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Petitioner: VUSUF AND 6 OTHERS VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sardar Muhammad Title: VUSUF AND 6 OTHERS vs THE STATE Case No.: Criminal Appeals Nos. 468 and 576 of 1979 Date of Judgment:1983-04-12 Reported As: 1984 P Cr. L J 684 Result: Petition dismissed
JUDGMENT
JUDGMENT The appellants Yusaf (49) son of Mokha, caste Shahabul, Humayun (32) son of Ahmad Khan, caste Shahabul, Hanif (33) son of Walia, caste Shahabul, Sultan (30) alias Tani son of Khizra, caste Shahabul, Lal (49) son of Chakar, caste Shahabul, Ghulam alias Gomi son of Moazzam, caste Sindhila and Muhammad Ali alias Mummi son of Moazzam, caste Sindhila were convicted by Mr. Ihsanul Haq Bahalli, Additional Sessions Judge, Faisalabad, vide orders dated the 14th March, 1979 and sentenced as under (a) Under section 3021149, P. P. C. : Death sentence on each count for the murder of Din Muhammad, Bashir Ahmad, Rashid Ahmad and Muhammad Sharif, and a tine of Rs, 2,000 each (in case of non-confirmation of death sentence, the sentences were ordered to run concurrently, and in default of payment of tine one year's further R. I. Was ordered). (b) Under section'364, P. P. C. : 7 years' R. I. Each. (c) Under section 148/449, P. P. C. : 2 years' R. I. Each. (d) Under section 171, P. P. C. : 3 months' R. 1. Each. 2. All the seven appellants have filed Criminal Appeals Nos. 396/79 and 468/79 against their convictions and sentences and the learned Additional Sessions Judge has made a reference to this Court for confirmation of the sentence of death awarded to all the seven appellants. Muhammad Iqbal son of Ghulam Rasul complainant has filed Criminal Revision No, 794 of 1979
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praying that the orders of acquittal of the respondents under section 120-B of Pakistan Penal Code be set aside and they be convicted and dealt with according to law. This judgment will dispose of all these matters. 3. The occurrence took place during the night between 9th and 10th of January, 1976 in the area of village Chak No, 541 at a distance of 5 miles from the Police Station Garb, District Faisalabad. At about 11-00 p.m. Somebody knocked at the door of Muhammad 1qbal P, W 1. He was sleeping in the room alongwith Rashid Ahmad (deceased), his brother-in-law (sister's husband). They opened door, came out and found a Police Constable armed with a gun standing there. He had covered half of his face with a muffler. He told Muhammad Iqbal P. W. 11 and Rashid Ahmad deceased that they were being summoned by the thanedar' in the school. They accompanied him to the school. There they found Ghulam alias Gomi, Muhammad alias Mummi, Hanif, Yusaf, Sultan alias Tani and Lalu appellants, present in Police uniform, armed with guns. The constable who had gone to summon them was identified to be Humayun appellant. Humayun appellant leaving these two persons with his co-accused appellants, went back and brought Muhammad Sharif deceased and Abdul Hamid P. W. 14. They were also made sit in school. Humayun appellant went again and brought Din Muhammad deceased and Bashir Ahmad deceased. In the last round, Humayun appellant brought Manzoor Ahmad P. W. 13 to the school. Bashir Ahmad deceased had brought with him a lantern. The accused/appellants encircled all the seven persons and told them to keep quiet on gun point on each time, that humayun brought someone to the school. The appellants under threat took the four deceased namely Din Muhammad, Bashir Ahmad, Rashid Ahmad and Muhammad Sharif, and the three prcsecution witnesses, namely Manzoor Ahmad, Muhammad Iqbal and Abdul Hamid, to Rajbah Kanjwani, near their 'dharis'. On the way Gomi and Mummi appellants told them that they will avenge the murder of their father Moazzam and aunt Mst. Bibi. Muhammad Iqbal P. W 11, Manzur Ahmad P. W. 13 and Abdul Hamid P. W. 14 availed the opportunity and escaped when they were crossing the Rajbah, by a wooden plank. 4/5 shots' were fired at them by the appellants but they took shelter in the Khatans' nearby. The appellants took the other four, namely Din Muhammad, Rashid Ahmad, Bashir Ahmad and Muhammad Sharif across the Rajbah where they murdered all of them by firing their guns, and threw their dead bodies in Rajbah. Before murder, Din Muhammad deceased had beeseched Gomi appellant to spare his son Bashir Ahmad deceased. Muhammad Sharif deceased had also beseeched Hanif appellant not to kill him. So also Bashir Ahmad and Rashid Ahmad deceased had begged for their lives. In spite of entreaties of all the four deceased, the appellants murdered them. Muhammad Iqbal P. W. 11 and his companions Abdul Hamid P. W. 14 and Manzur P. W. 13 remained hidden and saw the occurrence. After the appellants had left the spot, Muharnmad Tqbal P. W. 11 and his companions returned to the village where Siraj P. W. 15 and Abdul AZiz (given up) P. W. Met them. They told them that Ghulam alias Gomi, Lal (Lalu), Hanif, Yusaf, Sultan alias Tani, Mummi, and Humayun (appellants) and Walia, Muhammad Ali son of Misri, Haitam, Ahmad Ali, Mahla, Zulfikar, Niaz and Wariam acquitted (accused) had hatched a conspiracy about 20/25 days ago to avenge the murder of Moazzam and Mst. Bibi in their presence. Other persons had also come out of the village and Muhammad lqbal P. W. 11 accompanied by others, returned to the place of occurrence and found that Muhammad Sharif, Din Muhammad, Bashir Ahmad and Rashid Ahmad lay murdered in the Rajbah. 4. P. W. 11 Muhammad Iqbal complainant produced to the Police Station Garh and lodged the F. I. R. Exh. P. L., which Was recorded by Ahmad Nawaz, S.-I./S. H.O. (P. W. 16). 5. The motive for the occurrence stated in the first information report is that the complainant Muhammad Iqbal P. W. Ii and Moazzam Sindhila had obtained 9 Acres of land on lease for 5 years from one Shamir and others. The land remained in cultivating possession of the complainant. On
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the expiry of the term of this lease the complainant Muhammad lqbal P. W. 11 and Muhammad Sharif deceased purchased this land. This annoyed Moazzam and his sons who wanted to buy this . Land. Moazzam and his sons tried to take forcible possession of the land. A case under section 417, P. P. C. Was registered against them. On the 28th November, 1974, when Ivloazzam attempted to stop the complainant Muhammad Iqbal P. W. 11 from ploughing the land and wanted to take the forcible possession, a fight took place in which Moazzam and his sister Mst. Bibi lost their lives. Some persons of the party of the complainant Muhammad Iqbal were also injured. Fifteen persons including the complainant Muhammad Iqbal were challaned in the murder case. A cross-case under section 307, P. P. C. Was also registered regarding the same occurrence and Gomi etc. (8 persons) were challaned therein. Thirteen persons including Iqbal complainant of that case were released on bail and Gomi etc. Accused of case under section 307, P. P. C. Were also released on bail. Both the cases were pending trial when this occurrence took place. It is alleged that the present murders were committed by the appellants to avenge the murders of Moazzam and Mst. Bibi. 6. Ahmad Nawaz, S.-!./S. H.O. (P. W. 16) after recording the first information report proceeded to the spot. He prepared inquest reports on the dead bodies of Muhammad Sharif, Din Muhammad, Bashir Ahmad and Rashid Ahmad, which are Exh. P. M./1, P. N./1, P.O./1 and P. W./1, respectively. The dead bodies were recovered from the Rajbah. The S. H. O. P. W. 16 also took into possession blood- stained earth from the spot, made it into a sealed parcel and took the same into possession vide memo. Exh. P. E. The dead bodies were sent for postmortem examination. 7. Dr. Muhammad Riaz, Medical Officer conducted the postmortem examination on the dead body of the deceit Rashid Ahmad on 10th January, 1976 and found the following injuries on his person :- (1) A lacerated wound 1" x 11" deep on the left side of the neck at the angle of lower jaw, area around was burnt. (2) A lacerated wound 1" x 1" deep on left side of the back at lower part below the coastal margin, the momentum had come out of the wound. During the post-mortem examination 15 pellets and 3 corks were found by the doctor on the right side of abdomen chest liver and back. They were handed over to the Police in a sealed bottle. On the same clay, Dr. Muhammad Riaz Ali performed the post-mortem examination on the dead body of Din Muhammad deceased and found the following injury on his person :- A lacerated wound 11. x 1. x deep on left side of the chest inner to left nipple, area around was burnt. He found 4 pellets lying in the chest cavity, which' were handed over by him to the Police in sealed bottle, On the same day the same doctor conducted the post-mortem examination on the dead body of Muhammad Sharif deceased and found the following injury on his person :- A lacerated wound 11" x 1" X deep on left side of the neck at the angle of lower jaw. The area found was burnt and blackened. On opening the skull, the skull bones and its contents were found healthy. The vertebra under injury No, I was fractured. The doctor, during the post-mortem examination found ten pellets and one cork within the dead body of Muhammad Sharif deceased and handed over the same to the Police in a sealed bottle. On the same day, Dr. Muhammad Riaz Ali, performed the postmortem examination on the dead body of Bashir Ahmad deceased and found the following injuries on his person (1) A lacerated wound x x deep on the back of neck towards left side. (2) lacerated wound 2' x 1" on right temporal region. All the bones were fractured. (3) A lacerated wound 31 x 2' X skin deep from lower part of right ear towards back of head. The lower part of the other ear was missing.
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On opening the skull he found that all the bones were fractured. The brain and its meninges were badly injured. He also found four corks and 39 pellets lying in the skull and one pellet lying in the left side of the neck of the deceased, which he handed over to the Police in a sealed bottle. 8. According to the doctor, injuries on all the four deceased were by fire arms. The death of all was opined to be spontaneous. Time between the death and the post-mortem was stated to be 33 hours, 33i hours, 34 hours and 341 hours, respectively. The post-mortem reports are Exh. P. A., P. B., P. C. And P. D., respectively. 9. Ahmed Nawaz, S.-1./S. H.O. (P. W. 16) arrested the appellants Hanif, Yusaf and Lal on the 13th of January, 1976, Ghulam Muhammad alias Gomi appellant on 31st March, 1976 Muhammad Ali alias Mummi appellant on 21st April, 1976. Humayun appellant was also arrested on the 2nd February, 1976. Muhammad Ashraf, A. S. I. (P. W. 10) arrested the appellant Sultan alias Tani during the nakabandi on the 4th February, 1976. Ghulam alias Gomi appellant was arrested during the nakabandi and gun P. 28 and 4 live cartridges Exh. P. 29/1-4 were recovered from him at the time of arrest and taken into possession vide memo. Exh. P. R. Muhammad Ali alias Mummi appellant was arrested during the nakabandi' on the 21st April, 1976 and gun P. 30 alongwith 3 live cartridges P. 31/1-3 were recovered from him and the same were taken into possession vide memo. Exh. P. S. Sultan alias Tani appellant was arrested by the A. S. I. Muhammad Ashraf (P. W. 10) during nakabandi and gun Exh. P. 26 along-with 2 live cartridges EMI. P. 26/1-2 were recovered from him at the time of arrest which were taken into possession vide memo. Exh. P- J. 10. After necessary investigations the challan was submitted against the present appellants and the eight acquitted accused under sections 302, 564, 171, 148/149 and 120-B of Pakistan Penal Code. During the trial the prosecution produced in all nineteen P. Ws. Abdul Aziz, Abdul Hamid, son of Nur Muhammad, Badar Din, Muhammad lqbal F. C., Khalil Mahmud F. C., Shah Muhammad F. C. And Barkat All were given up as unnecessary witnesses, while Haitam, Allah Yar, Manzur, Lai, Bashir, Gullan and Akbar were given as having been won over. Sultan Muhammad Khan P. W. Had died. 11. The appellants pleaded not guilty, denied to have taken part in the occurrence and stated that they have been involved because of enmity with the prosecution witnesses. They, however, did not produce any evidence in defence. 12. The case for the prosecution mainly rests on the eye-witness account of P. W. 11 Muhammad Iqbal, P. W. 13 Manzur Ahmad and P. W. 14 Abdul Hamid, the recovery of blood-stained earth from the spot, the evidence of motive, and the medical evidence. 13. Muhammad Iqbal complainant appeared as P. W. 11. He made almost the same statement which he had made at the time of lodging the first information report. He has stated that he was brought from his house alongwith his brother-in-law Rashid Ahmad deceased by Humayun appellant to the school where the other appellants were sitting armed with guns in police uniforms. They threatened him not to move or speak. Humayun appellant then brought, in three different rounds, Muhammad Sharif deceased, P. W. Abdul Hamid, Din Muhammad deceased; Bashir Ahmad deceased and Manzur Ahmad P. W. 13. He has stated that each time they were threatened and told to keep quiet. He has also stated that Bashir Ahmad had brought a lantern and that a dia with a glass fanoose over it was burning in a nearby mosque. He has further stated that they were then taken under the cover of guns to Rajbah Kanjwani, wherefrom, he and Abdul Hamid and Manzur P. Ws. Availed the opportunity and escaped. They were fired at but they took shelter in the nearby khatans. The appellants then murdered all the four deceased with their guns and threw the dead bodies in the Rajbah. He has narrated further, he alongwith other P. Ws. Went to the village, came back to the spot with co-
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villagers and after having seen the deceased lying murdered in the Rajbah, proceeded to the police station and lodged the F. I. R. Exh. P. L. He has also stated the motive for the occurrence, and in this connection has mentioned that he also with Moazzam, the father of Mummi and Gomi appellants got the land on lease from one Shamir, which he (the complainant) and Muhammad Sharif deceased later on purchased, which annoyed Moazzam who also had a desire to buy the same. It is further stated by him that because of the dispute over the possession of this land a fight took place in which Moazzam and his sister Ms:. Bibi were murdered, and he alongwith fourteen others was challaned but thirteen of them had been bailed out before this occurrence.- P. W. 13 Manzur Ahmad and P. W. 14 Abdul Hamid have corroborated the statement of Muhammad Iqbal complainant (P. W. 11) on almost all the counts. 14. The recoveries of guns in this case are of no consequence as no empty was recovered from the place of occurrence and as such none of the guns recovered from the appellants, namely, Gomi, Mummi and Sultan alias Tani, were sent for comparison to the office of the Forensic Science Laboratory. 15. The blood-stained earth was liken from the spot on the day of occurrence, and to prove the recovery of same, P. W. 16 Ahmad Nawaz, S.-J./S. H.O. And Abdul Hamid P. W. 14 were examined. 16. Muhammad Iqbal P. W. 11 is the brother-in-law of Rashid Ahmad deceased, his sister having been married to Rashid Ahmad deceased. Abdul Hamid P. W 14 is the real brother of Muhammad Sharif deceased. Muhammad Sharif deceased and Muhammad Iqbal P. W. 11 had jointly purchased the land. P. Ws Muhammad Iqbal, Manzur Ahmad and Abdul Hamid all are co-accused alongwith others in the murder case of Moazzam and his sister Mst. Bibi. Thus the P. Ws. Are inter-connected and are also in one party against the appellants. 17. Learned counsel for the appellants have inter alia argued that the P. Ws. Are interested and inimical, their presence at the spot is improbable. It is argued that had it been Humayun appellant who had gone to summon the P. Ws. And the deceased, he would have been identified there and then, and none of the P. Ws. Or the deceased would have accompanied him to the school. The conduct of the P. Ws. In not making any attempt to escape from the school or on way to Rajbah, and of not making any noise, is unnatural. The narration of escape by the P. Ws. From near the Rajbah is also not confidence expiring. It is argued that if the story of seven appellants armed, being there, is to be believed, the P. W. Would not have been able to escape at least without receiving some injuries. The identification of the appellants by the P. Ws. Is also challenged. It is pointed out that the story of the lantern introduced, is not believable The 'Dia' in the mosque at some distance could not have thrown sufficient light. It is also argued that there was no reason for the appellants to have taken the deceased or the P. Ws. Towards their 'dharis'. The story that after the escape of the P. Ws. The appellants murdered the deceased at the Rajbah, is also dubbed to be improbable. Learned counsel for the appellants have also challenged the place of occurrence. According to them the deceased might have been murdered at some other place and thrown in the Rajbah, at the place where from the dead bodies were recovered. With regard to the blood- stained earth, it is stated that the blood might have oozed out and fallen on the ground when the dead bodies were brought out from the Rajbah. 18. Learned counsel for the appellants have also laid stress on the point that the complainant wanted to rope in as many persons of the appellants, family as possible and having named the appellants for actual occurrence, involved eight others in the conspiracy. It is argued that the fact that the story of conspiracy has been disbelieved, costs doubt on the truthfulness of the complainant. It is further argued that the tainted and inimical evidence of P. Ws. Cannot be relied upon, particularly in view of the fact that it is not corroborated by any recoveries or other plausible evidence. It is also argued that the motive is a double-edged weapon. Where the accused have a motive to commit the crime because of certain existing enmity, the complainant party have also a
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motive to falsely implicate the other party for some reasons. Lastly, it is argued that even if one of the appellants is falsely involved and is innocent, care has to be taken that he is not hanged with others who are guilty. 19. We have considered the arguments and have given anxious consideration to all the aspects. No doubt the P. Ws. Are interested and inimical but their evidence cannot be brushed aside merely on that ground. Every statement is to be weighed and assessed in the circumstances of each case. The time of the occurrence, the manner of occurrence and the possibility or impossibility of any independent person being present in the given circumstances is also an important factor. The main points in this care are, whether the story that Humayun appellant had brought the P. Ws. And the deceased to the school in the manner stated ? Whether the P. Ws. Could identify them ? Could they have escaped ? Whether all the appellants participted in the occurrence ? It is common knowledge that generally the villagers whenever called upon by a Policeman, do not enter into argument with him. Humayun appellant dressed in the Police uniform, when informed the P. Ws. And the deceased on different occasions, they had no reason to disbelieve him that the Thanedar' may not be present in the school, because normally on visit to the villages, the police people sit in school buildings, if there is any. Each time when Humayun went, there was no lengthy talk. One should also be mindful that it was a mid-winter night and the people of the village would not be moving in the streets. So the appellants could safely send one of them and procure the desired persons only. They took care that the deceased and the P. Ws. Were brought, in different rounds. In the short span that Humayun appellant spent each time with the deceased and the P. Ws , at their houses, he could not have been identified. On way there could be no opportunity because he must be either going ahead or pursuing them. The persons, whose presence the appellants have been able to procure were not allowed to leave the school so as to inform the others or the villagers. The identification of the appellants by the P. Ws. Is to be gathered not only from the fact that they saw the appellants in the school but also from the fact that the P. Ws. Remained with the appellants in the school, they heard them talking, some light was also available, then they walked with them for about a mile, the appellants Gomi and Mummi and the other appellants had told them that they are going to avenge the murders of Moazzam and Mst. Bibi, as such the P. Ws. Having known them earlier and having remained with them on the night of occurrence, seeing them acting, talking and having had the opportunity to look at them in the available light, could have easily identified them. The fact should not be lost sight of the common phenomena that in blood-feuds, the assailants do not always try to hide their identity after they have succeeded having assumed control over their enemies. It s-o happens that charged with emotional reprisals, they make their identity known to the victims. Different persons act differently in different manners when they are put to fear. The objections as to why the P. Ws. And the deceased did not make any attempt to escape while in school or on way to Rajbah is not something which should discredit the P. Ws. The attempt to escape is always made at the best opportune moment and what would be the best opportune moment, can be judged only by a person who is facing the situation. Theories cannot be propounded to the hilt of truthfulness. It is possible that the appellants having successfully taken the deceased and the P. Ws. Upto the Rajban might have become unmindful of any attempt on the part of the P. Ws. Or the deceased to escape. They might have shown some slackness and the P. Ws. Who consistently were mindful of their being taken for execution to the 'MAKTAL,', took advantage of the situation and ran away. From the whole of the sequence this was the ideal place for them to make good their escape. There were `sarkande, `khatanas' and sugar-cane fields nearby. Thus they availed opportunity any succeeded. After their escape it was but natural for the appellants to have taken care of the remaining four
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than to run after the three and give the chance to others to escape. Situation thus developed where the only course open to the appellants was to do away with their remainder 'charge' immediately and achieve the object for which they had taken all this risk, therefore, without taking the four deceased to any place further than Rajbah, they murdered them and threw their dead bodies in the Rajbah. Nothing definite can be said as to which place they had in their mind as 'MAKTAL', so the argument that why should they bring the P. Ws. And the deceased near about their `dharis', is wanting something because there is no evidence that had the escapes not taken place, their voyage would have ended. ' We do not think that the complainant or the P. Ws, have tried to rope in as many enemies as possible. They were seven versus seven at the start of the occurrence. The number is not uneven. If the idea of involving as many persons as possible in the occurrence hand weighed with the complainant, he could have easily named more than seven persons as actual participants. It was held by their Lordships of the Supreme Court in PLD 1972 SC 269, that in the case of interested eye-witnesses corroboration does not necessarily mean word of independent witness but can mean anything or circumstance which does satisfy the Court that the witness has spoken truth. It was also observed that the circumstances corroborating the eye-witnesses may be such as, (i) that the number of culprits mentioned as such as would be required for an attack of the kind which is the subject-matter of the proceedings, and (ii) that the persons named as culprits were such as would be expected to join the attack. It was also held in Muhammad Shafi v. The State that the relationship of the eye-witness with the deceased is no ground for rejecting his evidence if the account given by such an eye-witness is consistent and no material circumstance is elicited to doubt their veracity. Mere relationship held no ground for rejecting testimony. 18. The evidence of motive in this case is of more consequence than normal evidence of motive. In the events prior to the occurrence, the complainant party was always having upper hand. They purchased the land against the wishes of 'Moazzam deceased. He (Moazzam) tried to plough the land, be was involved in a case under section 447, P. P. C. He made another attempt to forcibly take the possession by show of force, he lost his life and his sister Mst. Bibi was also murdered…
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