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Petitioner: FAZAL-U R-RAHMAN AND 2 OTHERS--Convict VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah, Aslam Riaz Hussain Title: FAZAL-U R-RAHMAN AND 2 OTHERS--Convict vs THE STATE Case No.: Criminal Appeal No, 785 and Murder Reference No, 213 of 1969 Date of Judgment:1971-03-03 Reported As: PLD 1971 Lahore 883 Result: Appeal partly accepted
JUDGMENT
JUDGMENT ASLAM RIAZ HUSSAIN, J.--Allah Yar, aged 55 years and his two sons Fazal-ur-Rahman, aged 26 years and Falak Sher, aged 24 years, were tried by Malik Gul Baz Khan, Sessions Judge, Lyallpur, for an offence under section 302/34, P. P. C. for the murder of Saifullah deceased. All three of them were convicted and sentenced to death by the trial Court by its judgment dated 26th December 1969. They have come up in appeal against their conviction and sentences. The matter has also been referred to us under section 374, Cr. P. C. for the confirmation of their death sentences. Fazal-ur-Rahman, appellant, has also filed an appeal (Criminal Appeal No, 14 of 1970) against his conviction and sentence under section 13 of the Arms Ordinance awarded to him vide his order dated the 9th of October 1969, which was ordered by Mr. Justice Ataullah Sajjad on the 20th of April 1970, to be heard along with Criminal Appeal No, 785 of 1969. We propose to dispose of the above-noted two appeals as well as the murder reference, by a single judgment. 2. The prosecution version about the murder as stated in the F. I. R. lodged by Ghulam Muhammad P. W. 11, is briefly, as follows:-- The land of the appellants, in square No, 74 of Chak No, 566/G.B is situated adjacent to the land of the complainant party in square No, 9 of Chak No, 567/G. B. A kacha road runs between the two squares, separating their lands. Killa Nos, 24 and 25 of square No, 74, belonging to the appellants, lie directly opposite to Killa Nos, 4 and 5 of square No, 9 belonging to the complainant party. On the 28th of July 1968, at about digerwela six or seven cattle belonging to Allah Yar appellant entered into the moonji crop of Ghulam Muhammad P. W. 11. His son, Saifullah, deceased, who was grazing his own cattle nearby, rounded up the cattle of Allah Yar appellant for taking them to the cattle-
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pound. The three appellants turned up there and told Saifullah to release their cattle. Allah Yar appellant was carrying a dang. Fazal-ur-Rahman, appellant was armed with a spear while Falak Sher appellant had a hatchet. Allah Yar appellant then struck three lathi blows, one after another, on the head of Saifullah (deceased). Fazal-ur-Rahman appellant gave a spear blow on his right arm, at the deltoid region, and Falak Sher struck a hatchet blow on his forehead, which landed between his eye-brows, cutting the bridge of his nose. Saifullah fell down and thereafter Allah Yar appellant gave some more lathi blows to him, which landed on his left shoulder, the right deltoid and the back. The appellants were shouting lalkaras that they shall do away with Saifullah. On the hue and cry raised by the deceased, Ghulam Muhammad, Abdur Rahman and Sher Khan P. Ws. reached the place of occurrence and witnessed the same. The appellants then left the place of occurrence and the above-mentioned witnesses took Saifullah to the Hospital at Jaranwala, in an injured condition, where he was examined by Dr. Abdul Ghafoor P. W. 1, at 10 p.m. After obtaining the medico-lega 1 report, Ghulam Muhammad P. W. 11 went to Police Station Lundianwala, District Lyallpur, and lodged the report Exh. P. A. at about 4-30 a.m. on the 29th of July 1968. Nazar Hussain Shah S. I. P. W. 15 was not present at the police station at that time. The report was recorded by Muhammad Hayat Muharrir Head Constable P. W. 10. He gave a copy of the F. I. R. to Ghulam Muhammad P. W. directing him to deliver the same to the S. H. 0. He further directed Ghulam Muhammad that if he failed to find the S. H. 0. he should remain present at the spot. Nazar Hussain Shah S. I. P. W. 15 received the information about the occurrence sometime on the 29th of July 1968, and reached the Civil Hospital, Jaranwala, at 6 p.m. Saifullah deceased was lying in the hospital in an injured condition. The inquired from the doctorvide ruqqa Exh. P. G. as to whether Saifullah was in a fit condition to make a statement. The doctor reported (vide Exh. P. G/1) that Saifullah was unconscious and was unable to make a statement. The S. I. thereafter went to the spot, reaching there at 9 p.m. on the same night. He recorded the statements of the eye-witnesses and took into possession the blood-stained vest Exh. P. 1, belonging to the deceased, which was produced before him by Ghulam Muhammad P. W. 11. On the 30th of July 1968, at 8-30 a.m. the S. I. visited the spot and wrote the `Spot Inspection Notes', on the same day. (This note is printed at page 22 of the paper-book as Exh. D. C.). One Khuda Yar, the uncle of Allah Yar produced before the S. I., the medico-legal report relating to injuries found on the person of Fazalur Rehman, appellant. The S. I. made repeated inquiries, on different dates, from the doctor as to whether Saifullah was in a fit condition to make a statement, but was informed that he was unable to do so. Saifullah remained unconscious throughout, till he died on the 6th of August 1968. On learning of his death the S. I. reached the hospital and prepared the usual documents. Thereafter he sent the body for post- mortem examination, which was performed by the same doctor (Dr. Abdul Ghafoor), who had treated Saifullah, while he was still alive. Nazar Hussain Shah S. I. arrested Fazal-urRehman and Falak Sher on the 31st of July 1968, from the hospital at Lundianwala. He could not, however, arrest Allah Yar appellant who had absconded. The S. I., therefore, obtained warrants of his arrest. On the 3rd of August 1968, Falak Slier appellant led to the recovery of blood-stained hatchet Exh. P. 2 which was buried in his chhapar at his dhari. The Investigating Officer (Nazar Hussain Shah S. I. (P. W. 15)) took it into his possession vide memo. Exh. P. C. On the same day Fazal-ur-Rehman appellant led to the recovery of blood-stained spear Exh. P. 3, from underneath a stack of bhoosa, near his dhari, which was taken into possession vide memo. Exh. P. D. (It may be mentioned that the two weapons were found by the Chemical Examiner, West Pakistan to be stained with blood and their scraping were, thereafter, sent to the Serologist at Islamabad, but it was found during the trial that the report of the Serologist had not been placed on the file and the origin of the blood could not, therefore, be determined). No blood-stained earth was taken from the spot as the deceased is said to have fallen, partly, in the watercourse and the blood was washed away. 3. The following injuries were found by the doctor on the person of Saifullah when he examined the
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latter on the 28th of July 1968 :-- (1)A contused wound 214" x /if x bone deep on top of head transverse. (2)A contusion mark 2" x 1" on right temple. (3)A contused wound a" X 1/8" x scalp deep on left side of head 4` above left eye-brow vertical in direction. (4)An incised wound 24" x r x bone deep from inner end of left eye-brow downward and below the left eye. The nasal bone underneath was cut and fractured. (5)A stab wound rx 1/8" X i" on right deltoid with a corres-ponding cut on bunian. (6)Two scratches 1" x 1/8" and r x 1/8" on right deltoid, ly apart. (7)A contusion mark 42' x 12" on back of left shoulder with 3 abrasions Z' x , x I" and 21" x 1/8". (8)An abrasion vxr on back of left side of chest middle. The same injuries were found by the doctor on the body of the deceased during the post-mortem examination except that some of the abrasions had healed. During the post-mortem examination, the doctor also found that a small amount of blood was present in loose tissues of the scalp; right frontal bone was fractured 'from frontoparietal suture to right eye-brow'. Frontoparietal and interparietal sutures were open and a small amount of blood was present between the brain and the meninges, brain tissue was found to be contused at the site of the fracture. Stomach was empty. Rest of the organs were healthy. Injury Nos, 1 and 4 were grievous while injury No, 1 was also dangerous to life. Rest of the injuries were simple in nature. Injury Nos, 4 and 5 were caused by sharp-edged weapon and the rest of the injuries, including injury No, 1 had been caused with a blunt weapon. Death was due to concussion of the brain due to the injury No, 1. This injury was sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injury and death was about 9 days, and that between death and post-mortem examination was 12 hours. 4. In the meanwhile, on the 29th of July 1968, at 10 a.m., Fazal-ur-Rehman appellant had also got himself medically examined by Dr. Abdul Latif (P. W. 3), D. M. R. D. Student K. E. Medical College, Lahore, who was at that time posted as Medical Officer, Government Rural Dispensary, Lundianwala. Be found the following three injuries on his person:---- (1)A gunshot wound oval in shape 1/8" x 1/16". Traceable depth of the track made by the shot by 4" x 8". (In the original report it is written as 4/8"). Edges of the wound were inverted and lacerated on the outer aspect of the right leg 9' above the right outer malleolus of right ankle-joint. There was no scorching of the surrounding skin. Adjacent hair were not singed. There was no powder mark. The aperture was directed vertically. Track of the wound was downward and backward. (2)A gunshot wound oval in shape r x 1 /16", traceable depth of the track made by the shot was 14- " on the lateral aspect of right leg, 6/8" below and behind injury No, 1. There was no scorching of surrounding skin. Adjacent hair were not singed and there was no powder mark. Edges of the wound were inverted and lacerated. (3)A lacerated wound lrxr x bone deep horizontal on the left side of the head 4" above the left ear. X-ray was advised for injuries Nos, 1 to 3 and the injuries were kept under observation. Injury No, 3 was caused by blunt weapon, while Nos, 1 and 2 with gunshot. The injuries were simple in nature and their duration was given by the doctor as 24 hours. 5. After the completion of the investigation, the three appellants were challaned and were ultimately committed for trial before the Sessions Judge, Lyallpur, who convicted and sentenced all of them to death, as mentioned above. 6. At the trial two of the appellants, namely, Allah Yar and Falak Sher, pleaded innocence and stated that they were not even present at the spot. Allah Yar denied that he had absconded and stated that he was away at V. Kundal, District Mianwali, where, his nephew informed him about the incident on 4th August 1968, and that he had also been reported against, whereupon he (Allah Yar)
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presented himself before the S. I. on 7th August 1968. Falak Sher denied the recovery of hatchet Exh. P. 2 at his instance. Fazal-ur-Rehman appellant also denied the recovery of the spear Exh. P. 3 at his instance. He, however, stated that he was taking his cattle for watering, at about 4-30 or 5 p.m. on the day of the occurrence. He was taking his cattle on the kacha road running between squares Nos, 74 and 9. Saifullah objected to his passing on that road. Fazal-ur-Rehman replied that he was going on a sanctioned road and that he (Saifulluh) had no right to stop him, whereupon the deceased abused him and struck him on the head with a stick. He (Fazal-ur-Rehman) was carrying a gandala at that time and caused injuries to the deceased with it. In the meantime one Amir Abdullah, a relative of the deceased, came with a gun and fired at him, hitting him on the right leg, whereupon he (Fazal-urRehman) fell down and became unconscious. The appellants did not produce any witnesses in defence. 7. In support of its case the prosecution has relied on the following pieces of evidence:-- (i)the ocular evidence of Ghulam Muhammad P. W. 11, the father of the deceased, Sher Khan P. W. 13 and Abdur Rehman P. W. 14, (ii)the recovery of blood-stained hatchet and spear at the instance of Falak Sher and Fazalur Rehman appellants respectively and the vest Exh. P. 1 which was being worn by the deceased at the time of the incident, (iii)the evidence of motive, (iv)the medical evidence. 8. We have heard the learned defence counsel as well as the learned Assistant Advocate-General appearing for the State. We have also gone through the entire record of the case. The learned defence counsel pointed out that two of the eyewitnesses are related to the deceased. Ghulam Muhammad P. W. 11 is the father of the deceased and Abdur Rehman P. W. 14 is married to Mst. Maryam the daughter of the sister of Ghulam Muhammad P. W. 11. He, therefore, argued that they are interested witnesses. He also urged out that there was an inordinate delay in lodging the F. I. R. The occurrence is said to have taken place at digarwela on the 28th of July 1968, and the F. I. R. was lodged at 4-30 a. m., next morning. His main contention however was that the statement of the three witnesses, namely, Ghulam Muhammad, Sher Khan and Abdur Rehman, P. Ws. were discrepant and that they had modified their statements in order to bring them in conformity with the medical evidence and explain the head injury on Fazalur Rehman, which tend to show that none of them was in fact present at the spot and that they had not seen the incident ; that the prosecution version has been concocted during the interval between the incident and the lodging of the F. I. R. and that the witnesses have made improvements in their statements to explain the delay in the lodging of the F. I. R. At the trial they have stated that they first took Saifullah to the hospital at Nankana in District Sheikhupura, but the doctor refused to examine him on the ground that the case pertained to Lyallpur district, whereupon they took him by truck to the hospital at Jaranwala. This was not mentioned in the F. I. R. or in their statements before the police and the committing Magistrate. 9. Before proceeding to consider the above-noted contentions we would like to mention that the defence has not denied the Incident. The occurrence itself is admitted, though a different version has been put forward i. e. that Saifullah had assaulted Fazalur Rehman, who alone was present at the spot, out of the three appellants and that the latter caused Injuries to the deceased with gandala, only in self-defence. The defence version has already been mentioned, in some detail. Some of the facts which are admitted by both the sides are:-- (1)that the occurrence took place at digarwela between 4-30 to 5-00 p. m.; (2)that the cause of the incident related to the cattle of the appellants ; and (3)that the place of occurrence according to both the parties is, more or less, the same. 10.This would show that the occurrence admittedly took place at about the time and place
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mentioned by the prosecution, during which Saifullah deceased met his death at the hands of one (or more) of the appellants. The question to be resolved, therefore, is as to which of the two versions is the correct one. We have given our anxious thought to this question, keeping in view the various contentions raised by the learned defence counsel. 11.It is indeed correct as contended by the learned defence counsel that the F. I. R. was lodged by Ghulam Muhammad P. W. 11 at 4-30 a. m., on the morning of the 29th of July 1968, at Police Station Lundianwala, after about 11/12 hours of the occurrence. The detail about having taken Saifullah deceased first to the hospital at Nankana and then to the hospital at Jaranwala is also not given in the F. I. R. Nor was it mentioned by Ghulam Muhammad and Sher Khan P. Ws. in their statements before the committing Magistrate. Ostensibly, therefore, it appears that as contended by the learned defence counsel, a major improvement has been introduced by the P. Ws. with a view to explain the delay in lodging the F. I. R. On a closer scrutiny, however, we find that it is not of much significance. The reason for this view is as follows :- The time of occurrence is not disputed. According to the prosecution it took place at digarwela i. e. between 4 and p. m. Fazalur Rehman appellant has admitted in his statement that it took place sometime between 4-30 and 5-00 p. m. It is also evident from medical evidence that the injuries inflicted on Saifullah deceased were of a serious nature. It is in evidence that he had become unconscious at the spot, but he was still alive. It is, therefore, obvious that the first anxiety on the part of his father, Ghulam Muhammad P. W. 11, must, naturally, have been to take him to the hospital for treatment as soon as possible so that his life could be saved. It is on the record that Nankana is at a distance of 5/6 miles from the place of occurrence (per Ghulam Muhammad P. W. at page 27, L-17, of the paper-book). It is also on the record that while going to Jaranwala hospital Police Station, Lundianwala falls on the way. The distance between the place of occurrence and the Police Station Lundianwala is given as 10 miles in column No, 4 of the heading of the F. I. R. It is, therefore, obvious that the Jaranwala Hospital, which is admittedly situated beyond Police Station, Lundianwala, must be more than 10 miles away from the place of occurrence. In these circumstances, it was but natural for the father of the deceased to have taken him first to the nearest hospital. It is also on record that Dr. Abdul Gbafoor P. W. 1, examined Saifullah deceased, when he was still alive, at 10-00 p. m. on the same day. This means that the deceased was medically examined for the first time after about 5(1/2), hours of the incident. It is not conceivable that Ghulam Muhammad P. W. 11, the father of the deceased, would have tolerated any delay in taking his son (who had been severely injured and was lying unconscious), to the nearest hospital for treatment. It is, therefore, not possible that he would have either kept Saifullah deceased at the spot to concoct a story, or waited for the arrival of the police to seek its advice about the story to be narrated in the F. I. R. In view of the above-mentioned circumstances we feel that the P. Ws. must have taken Saifullah first to the nearer hospital at Nankana and then taken him to the hospital at Jaranwala only after the doctor at Nankana had refused to examine him. We do not think that this story is just an afterthought or that it has been invented merely in order to explain the delay in lodging the F. I. R. As regards the time taken in lodging the F. I. R. after the medical examination, the learned defence counsel did not raise any objection about it (The only objection was, as stated above, that the story about having first gone to Nankana was false). It is evident that the F. I. R. was recorded after Ghulam Muhammad had obtained the medical report, because it is mentioned in the last two lines of the F. I. R. that Ghulam Muhammad P. W. had produced the medico-legal report before Muhammad Hayat M. H. C. at the time of the lodging of the report. Ghulam Muhammad P. W. has explained that after the completion of the medical examination he obtained the medico-legal report, but he could not find any conveyance and was, ultimately, able to hire a jeep and reach the police station only in the early hours of the next morning. We do not see any thing improbable in this statement and in any case, as already observed, the defence has
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not raised any objection to this part of Ghulam Muhammad's evidence. In view of the above discussion, we are inclined to agree with the observation of the learned trial Court that the fact the P. Ws, had not mentioned in their earlier statements about taking Saifullah deceased first to Nankana and then to Jaranwala hospital was merely an omission on their part and that probably, they did not consider this fact important enough to mention it specifically in their earlier statements. In this connection it might be mentioned that an F. I. R. is never supposed to be an exhaustive document giving all possible details of the incident and the fact that some of the details are not mentioned in it, does not detract from its correctness. As already mentioned the learned defence counsel has criticised the conduct of the P. Ws. in not lodging the F. I. R. when they passed before the Police Station, Lundianwala while carrying Saifullah, from Nankana to Jaranwala Hospital. There is no force in this argument. As already observed, Saifullah was in a delicate condition and the first anxiety on the part of his father was to reach the hospital as soon as possible because each minute was precious and considerable time had already been wasted in going first to the hospital at Nankana. He could not, therefore, brook any further delay, which would inevitably have been caused by stopping at Police Station Lundianwala, to lodge the report or even by stopping the truck, for some one else to get down to lodge the report. We are also aware that in such cases it is usual for the complainant to lodge the report after having obtained the medico-legal report. The conduct of the P. Ws. in proceeding straight to the hospital, without stopping at the police station was, therefore, in our view quite normal. 12.While considering the evidence of the eye-witnesses it must be mentioned at the outset that there was no prevous enmity, whatsoever, between the parties and in fact it has not even been suggested by the defence that Ghulam Muhammad or the other eye-witnesses had any enmity with the appellants, (except that a trivial incident about the throwing of banana plants on the kacha road running between the two squares, by Fazal-ur-Rehman appellant, was introduced at a late stage, which shall be discussed at the appropriate place. 13.We may first take up Abdur Rehman P. W. 14. He is related to the deceased inasmuch as he is married to the daughter of the sister of Ghulam Muhammad P. W. 11, the father of the deceased. His land is situated at a distance of 7 squares from the place of occurrence. He explained the reason for his being near the place of occurrence at the relevant time by saying that he had to size Rs, 60 from one Rab Nawaz Khan and had gone to his house to recover the said amount on the morning of the 28th of July 1969. Rab Nawaz Khan, however, did not return the amount. Abdur Rehman P. W. was, therefore, returning to his house without having received the payment, when he happened to pass near the place of occurrence and witness the incident. Learned counsel for the appellants contended that Abdur Rehman P. W. was merely a chance witness ; that the story narrated by him as to the reason of his presence near the spot, exactly at the time of the occurrence, was merely a concoction and that it had been invented just to show that he was present there at the relevant time and saw the incident. We are inclined to agree with the learned defence counsel. The explanation given by Abdur Rehman P. W. for his presence at the spot is most unsatisfactory. In view of the fact that he is a close relative of the deceased and has not been able to give a cogent reason for his being present at the spot, we are inclined to feel that it will not be safe to rely on his evidence. We shall, therefore, exclude his evidence from consideration in arriving at a decision about the guilt or otherwise of the appellants. 14.Ghulam Muhammad P. W. 11, who lodged the F. I. R. is the father of the deceased. The learned defence counsel pointed out certain discrepancies in the F. I. R. lodged by him and his statement at the trial. For instance:-- (1)that while he stated in the F. I. R. that he and the other eye-witnesses, came to the place of occurrence on hearing the noise raised by Saifullah, at the trial he stated that he was standing nearby, grazing the same cattle as his son Saifullah and was, therefore, able to see the occurrence
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; and (2)that he had not stated in the F. I. R. that the appellants had told the deceased to release the cattle otherwise he would meet with dire consequences but the deceased refused to do so saying that his crop was being constantly damaged, but he has made this improvement at the trial. These differences in his statement at the trial and the F. I. R. appear merely to be omissions and not contradictions. In any case they are too trivial in nature to cast any doubt on his evidence. He owns the land near the place where the incident is said to have taken place according to the prosecution version. His dhari is, admittedly, situated in the adjacent killa, 1. e. Killa No, 4 of square No, 9. His presence at the spot, at the time of occurrence, therefore, is not improbable, but is on the other hand most natural and cannot be disputed. Therefore the fact whether he was already present…
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