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Petitioner: KHAN ZAMAN AND OTHERS VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Rafique Tarar, Gul Muhammad Khan Title: KHAN ZAMAN AND OTHERS vs THE STATE Case No.:Criminal Appeals Nos. 333 to 338 of 1982 and murder Reference No, 130 of
JUDGMENT
Reported As: 1984 P Cr. L J 28 Result: Appeal partly accepted Judgment JUDGMENT GUL MUHAMMAD KHAN, J.-Khan Zaman 30, Palak Sher 20, Ramzan O, Muhammad Yousaf 28, Sikandar Hayat 40, Khan Muhammad (alias Khanoo) 55, Bahadur 60 and Ali Ahmad 40, have been convicted and sentenced as under, vide order dated 15th June, 1982, passed by the learned Additional Sessions Judge, Sargodha : {{TABLE}} MOW Appellant. Sentenced under section 302/149, P. P. C. For murder of Muhammad Amin. Sentenced Sentenced under Sentenced under section 302, under section P. P. C. For section 148, P.P.C. Murder of Sar war 148, Khatoon. P. P. C. Khan Zaman Falke Sher Ram zan Muhammad Yousaf Life imprisonment with a fine of Rs, 3,000 in default of payment to one year R. I. ditto ditto ditto 3 years ditto ditto ditto Nil 3 years' R. I. Under section 302/10, P. P. C. Life imprisonment and a fine of Rs, 3,000 or one year R. I. In default of payment each for the murder of Mst. Sarwar Khatoon, Sikandar Hayat Death Khan Life imprison- Muhammad ment with fine alias Khanoo of Rs, 3,000 in default of payment to one year R. I. Bahadur ) Under section All ) 302/109,
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Muhammad ) P. P. C. Life imprisonment and a fine of Rs, 3,000 in default of payment one year R. I. Each for the murder of Muhammad Amin. Death and a fine 3 years of Rs, 3,000 in default of payment to one year R. I. ditto ditto ditto ditto Life imprisonment ditto with fine of Rs, 3,000, in default of payment to one year R. I. ditto ditto Life imprisonment 3 years' with fine of Rs, 3,000 R. I. In default of payment to one year R. I. {{TABLE}} Khan Zaman, Falaksher, Ramzan, Muhammad Yousaf and Khan Muhammad were also convicted under section 20 of the Arms Ordinance and sentenced to 3 years' R. I. Each, The sentences were to run concurrently and the fines ifrealised are payable to Muhammad Yousaf complainant. The complainants have appealed against that order. Muhammad Yousaf, Khan Muhammad, Felak Sher, Ramzan and Khan Zaman have also filed separate appeals (Cr. A. 334, 335, 336, 337 and 338 of 1982) in respect of their conviction under the Arms Ordinance. The learned Additional Sessions Judge has also sent up a reference under section 374, Cr. P. C. For the confirmation of the sentences of death awarded by him. All these cases shall be disposed of by this order. 2. The occurrence took place at 6-30 a. m., on 3rd September. 1980, in the area of Rakh Lukko at a distance of 20 miles from Police StationMitha Tiwana, District Khushab, in which Muhammad Amin and Mst. Sarwar Khatoon were killed. The case of the prosecution was that the complainant Muhammad Yousaf P. W. 6. Alongwith Mst. Sarwar Khatoon deceased and Muhammad Amin deceased was going to Multan, from his Dera situate in the area of Rakh Lukko. When the party reached the forest. Near Chashma Link Canal, only about 150 karams, from the dera of Muhammad Yousaf. P. W. The appellants Khan Zaman, Falak Sher, Ramzan, Sikandar Hayat and Muhammad Yousaf, all armed with guns and Khan Muhammad with a Carbine, forming an unlawful assembly, emerged from the bushes and in the prosecution of their common object, fired at Mst. Sarwar Khatoon deceased, as well as Muhammad Amin deceased, with their respective weapons, with the result that both of them died at the spot due to fire shot injuries. Muhammad Hussain P. W. 7 and Muhammad (not examined) who were accompanying the complainant party to see them off, witnessed the occurrence. 3. The motive, as stated, for the offence was, that Mst. Sarwar Khatoon, daughter of Bahadur appellant, had been wedded to Muhammad Amin deceased. About 4/5 months before the occurrence, the complainant came to know that Bahadur appellant was trying to arrange her marriage with Khan Zaman appellant. The complainant dissuaded Bahadur from doing so but he did not come round. Consequently, Muhammad Amin filed a suit in the Court of the learned Civil Judge, M ianwali. He summoned Mst. Sarwar Khatoon, for 1st of September, 1980. There she admitted that Muhammad Amin was her husband and agreed to go with him. The Court, on that, allowed her to do so. Muhammad Amin brought Mst. Sarwar Khatoon to his Dera in Rakh Lukko. The incident infuriated the appellants, who as relations of Mst. Sarwar Khatoon, attacked the complainant party, with the result as stated above. The other two appellants Bahadur and Ali Muhammad were said to have conspired together in the hearing of Sardara P. W. 3 and Sultan (not examined) and incited their co-accused, who caused the death of the two deceased. 4. Muhammad Yousaf P. W. 6, father of Muhammad Amin deceased, lodged the first information report on the same day 1. e. 3rd September. 1980 at 10-00 a. m. It was recorded by Asmat Ullah Khan S. H. O. P. W. 9. He proceeded to the spot and after inspection prepared injury statement and inquest reports of the two deceased and sent the dead bodies for post-mortem examination. He then inter alia recovered on the same day, from near the dead body of Muhammad Amin, five .12 bore empty cartridges Exh. P. 11/1-5, took them into possession in the presence of Muhammad Hussain P. W. 7
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and Hamayun (not examined) vide memo. Exh. P. O. And sealed them into a parcel. Three more .12 bore empty cartridges Exh. P. 12/1-3 were also recovered from near the dead body of Mst. Sarwar Khatoon and taken into possession, vide memo. Exh. P. Q. In the presence of the same witnesses. 5. Dr. Ghulam Haider Shah conducted autopsy on the dead bodies of the two deceased and recorded the following injuries :- ' Mst. Sarwar Khatoon : (I) A fire-are in wound 3/4" diameter on the lateral part of right side of abdomen, edges were blackened. (2) A circular fire wound 1/2" diameter about 2" below the injury No, 1. The edges were blackened. (3) A fire-arm wound circular in shape 3/4" diameter in the middle of left chest outer part, the edges were blackened. (4) A circular fire wound 1/2" diameter on the outer part of left memory gland. (5) Three fire-arm wounds 1/4" diameter on the aspect of left joint elbow joint. ' Muhammad Amin : (1) A circular fire arm wound 1" in diameter on the back of head upper part. The brain matter was coming out of it. Two pieces of gatta were found. Many small rounded matallic pellets were also recovered from the brain matter. (2) A fire-arm wound 1J/' x 1" abdomen cavity deep on the lower left part of the back with multiple supper ficial rounded injuries about 1/8" diameter around the main injuries were present in an area of 5" x 3". (3) A fire-arm wound 2" x 1" on the back of neck left side edges of the wound were blackened. (4) A fire-arm wound 2" x circular in shape 1/6" in diameter on the right side of back upper and middle part. (5) The two fire-arm wounds 1/6" diameter each on the front of right fore-arm 4" from wrist joint. (6) Multiple rounded superficial wound 1/6" diameter on the back of right leg, right thigh, corresponding parts of shalwar. (7) Multiple rounded shape wounds 1/6" diameter on the back of left leg and left thigh present holes on the shalwar. (8) Abrasion 4" x 1" on the back of left elbow joint. ' During the trial the doctor could not appear due to his serious illness despite a few summons. His post-mortem report was, however, proved by Amir Bakhsh Dispenser P. W. 10. 6. The Investigating Office, Asmatullah P. W. 9, recovered, on 20th September, 1980, four guns from the appellants Ramzan, Khan Zaman, Muhammad Yousaf and Falak Sher, in the psesence of Sher Muhammad P. W. 8 and Bahadur P. W. 5 at Chouk Girot. On the next day Sikandar Hayat appellant after having been arrested produced his licensed gun Exh. P. 11 at village Hadali in the presence of Sher Muhammad and Bahadur. Khan Muhammad appellant produced a Carbine Exh. P. 13. This recovery was witnessed by Muhammad Hussain P. W. 7 and Hamayun not produced. Some of the empties matched with the weapons of Falak Sher, Sikandar Hayat and Khan Muhammad. The prosecution relied on the ocular evidence of Muhammad Yousaf P. W. 6, and Muhammad Hussain P. W. 7, medical evidence, the recoveries referred to above and the strong motive. 7. All the appellants in their statements under section 342, Cr. P. C. Denied the allegations against them and stated that they had been falsely implicated on account of enmity. Sikandar Hayat appellant produced three witnesses in defence. The learned Additional Sessions Judge, as stated above, found that the case of the prosecution had been proved against the appellants and, therefore, he convicted and sentenced them as detailed above. 8. To begin with the learned counsel assailed the recovery of crime empty cartridges from the spot, their despatch to the Forensic Science Laboratory and the report that some of them had matched
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with the recovered guns. His contentions on that score have much weight. Asmatullah S. H.0. P. W. 9 recovered five crime empties from within 6 feet radius of the dead body of Muhammad Amin and three empties, within 6 feet radius of the dead body of Sarwar Khatoon, on 3rd September, 1980, in the presence of Muhammad Hussain P. W. 7, and Humayun not produced, Khurshid Ali, H. C. P. W. 4, stated that he received these empties sealed in two parcels on 6th September, 1980 and gave them to Fakharuddin F. C. P. W. 1, on 19th September. 1980 to be delivered to the Forensic Science Laboratory. After seeing the register of Roznanicha, dated 6th September, 1980 he, however, deposed that there was no specific mention of empties in the entry and that he wrote to have received articles in accordance with the memos. Asmatullah P. W. 9 admitted after seeing the police file that recovery of 'Kiwi Kartus' was not mentioned in the statement of Muhammad Hussain P. W. Khurshid Ali, H. C., referred to Exh. P. C. Which is a copy of Register 19 of Malkhana. The crime empties are not mentioned as the case property recovered. Muhammad Hussain P. W., in his statement Exh. D. C. Recorded on 3rd September, 1980 did talk about recovery of blood-stained earth but not of the empties. On the comparison of original police file and copy of statement of Muhammad Hussain P. W., Asmatullah P. W. 9 admitted that the word Khol Kartus' was overwritten. The number of empties and their place of recovery was not mentioned therein. Muhammad Hayat, Patwari P. W. 2, also did not show in the plan, the place where empties were lying. Fakharuddin F. C, P. W. 1, admitted to have received the parcels on 19th September, but did not give the date when he delivered them to the Laboratory. They are however, shown to have been received by the Laboratory on 8th October, 14 1980 (Exh. P. Z.) through Fakharuddin, F. C. 352. The entire recovery of the crime empties is, therefore, highly doubtful. 9. The crime empty C. 2 matched with .12 bore D.B.B.L. Gun No, 4116 allegedly of Sikandar appellant. There recovery memo. Of his gun (Exh. P.C.) gives its number as 1116 D.B.B.L.-12 bore. The empty C. 4 matched with .12 bore shot pistol (Carbine) of Khanoo (Exh. P. R.). The empties C. 1, C. 7, C. 8 were opined to have been fired from .12 bore S.B.B.L. Gun of Falak Sher (Exh. P. J.). No other empty matched with any gun. The gun recovered from Ramzati was found to be out of order. Asmatullah Khan, S. H.0. P. W. 9, deposed that he was present on 20th September, 1980, at Chauk Girot in search of the accused when one Alam Khan, not examined, produced before him at 6-30 a. m. Khan Zaman, Ramzan, Falak Sher, Yousaf, Bahadut and Ali Muhammad appellants. He arrested them. Out of them Muhammad Ramzan, Khan Zaman, Muhammad Yousaf, Falak Sher produced unlicensed guns which were taken into possession in the presence of Sher Muhammad P. W. 8 and Bahadur P. W. 5. On the next day i. e. 21st September, Sikandar Hayat was produced before him at Hadali at 3-00 p, m. By Aslam Khan not examined. He was arrested and he produced a licensed .12 bore D.B.p.L. Gun in the presence of the same Sher Muhammad P. W. 8 and Bahadur P. W. 5. The five parcels of the guns were given to the Moharrir of the Police Station on 23rd September, 1980. 10. On 26th September, 1980, at noon time while the same S. H.0. Was at Jauharabad Courts with Muhammad Hussain P.W. 7 and Humayun. He received a secret message regarding the presence of Khanoo at an hotel at Chauk Girot. He reached the hotel by bus and arrested Khanoo and recovered a .12 bore Carbine Exh. P. 13 from the fold of his loin-cloth, in the presence of Muhammad Hussain P. W. 7 and Humayun, not produced, at 8-30 p. m. The parcel of the carbine was handed over to the Moharrir of the Police Station on 27th September. In all these recoveries not a single witness of the locality was produced and the witnesses cited were not only close relations of the complainant but lived at far-off places. Any way, all the six gun-parcels were given by Khurshid Ali H. C. P. W. 4 to Fakharuddin F. C. P. W. 1, on 7th October, 1980, for taking them to the Forensic Science Laboratory vide Exh. P. C. And the statement of Fakharuddin F. C. P. W. I. So both the guns and the
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empties were with the police'. Before they were sent to the Laboratory. Hence no reliance could be placed on the Laboratory results. 11. The statement of Asmatullah S. H. O. P. W. 9 that Sher Muhammad and Bahadur P. Ws. Were with him on the night between 19th and 20th on petrol duty, also appears to be incorrect. Bahadur P. W. 5, stated that he had gone to Chauk Girot on 20th September to inquire from the police about the fate of the murder case. It means he was not with Asmatnllah S. H. 0. On the night between 19th and 20th. Sher Muhammad P. W. 8, also stated that he and Bahadur were coming by bus on 20th September, when on seeing the Thanedar in the Chauk Girot, they got down to find if the accused had been arrested or not. The Thanedar then said that the accused were likely to be produced by Aslam Khan and they should stay on. Both Sher Muhammad and Bahadur deposed that they were also asked by the S. H.0. To come back to Hadali on the next day as he was to effect recovery from Sikandar Hayat. It may be noted that Sikandar's house is situate at a distance of 25/26 miles from Hadali So all the recoveries and the arrests were either fake or an arranged affair. 12. Muhammad Hussain P. W. 7 stated that he and Humayun went to the Police Station Mitha Tiwana on 26th September, 1980. At about 3-00 p. m. The S. H. 0. Came. They, thereafter, left with him for Chauk Girot at 5-00 p. m. By bus and reached there at 7- 30 p. m., and sat in a hotel. The S. H.0., had however, stated that the witnesses were with him at noon time in the Courts of Jauharabad when he learned about Khanoo and he went to Chauk Girot straight from there. It was at about 8-00 p. m. That the S. H.0. Learnt about the arrival of Khanoo, at the hotel across the road, They then raided at 8-30 p. m. And arrested Khanoo. In his statement Exh. D. D. Before the police, with which he was confronted. Muhammad Hussain had stated that recovery was made from Khanoo at 5-30 p. m. It will be further seen that in all the above cases the S. H.0. Seems to be knowing before hand who was to be arrested where and when and also had the knowledge that they will come with the weapons which they used in the commission of the offence. 12-A. Further, the defence showed from official documents that Sikandar was arrested on 12th September, 1980, and not on 26th September, as stated. According to D. W. 1 Ghulam Muhammad, who is a licensed arms-repairer, he received for repair licensed Gun No 4116 of Sikandar on 25th August, 1980. He entered it in the relevant register. About 6/7 days prior to 20th September, the S. H.0. Checked the presence of that gun, fired it twice and took away the empties with him. A had constable then took away the gun on 20th under the signatures of Sikandar Ha yat (in handcuffs). A photo copy of the receipt is Exh. D. H. It may further be noted that Ghulam Qadir, Sub-Divisional Forest Officer supported D. W. 1 by deposing that Sikandar Hayat who was working under him, was arrested on 12th September, 1980, and not on 21st as stated by the S. H.0. P. W. 9. Documents Exhs, D. J. To D. M. Were produced in support. Even Asmatullah S. H.0. Admitted in his statement recorded on 26th May, 1982 that he had visited the shop of D. W. 1 on 14th September, 1980 and checked the gun. Exh. P. Z. Report of the Forensic Science Laboratory does not specifically show as to when the parcels of the crime empties were actually received there. The general statement is that they were received there on 8th October, 1980. However, according to Fakharruddin even the parcel of carbine was delivered by him on 7th October, 1980. Exh. P. C. Supports it. Khurshid Ali, H. C. P. W. 4, also stated in Exh. D. C. That the parcel of carbine was given to him on 23rd September, 1980 (Exh. D. C. Statement of Khurshid Ali, H. C. Has not been printed in the paper-book). The statement of Muhammad Hussain P. W. Has also been assigned the same mark and only that has been printed). So as the firearms and the empties were in possession of the police till 23rd September, 1980 or 7th October, 1980. The empties were also delivered to the Forensic Science Laboratory some time between 23rd September and 8th October, while all the guns except the carbine of Khanoo were admittedly E recovered before 23rd September, 1980. So, the opinion of the Forensic Science Laboratory cannot be relied on to fix any liability on any of the
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appellants, in respect of their respective weapons. Thus neither the recovery of empties and guns nor their matching are of any value. 13. The learned counsel further pleaded that the appellants except Sikandar are all close-relations and they have been falsely involved in the case due to enmity and the evidence produced, did not at all prove the prosecution case. Admittedly, Ramzan appellant is son of Bahadur appellant. It means that Mst. Sarwar Khatoon was the sister of Ramzan. Zaman and Falak Sher appellants are brothers inter se and are sons of a sister of Bahadur. Yousaf appellant is son of a brother of Bahadur. Khan Muhammad alias Khanoo is the brother of the wife of Bahadur and maternal uncle of Ramzan. A son and a daughter of Ali Muhammad appellant are said to have been married to a son and a daughter of Bahadur appellant though the Rukhsati had not yet taken place. In answer to question No, 2 Bahadur denied it. Same was the case with Ali Muhammad. Sikandar appellant is a friend of Ali Muhammad, and Ramzan and he is employed in the Forest Department where Ali Muhammad also works. As only close relations and close friends would join hands and commit such heinous crimes for each other, and against their common enemies, the above objection would cut on both sides. In that situation the evidence on record will be carefully analysed in ascertaining the guilt or innocence of each appellant. This objection, therefore, cannot be conclusive as such in isolation and has to be looked at alongwith the other material, to yield the necessary results. 14. The learned counsel then submitted that even the two eye-wit. Nesses are close relations and being undoubtedly inimical to the appellant party, their evidence must receive corroboration from some independent and unimpeachable source, before it is to be relied upon. Admittedly, Muhammad Hussain P. W. 7 is a son of a cousin of Muhammad Yousaf P. W. 6, Mst. Mehr Khatoon, a sister of Muhammad Yousaf P. W. 6 is the wife of Muhammad Hussain P. W. 7, Muhammad Yousaf is the father of the deceased Muhammad Amin. The parties are also very inimical to each other. Muhammad Yousaf admitted in cross-examination that Falak Sher appellant had instituted a suit for restitution of conjugal rights, against his daughter Mst. Aziz Khatoon and him, before this occurrence. The witness volunteered that the suit was false and had been maliciously filed to disgrace him and his family. There also, all the appellants were one party and Khan Zaman and Yousaf even appeared as witnesses for Falak Sher. The civil Court decision on 1st September, 1980, further aggravated the situation. The fact is supported by Exhs. P. W. 6, A to P. W. 6/E which are Court decrees and orders etc. In fact Muhammad Yousaf P. W. Stated that the appellants had enmity with him and his son. So, there is no doubt that the parties were very inimical to each other. The last incident must have added fuel to the fire. However, as stated above, all this by itself is no circumstance to reject the evidence of the P. Ws. The inter se relationship of the prosecution witnesses. Their enmity with the appellants and the last episode which might have turned the appellants desparate are not conclusive factors. They only call for more care and caution in considering the material on record and to ensure that the same is legally corroborated before it is acted upon. 15. So we take up the ocular account. Muhammad Yousaf P. W. 6, who is also the father of the deceased Muhammad Amin, appeared as an eye-witness of the occurrence. He deposed first of all about the incident of the immediate past, in which his deceased son Muhammad Amin secured the hand of Mst. Sarwar Khatoon, daughter of Bahadur and sister of Ramzan appellant, through Court on 1st September, 1980. He went on to say that on the morning of 3rd September, when Muhammad Yousaf, Muhammad Amin and Sarwar Khatoon had left their dera, in order to catch a bus from the canal bank of Chashma Link Canal for Multan, a place at a distance of about 150 karams from his dera, the six appellants, excluding Bahadur and Ali Muhammad, emerged from the bushes nearby. All of them except Khan Muhammad alias Khanoo were armed with guns. Khanoo carried a carbine. According to the F. I. R., however, he was armed with a gun. They challenged the
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complainant party. Khan Zaman got near Mst. Sarwar Khatoon who tried to catch hold of his gun, but he in the meantime, fired at her right flank. Flak Sher fired a second shot which too hit her right flank. Ramzan fired the third shot at her left flank. She fell down. Yousaf then fired Weir left arm while Sikandar in the abdomen. This shot was not mentioned in the F. I. R. Mst. Sarwar Khatoon died of injuries there and then. In his cross-examination Muhammad Yousaf stated that Mst. Satwar Khatoon was fired at, by all the accused simultaneously, while they were standing in line, at an equal distance of 3 Karams from the deceased. 16. While narrating the incident about his son Muhammad Amin, deceased Muhammad Yousaf P. W. Had deposed that as the appellants were firing at Mst. Sarwar Khatoon, Muhammad Amin ran towards the canal to save himself. He was fired at from behind by all the six appellants hitting his legs and back of the chest. In spite of being injured, Muhammad Amin reached the canal bank. Yousaf appellant then reached near and fired at him hitting his left flank on the back side. Khanoo fired to hit him on the back of his neck. Sikandar fired at the back of his head. Muhammad Amin fell down and died at the spot. 17. In his cross-examination he stated that Muhammad Amin was going 15-16 Qadams ahead of Mst. Sarwar Khatoon. The attack on him started after all the fire injuries had been suffered by ifst. Sarwar Khatoon. The appellants were at a distance of 10 paces from Muhammad Amin. When Sarwar Khatoon was being fired at Muhammad Amin ran and the appellants ran after him They fired one shot each on him which hit him on his back. Muhammad Amin in all ran 10 Qadams leaving behind a trail of blood. Neither Muhammad Yousaf nor were the other eye-witnesses fired at. The appellants had fired. At Muhammad Amin from the ground level while he was standing at the canal bund, 8 feet high. 18. The learned counsel for the appellants laid much emphasis on this last part of the evidence of Muhammad Yousaf and argued that while in the examination-in-chief he divided the transaction into two parts, later in the cross-examination all the appellants are stated to have fired while the deceased Muhammad Amin was standing at a height of 8 feet. To understand the objection, it will be useful to reproduce the portion relied upon. "The Canal bank is 8 feet high. The accused fired from the ground level while the deceased was standing at a height of 8 feet. All the fires were shot at the deceased while standing in above mentioned position and from the abovesaid distance." The above situation is clearly explanatory of the second round of fires after Muhammad Amin reached the canal bank. Further, the 'standing' does not mean facing the appellants and was rather used as contradistinctive to have fallen. There is thus no contradiction or discrepancy so as to benefit the appellants. 19. The learned counsel then referred…
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