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Petitioner: STATE VS Respondent: UMAR DRAZ AND 4 OTHERSs
Court Name: Lahore High Court Judge(s): Khalil-Ur-Rehman Khan, Nisar Ahmad Title: STATE vs UMAR DRAZ AND 4 OTHERSs Case No.: Appeal No. 959 of 1976 Date of Judgment:1980-07-12 Reported As: 1982 P Cr. L J 6 Result: Order accordingly
JUDGMENT
JUDGMENT KHALIL -UR-REHMAN, J.-Five respondents, namely, Umar Draz son of Aurangzeb aged 33 years, (2) Umar Hayat son of Fatch Khan aged 44 years, (3) Khizar Hayat son of Ahmad Nawaz aged 29 years, all Janjua Rajput by caste, residents of Katha Sagral, District Sargodha, (4) Suparis Khan son of Fateh Khan, Caste Awan, aged 30 years, resident of Kundwal District Jhelum, and (5) Ghulam Hussain son of Muhammad Khan, Caste Janjua Rajput aged 31 years, resident of Jassowal District Sargodha were put on their trial before an Additional Sessions Judge. Sahiwal, on charges under section 148/449/302/149, P. P. C., for having formed themselves into an unlawful assembly while armed with deadly weapons and in the furtherance of the common object of that assembly committing trespass into the house of Raja Khizar Hayat and besides him (Raja Khizar Hayat), causing the murder of his sons Nazar Hayat. Jan Muhammad and Alam Sher ; vide judgment dated 27th January, 1976, they were not found guilty of any of the charges and acquitted accordingly. This appeal by the State is directed against this judgment of the learned Additional Sessions Judge. 2. Occurrence, allegedly, took place at 8 a.m. On Ist June, 1970, in the house of Raja Khizar Hayat, deceased, in the area of Chak No. 5/1 A.L. Matter was reported at Police Station, Renalakhurd. 13 miles from e the place of occurrence, by Mohammad fqbal (P.W. I1). F.I.R. (Exh. P.J.) was recorded by Mushtaq Ahmad, A S.I. (P.W. 7). 3. Prosecution case, in brief, is that there had been some litigation over a piece of land situate in Katha Sagral, between Nazar Hayat deceased and respondent Umar Draz. Revenue Authorities decided-in favour of deceased Nazar Hayat and notwithstanding respondent Umar Draz was not
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handing over possession to him. Khizar Hayat, deceased, took over forcible possession of the land 15 days before the occurrence and this had annoyed respondent Umar Draz. Complainant Mohammad Iqbal. Raja Khizar Hayat deceased, his son Nazar Hayat deceased, all residents of Village Katha Sagral and Alam Sher deceased resident of village Aaki, Tehsil Phalia, District Gujrat, had come to Chak No. 5/A A.L. 7/8 days before the occurrence and were staying in the Dera of Raja Khizar Hayat deceased who had 4 squares of land in the Chak, AL about 8-00 a.m. On the day of occurrence they were about to leave for Pattoki when respondents Khizar Hayat, Umer Hayat, Ghulam Hussain and Umer Draz, armed with guns, respon--dent Spar's Khan armed with a pistol, came there. All at one, respon--dent Umar Draz fired at Raja. Khizar Hayat who ran towards the Kotha of Ali Mohammad Munshi (P.W. 14) Nazar Hayat deceased also ran towards the Haveli of Ali Mohammad P.W. And bad ultimately reached there when was fired at by respondent Umar Hayat. He fell down there. Jan Mohammad deceased son of Ali Mohammad P. W. Came out of his Ahata to help the victims but he was fired at by respondent Ghulam Hussain. He started running in an injured condition but was fired a: by Khizar Hayat respondent. He, too, fell down. Thereafter Sparis Khan respondent fired at Alam Sher deceased hitting him at the face. He as well fell down. The second shot by him (Sparis Khan) hit the car of Raja Khizar Hayat deceased. This resulted into its tyre's burst. In the meantime, Ali Mohammad P.W., Ibrahim son of Abdullah Jat (not examined), Muhammad Siddiq P. W. And Noor Elahi son of Sultan (not examined) reached there and saw the occurrence. On seeing other people of the village, approaching all the assailants ran away towards the pacca road-side. Some of the people from the village chased them but as the assailants were fully armed they did not go near them. Before leaving, they (the assailants) had left a licence (P. 2), two Chadars and a torch at the spot. 4. Mushtaq Ahmad A.S.I. (P.W. 17) registered the case and Took into possession, Torch P. 1, license of one Khizar Hayat, Chadars P. 4/1-3 which the assailants had, allegedly, left at the place of occurrence, and were produced by Mohammad allegedly, complainant before him, in the Police Station vide memo. Exh. PK. He then proceeded to the spot. As he reached near bridge Jhoarian Wala. Abdur Rehman (P.W. 16) who was accompanied by a foot constable Mohammad Ishaq, produced before him Taxi Car No. KAF/ 7799. This was taken into possession vide memo. Exh. PL. Muhammad Ishaq FC similarly produced before him copy of report Roznamcha (Exh. PW 13/A) dated Ist June, 1970l which he took into possession. He reached tae spot at about 10.30 a.m. He held inquest regarding these deaths, drew up reports and prepares, injury statement. Exh. PM/PN regarding Khizar Hayat deceased, Exhs. P.Q. And P O. In respect of Nazar Hayat deceased, Exhs. PS/PR in respect of Alam Sher deceased and Exh. P.U. And P.T. In respect of Jan Mohammad deceased. The dead bodies were then despatched to the mortuary, Okara, under the escort of Mohammad Rafiq (P. W. 21 and Ghulam Haider (P W. 3), F. Cs., for their post-mortem examination. On 29th July, 1970, he moved an application Exh. P.W. Before Mr. Abdul Hakeem, Magistrate, Kasur (P W, 6) for arranging identification parade of Umar Hayat respondent. Earlier on 16th July, 1970, he had moved application (Exh. P.V.) for arranging identification parade of Umar Draz respondent. He also requested that they be transferred from District Jail, Kasur to Central Jail, Sahiwal. 5. The case was partly investigated by S.H.O. Mushtaq Ahmad (P.W. 18). He went to the spot the day of occurrence at 1-30 p.m. And took over investigation from Mushtaq Ahmad A.S.I. He inspected the place of occurrence and took into possession blood-stained earth from beneath the dead-bodies of four deceased vide memo. Exhs. P.A, P.B, P .C. And P.D. Respectively. Earth was made into separate scaled parcels. Foul crime empties P. 4/1-4 of 12 bore gun and one missed cartridge P. 5 of the same bore, were taken into possession vide memo PE and were made into a sealed parcel. Two crime empties of P 6/ 1-2 of 303 bore were taken into possession vide Memo. PF and were similarly sealed into a parcel. Car of Raja Khizar Hayat deceased with a punctured wheel bearing
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No. 3930/SG was taken into possession vide Memo. P.X. He got the site plan Exh. P.Y. And its copy Exh. P.Y./-1 prepared by Farooq Ahmad, Draftsman (P. W . 9). Respondent Khizar Hayat was arrested by him on 16th June, 1970. At the time of his arrest he had gun P. 7 and a plastic bag P. 8 containing two live cartridges of -12 bore (P 9/1-2) and licence P. 10. These were taken into possession vide Memo. P.G. The gun was made into a sealed parcel. He learnt that Umar Draz respondent was confined in Kasur Jail. He, on 23rd June, 1970, moved an application (Exh. P.Z.) before a Magistrate, 1st Class, Kasur for arranging his identification parade. It was accordingly held on 2nd July, 1970. It appears, respondent Sparis was arrested by the Police of Police Station Lheb and was formally arrested in' this case, somewhere in October, 1970 Ghulam Hussain respondent was arrested last .Of all in February, 1971. 6. On the application of Sarfraz Khan Janjua of Katha Sagral, brother of Khizar Hayat respondent. Inspector-General, Police ordered re-investigation of the case. Mr. Bashir Ahmad, Inspector Crimes Branch (D. W.2) investigated the matter and submitted supplementary challan in Court on 15th June. 1972. He found Khizar Hayat and Umer Hayat respondents to be innocent and put them in Column No. 2 of the challan. 7. Dr. Mohammad Afzal Hashmi (P. W. 1) the then Medical Officer, Depalpur (examined as, P. W. 14 before the Committing Magistrate) carried out the post-mortem examination on the dead-bodies of the four deceased on 2nd June, 1970. On the body of Jan Mohammad deceased, he noticed 6 gunshot wounds (fully described in the judgment of the learned Additional Sessions Judge). Injury No. 1 was on the chest 1" to the left nipple and with burnt edges. The bullet was recovered 1 ----- inner to the wound under the skin almost at the same level. The second injury was also towards left nipple and was oblong downward. The margins were burnt. There was a hole on the shirt. The 3rd injury was also oblong downward with black margins. It was 1 --" below and to the right of injury No. 2. The 4th injury oblong downward was to the left of right nipple. The 5th one was also oblong downward and located to the right about 1" above and inner to right nipple, Margins were blackened. Lastly, the exit wound 1 --" on the middle of right arm-pit about --" lower to the level of injury Nos. 2, 3, 4 and 5. The third, fourth land fifth ribs on the right side under injury No. 6 were fractured. The right pleura and the right lung were pierced through and through by injury Nos. 2, 3, 4 and 5 on the front and No. 6 on the back. The big blood vessels of the lung were ruptured. A piece of card--board was found in the chest in-between injury Nos. 2. 3, 4 and 5 and one bullet was recovered. In the abdomen, the stomach and the bladder were empty. All other organs were healthy and normal. In the opinion of the doctor all the injuries were ante-mortem and with fire-arm. The death, according to him, occurred due to damage to the right lung and bleeding from injury to right lung's blood vessel by injuries Nos. 1 to 5, which were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was about five minutes to 15 minutes and between death and post--mortem about 24 to 48 hours. Body of Alam Slier deceased bore six fire-arm injuries three wounds of entry and three wounds of exit, (fully described in the judgment of learned trial Court). The first was an entry with black and burnt edges, on the left temple about 1" above and in front of middle of left temple. The second, too, bullet wound with black and burnt margins slightly oblique downward and to the left about 1" to the left of raid line at the level of first lumbar. The third similarly with black margins was outside injury No. 2. Injury Nos. 1 to 3 are entry wounds and 4 to 6 exit wounds. On dissection, the right lung and the membranes were pierced through and through under Injury Nos. 2 and 6. The membranes of the abdomen were perforated by the Injury Nos. 2, 3, 4 and 5. The diaphgram was pierced through and through by injury Nos. 3 and 4. The stomach which was
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empty was pierced by injury Nos. 3 and 5. Bladder was empty All the other organs were found to be normal and healthy. Two bullets were recovered from the abdomen. In the opinion of the doctor, death occurred due to damage to the brain by injury Nos. 1 and 6 which were sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was 5 minutes and between death and post-mortem 24 to 48 hours. Body of Nazar Hayat deceased had two fire-arm wounds ; one 3 --" x 5" on the left temple and front of forehead. The front half of the edge of the wound was black. The underline bone was fractured into pieces. Brain matter was truding out of the left half of the left of fore--head which was also lacerated. The injury was oblong from front to the back and this was the confluent entry and exit wound and the second was fire-arm pellet wound --" x --" on the left calf. A pellet was recovered 1/3" deep. The brain and the membranes were injured under injury No. 1. The abdomen, stomach and the bladder were empty and the other organs were healthy. In the opinion of the doctor, both the injuries wore ante-mortem and by fire-arm. Death occurred due to damage to the brain by injury No. 1 which was sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was 5 minutes and between death and post-mortem, 24 to 48 hours. Autopsy on the deadbody of Khizar Hayat de eased was performed at about 1 p.m. On the same day. The doctor noticed two fire-arm injuries on the body-one 1 /3" x 4" on the middle of from of right arm. The edges were torn and there was hole in the shirt and second an exit wound 1/2" x 2/3" on the back of middle of right arm. In the opinion of the doctor death occurred due to heart failure. The organs were examined with a view to exclude the possibility of poisoning. The probable time between injury and death was instantaneous and between death and post--mortem about 24 to 48 hours. In cross-examination, he stated that by "bullet" he meant "Golf" and by "Pellet" he meant "Charra". 8. Respondents at the trial pleaded innocence. Respondent Umer Draz admitted his relationship with Umer Hayat respondent but denied any connection or friendship with the remaining respondents. He admitted that there was land dispute between him and Raja Khizar Hayat and his son Raja Nazar Hayat. According to him it was the dispute regarding the inheritance which was initially decided against him but on appeal he succeeded and the case was remanded. He, however, denied that the two deceased bad taken forcible possession of the land about 15 days before the occurrence. As regards his identification in the tests identification parades, held in Kasur, Jail, on 2nd July, 1970 and 16th July, 1970, he took up the position that Mohammad Iqbal P. W. Being his relative and he (the respondent Umer Draz) having a boil mark on the face, he was identified by' him. He however, denied that he was identified by Mohammad Siddiq and Ali Mohammad (P. W. 5). He made a detailed statement as regards his involvement in the case. He stated :-- The witnesses are either related to or are great friends of the deceased Sadique and Ali Mohammad P.Ws. Are employees of Khizar Hayat deceased and were his tenants, they have therefore, falsely implicated me in this case. I am in possession of the entire land left by my father and uncle. It was on this account that Mohammad Iqbal P. W., his brother, father and uncle has falsely implicated me in this case. Moreover, my cousin Zaman had appeared as a prosecution witness against Mohammad Iqbal P.W, his father, uncle and brother in a murder case. It was on this account that I have been implicated in this case. Shaukat Hayat son of Khizar Hayat deceased filed applications for, partition of land against me in March, 1975. I received notice of the partition proceedings in Jail which are Exh. D.G, Exh. I.H, Exh. D.J, Exh. D.K, Exh. D.L, Exh. D.M, Exh. D.N, Exh. D.O. And Exh. D.P. These notices are in original. Khizar Hayat deceased had a dispute with Mst. Aziz Begum, one of the widows of his real brother Nadir Hussain. Mst. Aziz Begum has adult sons and daughters from Nadir Hussain. The children of Nadir Hussain from Mst. Aziz Begum had long
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standing dispute with Khizar Hayat over the property left by Nadir Hussain. Khizar Hayat had occupied the land left by Nadir Hussain and used to usurp its produce. I produce a copy of mutation of inheritance of Nadir Hussain Exh. D. Q. I also produce certified copy of the judgment dated 13th December, 1960 passed by Sessions Judge, Sargodha relating the murder case of Sardar Khan against Mohammad Iqbal P. W., etc. In which my relative Zaman was a prosecution witness." Respondent Umer Hayat, similarly, accepted his relationship with Umer Draz respondent but denied his connection and friendship with the remaining respondents. He also admitted that there was dispute about the inheritance between Umer Draz respondent and deceased Raja Khizar Hayat and Raja Nazar Hayat. As regards his identification by the witnesses in Kasur Jail, he stated :- "Mohammad Iqbal knew me previously as he is related to me and he was prosecuted for the murder of my uncle Sardar Khan alongwith his relative. No other witness was able to identify me." As regards his involvement in the case, he took up the position that he had been falsely implicated in the case at the instance of Mohammad Iqbal P. W. Who had a long standing enmity with his family. He informed the Court that he was found innocent during the final investigation conduct-- ed by the Crime Branch and that Mst. Aziz Begum and h-r sons were made to join the investigation as suspects. Khizar Hayat respondent denied that he had any friendship with Umer Draz respondent. As regards his identification by Abdur Rehman P. W. Identification parade, held on 30th January, 1971, he stated :- "Abdur Rehman P. W. And other witnessess had seen me while coming to Court. On 4th December, 1970 I had made an apple--cation to the effect that I have been shown to Abdur Rehman. My application is Exh. D.C. On the file of this case." He stated that he appeared before the police in the Police Station, on his own and produced his licensed gun P. 7. As regards his involvement in the case, he took up the position :- "I have been falsely involved in this case. 1 was found innocent during the final investigation conducted by Crimes Branch. I had been involved due to my suspected association with accused Umer Draz and Umer Hayat." Respondent Ghulam Hussain also denied his friendship with the other respondents. As regards his involvement in this case, he stated :- "I have been falsely implicated in this case. None of the witness identified me in any identification parade." Sparis Khan respondent, last of all, refuted all the allegations against him and stated that he has been falsely involved in the case. None of the witness had identified him in any test identification parade. . 9. Prosecution at the trial relied on, the ocular testimony given by Mohammad lqbal (P. W. I1), Mohammad Siddiq (P. W. 12), Ali Mohammad (P. W. 14) the motive ; incriminating recoveries ; medical evidence ; identification of some of the respondents at the identification parade : the circumstantial evidence by Abdul Rehman (P. W. 16) and finally the abscondence of some of the respondents. 10. The learned trial Judge rejected the prosecution case in its totality and acquitted the respondents of all the charges. According to him, the abscondence of same of the respondents was not of any use to the prose--cution as Ghulam Haider P. W. Was not able to give the names of the respondents except Khizar Hayat respondent whose warrants of arrest were given to him for execution. Similarly, he was unable to give the names of the respondent except Khizar Hayat respondent at whose house he had affixed the warrants. Learned trial Judge has also pointed out certain discrepancies in the statements of Ghulam Haider and Mushtaq Ahmad S. I. (P. Ws).
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The various incriminating recoveries made in the case, have been ignored by the learned Judge. The crime empty recovered from the spot was not found connected with the gun recovered from Khizar Hayat respondent. No attempt has been made by the prosecution to connect the articles such as the torch, the chadar, etc. With any of the respondents. A licence, which was found by Mohammad Iqbal P. W. At the spot and was later produced before Mushtaq Ahmad ASI does not belong to Khizar Hayat respondent. Learned Judge has rejected the results of the various tests identification parades for reasons recorded in paragraph "iii" page 257 of the printed paper book. He doubted the circumstantial testimony given by Abdur Rehman, P. W, as :- "The prosecution was aware that Abdur Rehman P. W. Has to appear as a witness and the Roznamcha of the police station was to be produced in Court as of necessity. The non-production of the original Roznamcha on the excuse of non-availability has given genuine point to the defence to argue about the possibility that the alleged report by Abdur Rehman P. W. Was not recorded on the day and time it purports to have been made. This argument is further strengthened by the fact that no recovery memo of taking into possession of copy Exh. P. W. 13/A which was prepared by Mushtaq Ahmad ASI. Another most important feature calling for excluding the evidence of Abdur Rehman is that according to Abdur Rehman himself, he remained with the police 4/5 days starting from the day of the occurrence but according to Mushtaq Ahmad S. I. When he reached the spot on the day of the occurrence at about noon time he did not find him (Abdur Rehman) and his car present there. Abdur Rehman was quite an important witness and if, in fact, he was present at the spot, this would have definitely been in the notice of Mushtaq Ahmad S. I. The above will show that the evidence of Abdur Rehman is highly doubtful and it cannot be accepted specially so when he has turned hostile at trial." Learned Judge did not accept the motive set up by the prosecution as Mohammad lqbal P. W. Did not give the details of the land forcibly occupied by deceased Raja Khizar Hayat and his son Nazar Hayat and, also, because Ali Mohammad P. W, did not belong to Katha Sagral, therefore, was not a proper witness in this regard. He has noticed : - there is no second view about the fact that deceased Khizar Hayat bad a history of enmity with accused Umar Draz------..---. The learned Judge, notwithstanding, concluded that :- "No independent motive has been attributed to the remaining accused except that accused Umer Hayat was a close relative of accused Umar Draz and accused Khizar Hayat is from his brotherhood and is a friend of Umer Draz. Similarly the remaining two accused namely, Sparis Khan and Ghulam Hussain had no grudge against the deceased persons. In any case, there was a bad blood between Umar Draz and deceased Khizar Hayat and Nazar Hayat but the remaining accused did not have any grievance with any of the deceased." According to the learned Judge, the ocular testimony is in conflict with the medical evidence. He is in doubt about the titre of occurrence and proceeds to observe ;- "It is, as already stated, not possible in the ordinary course of nature that all the deceased would receive the injuries from almost the similar distance not exceeding three feet. This lends some support to the arguments of the learned defence counsel that the occurrence took place when the deceased were still asleep and the assailants had come close to the deceased, unnoticed and had caused them fatal injuries. The presence of the torch at the spot left behind by the assailants lends further support to the above conclusions. It also appeals to reason that ordinary the culprits coming from such a long distance, would not enter the Haveli of the deceased at an early hours of the morning when the presence of people near about could not be excluded and the fear of their being apprehended is also there. The assailants coming from a far off distance in natural course of event select such time for striking when the possibility of the presence of their victim in their houses is there and also there is least chance of their being apprehended."
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Learned Judge is further of the view :- "There are other facts which suggest absence of Iqbal P. W. From the spot which are that he did not have any business to be present in the chak alongwith Khizar Hayat. He was unable to satisfactorily account for his arrival with Khizar Hayat in the chak of occurrence. It is proved by the murders of Jan Mohammad and Alam Sher with whom none of the assailants had any enmity/grudge, that the assail--ants wanted to eliminate anybody who was present near about the spot of occurrence. Admittedly, Iqbal P. W. Alongwith his brother; had been involved in 2 murder cases one of which was for the murder of Sardar Mohammad, an uncle of Umer Hayat accused. Umer Hayat accused is a cousin of Umar Draz accused. This will show that there was enmity between the accused Umer Hayat/Umer Draz and lqbal P. W. If, in fact, lqbal was present at the alleged time of the occurrence, so close to the deceased persons, then there was no reason for the accused to spare him alive, for the reasons that by doing so they would have done to death their enemy and would have also eliminated existence of evidence against them. The story of the hiding of P. W. Iqbal has been introduced only at the trial. He had nowhere stated in the F.I.R. That he hid himself to save his life nor he took up his position before the C.M. On the other hand P. W. Mohammad lqbal stated at the trial that he had raised the alarm which attracted the people. If; in fact, this alarm had been raised by P. W. Mohammad lqbal, then the accused would have located him to finish him. Again according to Ali Mohammad P.W. The deceased had their fire-arms which were lying in their boxes but according to lqbal P. W. The deceased had left their arms at District Sargodha and had not brought the same with them. Ali Mohammad is a Manager of Khizar Hayat. He could know about the arms of the deceased because they had remained in the village of occurrence for 8/10 days, when the occurrence took…
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