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Petitioner: MIAN KHAN AND 11 OTHER VS Respondent: THE STATE-
Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema, Saleem Mazhar Title: MIAN KHAN AND 11 OTHER vs THE STATE- Case No.: Murder Reference No. 85 of 1970 Date of Judgment:- Reported As: 1973 P Cr. L J 164 Result: Revision allowed
JUDGMENT
JUDGMENT MUHAMMAD At---7,AL CBBBMA, J.--This is ail appeal on behalf of twelve appellants (names noted in. The margin) (1) Mian Khan son of Rehmat, (2) Sultan son of Ahmad, (3) Mohabbat son of Ghulam Rasul, (4) Sharif alias Khanu son of Nawab Din, Ghafoor son of Nawab, (6) Yusuf son of Hassan, (7) Muzaffar as Zatfar son of Nawab, (8) Barkat Ali son of Ghulam Rasul, Riaz son of Ahmad Ali, (10) Ashiq alias Hashu son of Ahmad.Muhammad Din son of Hassan and (12) Rashid son of Maula Bakhsh, who were all sentenced to death under section 302/149, 'P. C. In addition to a sentence of one year's R.I. Each under sea-- on 148, P. P.C. And seven years' R. I. Each under section 307/149, P. C. The conviction was recorded in a triple murder case the learned Additional Sessions Judge, Multan, vide the impugned judgment dated the 31st of January 1970. The case also before us under section 374, Cr. P. C. For the confirma--tion of the death sentences of the appellants. Besides, there a revision petition (Criminal Revision No. 696 of 1970) by one Mr. Mahmood Akhtar Ghumman, an Advocate of Vihari, and Muhammad Anwar P. W. 14 praying for the enhancement of the sentences awarded to the appellants under section 307/149,P. P. C, to those of transportation for life, and for the award of adequate compensation to them and the heirs of the three deceased under section 544-A, Cr. P. C. This judgment will dispose of the appeals the Murder Reference and the revision petition. 2. The case for the prosecution, as revealed in the initial report Exh. P. K., lodged by Nur Muhammad who died before the trial, is that on the 10th of July 1967, a village fair was held near the shrine of Pir Punnu in Chak No., 222/E.B. Close to the village abadi. At about 6 p.m., a kabaddi match was being played when the 12 appellants, accompanied by Qaim Din, who also died at the spot, came there. Barkat Ali appellant was armed with a pistol, Yusuf, Muzaflar, Ashiq and Qaim Din, deceased-
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assailant, wielded sticks, Riaz, Muhammad Din, and Rashid carried hatchets while the rest had spears. Apprehending danger, Muhammad Anwar P. W. 14 and the three deceased, namely, Muhammad Ashraf, Shera and Rehmat Ullah, of whom Shera was a tenant and Rehmat Ullah, a servant of Muhammad Ashraf, left the place and started towards the village abadi. The assailants challenged them sarcastically saying that they were going to transfer the land in their favour just then. They followed them overtaking Muhammad Anwar, who was the first target, at distance of 3/4 killas. Having felled him they rushed forward and encircled the three deceased at a distance of about a killa and a half from the village abadi of Chak No. 222-E.B. And were then attacked. Ghafoor, Sharif, Riaz and Hashu appellants concentrated on Shera deceased while Sultan, Mi" Khan, Rashid, Yusuf and Qaim, deceased-assailant, attacked Muhammad Ashraf deceased. Rehmat deceased was attacked by Mohabbat, Muhammad Din and Zafar. Barkat appellant fired with his pistol. Having received some injuries, Muhammad Ashraf fired with his gun in self-defence, but was floored by a spear blow given to him by Sultan who snatched his gun. Of the assailants, Mian Khan, Ashiq, Muhammad Din and Rashid were injured, while Qaim died of a gunshot injury at the spot. Mst. Khurshid Bibi, wife of Sultan appellant also reached the spot and received injuries. Muhammad Ashraf, Shera and Rehmat succumbed to their injuries at the spot. The motive alleged in, the initial report and later deposed to at the trial which appears to be rather remote and involved was that one Sultan son of Hayat, Gujjar by Caste, resident of Chak No. 222/E.B. Was a cripple. Eight or nine years prior to the occurrence, his wife Mst. Nazran was abducted by Sultan appellant who later passed her on to his brother Fazal with whom she lived as his wife and gave birth to two children. About a year prior to the occurrence, Fazal succeeded in coercing Sultan cripple to divorce Mst. Nazran. Sultan held some landed property which he apprehended, would be mutated after his death in the name of the two illegitimate sons boar to his wife from Fazal and fathered upon him. In order to safeguard against such an eventuality he appointed Bahadur son of Muhammad Din,. Gujjar of his village, as his attorney. The latter, in turn, leased out the land to his brother Muhammad and Mohammad Ashraf deceased, who was a resident of Chak No. 186-E.B. The lessee tools possession of the land and started cultivating the same. Sultan appellant having been frustrated in his designs and having also last possession of the land was on the look out tea take revenge and accordingly having the support of other accused availed of this opportunity. 3. Of the appellants, Barkat and Mobabbat are brothers, Ghafoor and Sharif are brothers, Ashiq and Riaz are brothers, while Sultan and Mian Khan are cousins (khalazad). There a pears to be nothing on the record to show that these sets were go connected inter se except that they atlegadly belonged to one party. It may also be observed, in this context that while Mohabbat and Barkat were residents of Chak No. 196-E. B., Yusuf of Chak No. 230-E.B., Sharif and Ghafoor of Chak No. 18 and Chak No. 204-E.B ,respectively, all the rest were residents of Chak No. 222-E.B. 4. The matter was reported by Nur Muhammad complainant at Vihari Police Station at 8-30 p.m., nine miles away from the spot vide report Exh. P. K. Which was 'recorded by Sultan Mahmood, Sub- Inspector P. W. 16. 5. Having recorded the statement, Sultan Mahmood Sub. Inspector repaired to the spot reaching there at about 10-30 p.m. He found all the four dead bodies lying at different places as detailed in the site-plan Exh. P. Z. He prepared injury statements Exhs. P. AA, P. BB, P. CC and P. DD of Ashraf, Shera, Rehmat and Qaim respectively and their inquest reports Exhs. P. AA/1, P. BB/l, P. CC/1, and P. DD/I respectively. He then despatched the dead bodies to the mortuary for post-mortem examination under the escort of F. C. Shah Muhammad P. W. 5 Muhammad Anwar P. W., who was injured, was also present at the spot and his injury statement Exh. P. EE was pre--pared by the Sub- Inspector. Next morning he recovered a crime empty (Exh. P. 13) from near the dead body of Muhammad Ashraf as also a live cartridge Exh. P. 12 and took them into possession vide memo. Exh.
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P. E. It was not sent to the Expert as the Sub-Inspector was informed that the crime empty was fired from the gun of Muhammad Ashraf deceased. He recovered blond-stained earth from four places where the dead bodies of Ashraf, Shera and Rehmat were lying as also where Anwar P. W. Was injured. No blood stains were found at the place where Qaim was found to be lying dead. On the 13th of July 1967, Mian Khan, Sultan, Ashiq, Barkat, Mohabbat, Muhammad Din and Rashid accused were arrested. The same day, Mian Khan, while in police custody, got recovered barchha P. 14 from his house, which was lying behind a wooden rafter in one of the rooms. It was found to be blood-stained and was taken into possession vide memo. Exh. P. G. He also got recovered broken gun Exh. P. 15 in two pieces which was taken into possession vide memo. Exh. P. H. On the 17th of July 1967, Sultan appellant led to the recovery of a blood-stained spear Exh. P. 16 from a sugar-cane field which was secured vide memo. Exb. P. J. The same day, Barkat appellant led to the recovery of a pistol, Exh. P. 17 with one live cartridge Exh. P. 17/1 from within quilts lying on the bharoll in a room. These articles were taken into possession vide memo. Exh. P. L. The same day, Mohabbat got recovered spear Exh. P. 18 from the cattle-shed of his dera which was taken into possession vide memo. Exh. P. M. Ashiq, Mian Khan and Mohabbat were found to have sustained Injuries. The Sub- Inspector prepared their injury statements Exhs. P. V, P. W. And P. X respectively. Rashid appellant, when was also injured, had also got himself examined in the hospital. On the 28th of July 1967, Bahadur Khan P. W. Produced chadar Exh. P. 19 and shirt Exh. P. 20 of Anwar P. W. Which were taken into possession vide memo. Exh. P. Y. He also produced mukhtar-- mama Exh. P. 21 which was secured vide memo. Exh. P. Y. 6. On the 11th of July 1967, Dr. Mushtaq Ahmad, performed the post-mortem examination of the dead body of Muhammad Ashraf and vide post-mortem examination report Exh. P. N. Found the following injuries on it: --- (1) A contusion mark, 9' x l", on the upper part of back. (2) A stab wound, 3/4"x 1/2', penetrating into the chest cavity and the right side of back. (3) A contusion, 6" x 1/2' en the upper side of right shoulder. (4) A contusion mark, 4" x 1" on the back of right shoulder. (5) A stab wound, 1-- x 3/4' penetrating into the abdominal cavity on the right side of abdomen below the umbilicus. (6) A stab wound, 1--'x1/2' on the torn side of chest, 3" below nipple penetrating through the chest cavity. (7) An incised wound, 1-- x -- on the left side of the head above the left ear. (8) An abrasion, 1--' x 1/3", below the right eye. (9) A contusion mark, 1/2' x I/2", on the left wrist. (10) A contusion mark, 3 --" x 1/2" on the left deltoid muscle. (11) A contusion mark, 3"x 1--", close to injury No.10. (12) An abrasion, 1/2" x 1/3', on the left side of chest in the mid-axillary line. (13) A contusion, 4' x 1', on the left shoulder. (14) A contusion, 4'x 1", on the front of right shoulder. (15) A contusion, 1'x 1/3', on the front of the left leg on the middle. (16) An abrasion, 1 --'x 1/3", on the left thigh: (17) A swelling, 3--' x 1--", on the back of the right hand. (18) A lacerated wound, 1/3' x 1/3', with fracture of the underlying bone on the middle phalanx of left ring finger. (19) A lacerated wound, 1/3"x 1/3", bone deep below the left elbow. On internal examination, the left 8th and 9th ribs were found cut under injury No. 6 and the right 6th rib was found cut under injury No. 2. The left lung, paricardium and heart were found cut under injury No. 6 and the right lung, was found cut under injury No. 2. The stomach and the small
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intestines were empty and the large intestine was full. Death, in the opinion of the doctor, had occurred due to shock and haemorrhage pit account of rupture of heart. Injury No. 6 was sufficient to cause death in the ordinary course of nature. Injuries Nos. 2, 5, 6 and 7 were, caused by sharp- edged arid sharp-pointed weapons, while the rest were caused with blunt weapons. Death had occurred austacttaueously and time between death and post-mortem was 12 to 18 hours. The same day, the doctor conducted the post-mortem examination of the dead body of Shera deceased and vide his post-mortem report Exh. P. O. Found the following injuries:- (1) A lacerated wound, 1 "x --, bone deep on the top of head. (2) An incised wound, 1--' x --" x --, on the back of right forearm. (3) A contusion, 2" x 1/2', on the back of right wrist. (4) A contusion, 4' x 1/2", on the back of left forearm. (5) An abrasion, 2' x 1/2', on the back of left wrist. (6) An abrasion; 3" x 1/2', on the left shoulder. (7)'An abrasion, 1/2' x 1/2', on the back of left shoulder. (8) An incised wound, 1--" x 1/2' x 1/2", on the left buttock. (9) An incised wound, 1" x 1/3' (torn) on the right side of back. (10) A contusion, 1" x 1/3", on the right side of chest. (11) A stab wound, 1--x 1/2', penetrating into abdominal cavity on the right side of abdomen below the umbilicus. (12) A contusion, 1--" x I", on the left side of head, close to the forehead. On internal examination, the left parietal and occipital bones were found fractured. There was haemorrbage in the brain. Clotted blood was present. The stomach and the small intestines were empty. In the opinion, of the doctor, death bad occurred as a result of shock and brain haemorrhage on account of injury No. 1 which was fatal and sufficient to cause death in the ordinary course of nature. Injuries Nos. 2, 8, 9 and 11 were caused by sharp-edged and pointed-end weapon and the rest with blunt weapon. Death had occurred within two minutes of the receipt of the injuries, while time between death and post-mortem was 12 to 18 hours. The same day, the doctor performed the autopsy on the dead body of Rehmat and vide post-mortem examination report Exh. P. Q. Found the following injuries: (1) A lacerated wound, 1--'x 1/2', on the head, close to forehead. (2) A lacerated wound, 1--' x 1/2, bone deep on the left side of head. (3) A lacerated wound, 1 x 1/2" x 1/2'3 close to injury No. 2. (4) A lacerated wound, 2" x 1", bone deep on the left side 9f back of head, (5) A contusion mark, 1" x --" on the back of left shoulder. (6) A contusion mark, 7' x 2' on the left deltoid. (7) An incised wound 1" x --' bone deep on the left arm just below the elbow. (8) An incised wound, -- x 1/3' x 1/3' on the back of right forearm. (9) An abrasion --" x -- on the left (torn). (10) 3 contusion marks, 4" x -- close to each other on the left thigh. (11) A contusion mark, 3' x 1' on the left iliac crest. (12) A contusion 3-- x 1' on the left side of chest. On internal examination, the left parietal and the occipital bones were found fractured. There was haemorrhage in the brain and clotted blood was present. The stomach and the small intestines were empty and the large intestines were full. In the opinion of the doctor, death had occurred due to shock and brain haemorrhage. Injuries Nos. 2, 3 and 4 were fatal and sufficient to cause death in the ordinary course of nature. Injuries Nos. 7 and 8 were caused by sharp-edged weapon and the rest with blunt weapon. All the injuries were ante-mortem. The duration between injuries and death was within few minutes and between death and post-mortem was 12 to 18 hours.
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The same day, the doctor performed the post-mortem examination of the dead body of Qaim Din, and vide post-mortem examination report Exh. P. R. Found a circular lacerated wound, one inch on the left side of abdomen in the opigastrium just below the rib. A pellet was removed from the skin on the right side of back. On internal examination, the abdominal cavity was found full of blood. The left lobe of liver was found ruptured. The stomach and the small intestines were empty and the large intestines were full. Death, in the opinion of the doctor, had occurred due to shock and haemorrhage on account of the firearms injury which was sufficient to cause death in the ordinary course of nature. Death had occurred within two minutes of the receipt of the injury, while time between death and post-mortem was 12 to 18 hours. The same day, the doctor examined Muhammad Anwar P. W. And vide medico-legal report Exh. P. S. Found the following injuries on his person: - (1) A stab wound, 1' x 1/2' x 3', on the upper part of outer side of left thigh. (2) A stab wound, 2' x 1' x 1", on the front of upper part of right thigh. (3) A stab wound, 1I' x I' x 1 ", one inch middle to injury No. 2. Injuries Nos. 1 and 2 were communicated with each other. (4) An incised wound,--, 1 J' x 3/4" x 1 /2', on the right sgotuou (5) A swelling, 2' x 3', on the back of medial side of left hand. (6) A red contusion, 6' x 1', on the right side of back. Injuries Nos. 5 and 6 were caused by blunt weapon and the rest with sharp and pointed-end weapon, within 24 hours. The same day, the doctor also examined Rashid appellant and vide medico-legal report Exh. P. T. Found a stab wound with a wound of entrance, 2' x 1/2' on the right side of back close to the mid- line. There was also a wound of exit, 3/4' x 1/3' on the right side of chest in the mid-axillary line. According to the doctor, the injury was simple caused by a sharp-edged and, pointed-end weapon within 12 hours. The same day, the doctor examined Mst. Khurshid, wife of Sultan appellant, and vide medico-legal report Exh. P. U. Found the following injuries on her person : . (1) A lacerated wound, 1l"-x 1/3" x 1/3', on the middle of head close to forehead. (2) A lacerated wound, 2' x 4' x 1/3', on the right side of head three inches above the right ear. (3) A superficial cut, 1/3" x 1/6' x 1/3', on the left leg just below the knee. (4) An abrasion, 1/3' x 1/3', on the back of right hand. (5) A red contusion, 2' x 1/2', on the left knee. The injuries were simple. Injury No. 3 was caused by a sharp pointed weapon and the rest with blunt weapon within twelve hours. On the 13th of July 1967, the doctor examined Muhammac Ashiq appellant and vide medico-legal report Exh. P. V. Found thi following two injuries on his person :- (1) An abrasion, 1" x 1/3", on the right knee. (2) An abrasion, 1/3" x 1/3' on the left knee. The injuries were simple and caused by blunt weapon within thre~ to four days. On the same day, the doctor examined Mian Khan appellan and vide medico-legal report Exh. P. W. Found a lacerated wound 3' x I /3' X 1 /6' on the back of right shoulder. Tbis injury wa simple caused by a blunt weapon within three to four days. On the same day, the doctor examined Muhammad Di appellant and vide medico-legal report Exh. P. Y found tb following two injuries on his person :- (1) An abrasion, 1 r X 1/6', on the left shoulder. (2) An abrasion, 2' x 1/8', on tire left cheek. The injuries were simple caused by blunt weapon within tha to four days.
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After the completion of the investigation, the Sub-Inpector sent up the twelve appellants to face inquiry and trial. 7. At the trial, the prosecution rested on the ocular testimony of the four eye-witnesses, namely, Gul Muhammad P: W. 13, Muhammad Anwar P. W. 14, Sohna P. W. 15 and Nur Muhammad complainant, Chairman of the Union Council, who died before tire trial and whose statement before the committing Magistrate was transferred to the Sessions File under section 32 of the Evidence Act. In addition to this, there was the evidence of recoveries and of course the medical evidence. 8. The appellants pleaded not guilty to the charge and dented the allegations. Mian Khan stated that at the relevant time, he was at Gujrat, having left Chak No. 222/E. B., seven days prior to the occurrence and it was on his return on the 12th of July 1967 that he learnt about this. His mother informed him that the three deceased along with Muhammad Anwar P. W. And others had raided is house in order to abduct his sister Mst. Khurshid for the reason that he was suspected of having illicit connection with Mst. Sardaran, a cousin of Ashraf deceased. Likewise, Sultan pleaded absence from the village on toe pretext of having gone to village Summon Pindi in Gujrat District from where on his return on the 17th of July 1967, be learned that the- deceased and others had raided their house in order to abduct his wife Mst. Khurshid when several persons present at the fair of Pir Punnu intervened and gave injuries to the abductors. He placed on the record several documents in defence which are Exh. D. E. To D. K. To which we will presently advert. Mohabbat stated that he abducted Mst. Ghafuran, a niece of Mehnga P. W., had brought a complaint against Nur Muhammad, Chairman, resulting in the award of a sentence of fine to him, that having married. Mst. Ghafuran he had sought her restoration through issuance of search warrants of the house of Mehnga and that he had been falsely implicated on account of enmity with Nur Muhammad and Mehnga. More or less the same position was taken by his brother Barkat. Sharif and Ghafoor appellants also attributed their false implication to Nur Muhammad who was at logger-heads with their landlord Muhammad Hussain Patwari, who had allegedly got Nur Muhammad penalised when the latter got him suspended. Yusuf attributed his false implication on the ground that he may not be able to prosecute the case of the murder of his brother Qasim who had been shot dead by Ashraf deceased and others. Muzaffar, Riaz, and Ashiq appellants attributed their false implication to their enmity with Hayat Lambardar P. W. 12 who was inimical to them on account of the prosecution of his cousins Abdul Haq and Qurban in a criminal case. Muhammad Din also attributed his false implication to his enmity with Muhammad Hayat Lambardar and added that Dhal Bachh had been handed over from Muhammad Hayat to his father. However, a more specific plea was raised by Rashid appellant in the following words: - "At the time of occurrence, I was coming after saying my prayer of Digar (Asar). I heard alarm and so I went towards the house of Sultan. I found that ABhraf, Rehmat, Shera and Anwar had forcibly lifted Mst. Khurshid and were taking her away. Qaim Din resisted and Ashraf fired a shot at him and killed him. I went forward and I was given a barchha blow. On hearing the gun report, many persons from the meld came and so there was a fight between the party of Ashraf and others. I do not know what happened in the fight . . . . . . As I was injured, therefore, the other party apprehended that I would become a witness against them so they made me an accused in the case." Of the documents relied upon by the defence and placed on record, Exh. D. J. Is the initial report made by Riaz appellant against nine persons, including Qurban, Abdul Haq etc. In a case under sec--tions 148/452, P. P. C., dated the 23rd of March 1967, at Police Station Vehari. Exh. D. F. Is the concluding report of the criminal case registered at the instance of Riaz against Qurban, Abdul Haq etc. Exh. D. G. Is a copy of a Court statement of Riaz appellant, in the same case when he was examined as P. W. 5 to the Court of the Resident Magistrate Vehari. Exh. D. H. Ix the statement of Sultan appellant who appeared as P. W. 6. Exh. D. I. Is the statement of Ashiq appellant who was examined as P. W. 7 Exh. D. K. Is a copy of an entry of the General Register pertaining to a criminal
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case against Mian Khan and Zafar Ali under section 452/376, P. P. C. Decided on the 18th of October 1;960. Exh. D. L. Is a copy of the Khasra Girdawari pertaining to the land of Muhammad Hayat in Chak No. 222-E. B. Exh. D. M. Is a copy of the receipt dated 31st of July 1964 purporting to show that an amount of Rs. 3,777.89 was deposited in the Government Sub-Treasury by Muhammad Din Lambardar of Chak No. 222-E.B. Another document which again appears to have been inadvertently marked as Exh. D. M. Is a copy of an application, dated the 10th of June 1967, filed before the District Magistrate by Mohabbat appellant, against certain persons for the restoration of Mst. Ghafuran whom he claimed to be his wife Exh. D. N. Is a copy of a search warrant dated the 6th of May 1967, issued by the District Magistrate in that case. Another document inadvertently marked as Exh. D. N. Is a copy of a list of persons who defaulted in payment of land revenue of Kharlf 1963 in the path of Abdul Ghani Lambardar. Exh. D. O. Is a copy of Nikahnama of Mohabbat with Mst. Ghafuran purporting to show that they were married on the 8th of March 1967. Another document marked Exh. D. O. Is a copy of Dhal Bachh for KhariJ (the year is not mentioned). Exh. D. P. Is a copy of the order of the D. C. O. Dated the 20th of March 1966, whereby an application of Mohabbat against Nur Muhammad, Chairman was filed. In an elaborate discussion, the learned trial Judge discarded the defence version and relying on the statement of Muhammad Hayat Lambardar and Nur Muhammad, Chairman found that the motive stood established beyond doubt. He placed full reliance on the ocular testimony of Muhammad Anwar, Gul Muhammad and Sohna P. Ws. And the transferred statement of Nur Muhammad, complainant, supported by medical evidence as well as that of recoveries which all disposed to the judgment of conviction by him. 9. Learned counsel for the appellants raised the following contentions before us (1) That, in all probability, the initial report was prepared at the spot after preliminary investigation ; (2) That the alleged motive was neither established nor otherwise convincing; (3) That the prosecution had failed to produce a single disinterested witness although hundreds of people happened to be present in the fair; (4) That even otherwise the statements of the witnesses produced were thoroughly discrepant and materially inconsistent; (5) That the evidence of recoveries was wholly unworthy of credence; and (6) That the presence of Mst. Khurshid Begum at the spot and the undeniable fact of her being injured without a satisfactory explanation having been offered by the prosecution, lent considerable support to the defence. Taking first the point of motive, it is in evidence that although Sultan son of Hayat, described as Sultan cripple, whose wife had been abducted by Sultan appellant and passed on to his…
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