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Petitioner: MUHAMMAD SHAM AND 3 Other VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema, Muhammad Munir Farooqi Title: MUHAMMAD SHAM AND 3 Other vs THE STATE Case No.: Criminal Appeal No. 422 and Murder Reference No. 139 of 1969 Date of Judgment:1971-06-23 Reported As: PLD 1972 Lahore 661 Result: A.
JUDGMENT
JUDGMENT MUHAMMAD MUNIR FAROOQI, J.-Muhammad Shafi, his brother Ghulam Nabi and their nephews Faiz Ahmad and Risa Ahmad were tried by the learned Additional Sessions Judge, Lahore, in Camp at Gujranwala, for committing the murde (of Lal (deceased) and causing simple injuries to Ahmad (P. W. 8r with blunt and sharp-edged weapons in furtherance of their common intention on 3rd April 1967 at Chhahwela in the area of village Bhiga Bhigi of Police Station Ahmadnagar, District Gujranwala. Learned trial Judge finding each of than guilty convicted and sentenced them as under:- The sentences under section 323/324/34, P. P. C. Are to take effect if the sentence of death is commuted to some other substantial sentence and shall run concurrently with each other. The four convicts have filed this appeal, but Muhammad Shafi appellant is reported to have died in the jail in the meanwhile, so the appeal in respect of this convict has abated under section 431, Cr. P. C. The record is also before us under section 374 of the Criminal Procedure Code for the confirmation of death sentences and the two matters, i.e., the appeal and the reference, are being disposed of by this judgment. 2. Mst. Khurshid Bibi (P. W. 10) widow of Lal (deceased) was the daughter of Barkhurdar, elder brother of Bahawal (P. W. 9) and after his death her mother Mst. Resham married Bahawal P. W., so all of them lived together in the same house. Ahmad P. W. Is a maternal cousin of Mst. Khurshid P. W. And to assist them in cultivation he also lived with them. Mst. Khurshid Bibi and her uncle Bahawal jointly owned two squares of land in this village. Out of this land they had leased out 38 killas to Ghulam Nabi appellant in lieu of 21 "Mannis" of "Moonjf". The remaining land was being jointly cultivated by Bahawal and Lal (deceased) themselves.
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3. A day before the occurrence Ahmad P. W. And Lal, (deceased) were going round the fields and found Mst. Aimna, wife of Ghulam Nabi appellant cutting away sittas from her own barley crop. Lal (deceased) forbade her resuting in exchange of abuse between them. On this Aimna went away' threatening him that she would avenge this insult. 4. It is alleged that on the eventful day at Pacca Chhahwela Bahawal, Ahmad P. Ws. And Lal (deceased) were cutting fodder, from their shatala crop when the four appellants Shati armed with knife and the others with dangs, suddenly arrived and attacking Lal (deceased) caused him a number of injuries wit's their respective weapons. Ahmad P. W tried to intervene bat he was also dealt with in the same manner. On tire alarm raised by Bahawal and his niece Mst. Khurshid Bibi P.Ws. The appellants away. Lal and Ahmad were immediately removed to, Civil Dispensary, Ahmadnagar reaching there at about 11-30 a.m. 5. Dr. Muhammad Latif Qureshi sent ruqqa Exh. P. L. At 11-30 a.m. To Police Station Ahmadnagar intimating the S. H. O. About the arrival of L31 (deceased) in the hospital with multiple injuries on his person. On receipt of the above information Ghulam Raza, S. I. (P. W. 14) came there and enquired from the doctor vide ruqqa Exh. P. N. About the condition of Lal (deceased then alive) and was informed vide endorsement Exh. P.N./l, that he was unconscious and unfit to make a statement. The Sub-Inspector then enquired about the condition of Ahmad P. W. Vide Exh. P. M. And was informed by the doctor vide his endorsement Exh. P. W./1 that he was in a fit condition to make a statement. He accordingly recorded the statement Exh. P. A. Of Ahmad P. W. About this occurrence and forwarded it to the police station, where a case under section 307, P. P. C. Was registered against the appellants at 12-20 p.m. Vide Exh. P. A./I, which forms part of this record as first information report. He also prepared injury statement Exh. P. R. In respect of Ahmad P. W. He did not draw out any injury statement about Lal as the doctor was already examining his injuries at that time. 6. The Sub-Inspector then proceeded to village Bhiga Bhigi and on the inspection of the spot took into possession blood-stained earth from there and sealed it into a parcel vide Exh. P. B. He also recorded statement of Bahawal and Mst. Khurshid Bibi P. Ws. During the investigation of this case there he received intimation from the hospital vide Exh. P.A./2 that Lal had succumbed to his injuries, so he came back to the hospital and taking the dead body into his custody despatched it to the mortuary at Gujranwala after preparing the necessary injury statement Exh. P. S. And the inquest report Exh. P. T. On the death of Lal the case was converted to that under section 302, P. P. C. The Sub-Inspector then went back to the place of the occurrence. On 4th April 1967, he arrested Shafi, Riaz, and Fiaz appellants. On the personal search of Muhammad Shafi appellant he recovered knife (P. 2) vide Exh. P. D. And took it into his possession. Exh. P.D./ 1 being its rough sketch. Riaz Ahmad appellant led the Sub-Inspector to the house of Ghulam Nabi appellant and produced dang (P. 3) from behind a box lying in one of its rooms which was taken into possession vide Exh. P. C., Fiaz Ahmad appellant got recovered dang (P. 4) from another room of the same house which was taken into possession vide Exh. P. E. These weapons were not made into sealed parcels as none of these articles was stained with blood. The Sub-Inspector got prepared the site plan Exh. P. F. Along with its duplicate Exh. P. F./1 from Khushi Muhammad Patwari and putting his notes in red ink on the same signed it in token of its correctness. Exh. P. U. Is the rough site plan of the house of Ghulam Nabi from where dangs (P. 3 and P. 4) were recovered by the Sub-Inspector. Foot Constable Muhammad Jamil brought back from the mortuary tahmat (P. 5) of Lal (deceased) which he produced before the Sub-Inspector vide Exh. P. G. 7. The parcel of the blood-stained earth was sent to the Chemical Examiner through Mukhtar Ahmad, Foot Constable, which was found to be stained with human blood vide his report Exh. P. X. And that of the Serologist Exh. P. Y. On the night between 8th and 9th April 1967, the Sub---Inspector arranged a nakabandi on the Dharowal bridge on the strength of a secret information and succeeded in intercepting Ghulam
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Nabi appellant, who came there riding a horse with dang (P. 1) in his hand. He arrested him and took dang (P. 1) into his possession vide Exh. P. Q. Ghulam Nabi appellant was found injured so the Sub-Inspector prepared the injury statement Exh. P. W. About it and sent him to the hospital at Ahmadnagar for medical examination, where Dr. Muhammad Latif Qureshi (P. W. 1) examined him on 9th April 1967 vide Exh. P. O. And found the following injuries on his person:- (1) A lacerated wound -- x -- " x 1/8 " on the left side of the head, 1" left of midline at the junction of head and forehead. The wound was covered by scap and process of healing had started. (2) A bruise 2 -- ' x -- " oblique in direction situated at outer side of middle of right upper arm of red colour. (3) A bruise 5-- ' x 1' situated at upper part of outer aspect of right shoulder joint of red colour. (4) A bruise 2 -- x 2 -- " at the back of right shoulder joint of red colour. The same doctor had examined Lal (deceased) in his life--time on 3rd April 1967 and found the following injuries on his person:- (1) An incised wound -- x 1/8 x 1/3 ' situated at the back of right arm on upper third. (2) An abrasion of -- x -- ' situated at outer side of middle of right forearm. (3) A bruise 1 -- x -- " situated at medial side of right forearm at lower part, and crepitus was present at the lower part of right ulnar bone. (4) An incised wound 1-- x 1/12" x 1" on the back of right hand, 1' above the right ring finger. (5) An incised wound 1/3 x 1/8" x ----- on the back of right hand above the right middle finger. (6) A lacerated wound of --" x -- x -- " situated at the back of right hand, -- above the juncture of right index and middle finger. (7) A lacerated wound of the size of 1/3'' x 1/8 x -- " on the back of right index finger at upper part, there was fracture of upper phalanx of right index finger. (8) A bruise of wound 2 -- " x 1' situated at outer and interior side of left leg, 1 ----- above the left ankle joint, there was fracture of left tibia under the knee. (9) An incised wound 1" x 1/8" x -- " on the front of right leg, 6" above the right ankle joint. (10) A lacerated wound 1" x -- " x 1/3 " on front of right leg, 3 -- " above the right ankle. (11) An abrasion 1" x 1/8 " transverse in direction situated at upper third of outer side of right leg. (12) An incised wound -- " x ----- x -- " on the back of left forearm. There was fracture of left ulna. (13) A lacerated wound 1-- x 1/3 " x -- " at the back and outer side of left forearm at upper third. (14) A lacerated wound -- " x -- x 1/3 " on the back of upper third part of left forearm. (15) A lacerated wound -- x -- x 1" on upper-most part of left forearm at the back of left elbow. There was a fracture of upper and of left ulna. Injuries Nos. 7, 8, 12, 15 were grievous while injuries Nos. 1, 2, 4 to 6, 9 to 11 and 13 to 14 were simple. Injury No. 3 was kept under observation. Injuries Nos. 1, 4, 5, 9 and 12 were caused by sharp-edged weapon and the remaining by blunt weapons. He had also examined Ahmad P. W. On the same day vide Exh. F. K. And found the following injuries on his person :- (1) A lacerated wound 2--' x -- x -- ' on the right side of top of skull, 1 -- on the right of mid-line, 5' behind forehead antero postero in direction. (2) A bruise 8" x 1" oblique in direction on inner side of front of left forearm and upper arm, 3' above the elbow-joint going downwards of red colour. (3) A bruise 3"x 1' at front of left upper arm, 1 -- " above the left elbow joint. (4) A bruise 3" x 1' oblique direction at outer side of middle of left upper arm. (5) A bruise 3" x 2" at the back of left elbow joint of reddish blue colour. (6) An incised wound 1" x -- x -- " on front of right leg, 4 -- below right knee-joint. (7) A bruise 4" x 1" oblique in direction at middle of outer slide of right leg of reddish colour.
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(8) An incised wound --" x 1/6 " x -- " on front of middle of right leg. There was marked swelling on right leg at this site and crepitus was present on the line of right tibula at this site. (9) An incised wound -- " x -- x 1/3 " at right side of right ankle. Joint. (10) An incised wound -- ' x -- x -- at front of left leg, 1" below left knee joint. (11) An incised wound 1" x -- x -- at front of left leg 3 -- below left knee-joint. (12) An incised wound 1 -- " x -- x 1/3 " on front of left leg, 4" above the left ankle-joint. Injuries Nos. 2 to 7 and 9 to 12 were simple while injuries Nos. 1 and 8 were kept under observation. 8. Dr. Sajid-ul-Qayyum had performed post-mortem examination on the dead body of Lal Din (deceased) on 4th April 1967, at 2-45 p.m. And found the following injuries vide Exhs. PH and PH/1:- (6) An incised wound 1/3" x 1/8" x -- at the back of right hand above right middle finger. (7) A lacerated wound -- x -- ' x -- " at the back of right hand and the back of right index finger. (8) A lacerated wound 1/3 x 1/8" x -- " at the back of right index finger at upper part and upper phalynx was fractured. (9) A bruise 2 -- x 1" at outer side of left leg above ankle joint (1 -- ") left tibia and fabula fractured at this site. (10) An incised wound 1" x 1/8" x -- " at front of right leg, 6' above the ankle joint. (11) A lacerated wound 1" x -- x -- ' at front of right leg, 3 -- ' above the ankle joint. (13) An incised wound -- " x -- x -- " at back of left forearm fracture of left ulna. (14) A lacerated wound 1 1/3 " x 1/3 x -- " in the upper part of back of left forearm. (15) A lacerated wound -- x -- x 1/3 at upper third and back of left forearm. (16) A lacerated wound -- x -- x 1" at the back of left elbow ulna fractured at this site. (17) A contused wound in the middle of back of left chest, underlying rib (5th left) fractured. (18) A bruise 1' x -- on the back of left abdomen at the renal area. Corresponding with lumber vertebra fractured at its left side of body and transverse process. Remarks: The injuries which had been inflicted ante-mortem with sharp and blunt weapons had resulted in multiple fractures including that of the left 5th rib and lumber vertebra lacerating the left lung and left kidney. The death was due to bleeding and shock consequent upon these injuries and sufficient in the ordinary course of nature to cause his death. 9. Before the enquiry could start this doctor had gone abroad so he could not be examined as a witness in the commitment proceedings and it was notified to the appellants that he would be produced in the Sessions Court, but he had not returned when the trial commenced so the above post-mortem report Exhs. P. H. And P. H./1 was got proved through Islam--ud-Din Dispenser (P. W. 6) who had worked with Dr. Sajid-ul---Qayyum for long time and was thus conversant with his handwriting. He had also confirmed in his statement that this doctor bad gone to England and had not returned to Pakistan till then. 10. On the basis of the statement of this witness that there was no likelihood of his early return learned trial Judge had allowed this secondary evidence to prove the carbon copy of the post- mortem report Exhs. P. H. And P. H./1 but he had erroneously transferred it to the record under section 509, Cr. P. C. Even Foot Constable Sher Muhammad who had been entrusted with the service of summons on the said doctor and had reported about his non-avaiLahility due to his presence in U. K. Had not entered the witness-box to prove this report. 11. In the course of the arguments learned State counsel submitted an application under sections 428 and 375 of the Criminal Procedure Code to remove this error and properly bring these documents on record which was allowed in the interest of justice so as to enable us to arrive at a correct conclusion about the cause of the death of Lal (deceased). Learned trial Judge was accordingly directed to record the A statement of Sher Muhammad Foot Constable about the non- availability of Dr. Sajid-ul-Qayyum and the difficulty in procuring his attendance without
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unnecessary delay and expense as envisaged by section 32 of the Evidence Act in view of the observation of their Lordships of the Supreme Court in Allah Ditta v. The State (PLD 1958 SC 290). We also directed him to send for Islam-ul-Din, Dispenser along with the original post-mortem report and re-examine him after he had compared it with the carbon copy as held in Nityananda Roy v. Rash Behari Ray (AIR 1953 Cal. 456). Consequently the trial Judge had in compliance with this order recorded the statements of these two witnesses in the presence of the appellants and their counsel and resubmitted the record to this Court along with his certificate as required under section 428, Cr. P. C., Exhs. P. H. And P.H./1 have thus been duly brought, on the record to be read in evidence in this case. 12. In addition to the above detailed medical evidence and that of the recoveries the prosecution has relied for its case on the testimony of Ahmad (P. W. 8), Bahawal (P. W. 9) and Mst. Khurshid (P. W. 10) for the ocular account of the occurrence, who had duly supported the above narration at the trial except that Ahmad P. W. Had denied any knowledge about the quarrel of Lal (deceased) with Mst. Aimna, wife of Ghulam Nabi appellant a day before the occurrence which is said to have formed the motive for this deadly assault on Lal (deceased). The trial Judge had, however, transferred his statement recorded by the committing Magistrate on 19th December 1967 to this file under section 288, Cr. P. C. On the request of the Public Prosecutor to be read in evidence against the appellants in this case, wherein he had mentioned this fact. 13. At the close of the trial the appellants denied all these allegations. Muhammad Shafi stated that:- "Mst. Khurshid and Bahawal P. Ws. Wanted to enhance the consideration of lease and Ghulam Nabi accused did not agree to it and, therefore, they wanted to eject him. There was an ill-will between them and Ghulam Nabi accused. On account of that ill-will the P. Ws. Entangled me in this case. I am a T. B. Patient since six or seven years. At the time of occurrence I was confined to bed. I am Innocent." Ghulam Nabi stated:- "Mst. Khurshid and Bahawal P. W. Wanted to enhance consideration of the lease of land or in the alternate they wanted me to vacate their land. I did not agree to either of the proposals. Therefore, they entangled me in this case. They have seen my brother Shafi and my nephew Riaz and Faiz accused visiting me. Therefore, Mst. Khurshid and Bahawal entangled them also in the case with me. Ali and Wali were proclaimed offenders in murder cases. They abducted a girl and brought her to the house of Lal and kept her there. Lal passed on that girl to somebody else and not to Ali and Wali. Ali and Wali then started attacking Lal since before this occurrence. Ali and Wali killed Lal, the deceased, and we have been falsely implicated because the party of, Lal deceased were afraid of mentioning the names of Ali and Wali. The purpose of entangling me in this case is to press me to vacate the leased land. Wali was killed in an encounter with the police about one and a half months ago. Ali is still absconder. The abducted girl owned three squares of land. I am innocent." "Mst. Khurshid and Bahawal P. Ws. Have got ill-will with Ghulam Nabi accused over the lease of the land. They entangled me in this case with my uncle Ghulam Nabi accused. Jalal the father-in-law of Ahmad P. W. Is a tenant of Allah Ditta in our village. Habib son of Allah Ditta along with others murdered Mirza the father of Riaz accused. Habib was convicted and sentenced life imprisonment. Allah Ditta in conspiracy with Jalal and Ahmad P. W. Entangled us in this case. I am innocent." "Mst. Khurshid and Bahawal P. Ws. Have got ill-will with Ghulam Nabi accused over the lease of land. They entangled me in this case falsely with my uncle Ghulam Nabi accused. My father Mirza was murdered by Habib and others. Habib is a son of Allah Ditta Lambardar. Jalal, the father-in- law of Ahmad P. W. Is the tenant of Allah Ditta Lambardar who is our enemy. Allah Ditta in conspiracy with Jalal and Ahmad P. W. Entangled me in this case. I am innocent."
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None of them led any evidence in defence. 14. Learned trial Judge accepting the prosecution evidence found all the appellants guilty of these charges as stated above, which findings have been assailed before us on the following grounds:- (1) That the first information report was not recorded at 12-20 p.m. As alleged by the prosecution, but was drawn out after prolonged deliberations; (2) that there was no motive for the appellants to attack Lal (deceased) who had many other enemies interested in disposing him of in that manner; (3) that the prosecution evidence was discrepant about the nature and the possession of Ghulam Nabi appellant on the land in dispute and its area; (4) that no disinterested witnesses had been produced to support the prosecution case and the above-named three witnesses were admittedly inimical towards the appellants and their evidence could not be relied upon without corroboration from some independent source which was badly lacking in this case; (5) that secondary evidence could not be led to prove the post-mortem report as no attempt had been made to effect service of any summon on the doctor concerned even on the second occasion, so it could not be used as legal evidence against the appellant; (6) that the nature of injuries suffered by Lal deceased negatived any intention of murder or even knowledge that his death was likely to result from such injuries, so their offence, if proved could not go beyond that under section 325, P. P. C. 15. On going through the record we are not inclined to agree with the learned counsel for the appellants except in respect of his assertion about the nature of the offence committed by the appellants. 16. About the first information report it was urged that it was not recorded at 12-20 p .m. And as a Oasis for the same it was pointed out that the Sub-Inspector had purposely avoided to enter the time when the query Exh. P. M. Was addressed to the doctor and the latter had likewise omitted to mention the time when he endorsed his reply Exh. P. M./1. The fact that the formal Exh. P. A./1 had been entered in the daily diary at 12-20 p.m. On the same day would set at rest all doubts about it as no attempt was made to send for it to challenge the time of any of its entries to show that the relevant entry had been accelerated by holding up the other entries thereof. 17. It was then urged that according to Bahawal (P. W. 9) the death of Lal had taken place a minute after his arrival in the hospital, i.e., at about 11-30 a.m., while Ahmad P. W. Had fixed it one hour later and Mst. Khurshid P. W. Had corroborated them by stating that the police on arrival In the village at noon time had told her that Lal had died in the hospital which would fix the time of his death between 11-12 a.m. He seems to have misread the statement of Mst. Khurshid Bibi P. W. About it by picking up a solitary sentence from its context which was silent about the time. She had never said that straightaway on their arrival in the village the police had told her about the death of Lal. Her statement in this respect was as follows:- "The police reached our village at about noon-time. The police came 5/6 hours after Ahmad and Lal were taken to the hospital. Bahawal P. W. Did not go to the hospital along with the injured persons. The police told me that Lal had died in the hospital. At that time Bahawal was with me." A perusal of this statement does not show at all the time when in fact the police had made the disclosure to her about the death of Lal (deceased). In fact the information of his death was communicated by the doctor to the Sub-Inspector. In this village through memo. Exh. P. J. Clearly mentioning 5-00 p.m. As the time of his death when he had to suspend the investigation at the spot to go back to the hospital for the necessary formalities in despatch of the dead body to the mortuary. The Sub-Inspector must have broken this news to the P. Ws. Including Mst. Khurshid Bibi P. W. After the receipt of this ruqqa. Ahmad and Bahawal did not seem to have the correct sense of time as would appear from the disparity in the time given by them about the death of Lal. It would
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be too much to expect that the doctor was also hand in glove with the police in fabricating false documents with wrong entries about the time of these different events. This contention about the time of the first information report and other relevant documents is thus not well founded. Ahmad P. W. Of course had made some con--cessions in favour of the appellants and in that attempt had also deposed that his statement was recorded by the Sub-Inspector in the evening time, but it was not got clarified that it was the statement in Exh. P. A. Or some other statement to which he was referring so this admission could be of no avail to the defence. 18. It would also be wrong to say that there was no motive for the appellants to carry out this deadly assault on La: (deceased) as Ghulam Nabi appellant had himself admitted it unequivocal terms in his statement under section 342, Cr. P. C that he had obtained 38 killas of land from Bahawal and Khurshid P. Ws. On lease who wanted to enhance the consideration on the threat of his eviction from therein, which clearly indicated that some dispute did exist between them about the distribution of the produce of this land. This was exactly what Bahawal P. W. Had stated at the trial. He had deposed that he had told Ghulam Nabi appellant that he would not give him land on lease any further as he was not paying the due share. Mst. Khurshid Bibi P. W. Had also conceded that it was right that Lal (deceased) used to demand share of batai from Ghulam Nabi appellant who used to say that he would not give any share to Lal. This sentence from the statement of Mst. Khurshid Bibi P. W. Would itself show that it was in reply to a suggestion made by the defence itself which clearly indicated that by then some dispute had actually arisen about the sharing of the crop. Such a situation would naturally have created an excuse for Lal (deceased) to object to the cutting of sittas by Mst. Aimna, his wife. This admission by Ghulam Nabi appellant itself…
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