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Petitioner: HAKIM KHAN and 4 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Munir Khan, Malik Lehrasab Khan Title: HAKIM KHAN and 4 others vs THE STATE Case No.:Criminal Appeal No.369 and Murder Reference No.190 and Criminal
JUDGMENT
Reported As: 1986 MLD 1816 Result: Appeal partly accepted Judgment JUDGMENT MUHAMMAD MUNIR KHAN, J.--This Criminal Appeal 369 of 1984, connected Murder Reference No.190 of 1984 and Criminal Revision No.511 of 1984 filed by the complainant against the acquittal of Fateh Muhammad and for the enhancement of sentence of four appellants namely, Hakim Khan, Ahmad Yar, Zafar Iqbal and Muhammad Muzaffar from imprisonment of life to death for the murder''43.f Saleh Muhammad deceased, arise from the, judgment of the learned Sessions Judge, Khushab whereby he, on 2-4-1984 while acquitting Fateh Muhammad convicted Hakim Khan (32), Muhammad Khan (26), Ahmad Yar (35), Zafar Iqbal (14) and Muhammad Muzaffar (40) under section 148, P.P.C. And section 302/1,49, P.P.C. For the tripple murder of Ahmed Sher (25), Sultan (38) and Saleh Muhammad (35) and sentenced them as under:- (i) Under section 148, P.P.C..--All the appellants to two years, R.I. (ii) Under section 302/149 P.P.C. For the murder of Ahmad Sher and Sultan.--All the appellants to death and a fine of R s . 5 0 , 0 0 0 ,each or in default thereof 4 years, R.I. Each on each count. (iii) Under section 302/149, P.P.C. For the murder of Saleh 1Tuhammad.- Muhammad Khan appellant to death and the ramaining four appellants namely Hakim Khan, Ahmad Yar, Zafar lqbal and Muhammad. Muzaffar to imprisonment for life and a ,fine of Rs.50,000 or in deafult thereof four years, R I. Each. It was directed that the fine, if realized, half of it be paid as compensation to the legal heirs of the deceased. We propose to dispose of them through single judgment. It may be noted that Fazal Elahi co-accused is still an absconder. 2. The occurrence took place on 20-7-1983 at Peshiwela in the area
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of village Ukhli Mohla, six miles away from Police Station IGanlial, District Khushab. F.I.R. Exh. P.M. Was lodged by Sher Ahmad P.W.9 brother of Saleh Muhammad deceased at Police Station Khushab on the same day at 4-30 p.m. Which was recorded by Gul Jahan S.H.O. P.W.12. 3. Hakith Khan, Ahmad Yar, Zafar Iqbal, Muhammad Muzaffar and Muhammad Khan appellants are the son, sister's son, first cousin and servant of Fazal 'Elahi absconder respectively. Ahmad Sher deceased was son of the maternal-uncle of Saleh Muhammad deceased. Muhammad Saleh deceased was a friend of Saleh Muhammad deceased. Sher Ahmad complainant P.W.9 is brother of Saleh Muhammad deceased. Jahan Khan P.W.10 is brother of Ahmad Sher deceased. Fazal absconder is first cousin of the father of Saleh Muhammad deceased. The parties are thus inter-related. 4. The motive as alleged by the prosecution in the F.I.R was that Saleh Muhammad deceased had developed illicit relation with Mst. Nasreen daughter of Fazal Elahi absconder accused. So, ten months before the present occurrence, Fazal Elahi alongwith others, launched murderous assault on Saleh Muhammad and a case under section 307, P.P.C. Was registered at Police Station Ganjial against them on 20-9-1982. Thereafter, on the intervention of Brothery, compromise was effected between the parties. Fazal Elahi feeling still unsatisfied, was keeping the grudge in his mind, hence this occurrence. 5. As for the main occurrence, it has been stated that on the morning of eventful day, Sher Ahmad P.W.9, Saleh Muhammad deceased, Ahmad Sher deceased, Muhammad Sultan deceased and Jan Muhammad P.W. (not produced) came to the Dera of Jahan Khan P.W.10 situated in village Shumar. Saleh Muhammad sent for a taxi car, which was brought by Fateh Muhammad Taxi-driver, the acquitted accused. Sher Ahmad P.W.9 and Jan Muhammad P.W. (not produced) rode on the motor-cycle while three deceased and Jahan Khan P.W.10 sat in the taxi-car and all of them left for the house of .Mushtaq situated in village Sheikhu for lunch. Mushtaq and Ahmad Sher deceased had been living together in Saudi Arabia, so the former had invited Ahmad Sher deceased and his companions to a lunch. At Peshiwela on the same day when the three deceased, Sher Ahmad P.W.9 Jahan Khan P W.10 and Jan Muhammad P.W. (not produced) were returning from village Sheikhu after having lunch and Sher Ahmad, and Jan Muhammad were on the motor-cycle 30/35 Karams behind the taxi-car, in which the thi.Ee deceased and Jahan Khan P.W.10 were travelling; that wagon No.T.S. 54 of light blue colour driven by Fazal Elahi absconder appeared from the front side and struck against the taxi car. Immediately thereafter Fazal Elahi, Hakim Khan and Ahmad Yar armed with guns alighted from the front side of wagon and simultaneously Zafar Iqbal and Muhammad Muzaffar armed with rifles and Muhammad Khan armed with gun came out of the rear seat of the wagon. Fazal Elahi raised Lalkara that they had come to take revenge of their insult. Fazal Elahi absconder and the appellants opened fire at Saleh Muhammad. The shots hit him while he was in the car. On this Ahmed Sher and Muhammad Sultan opened the door of taxi car, came out of it and started running to save their lives but were gunned down by the appellants and Fazal Elahi co-accused. Jahan Khan P.W. However escaped unhurt and reached the place where Sher Ahmad P.W.9.And Jan Muhammad P.W. (not produced) were standing and watching the incident. The accused then removed licensed rifle of Jahan Khan P.W.10 from the car and left the spot in the same wagon shouting that they had finished their enemies. They also took away Fateh Muhammad taxi driver acquitted accused with them. After the departure of the accused from the place of occurrence, the aforesaid eye-witnesses came to the spot. They found that Saleh Muhammad, Ahmad Sher and Muhammad Sultan had succumbed to their injuries. Sher Ahmad P.W.9 also saw that licensed gun and licensed pistol of Saleh Muhammad deceased were lying in the car. It has also been stated in the F.I.R. That while going to village Sheikhu, Fateh Muhammad acquitted accused was given money by Jahan Khan P.W.10 for purchasing petrol but he took considerable time to come bakk
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and when enquired as to why this delay, he replied that the man at petrolpump was not present. So, Fateh Muhammad was suspected as a conspirator/abettor who had informed the appellants and Fazal Elahi, about the movements of the deceased. 6. Dr. Pirzada Syed Muhammad Alam Shah P .W.11 conducted post-mortem examinations on the three dead bodies on 21-7-1983. He found following injuries on the person of Muhammad Sultan deceased: - (1) A circular fire-arm lacerated wound of entry I" x 1" x deep chest on the front of right side of chest 1" lateral to sternum slight below the level of right nipple. (2) A circular fire-arm lacerated wound of entry 4" x x deep x chest through and through at the left nipple on front of chest. (3) Circular fire-arm lacerated wound of entry 1" x +" x deep chest through and through on the front lower side of left chest. (4) A fire-arm lacerated wound circular exit 1" x i" x deep chest through and through on the back of right lateral side of chest. (5) A fire-arm lacerated wound of exit 1" x I" x deep chest through and through on the right side back of chest the level of lower 1/3rd level of right scapula. (6) A fire-arm lacerated wound exit 1" x I" x deep chest through and through on the back right side chest 4" below the injury No .5 . (7) A circular fire-arm lacerated wound of entry 1" x 1" deep thigh muscle on the left lateral side in the middle. There was deformity of left thigh (fracture of the shaft of left femer bone). Note: On palpation medial side of left thigh had the same level of the injury, arounded foreign body palpable. By giving incision at this site (a pellet recovered under the muscular layer) pellet sealed in a bottle. (8) A fire-arm lacerated wound 11" x 1" x muscle deep making a furrow on the lateral side of left thigh. (9) An abrasion 1" x i" on the left side of chin." On the internal examination, he found the sixth rib on the front fractured, the right scapula in the lower 1/3rd level perforated, the parietal and visceral pleura perforated on . The left side of the chest and right side of the chest at the level of the injuries. The chest wall cavity contained blood clots/one litre on each side. The trachea was perforated. The right lung was lacerated and punctured and the left lung was also lacerated and punctured. Ascending aorta was punctured and lacerated. Blood vessels corresponding to the injuries were lacerated. The stomach was punctured and full of partially digested food. In his opinion, the cause of death was shock and haemorrhage as a result of injuries Nos. 1 to 7 which caused damage to the vital organs, right lung, left lung, ascen aorta, trachea, liver, stomach and also caused fracture of left femer shaft. Injuries Nos. 1 to 6 were grievous and dangerous to life. Injury No.7 was grievous. The rest of the injuries were simple. Injuries Nos. 1 to 8 were caused by the fire-arm. Injury No.9 was caused by blunt weapon. The probable time between the injuries and the death was within 10 to 15 minutes and between death and post-mortem was about 15 to 16 hours. The doctor found following injuries on the dead body of Saleh Muhammad: - (1) A fire-arm lacerated wound of entry (circular) i" x i" x brain deep on the left side of the skull. (2) A fire-arm lacerated wound 14" x 4" x skull deep making a furrow on the upper side of the head. (3) A fire-arm circular lacerated wound i" x i" x through and through on the front of left ear. The upper jaw and lower jaw fractured. (4) A fire-arm lacerated wound of exit of injuries Nos.1, 3 measuring 5" x 2" whole thickness of the lower lip extending to the mendable and upto neck on the right side. The lower jaw was fractured and damaged badly. The blood vessels muscles on the right side of the neck were lacerated.
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(5) A circular fire-arm lacerated wound of entry 14" x 1:" x deep x through and through on the front upper side of left shoulder. (6) A fire-arm lacerated wound of exit 14" x 14" x through and through on the upper side back of left shoulder. The upper , part of the left humoros head, coracoid process and acromion process of the left scapula was fractured (the bone of left shoulder joint fractured). (7) A fire-arm lacerated wound of entry 24" x 14" x through and through on the front right shoulder upper., side. The underlying upper ' part of the humoros head, coracoid process, acromion process of right scapula was fractured. (8) A fire-arm lacerated wound of exit 24" x 1" x through and through on the back upper side of the right shoulder. (9) Firearm lacerated wound of entry 1" x 1" deep left shoulder on the outer side. (10) A fire-arm lacerated wound on the left -lower side of chest measuring 1" x 1" x chest deep. (11) Multiple small lacerated wounds on front of chest and arms small glass pieces were impected in the wound. Small pieces recovered and sealed in a bottle." On internal examination the doctor found that the scalp on the left side and upper side front was lacerated, punctured. The skull, brain, echymosed and damaged, the base of skull was fractured. The pellets traversed to the right side of the face and lower jaw resulting in the fracture of upper and lower jaws. The skull was perforated on the left side. The left chest wall was punctured. The stomach was full of partially digested food. In his opinion the death had occurred due to shock as a result of injuries Nos. 1,,%.--to 8 which caused damage to the brain, base of skull, damage to the oral cavity and fracture of the right and left shoulder joints. These injuries were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 3 and 4 were grievous and dangerous to life. Injuries Nos. 5 to 8 were grievous. The rest of the injuries were simple. The Doctor found following injuries on the dead body of Ahmad Sher:- (1) ' A circular fire-arm lacerated wound of entry 1" x 1" x deep neck on the left lower lateral side. (2) A fire-arm lacerated wound of entry on the left lateral side of the neck 1" below the injury No.l. (3) A fire-arm circular lacerated wound of entry 1" x 1" x deep muscle on the outer lateral side of left shoulder. (4) A fire-arm lacerated wound of entry 1" x 1" x muscle deep on the back upper left side of shoulder. (5) A circular fire-arm lacerated wound of entry 1" x 1" x deep chest on the upper right side front. (6) A fire-arm circular lacerated wound of entry 1" x 1" x through and through on the front right axillary fold. (7) A circular fire-arm lacerated wound of exit of injury No.6 measuring 1" x 1" x through and through on the back of right axillary fold. (8) A circular fire-arm lacerated wound of the entry 1" x 1" x through and through on the front medial side of right arm 34" below the right axillary fold. (9) A circular fire-arm lacerated wound of exit of injury No.8 measuring I" x x through and through on the outer side back of right arm at the same level. The humorus bone was fractured." On internal examination, the chest wall was found perforated on the right and left side of chest, the right and left chest cavity contained 11 litres blood on each side. The parietal and visceral pleura was perforated on left and right side of the chest Right and left lungs were punctured and perforated. The blood vessels corresponding to the injuries were lacerated and damaged. The stomach was full of partially digested food. In his opinion, death was due to shock and haemorrhage as a result of injpries Nos. 1, 2, 3, 5, 8 and 9 which caused damage to the left and right lungs, left croted artery and jugular veins and fracture of right humrous bone. 'The injuries were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 2, 3 and 5 were grievous and dangerolis for life. Injuries Nos 8 and 9 were grievous. The rest of the injuries were simple. All the
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injuries were caused by fire-arm. In cross-examination, the doctor stated that injuries Nos. 1, 2, 3, and 7 on the person of Sultan deceased were result of one shot while injury No.8 was an exit wound of injury No.7. Injury No.9 was an abrasion which could be the result of fall on the ground. In his case, the assailants should have fired from the front of the victim. All the injuries were caused with .12 bore gun and a pellet was also extracted from injury No.7. The Doctor also stated that the injuries Nos. 1, 2, 3 and 5 on the person of Saleh Muhammad deceased can be the result of one shot. Injury No.7 was result of a separate shot and as such the injuries found on the person o, Saleh Muhammad were result of two shots. The Doctor stated that injuries Nos.1, 2, 3, 4, 6 and 8 of Ahmad Sher deceased were result of one shot. The assailants in his case should be in his front while he fired at him. The injuries received by Ahmed Sher were caused by one shot from .12 bore gun. A pellet was also recovered from right side of his chest. 7. Gul Jahan S.H.O. P.W.12 inspected the place of occurrence on 20-7-1983. He removed gun P.15 and pistol P.16 of Saleh Muhammad deceased, bandolier P.17 containing 28 live cartridges of .32 bore Exhs. P.18/1 to 28, separate magazine P.19 and bag P.20 containing 20 live cartridges P.21/1-20, Pistol's licence P.22 and gun licence P.23 from inside the taxi car vide Memo. Exhs.P.N. Attested by Jahan Khan P.W.10 and Jan Muhammad P.W. (not produced). The S.H.O. Also recovered six empties of 7 M.M. Rifle Exh.P.24/1 to 6, seven empties of .12 bore gun P.25/1-7 and one empty of .303 Rifle P 26 from the spot vide Memo. Exh.P.T. Attested by the same witnesses. 8. On 25-7-1983, one Alam Sher produced Muhammad Khan, Hakim Khan, Ahmad Yar and Zafar Iqbal appellants before Gul Jahan S.H.O. P.W.12 who arrested them. Muhammad Muzaffar appellant was produced by one Rab Nawaz before the S.H.O. On 26-7-1983. 9. On 30-7-1983 Zafar lqbal appellant led to the recovery of 7 M.M. Rifle P.10 from his Dera which was taken into possession vide Memo: P.G. On the same day Muhammad Muzaffar appellant led to the recovery of 7 M.M. Rifle P.11 from Kotha of his tubewell which was taken into possession vide Memo P.H. On the same day, Muhammad Yar appellant got recovered gun P.12 from his Kotha which was taken into possession vide Memo. P.J. On the same day Hakim Khan appellant led to the recovery of gun P.13 from his residential Kotha which was taken into possession vide Memo. P.K. On the same day Muhammad Khan appellant led to the recovery of gun P.14 from his Kotha which was taken into possession vide Memo. P.L. The aforesaid Memoranda were attested by Ahmad Yar P.W.8, Muhammad. Yaqoob and Alam Khan (both not produced). The forensic science laboratory report Exh.P.H.H. Revealed that crime empty C-11 was fired from gun P.14 of Muhammad Khan appellant. The crime-empties P.7 and P.10 were fired from gun recovered from Hakim Khan. The crime empties C.8 and C.9 were fired from gun P 12 recovered from Ahmad Yar. The crime empties C.12 and C.13 had been fired from guns recovered from Muhammad Khan and Ahmad Yar appellants. The crime empty of .303 bore, marked C.14 was fired from Rifle recovered from Muhammad Muzaffar appellant. As far Rifle recovered from Zafar Iqbal accused, it has been stated in the report that no test empties could be prepared from it for comparison with crime empties of 7 M.M. Marked at C.1 to C.6. It may be noted that the learned trial Court has excluded evidence of the recovery of weapons from the appellants from consideration for the reason that, "corroboration by means of the empties is, however, not available to the prosecution because the sealed parcel of the same was withheld by the police until the recover of the fire-arm". 10. To prove its case the prosecution produced 12 witnesses in all. Sher Ahmad P.W.9 and Jahan Khan P.W.10 have given the ocular account of the occurrence. They have supported the version of the occurrence of the murders as detailed in the early part of the judgment. They claim to have seen the appellants and Fazal Elahi absconder. Firing shots from their respective weapons hitting
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the three deceased resulting in their death. Sher Ahmad P.W.9 has also deposed about the alleged motive of the appellants and Fazal Elahi to do away with Saleh Muhammad. Dr. Pirzada Muhammad Alam Shah P.W.11 has proved the post-mortem reports of the three deceased Ahmad Yar P.W. Has supported the recoveries of weapons of offence from the appellants. Jahan Khan P .W.10 has also supported the recoveries of fire-arms etc. From inside the taxi car and the recoveries of crime empties from the place of occurrence. Gul Jahan S.H.O. P.W.12 had recorded the F.I.R He effected recoveries from inside the car and from the spot and also recovered weapons of offence from the appellants. The rest of the evidence is more or less of formal nature. 11. When examined under section 342, Cr.P.C. The appellants denied all the incriminating circumstances. They however admitted their relationship inter se.................................. As far the relationship,pf the parties, Hakim Khan appellant stated that his grandfather and grandfather of Saleh Muhammad deceased were stepbrothers. The appellants have also admitted that Mst. Nasreen daughter of Fazal Elahi absconder was engaged to Saleh. MuhamMad deceased and in exchange Mst. Alam Khatoon a niece of Saleh Muhammad deceased was betrothed to Karam Elahi son of Fazal Elahi three years before the occurrence. Fateh Muhammad acquitted accused disclosed a different version of the occurrence. In reply to question No.7 he stated:- "On the day of occurrence Saleh Muhammad deceased had to get money from Mushtaq Mohajir on loan as he had purchased a car. It was, therefore, that he hired my taxi car and went to village Sheikhu alongwith Ahmad Sher who was known to Mushtaq Mohajir being his friend and Saleh was to get loan through his good offices. Sultan deceased just accompanied them as their friend. Jehan Khan P.W. Was not with them nor did he travel by my car. Sher Ahmad P.W. And Jan Muhammad P.W. Also did not accompany us on any motor cycle. After getting the money from Mushtaq Mohajir we were coming back and when we reached near the spot at about 11/12-00 noon a car came there and three or four strangers who were clad in Malashia cloth suits started firing at our car after getting down their car. I out of fear left the car and concealed myself in the Surcandas close by and ran away through the Surcandas and informed the police at the police station. The absconder Fazal Elahi and the other accused present in Court had not come there nor did I see them at the spot. The police took me to the spot late at night. Some persons from Bandial also reached there at the spot. The police investigated at the spot for the whole night and after preliminary inquiry and gavair at the spot registered the case on the following day. The police and the complainant party put pressure on me to become a witness against the accused and the absconder but I refused. At this I was also made an accused. I offered the police and the complainant party to take my oath and Nian about my innocence and record my defence evidence but the police and the complainant party did not agree to this." 12. In defence, no witness was produced. Ahmad Yar appellant tendered Exh. D.E. Certified copy of his secondary school examination certificate. Zafar Iqbal appellant tendered Exh. D.F. Certificate of his F.A. Examination, in evidence. 13. The learned trial. Court acquitted Fateh Muhammad for want of evidence in proof of charge of conspiracy/abetment against him and while believing motive, ocular testimony and the medical evidence has convicted and sentenced the appellants as stated above. The learned trial Court has not believed the version of the occurrence given by Fateh Muhammad acquitted accused. 14. The learned counsel for the appellants have contended that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt in that; the F.I.R. Was in fact recorded after preliminary investigation; that the two eye-witnesses namely Sher Ahmad P.W.9 and Jahan Khan P.W.10 are related as well as chance witnesses; that the eye-witnesses were not present on the spot and had not seen the occurrence; that Mushtaq, the host has not been produced by the prosecution to confirm the visit of the eye-witnesses to his house immediately
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before the occurrence; that their evidence is in conflict with the medical evidence inasmuch as the eye-witnesses have stated that the accused had fired at Ahmad Sher and Muhammad Sultan from behind whereas the post-mortem reports show that they had received injuries on the front of their chest; that the eye-witnesses have stated that the accused had fired about 25 shots whereas the medical evidence shows that the three deceased had received four shots in all and that the eye-witnesses have stated that two of the appellants had fired from their rifles at the deceased but the wounds found on the dead bodies were caused by pellets and not by bullets; that Jahan Khan P.W.10 is a self condemned person who has admitted in his statement before the learned trial Court that he had sworn a false affidavit in one criminal case under section 307, P.P.C.; that the eye witnesses have already been disbelieved to the extent of Fateh Muhammad; that effect of the acquittal of Fateh Muhammad is, that an important link as to how the appellants/accused had come to know about the movements of the deceased, stands severed; that had Jahan P.W.10 been there, he would also have been killed on the spot; that the story of his escape is highly doubtful; that Sher Ahmed P.W.9 had no licence for driving motor cycle; that there were no tyre marks of the motor cycle on the spot when the Investigating Officer inspected it; that there was no fun to take away rifle of Jahan Khan P.W. And leave pistol and gun of Saleh Muhammad in the car; that the recoveries of crime empties from the spot as well as of weapons of offence from the appellants are doubtful and that there is no independent corroboration of the statements, of the eye-witnesses' qua each appellant. In the alternative the learned' counsel for the appellant requested for lesser penalty on the around of family honour and influence of Fazal Elahi absconder on the appellants Conversely the learned counsel for the State has supported the judgment of the trial Court. The learned counsel for the complainant argued that the prosecution has also brought home the guilt to Fateh Muhammad acquitted accused and that the appellants other than Muhammad Khan should also have been sentenced to death for the murder of Saleh Muhammad. 15. We have anxiously attended to the arguments addressed by the learned counsel for the parties and have also reviewed the…
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