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Petitioner: MUHAMMAD SAEED and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sajjad Ahmad Sipra Title: MUHAMMAD SAEED and others vs THE STATE Case No.: Criminal Appeal No,205 and Criminal Revision No,184 of 1991 Date of Judgment:1992-06-22 Reported As: 1993 MLD 288 Result: Order accordingly
JUDGMENT
JUDGMENT ' The present criminal appeal had been filed against the judgment, dated 12-3-1991, whereby Pir Akhtar Hussain Bodla, Additional Sessions Judge, Lahore, convicted and sentenced the appellants named hereunder as follows:--- (i) Muhammad Saeed son of Taj Din, (ii) Muhammad Hussain son of Ibrahim, Ghulam Rasul son of Allah Ditta, (iv) Muhammad Sadiq son of Wazir Ali, and (v) Muhammad Asghar son of Muhammad Nazir. ' All convicted under the provisions of section 302 read with section 149, P.P.C. on three counts and sentenced to imprisonment for life and a fine of Rs,5,000 on each count, for three counts, for murdering the three deceased namely: (i) Hafeez Ullah alias Bashir Munna, (ii) Muhammad Ashraf alias Bhora, and Boota Masih, or in default of payment of fine each was ordered to suffer further R.I. for one year on each count. ' All the appellants were further sentenced to R.I. for two years each under section 148, P.P.C. The appellants were also directed to pay Rs,10,000 each as compensation to the legal heirs of the deceased persons or to suffer further R.I. for six months in default thereof. 2. It was further directed by the impugned judgment that if realized, the amount of fine shall be paid to the legal heirs of the three deceased persons in equal share. The sentences passed against the appellants were to run concurrently. ' The appellant, Muhammad Sadiq, named above, had since died on 19-3-1991 during the pendency of the present criminal appeal, whereas co-accused of the appellants,
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namely:Muhammad Arshad had died during the trial and vide order, dated 14-5- 1990 it was held by the learned trial Court that the proceedings to his extent stand abated. ' Two of the co-accused, namely, Muhammad Ashraf and Muhammad Munir, named in the complaint as accused persons, had died before the framing of the charge. 3. All the appellants had been convicted and sentenced, as stated above, in pursuance to the private complainant (Exh.PA) instituted by Habib Ullah Khan (D.W.1) before the District Magistrate on 16-12-1972 against the five appellants and their three co-accused, since dead, named above. It was alleged therein that on 1-12-1972 at about 1-00 p.m. while the deceased Hafeez Ullah alias Bashir Munna, son of the complainant along with the deceased Muhammad Ashraf alias Bhora and the deceased Boota Masih had gone to Fateh Garh Bazar for the purpose of shave and shopping, and that on seeing them Muhammad Ashraf (since dead), Muhammad Hussain, Ghulam Rasul, Muhammad Munir (since dead), Muhammad Arshad (since dead), Muhammad Saeed, Muhammad Sadiq (the dead appellant) and Muhammad Asghar etc. had convened an unlawful assembly while armed with deadly weapons in order to commit rioting and to intentionally kill the said three deceased persons; whereupon the said three deceased persons had run away towards the fields and the brick-kiln to save their lives, and that they were empty- handed. It was further stated in Exh.PA that Muhammad Ashraf since dead, Muhammad Hussain, Muhammad Munir since dead, Muhammad Arshad were armed with pistols while others were armed with Dangs and Sotas, and that the assailants had encircled the three deceased persons and inflicted innumerable injuries to them with their respective weapons and as a result of firing by the accused persons armed with pistols, Ghulam Rasul (accused-appellant) was injured being hit by a shot. The complaint further contended that all the abovementioned accused persons had intentionally committed the murders of three deceased persons, named above. It was further alleged therein that the occurrence had been witnessed by Siraj Din (P.W.4), Serjon Masih and Sadiq Masih (not produced), Mst. Inayat Bibi (P.W.2), widow of the deceased Boota Masih and other passers-by but they could not intervene due to fear of the accused persons. 4. The motive of the occurrence was stated to be the exchange of hot words and abuses between the parties as the accused who were bad characters and influential persons had tried to restrain the deceased persons from coming into their area a few days before the occurrence, and it was as a result thereof that the accused persons had formed an unlawful assembly and intentionally murdered the deceased persons in the prosecution of the said unlawful object. The complainant had submitted the post-mortem examination of the three deceased alongwith the complaint, i.e. Exh.PA, in respect of Muhammad Ashraf alias Bhora deceased, Exh.PB, Exh.PC, in respect of Hafeez Ullah alias Bashir Munna deceased and Exh.PD in respect of Boota Masih deceased, respectively. 5. The District Magistrate entrusted the complaint to Mr. Inayat Ullah Ansari, M.I.C., Lahore, for the purpose of inquiry. The Magistrate recorded the evidence of the complainant and six witnesses including Medical Officer, who had conducted post-mortem examination of the three deceased persons. Thereafter, the record was forwarded by the Magistrate to the District and Sessions Judge, Lahore and the case was entrusted to Mr. Jaikab Izak, the then Additional Sessions Judge, Lahore, who had gone through the evidence of the witnesses produced by the complainant and had observed that a prima facie case under sections 148 and 302, P.P.C. read with section 149, P.P.C. was made out against all the five accused persons mentioned above and their three deceased companions. He, therefore, summoned all the accused persons through non-bailable warrants vide order, dated 11-2-1977. Thereafter, the accused persons appeared before the Court and out of the eight accused persons two accused persons named Muhammad Ashraf and Muhammad Munir had died before the framing of the charge. Out of the remaining six accused persons namely Muhammad Hussain, Ghulam Rasool, Muhammad Arshad died (during the trial as stated above), Muhammad Saeed, Muhammad Sadiq and Muhammad Asghar were formally charge-sheeted by
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Mr. Nusrat Hussain Qureshi, the then Additional Sessions Judge, Lahore under sections 148 and 302 read with section 149, P.P.C. on three counts, on 21-1-1982. All the accused persons had pleaded not guilty to the charge and claimed their trial. During the pendency of trial Muhammad Arshad accused also died, resultantly proceedings against him had abated due to his death, as stated above. However, other five accused persons mentioned above faced the trial of this complaint case. As they had pleaded not guilty to the charge, therefore, the complainant was directed to produce his evidence against the accused. 6. To support his case, the complainant himself has appeared as P.W.1 and produced Mst. Inayat Bibi (P.W.2), Muhammad Ashraf (P.W.3), Siraj Din (P.W.4) and Dr. Shabbir Ali (P.W.5) and closed his evidence. 7. After the close of the evidence of the complainant, the accused persons' statements under section 342, Cr.P.C. were recorded. They denied the evidence of the complainant against them and pleaded their innocence contending that they had been falsely implicated in this case due to enmity. The accused persons, however, made statements on oath to disprove the allegations against them and also produced five D.Ws. in their defence. 8. P.W.5, Dr. Shabbir Ali had conducted the post-mortem examination of the deceased persons and had observed the following injuries on their dead bodies on 2-12-1972, vide Exhs.PB, PC and PD respectively:--- (1) Muhammad Ashraf son of Jalal Din (t 2-25 p.m.): (1) Contused wounds 3-1/2 x 3/4 inch bone deep, 2 x 1/2 bone deep, 1 1/2 x 1/2 bone deep on the left side of the head. (2) Contused wound 2 x 3/4 inch into scalp deep on the right side of the head. (3) Contused wound 1-1/4 x 1/2 inch into scalp deep on the right eye brow. (4) Contused wound 1/2 x 1/3 x scalp deep left side of the forehead. (5) Abrasions in area 6 x 3 inch on the forehead. (6) Abrasion 1 x 1/2 inch on the right cheek bone. (7) Abrasion 1 x 1 inch on the front mid right pinna. (8) Swelling 4 x 1/2 inch around the left eye. (9) Contused wound 2-1/2 x 1 inch bone deep on the left chin. (10)Multiple abrasions into an area 4 x 3 inch front and sides of neck. (11)Contusion 12" x 5" front mid chest. (12)Multiple abrasions and contusions on the back of right forearm and hand with swelling. (13)Multiple contusions all over the back of chest. (14)Multiple abrasions on the buttocks extending to the back of thighs till mid. (15)Multiple contused wounds in area 5" x 3" front mid right leg. (16)Multiple contused wound 3 x 1-1/2" area front mid left leg. (17)Right side of the penis abraded. ' On opening the cranium the left temporal bone and the parietal bones were fractured (depressed). There was also fracture of right temporal bone. Base of the skull was fractured. Brain on the left side was extensively lacerated. Massive sub ara-chnoid, haemorrhage was found. ' On opening the chest sternum in the mid was found fractured. Mediastinum was bruised. Thyroid cartilage was found fractured on the right side. There was effusion of blood in the neck tissues was seen. Both the lungs were pale. Pericardium and heart was found bruised anteriorly and it was empty. ' On opening the abdomen, the stomach contained 6 oz. of semidigested liquid food. The small intestine contained chyme and the large one faeces. The bladder was full of urine. ' In his opinion, all the injuries were ante-mortem caused by some blunt object. Injuries Nos. 1, 2, 10 and 11 were individually sufficient to cause death in ordinary course of nature. Cause of death was
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injury No,1, injury to brain thyroid cartilage and mediastinum, haemorrhage and shock. The probable time that elapsed between the injuries and the death was immediate and between the death and post-mortem about a day. Boota Masih son of Kehr Masih (at 12-30 p.m): (1) Contused wound 2 x 3/4", 1-1/2 x 1/2" , 2 x 1". All scalp deep on the left side of head. (2) Swelling with abrasions 3 x 2" the right side of head. (3) Pinna of the left ear was torn at multiple places. (4) Abraded swelling 6-1/2 x 3" on the left face. (5) Contused wound 3/4 x 1/2" muscle deep on the right cheek bone. (6) Abrasions in area 3-1/2 x 2" top of right shoulder. (7) Contused Wounds 1/2 x 1/3 muslce deep. 1/2 x 1/4" skin deep back of left forearm. Left hand swollen. (8) Abrasions in area 5 x 4" outer upper and left thigh. (9) Contused wound 3/4 x 1/2" bone deep. Front mid left leg. (10) Contused wound 1 x 1/3" muscle deep outer lower and left leg. (11) Multiple abrasions and contusions on the whole of back waist and sacral regions. (12) Contusions 3" x 2" front mid chest. ' On opening the skull there was fracture of left temporal and parietal bones. Extending to the occipital left middle cranial fossa was fractured. There was massive haemorrhage in the base of skull was full of blood. On opening the thorax the sternum was found factured in the mid and the mediastinum was bruised. Third and fourth ribs were fractured. Both the lungs were pale. Heart was anteriorly bruised and it was empty. In the abdomen the stomach contained eight oz of semi- digested rice food. The small intestine contained chyme and the large one faeces. The bladder was full of urine and the external genital organ was circumcised. ' In his opinion all the injuries were ante-mortem caused by blunt object. Injuries Nos.1 and 12 were individually sufficient to cause death in ordinary course of nature. The death was caused due to injury to skull, mediastinum, haemorrhage and shock. The probable time that elapsed between injuries and death was immediate and between death and post mortem was about a day. Exh.PC was the certified copy of the post-mortem report which was attested and signed by him. Hafeez Ullah alias Bashir Munna (at 1-30 p.m): (i) Contused wound 1-1/2 x 1/2 bone deep. Front mid-head.. (ii) Contused wound 3/4 x 13/4 x 3" scalp deep on the left head. (iii) Abraded swelling 2-1/2 x 2" right side of head. (iv) Pinna of the left ear torn at multiple places. (v) Contused wound 1-1/2" x 1/3 inch scalp deep on the right eye brow. (vi) Contused wound 1" x 1/4" skin deep on the left cheek. (vii) Abrasion 1-1/2" x 3/4" mid forehead. (viii)Multiple abrasion on the whole of the face. (ix) Labule of the right ear torn. (x) Multiple contusions in area 13" x 4" outer right arm. (xi) Back of the chest had contusion all over. (xii) Contusion all over the buttocks. (xiii)Compound fracture of the left leg with multiple contused wounds. (xiv) Compound fracture on the right leg with multiple contused wounds. (xv) Abrasion 2" x 1" front lower and left arm. ' There was fracture of both the temporal bones. Whole of the base of the skull was fractured. Massive sub-arachnoid haemorrhage. Brain on both sides lacerated. On opening the thorax second right rib was found fractured anteriorly. Both the lungs were pale and the heart was empty.
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' On opening the abdomen, stomach found to contain 8 oz. of semi-digested food. The small intestine contained chyme and the large one had faeces. The bladder was empty. ' In his opinion all the injuries were ante-mortem and caused by some blunt object. injury No,2 and injury No,3 were sufficient to cause death in the ordinary course of nature. Cause of death was injury to brain, shock and haemorrhage. The probable time that elapsed between injury and death immediate and between death and post-mortem about a day. Exh.PD was the certified copy of the post-mortem report attested by him. 9. P.W.1, Habib Ullah, complainant had deposed to the effect that Hafeez Ullah deceased was his son and the other two deceased persons were known to him; and that on 1-12-1972 while working as T.X.R. Railway, Sargodha, at about 5-30 p.m. he was telephonically informed of the murder of his son, Hafeez Ullah. Further, stated that he had received the dead body of his son from Mayo Hospital and thereafter gone to the Village Fateh Garh near the brick-kiln where many persons met him including Siraj Din (P.W.4); Mst. Inayat Bibi (P.W.2), Mst. Hanifa Bibi, Muhammad Tufail and Muhammad Ashraf (P.W.3) and others who told him on the fateful day i.e. 1-12-1972 at 12-30 p.m. the deceased persons had gone to a Barber shop at Fateh Garh Bazar, where Muhammad Munir, Muhammad Saeed, Muhammad Asghar, Muhammad Hussain, Muhammad Arshad, Ghulam Rasul alias Sain and Muhammad Ashraf accused persons were already present and they all had attacked the three deceased, whereupon they had run towards the fields to save their lives. They had no weapon with them, whereas the accused persons, armed with sticks, Dangs and pistols, chased them and encircled them near the brick-kiln and murdered all the three deceased persons with Dangs, Sotas and pistols and also injured their own companion, Ghulam Rasul alias Sain, as a result of fire by their pistols. Further deposed that P.W. Chiragh Din (not produced), Siraj Din (P.W.4), Inayat Bibi (P.W.2), Hameeda Bibi (not produced) and Muhammad Ashraf (P.W.3) had seen the occurrence, and that he had gone to Moghalpura Police, who did not pay any heed to him nor did any superior police officer listen to him. Further deposed that accused persons had threatened to kill and involve him in false cases, and that the police had colluded with the accused persons. He had further deposed that he had obtained the copies of post-mortem reports but due to disturbances in the country and the strike of the lawyers had waited till 15-12-1972 to file his complaint, Exh.PA, which was signed by him. Further testified that few days prior to the occurrence there was an altercation of abuses between the accused and deceased persons, as the accused persons had asked the deceased not to visit their place. ' During his cross-examination, he stated that he was not an eye-witness nor could he name the persons who told him about the occurrence nor could he name the Barber shop visited by the deceased. He was confronted to the effect that he had not named the persons in the complaint who had told him about the occurrence or that he had named Muhammad Ashraf (P.W.3) or Chiragh Din and Hameeda Bibi as witnesses in his complaint, Exh.PA. He denied that his deceased son was involved in any criminal case or that it was in his knowledge that Muhammad Ashraf deceased was a bad character or Boota Masih was a previous convict and involved in many cases. He had acknowledged that he had appeared before the Crimes Branch and had also produced Naranjan Masih, Sadiq Masih, Siraj Din (P.W.4) and Inayat Bibi (P.W.2) during the inquiry conducted by the Crimes Branch. 10. P.W.2, Inayat Bibi is the widow of Boota Masih deceased. Her testimony was to the effect that the other two deceased were friends of her late husband, and that on the fateful day, as her five children felt hungry, she had sent her husband to fetch some edibles but as he reached the Chowk of Fateh Garh, the other two deceased had met him there. Further deposed that she saw Muhammad Ashraf and Muhammad Hussain grappling with the deceased while being armed with Dandas and that all the three deceased had run towards the fields of Fateh Garh, crying for help being chased by the accused Muhammad Hussain and Muhammad Ashraf and that when they
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reached near the brick-kiln of Munir and Saeed accused, all the accused persons had encircled the deceased persons. Munir, Saeed, Sadiq, Ghulam Rasul, Arshad and Asghar accused had come from the side of brick-kiln, and that Munir and Saeed were carrying pistols and others were carrying Dandas and that all the accused persons gave beating to the deceased and caused them injuries. The persons carrying the pistols gave the deceased butt blows. Munir and Saeed opened fire which hit Ghulam Rasul accused, and that no one had tried to help despite her having raised alarm, and that all the three deceased were beaten to death at the spot. Further deposed that she herself, Siraj Din (P.W.4), Hameeda Bibi and Chiragh Din (not produced), Muhammad Ashraf (P.W.3) and two other persons (not produced) had seen the occurrence, and that they had tried to intervene but were threatened by the accused and kept away for fear of their lives, and that she had gone to Moghalpura Police Station but the police did not attend to her complaint. She had further deposed that few days before the occurrence the deceased had exchanged hot words and abuses with Muhammad Ashraf and Muhammad Hussain accused who had forbidden the deceased persons from coming to bazar or otherwise they would be killed, and that she narrated the occurrence to Habib Ullah complainant and showed him the site of occurrence. ' She i.e. P.W.2, Inayat Bibi was cross-examined at length. She was confronted with her statement before the Crimes Branch vide Exh.D-4. She repelled the suggestion that the contents of the said Exh.D.4 contained her version of the occurrence, and further stated that she had thumb-marked a blank paper at the behest of the police. She further refuted the suggestion that she had run there after the police had arrived. In her cross-examination it was elicited that besides herself, Siraj Din (P.W.4), Naranjan Masih, Sadiq Masih (not produced) had seen the occurrence and that Sadiq Masih was still alive. She had also named accused Muhammad Ashraf, Muhammad Hussain., Munir and Arshad being armed with pistols and that accused Ghulam Rasul was struck by one of the bullets fired by these persons, except Arshad. 11. Muhammad Ashraf (P.W.3) had appeared at the trial as another witness of the occurrence. He had stated that on 1-12-1972 at noon time while he was present in the bazar of Fateh Garh, the deceased persons had come out of a Barber shop, and that they were abused by accused Muhammad Ashraf and Muhammad Hussain, whereupon all the deceased persons ran away while imploring to be saved; and that when they were near the brick-kiln of Munir and Saeed accused, Asghar, Arshad, Sadiq, Munir and Saeed reached there, and that Ghulam Rasul accused had also reached there from his tubewell and was hit on the leg as a result of pistols' shot fired by Munir and Saeed. He had further deposed that the accused persons had given blows of buts of pistols, Dandas and bricks, thus killing all the three deceased persons on the spot; and had named Hameeda Bibi (not produced) Inayat Bibi (P.W.2), Siraj Din (P.W.4) and Chiragh Din (not produced) as the person who had also seen the occurrence, and that he could not intervene as the accused persons threatened him with their fire-arms. He had supported the motive as set up by stating that some days piior to the occurrence, the three deceased had quarrelled with the accused, Muhammad Hussain and Muhammad Arshad, and that the accused had stated that they would finish the deceased if they ever came again. 12. During his cross-examination, he had stated that he had not reported the incident to the police nor any of the eye-witnesses named by him had gone to the police station to lodge the report, or that he had ever appeared before the police as an eye-witness of the occurrence in question, or had given any statement anywhere about this occurrence earlier to his statement at the trial. He had denied the suggestion that all the accused persons were present near the Barber shop and reiterated that it was only accused Muhammad Ashraf and Muhammad Hussain who were present there and had acknowledged having met the complainant, Habib Ullah (P.W.1) in the bazar of Fateh Garh two or three days after the occurrence and had informed shim that he might cite him as a witness of the case but in the same breath stated that he had not told Habib Ullah that he was a
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witness of the occurrence. In this respect, he had further revealed that he was not asked to appeare before the Crimes Branch for inquiry and that it was only about four years ago that he was askal to appear as a witness before the learned Additional Sessions Judge, Lahore, and that the complainant (P.W.1) had told that his name was given in the complaint filed by him. He had further conceded that his uncle, Muhammad Hussain had been a tenant of Siraj Din, P.W.4, and had repelled the suggestion that he was appearing as a witness at the behest of Siraj Din (P.W.4) and other enemies of the accused persons. He had also repelled the suggestion that he had been proceeded against vide report No,36, registered in the daily diary of P.S. Moghalpura, on 11-2-1981, under sections 107/150 and 145, Cr.P.C. or that he was not present at the place of occurrence and had made a false statement. ' 12-A. P.W.4, Siraj Din had also appeared before the trial Court as an eye-witness of the occurrence. He stated that his lands are adjacent to Saeed accused and that he knew all the accused but failed to name accused Sadiq who was called Baba. His testimony was to the effect that on 1-12- 1972 at about noon time when he was present on his lands, he saw three deceased persons come running from the side of Fateh Garh and shouting to be saved, whereas accused Muhammad Hussain and Muhammad Arshad were raising shouts of catch catch; and that when the three deceased persons reached near his lands and near the brick-kiln of Saeed accused, he saw Munir, Saeed, Arshad, Asghar and Baba (Sadiq) accused coming from the brick-kiln, and that Saeed and Munir were armed with pistols, whereas the others were armed with Dandas, and that all the accused persons encircled the three deceased persons. Saud and Munir had started firing and as a result of bullet hit Ghulhm Rasul Sain accused; and that all had started giving blows with the Sotas, Dangs and buts of the pistols to the three deceased and had repeated their blows still they were murdered at the spot. He had named Inayat Bibi (P.W.2), Muhammad Ashraf (P.W.3), Hameeda Bibi and Chiragh Din (not produced) as the other eye-witnesses and had further stated that the deceased were empty-handed and that he was threatened by the accused while trying to save the deceased persons. ' This witness had first denied that there was any enmity or criminal cases between him and the accused or that any litigation existed or had taken place between him and the accused persons. He had specifically denied that a case under section 307, P.P.C. or a theft case was registered against him. But during this cross-examination he conceded that an F.I.R., Exh.P.4/X-1 was recorded against him under section 307/148/149, P.P.C. and section 19 of Act, 1978, and had further stated that a case under section 379, P.P.C. was registered against him on 1-2-1983 on the complaint of Muhammad Munir and had further stated that, after having denied at first, he and others on one side and accused and others on the other side were proceeded against under section…
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