir, Niaz, Munir, Taja, Sarfraz and Rustam accused produced their respective weapons on 7th January, 1982 which he took into possession, vide memos. Exh. P. J.,- P. K., P. Q., P. R., P. S. And P. T. Respectively. Similarly on 8th January, 1982 Shaukat, Amir, Shera, Shahadat produced their respective weapons. On 14th January, 1982 Sadi Ahmad, Abbas son of Muttal led to the recovery of their respective weapons at different times which were taken into possession, vide memo. Exhs. P. Y. And P. Z. Respectively. On 19th January, 1982 Zohra and Muttal appellants while in police custody led to the recovery of their respective weapons which he took into possession vide memo. Exhs. P. A. And P. B./1 respectively. On 30th January, 1982 Mohsin appellant led to the recovery of his weapon of offence which was taken into possession vide memo. Exh. P. 6. Dr. Imtiaz Ahmad Gill (P. W. 6) examined Rustam Ali P. W. On 3rd January, 1982 at 10 p. m. And found the following injuries on his person :- (1) A punctured wound / cm x I cm x muscle deep on the right lower lip. (2) A punctured wound / cm x cm muscle deep on the left upper lip. (3) Four incised wounds each 3 cm x cm into bone deep on the front of left leg. (4) An incised wound 14 cm x 6 cm on the top of left foot bone under neath completely cut. (5) An incised wound 5 cm x 4 cm on the left big toe. A part of the toe completely chopped off. (6) An incised wound 3 cm x 3 cm on the left for toe adjacent to big toe part of the toe completely chopped off. (7) An incised wound 7 cm x 3 cm bone deep on the right leg. Bone underneath fractured. (8) A fire-arm wound 1 cm x 1 cm on the front of right leg about middle. Margins of the wound were inverted (entry). (9) A firearm wound 2 cm x l cm on the inner side left leg. The margins everted. (10) A contused swelling 7 cm x 5 cm on the right foot. (11) Four contusion marks 12 cm x 3cm each in front of right forearm. ' He declared injuries Nos. 4, 5, 6 and 7, as grievous while the remaining injuries were kept under observation. Injuries Nos. 1 to 7 were the result of a sharp-edged weapon whereas injuries Nos. 8 and 9 were caused with a firearm. Injuries Nos. 10 and 11 were caused with a blunt weapon. On 30th January, 1982 he declared injuries Nos, 1,2, 3, 8,9, 10 and 11 as simple. ' Rustam Ali P. W. Was re-examined on 21st January, 1982 by Dr. Muhammad Nawaz Khan (D. W. 8). His observation was to the following effect :- ' I correctly prepared report Exh. D. F. Which bears my signatures and according to my report Injuries Nos. 1 and 2 can be caused during scuffle and injuries Nos. 8 and 9 do not seem to have been caused by fire-arm. These injuries can be caused by a blunt weapon. There was no bullet in the broken leg and the fracture was caused by a blunt weapon too. Exh. D. F. Bears my signature." ' Dr. Imtiaz Ahtnad Gill (P. W. 6) also examined Mst. Saidan Bibi P. W. And found the following injuries on her person : (1) An incised wound 3 cm x cm x bone deep on the left side of head. (2) A contusion mark 7 cm x 3 cm on the front of right side chest. (3) An incised wound 3 l cm x lcm x bone deep on the front of right leg. Bone underneath fractured. ' Injury No, 3 was grievous whereas injuries Nos. 1 and 2 were kept under observation. Injuries Nos. 1 and 3 were caused with a sharp-edged weapon. Injury No, 2 was the result of a blunt weapon. On 30th January, 1982 the Doctor declared injuries Nos. I and 2 on the person of Mst. Saidan Bibi as simple. 7. In support of its case the prosecution at the trial produced in all seven witnesses. The ocular evidence was furnished by Shahadat (P. W. 1), Mst. Saidan Bibi the injured herself (P. W. 2), Sikandar
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(P. W, 3) and Rustam Ali complainant (P. W. 5). Muttal (P. W. 4) and Muhammad Faazal A. S.-I. (P. W. 7) appeared as recovery witnesses. The latter also deposed as to the investigation conducted by him. The medical reports were proved by Dr. Imtiaz Gill that he examined Rustam Ali complainant and his mother Mst. Saidan Bibi. 8. The appellants at the trial admitted their relation inter se. Muttal appellant admitted the fact of having received a gunshot a year prior to the occurrence as a result of which one of his arms became afflicted and he lodged an F. I. R. With the police against Rustam and Muttal P. Ws. All the appellants denied the allegation as to this occurrence and pleaded innocence. ' The appellants produced eight witnesses in defence. Doctor Syed Muhammad Mohsin Hashmi (D. W. 1) deposed that on 3rd January, 1982 vide Sr. No, 14 one Rajadah son of Khan got admission in his hospital being a heart patient and that the father of the patient namely Muhammnd Khan was also with him, the witness pointed out that Hanif co-accused was also alongwith the patient. He however, could not tell the time as to the admission of the patient in his hospital. Syed Faiz Hasan Shah D. S. P. (D. W. 2) stated that he confirmed the investigation conducted by the subordinate police officials according to which he found Muhammad Riaz, Asghar, Abbas son of Muttal, Mohsin, Ameer Ali, Shera and Muhammad Hanif accused as innocent. Muhammad Saleem Aasi, Head Master Government High School Chak No, 433 G. B. (D. W. 3) deposed that according to the attendance register of 9th class A sghar co-accused was student of his school and that at the time of occurrence he was present in the school. Wazir Ali School Teacher Chak No, 433 G. B. (D. W. 4) stated the same, Abdur Rahim Project Manager, Rural Progressive Centre Pindi Sheikh Musa (D. W. 5) deposed that Abbas son of Muttal co-accused was with him at the time of occurrence and remained so till 4.00 p. m. In connection with the getting of nakkas from him: Ghulam Mustafa (D. W. 6) stated that he and Mohsin appellant on the day of occurrence at 6.00 a. m went to Jhang in order to have the payment of sugar-cane supplied to the mill by him and Mohsin appellant. They reached Jhang at 9 a. m. And remained in the premises of the mill till 2 p. m. And came back to their Chak at 5.30 p. m. Munir Ahmad School Teacher Middle School Jhamra (D. W. 7) stated that Riaz co-accused was student of 7th class and that he was incharge of that class. At the time of occurrence Riaz co-accused was present in the school and remained there till 2.30 p. m. Dr. Muhammad Nawaz Khan M. S. D. H. Q. Hospital Faisalabad (D. W. 8) deposed that he re-examined Rustam P. W. On 21st January, 1982 and correctly prepared his report Exh. D. F. According to which injuries Nos. 1 and 2 could be caused as a result of scuffle and injuries Nos. 8 and 9 were not the result of firearm, but the same could be caused with a blunt weapon. There was no bullet in the broken leg and the fracture was caused with a blunt weapon too. 9. The learned trial Magistrate believed the evidence as to motive, the recoveries and the ocular testimony. He also relied upon the medical evidence and after partly accepting the defence as to the acquitted accused found all the appellants guilty and convicted them accordingly while acquitting Abbas son of Muttal, Asghar, Riaz and Hand. 10. The learned counsel for the appellants has contended firstly that the statement Exh. P. C. On which the F. I. R. Was drawn was not the first information since the A. S. I. Had reached the place of occurrence after having received himself the information of the occurrence. The above said statement was recorded at the place of occurrence, secondly that the accused who participated in the subsequent occurrence could not be tried together with the accused who participated in the first part of the occurrence, that the accused in both the phases alongwith others could not be said to have a common object. Muttal appellant had already lost his arm in the previous incident in view of which he cannot be saddled to have caused injuries as alleged; that Shahadat and Sikandar P. Ws. Were not the residents of the locality where the occurrence took place ; that the site plan does not agree with the statement of Rustam complainant as made in his cross-examination. As to the watering of the field the entire statement in nothing but a concoction; that as to the
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alleged fire-arm injuries Dr. Imtiaz Ahmad Gill P. W. 6 stated that those were fire-arm injuries but on re-examination as to injuries Nos. 1, 2, 8 and 9 on the person of the complainant Dr. Muhammad Nawaz Khan (D. W. 8) opined that injuries Nos. 8 and 9 were not the result of a fire arm and expressed that those injuries could be caused with a blunt weapon. The medico-legal report (Exh. D. E ) prepared by Dr. Imtiaz Ahmad Gill stood belied by the statement of Dr. Muhammad Nawaz Khan D. W. An importance could be attached to his statement because he happened to be a Medical Superintendent and a superior officer as compared to Dr. Imtiaz Ahmad Gill. ' While elaborating his submissions the learned counsel has referred to the evidence of Shahadat P. W. 1. Who according to the learned counsel made an addition as to the blow with a kulhari on the foot of Rustam complainant whereas Rustam P. W. Had not alleged that way. If that injury was caused during the second occurrence then that belied the prosecution version as to the first occurrence. He attributed the head injury caused to Mst. Saidan to Sarfraz appellant while Mst. Saidan attributed her injury to Rustam appellant. The second injury on the person of Mst. Saidan was stated to have been caused by Rustam appellant but according to Mst. Saidan the injury had been caused by Sarfraz. According to injured Mst. Saidan the injuries had been caused to her after Rustam P. W. During the second occurrence whereas according to Shahadat P. W. Injuries to Rustam complainant had been caused later than Mst. Saidan. According to Mst. Saidan the injuries with the Butt were given both by Shera and Abbas son of Muttal accused whereas P. W. Shahadat attributed those injuries to Abbas only. Mst. Said an P. W. Has stated that the accused persons gave kicks which was nothing but an improvement. The second occurrence according to her statement took place in the house of Allah Ditta and she being the injured witness gave a wrong place at to the second occurrence by naming Allah Ditta's house. The blood-stained earth was allegedly collected from the house of Allah Ditta but according to the site-plan the house from which the same was collected is shown that of Ghulam Muhammad. This clearly negatives that Shahadat P. W. Was present by the alleged time at the place of occurrence. All the witnesses in their statements in fact stick to the place of Allah Ditta. If the place of occurrence differs as is obvious from the site plan then all the eye-witnesses cannot be relied upon. Mst. Saidan P. W. Had not in her examination in-chief mentioned the names of the witnesses but only stated their number. She attributed the injuries to Shera and Abbas accused with the Butts of a gun and pistol, respectively, which shows the absence of very intention to cause death. She actually named only Mattal and Rustam accused as her assailants. All the 20 persons were alleged to have come to the house of Allah Ditta with lethal weapons. The injuries on the vital parts were declared as simple. The doctor who examined Mst. Saidan had stated that he could not specify that whether the incised wound on the head of Mst. Saidan had been caused with a hatchet. The injuries to Rustam P. W. Had been attributed only to Muttal which injuries according to the doctor could be caused during a scuffle. As to the kicks given to Rustam complainant by all the accused persons no such injuries were discovered. The witnesses from the house nearby were available but none of them was produced and instead two residents of another village were produced as eyewitnesses and also as the witnesses to all the recoveries. A legitimate inference is that none of the residents of the village was prepared to support a false version. The occurrence had definitely not taken place as alleged by the injured P. Ws. Sikandar P. W. Was not resident of the same village. He deliberately gave a wrong address. He was a partisan witness. Sikandar and Shahadat P. Ws. Were related to each other and on friendly terms with the complainant party. The blood-stained clothes of either the witnesses or the injured persons were neither shown to the doctor nor to the police. The clothes of Rustam P. W. Were not coming forth. P. W. Sikandar stated that :- "It is correct that I have friendly relations with Allah Ditta (a relation of Rustam injured P. W.). Again said he is not on friendly relations with me.
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' It is incorrect to suggest that two fires were made by the accused during the second occurrence. (In the F. I. R. It was stated that firing took place in the second occurrence) and all the co-accused trespassed the house of Amir while some of them entered the room. (The statement so made belies the F. I. R. In respect with the second occurrence." ' P. W. 7 Muhammad Fazil A. Did not collect the clothes of both the injured persons though those were allegedly blood-stained. That casts doubt on the veracity of this witness. ' The alleged recoveries cannot be treated as connected with the crime since neither the hatchets nor sota were stained with blood nor any empty was found from the place of occurrence, as such, the same were not sent to the Chemical Examiner or the Serologist to determine the origin of the blood or the Forensic Science Laboratory for the purpose. As a whole the fact of enmity stood admitted on the record. The finding of the trial Court that Asghat., Hanif, Riaz and Abbas son of Muttal were not present at the spot, does affect the truthfulness of the witnesses as to the involvement of others as well. Mohsin appellant was not present at the place of occurrence. D. W. 6 Ghulam Mustafa sufficiently proves his alibi. The learned counsel has concluded his arguments lastly by submitting that the evidence adduced being discrepant is far below the legal norms for the purpose of conviction of the appellants, as such the appellants are entitled to acquittal particularly when a large number of persons of the same family have been roped in. 11. The learned counsel for the complainant has submitted that there was a positive motive with the appellant to commit the crime. The prosecution case is fully supported by the P. Ws. Out of whom Mst. Saidan and Rustam P. Ws. Were injured during the occurrence, the medical evidence and the recoveries. The recoveries do connect the appellants with the offence charged. The motive has not been challenged by the defence, therefore, it stands established, so it is to be used as corroboratory to the evidence adduced. The medical evidence clearly discloses that Rustam P. W. Bore 17 injuries. Injury No, 3 consists of four incised wounds and injury No, 11 four contused wounds. As 'to the examination by Dr. Muhammad Nawaz Khan (D. W. 8) in respect with injuries Nos. 8 and 9 it is worth noting that Rustam P. Ws. Was re-examined by him 18 days after the occurrence, therefore, much weight cannot be attached to his opinion. The wound having been shown with inverted margins, fixes that it was caused with a fire-arm. The ocular account stands corroborated by the motive and the medical evidence. Shahadat and Sikandar P. Ws. Are neither from the brotherhood of the complainant party nor inimical towards the accused. The learned counsel has conceded that in the first part of the occurrence there was no common object to kill. But has maintained that in the second occurrence there was a common object to kill. However, he has submitted that the appellants acted in a cruel manner and caused a large number of injuries to Rustam and Mst. Saidan P. Ws. Whereby apart from other injuries the complainant has lost half of his foot and Mst. Saidan P. W. Has not yet recovered from her injury specifically caused upon her leg. In these ciscumstances he has stressed for the enhancement of the sentence of the appellants and for compensation under section 544-A, Cr. P. C. 12. The learned counsel for the State has submitted that in this case only the medical evidence supports the prosecution otherwise the ocular account is replete with discrepancies. It is not believable that 16 persons caused all the injuries and since a large number of persons stand involved, therefore, it cannot be said with certainty even if the occurrence is fixed as having taken place that who were the actual persons among 16 persons who in fact caused the injuries. At the trial the witnesses have taken to improve the case. 13. The arguments advanced on both the sides have been weighed in the light of the evidence adduced. The argument of the learned counsel that the F. I. R. As drawn was not an F. I. R., has no significance for the simple reason that the information attributed to the A. S.-I. Was received by him at
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Peerewala bridge through general public from which place he straightaway came down to the place of occurrence and recorded the statement of the complainant. Had any information been cast to him at the Police Station then one could say that it did fall within the ambit of his duty to have first recorded the same before proceeding to the place of occurrence. So the statement Exh. P. C. Can be rightly regarded as a foundation for the F. I. R. Which was drawn later on, by the time the investigation had not begun. The objection that there could not be a joint trial as to the accused participating in the second occurrence, the argument is without any substance. Both the occurrences in sequence were parts of the same transaction, therefore, the persons accused of the same could be tried together. As to the argument that the accused in both the phases along-with others could not be said to have a common object, suffice it to say that the common object as to those who participated was akin to the forming of the unlawful assembly duly armed, with an object to attack the complainant, in both the phases the same object was prosecuted and was extended to the causing of injuries to Mst. Saidan Bibi. ' As to the site plan showing that, that was the house of Ghulam Muhammad where injured Rustam was brought and not that of Allah Ditta as stated by the injured P. Ws. Nothing much can be…
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