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Petitioner: MUHAMMAD GULZAR and 3 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal Title: MUHAMMAD GULZAR and 3 others vs THE STATE Case No.: Criminal Appeal No, 911 of 1976 Date of Judgment:1985-06-03 Reported As: 1987 MLD 2313 Result: Order accordingly
JUDGMENT
JUDGMENT ' Muhammad Gulzar, aged 40, armed with sota, Muhammad Aslam aged 20, armed with hatchet, and Taj Muhammad (age not recorded), armed with gun, all sons of Rahim Bakhsh, as well as Muhammad Yasin son of Ghulam Muhammad, aged 20, armed with sota, their nephew, have been convicted under section 302/34 P.P.C. For the murders of Allah Bakhsh alias Bakhshoo, aged 25, and Ahmad Ali aged 22, both sons of Jamal Din, and each of them was sentenced to imprisonment for life on two counts plus fine of Rs,1,000 on each count or in default to undergo six months' rigorous imprisonment. They were also convicted on two counts under section 325/34 P.P.C. For causing injuries to Ashiq (not produced) and Mst.Suban (P.W.12) and each of them was sentenced to four years' rigorous imprisonment plus fine of Rs,500 or in default to undergo two months' rigorous imprisonment. They were likewise convicted under section 323/34 P.P.C. For causing simple injuries to Mst.Hanifan (not produced) and each of them was sentenced to three months' R.I. Each of them was further directed to pay compensation of Rs,500 to the heirs of the deceased or in default to undergo two months' R.I. Each. The judgment had been passed against them on 29-7-1976 by the Additional Sessions Judge III Sahiwal and it is not stated therein as to whether the sentences of imprisonment will run concurrently. Therefore, it is to be considered that these are to run consecutively. The appeal of the convicts is being disposed of by this judgment. 2. The occurrence took place at Shamwela on 28-8-1973 in a street in Mauza Chak No,38/D at a distance of four miles from police station Depalpur District Sahiwal (now District Okara). Statement Ex.P.A. Was made by Muhammad Hanif (P.W.11), brother of the two deceased on the spot at 10.45 p.m. On the same day and it was recorded by Abdul Sattar S.I. (P.W.14) who came there in connection with the investigation of the cross case in which Ata Muhammad brother of
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Muhammad Gulzar appellant had been murdered at the hands of the complainant party namely, Allah Bakhsh alias Bakhshoo deceased, Ahmad All deceased, Talib and Ashiq, and the first informant in that case was Muhammad Gulzar appellant. On the basis of the aforesaid statement formal F.I.R. (Ex.P.A./1) was registered at the police station on the same day at 11.15 p.m. By Muhammad Siddiq A.S.I. (P.W.5). 3. The motive for crime as stated in the F.I.R. Is that 3/4 years prior to the present occurrence Muhammad Gulzar appellant tried to develop illicit relationship with Mst.Sardaran, niece of Muhammad Hanif (P.W.11) as well as the two deceased in the instant case. The matter came to be known to the family and the complainant side told Muhammad Gulzar appellant to desist from it whereupon their relations became strained. About one year before the present occurrence, there was a rumour in the village that Allah Bakhsh alias Bakhshoo deceased, brother of Muhammad Hanif P.W. Had developed illicit relationship with the niece of Muhammad Gulzar appellant as well as Muhammad Aslam and Taj Muhammad appellants. This further strained the relations between the parties. It is stated that the occurrence took place in this background. 4. In the F.I.R. The occurrence is reported to have taken place in the following manner: On the fateful day Muhammad Hanif P.W. Was going to village Hatti Pir Dee in order to enquire after the health of his mother. While he was on his way, he saw Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants armed as described above, beating his brothers Allah Bakhsh alias Bakhshoo and Ahmad All both deceased. Allah Bakhsh alias Bakhshoo deceased as well as Ahmad All deceased were causing injuries to them in retaliation with their sotas in the exercise of the right of self-defence. He also saw that Atta Muhammad, son of Rahim Bakhsh (deceased brother of Muhammad Gulzar, Muhammad Aslam and Taj Muhammad appellants) was lying on the ground. Ashiq (not produced) Mst.Suban (P.W.12) and Mst.Sardaran (P.W.13) were trying to rescue the two deceased in this case. But they were also given injuries by Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants with their respective weapons. When Mst.Hanifan (not produced because she died before the trial) advanced forward in order to rescue her husband Ashiq (not produced) she was also injured by Muhammad Aslam appellant with his hatchet. Thereafter when Mst.Hanifan (not produced) was' taking away her husband Ashiq (not produced) by giving him support, Taj Muhammad appellant came from the other side armed with .12 bore gun. He fired at Ashiq (not produced) who fell down. The two deceased in this case in order to save their lives ran towards the house of Ashiq (not produced) but Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants etc. Chased them and gave blows to them with their respective weapons until both the deceased were dead. Muhammad Hanif P.W. Did not interfere out of fear and ran back towards Hatti Pir Dee. However, he returned to the scene of crime on hearing about the arrival of the police and he got his statement recorded on the spot before Muhammad Siddiq AS! P.W. 5. The prosecution has produced three eye-witnesses of the occurrence namely, Muhammad Hanif (P.W.11), brother of both the deceased, Mst.Suban (P.W.12) injured mother of the two deceased as well as Mst.Sardaran (P.W.13) Bhabi of the deceased as well as Mst.Hanifan, being wife of Talib, another brother. Two other injured witnesses were cited in the F.I.R. Namely, Ashiq who was not produced and was given up as won over, whereas his wife Mst.Hanifan had not been produced because she died after the occurrence and before the trial. Thus, in this case besides the two deceased Mst.Suban P.W. Was injured as well as Ashiq (not produced) and Mst.Hanifan (not produced) from the complainant side, whereas it is stated that from the accused side Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants had sustained injuries at the hands of the complainant side and on their side one person was killed namely, Atta Muhammad who happened to be the real brother of Muhammad Gulzar, Muhammad Aslam and Taj Muhammad appellants. It may be pointed out at this stage that a cross case had been filed at the instance of
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Muhammad Gulzar appellant against the complainant side namely, Allah Bakhsh alias Bakhshoo deceased, Ahmad Ali deceased, Talib and Ashiq for the murder of his brother Atta Muhammad and injuries to the accused side. In that case the Additional Sessions Judge Sahiwal vide his judgment dated 29-7-1976 acquitted Talib and Ashiq of the charge under section 302/34 P.P.C. As Allah Bakhsh alias Bakhshoo deceased and Ahmad Ali deceased had been murdered In this case. Private Criminal Revision No,229 of 1979 against the acquittal of Talib and Ashiq is pending before me in Motion and I shall dispose it of separately by a different judgment. 6. All the appellants were arrested on 29-8-1973 i.e, on the following day by Abdul Sattar S.I. (P.W.14). From the spot was recovered a crime empty (not marked) and taken into possession vide Memo. Ex.P.F. Dated 29-8-1973. The attesting witnesses are Muhammad Yusuf (P.W.8), Muhammad Ashiq son of Muhammad Shafi (P.W.9) and Abdul Satter S.I. (P.W.14). At the instance of Muhammad Gulzar appellant was recovered blood-stained lathi (Ex.P.11) and taken into possession vide Memo. Ex.P.Q. At the instance of Muhammad Aslam appellant was recovered blood-stained hatchet (Ex.P.9) and was taken into possession vide Memo. Ex.P.N. At the instance of Taj Muhammad appellant was recovered .12 bore gun (Ex.P.17) and taken into possession vide Memo. Ex.P.R. At the instance of Muhammad Aslam appellant was recovered the licence of the said gun (Ex.P.18) which was taken into possession vide Memo. Ex.P.S. At the instance of Muhammad Yasin appellant was recovered bloodstained sota (Ex.P.10) and taken into possession vide Memo.Ex.P.O. All these recoveries were made on 29-8-1973 and these are attested by the same witnesses as stated above in the case of crime empty. There is on the record Fire-arms Expert's report to the effect that the crime empty picked up from the spot in this case had been fired through gun (Ex.P.17) recovered at the instance of Taj Muhammad appellant and there is also Serologist's report on the record to the effect that. Scrappings from hatchet (Ex.P.9) recovered from Muhammad Aslam appellant, sota (Ex.P.10) recovered froen Muhammad Yasin appellant and lathi (Ex.P.11) recovered from Muhammad Gulzar appellant were found to be stained with human blood. But it may be pointed out at this stage that both these reports have not been exhibited in this case although they are part of the record. 7. The appellants in their statements before the trial Court denied the prosecution version and disowned the recoveries. They gave their own version of the occurrence which is to the following effect: Muhammad Aslam appellant stated that only he, Muhammad Gulzar and Muhammad Yasin appellants were involved in the incident and Taj Muhammad appellant was not present at that time. He stated that they were attacked by the complainant side. On the day of occurrence they were coming to their chak from their shop at Depalpur. Muhammad Gulzar appellant went to the shop of Abdul Majid carpenter near the village mdsque and when Muhammad Aslam and Muhammad Yasin appellants reached near the village mosque, Ahmed Ali deceased armed with a dang waylaid them stating as to why they were dragging him and his brothers Allah Bakhsh alias Bakhshoo deceased, Muhammad Hanif P.W. And Talib in connection with the theft for the last one year and consequently an altercation took place between Ahmad Ali deceased on one side and Muhammad Aslam and Muhammad Yasin appellants on the other. Allah Bakhsh alias Bakhshoo deceased armed with a pistol and Talib armed with dang also arrived there. In the meantime his brother Atta Muhammad deceased of the cross case came out of the village mosque who was fired at by Allah Bakhsh alias Bakhshoo deceased through his pistol. Allah Bakhsh alias Bakhshoo deceased fired the second shot at Muhammad Aslam appellant but it accidentally hit Ashiq of the complainant side. Muhammad Gulzar appellant then arrived at the spot from the shop of Abdul Majid carpenter on hearing their alarm. They were attacked by both the deceased as well as Talib and thereafter they acted in the exercise of their right of self-defence. At that time Taj Muhammad appellant was not present on the spot but he had been falsely implicated. The pistol of Allah Bakhsh alias Bakhshoo deceased was found to have beeh fired according to the report of the Fire- arms Expert which he produced in his defence as Ex.D.H. (attested copy of the report of the Fire-
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arms Expert in the cross case). The complainant party was the aggressor and that the accused party had exercised their right of private defence. Muhammad Gulzar and Muhammad Yasin appellants gave identical versions, whereas Taj Muhammad appellant stated that he was not present on the spot and had not participated in the occurrence. He disowned recoveries and stated that he had been -falsely implicated only because he was brother of Muhammad Gulzar and Muhammad Aslam appellants. 8. Dr.Muhammad Aslam (P.W.1) medically examined on 29-8-1973 at 3.30 p.m. Mst.Hanifan, wife of Ashiq (since decease 11) and found on her person a lacerated wound skin deep on the top of middle of head and a contusion on the front of right wrist. Both the injuries were simple and caused by a blunt weapon within the duration of 24 hours. ' On the same day thereafter he medically examined Mst.Suban (P.W.12) and found on her person the following injuries:- ' Whole of the right middle upper arm swollen and contused, humerus was fractured in the middle; contusion on the right cheek below right eye; and lacerated wound skin deep on the back and upper part of left fore-arm. ' The injuries were caused with a blunt weapon within the duration of 24 hours. The first injury was grievous whereas the rest of them were simple. ' On the same day thereafter he medically examined Ashiq (not produced) and found on his person fire-arm wounds of entrance 25 in number on the right thigh, contusion on the lower and front of right thigh, contusion on the middle and lateral part of right thigh contusion on the middle of right forearm, contusion on the upper part of right arm, contusion on the right side of chest, contusion on left side of head, contusion on right shoulder, contusion on left upper arm, whole of the lower middle part of left forearm swollen and contused, both the bones of forearm were fractured and a contusion on the front and medial part of left knee. The first injury was caused by firearm but the rest were caused by blunt weapon. The tenth injury was declared as grievous and the rest were simple. All the injuries had been caused within the duration of 24 hours. ' On the same day he performed post-mortem examination at 11.00 a.m. On the dead-body of Ahmad Ali deceased and found on his person the following 15 injuries:- (1) Lacerated wound on the left back of head, skull bone fractured. (2) Lacerated wound above injury No,l. (3) Lacerated wound on the left side of head. (4) Lacerated wound on left forehead. (5) Lacerated wound on the left cheek. Maxilla bone was fractured. (6) Lacerated wound on the middle and left side of mandible which was fractured. (7) Incised wound on the right side of mandible which was fractured. (8) Lacerated wound on the right upper lip and the upper jaw was fractured. (9) Lacerated wound on the right maxilla which was fractured. (10) Lacerated wound skin deep and frontal bone was fractured on the right side. (11) Abrasion on the left eye-brow. (12) Lacerated wound on the right side of head. (13) Lacerated wound behind the right ear. (14) Contusion on the right hand underlying bone of the index finger was fractured. (15) Incised wound on the back and lower part of left arm,, humerus bone was fractured. ' All the injuries were anti-mortem. Injuries Nos.1, 4, 5, 6, 7, 9, 10, 14 and 15 were grievous and rest were simple. Injuries No,7 and 15 were caused by sharp-edged weapon and the rest with blunt weapon. In his opinion the deceased died as a result of the said injuries which were sufficient to cause death in the ordinary course of nature. He died immediately due to shock and haemorrhage and multiple fractures. The post-mortem examination was performed 14 hours after death.
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' At 12.30 p.m. On the same day he performed post-mortem examination on the dead body of Allah Bakhsh alias Bakhshoo deceased and found the following ten Injuries on his person:- (1) Incised wound on the back left side of head. (2) Lacerated wound scalp deep on the back Centre of head. (3) Lacerated wound on the left side of head. (4) Incised wound on the right side of head. (5) Lacerated wound behind the right ear, underlying bone was smashed and fractured. (6) Lacerated wound on the right eye-brow, underlying bone was fractured. (7) Incised wound on the lower jaw left side underlying bone was fractured. (8) Multiple abrasions on the right medial malolus. (9) Lacerated wound on the left of chin, lower jaw was fractured. (10) Lacerated wound on the Centre of upper lip; upper jaw was fractured. ' All the injuries were anti-mortem. Injuries Nos.1, 4 and 7 were caused by a sharp-edged weapon and the rest with blunt weapon. Injuries Nos.5, 6, 7, 9 and 10 were grievous, whereas the rest were simple. Skull bone had multiple fractures and there was haemorrhage present under these fractures. In his opinion the deceased died of head and face injuries due to multiple fractures of skull, jaws etc. And these injuries were sufficient to cause death , in the ordinary course of nature. Death resulted due to sudden shock, haemorrhage and multiple fractures. It occurred immediately after the injuries and post-mortem examination was performed sixteen hours after the death. ' The same Medical Officer on 29-8-1973 performed post-mortem examination on the dead body of Atta Muhammad deceased on the accused's side in the cross-case at 10.00 a.m. He noted two injuries on the dead body out of which one was caused with firearm on the abdomen, while the other injury was caused with blunt weapon which as simple in nature. The firearm injury was sufficient to cause death in the ordinary course of nature. The death had resulted due to shock, haemorrhage and rupture of intestines etc. As a result of he first injury caused with firearm. The death occurred immediately after the receipt of the injuries and post-mortem examination was conducted sixteen hours after death. ' He medically examined on the same day at 2.15 p.m. Muhammad Aslam appellant who had an abrasion on the central top of head caused with blunt weapon and it was simple injury. 'On the same day he medically examined Muhammad Yasin appellant and found three injuries on his person, all simple caused with blunt weapon within the duration of 24 hours. ' On the same day he medically examined Muhammad Gulzar appellant and found on his person an abrasion on the right eye-brow. t was simple injury caused with blunt weapon within the duration of :4 hours. ' Thus from the medical evidence it appears that on the Complainant side two persons had been murdered, namely, Allah Bakhsh Alias Bakhshoo and Ahmad Ali, and three had received injuries of vhom only Mst.Suban (P.W.12) has been produced whereas Ashiq tad not been produced and was given up as won over, and Mst.Hanifan had died a natural death before the trial. On the accused side Atta Muhammad had been killed, whereas Muhammad Aslam, Muhammad Yasin and Muhammad Gulzar appellants had sustained simple injuries. 9. I have heard learned counsels for the parties and carefully perused the record. Learned counsel for the appellants read before me the cross-examination of the Investigating Officer namely, Abdul Sattar S.I. (P.W.14). He stated in the cross-examination that there was no mention of the picking up of crime empty from the spot in the inquest report or in the site plan. He also stated that it was correct that a case was registered at police station Depalpur on the same date at 8.30 p.m. (about 21 hours before the registration of the present case) on the statement of Muhammad Gulzar appellant for the murder of his brother Atta Muhammad against the complainant side in the same incident and in that case the two deceased as well as their other brother Talib were impleaded as
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accused persons. He stated that it was correct that no explanation in the F.I.R. Of, this case was given in respect of as to who had caused injuries to Atta Muhammad deceased of the cross case. No explanation was given by Mst.Suban P.W. Or Mst.Sardaran P.W. Or Mst.Hanifan or Ashiq, two of whom have been produced as P.Ws. In this case in their statements under section 161 Cr.P.C. As to how Atta Muhammad deceased had received injuries and at whose hands. He also stated that the cross version of the occurrence was found correct by him during the course of investigation and for that reason he challaned the members of the complainant party for the murder of Atta Muhammad deceased. He further stated that it was incorrect to suggest that no crime empty was secured from the spot. However, he stated that it was correct to suggest that he had taken into possession a pistol with a crime empty in it in the cross murder case and had sent the pistol as well as the crime empty to the Fire-arms Expert for comparison. He himself did not receive the report of the Fire-arms Expert in that case as he had been transferred after the occurrence but he knew as a fact that the said report of the Expert was positive. He also stated that it was correct to say that the two deceased in the instant case, were bad characters and were history-sheeters of police station Depalpur but he could not say the same about Muhammad Hanif P.W. The complainant in the instant case,' as to whether he was under the police surveillance. Learned counsel also took me through the witnesses who had attested recoveries in the instaat case. He pointed out by reading paragraph 17 of the judgment of the trial Court that with the exception of the recovery of human blood-stained earth as well as human blood-stained clothes of the appellants, the trial Court has disbelieved the recoveries. It may be pointed out that the public witnesses of all the recoveries in the instant case are Muhammad Yusuf (P.W.8) and Muhammad Ashiq son of Muhammad Shafi (P.W.9) and both these public witnesses who had attested the recoveries were declared hostile. However, the trial Court has relied upon their statements supporting the prosecution case in respect of only the recovery of human blood-stained earth from the spot found under the two deceased in the instant case. The trial Court also relied upon the recoveries of human blood- stained clothes removed from the persons of all the appellants by Abdul Sattar S.I. (P.W.14), for the reason that three appellants out of them namely, Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin were themselves injured in the same incident at the hands of the complainant side, whereas Taj Muhammad appellant although not injured but his human blood-stained clothes were stated to have been removed and taken into possession by the police. Although the public recovery witnesses Muhammad Yusuf and Muhammad Ashiq son of Muhammad Shafi P.Ws. Were declared hostile and they had not been believed in this respect, the trial Court has relied upon the testimony of Abdul Sattar S.I.P.W. But so far as the recovery of crime empty from the spot is concerned, as well as the recoveries of human blood-stained lathi (Ex.P.11) from Muhammad Gulzar appellant, human blood-stained hatchet (Ex.P.9) from Muhammad Aslam appellant, gun (Ex.P.17) from Taj Muhammad appellant, licence of the aforesaid gun (Ex.P.18) from Muhammad Aslam appellant, and human blood-stained sota (Ex.P.10) from Muhammad Yasin appellant are concerned, the trial Court has not relied on these recoveries because the sole witness left who had attested the same was Abdul Sattar S.I. P.W. He has stated the reasons in paragraph 17 of the judgment. Whether the recoveries of crime weapons are relied upon or not, it is evident from the record that Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants had sustained injuries in the course of the same occurrence and Atta Muhammad deceased had died from their side. On the other hand, two persons died -on the complainant side and Mst.Suban P.W., Ashiq (not produced) and Mst.Hanifan (not produced) were injured on the complainant side. The injuries on the persons of Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants clearly indicate that they had participated in the occurrence, although the recovery of human blood-stained clothes from the person of Taj Muhammad appellant may be doubtful as he was not injured in the course of the occurrence. The next point to be kept in mind is that the
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occurrence has not been denied by the accused side. They only give their own . Version of the same in which it is stated that Taj Muhammad appellant was not present on the spot. ' Now I come to the eye-witness account in the instant case. The prosecution has produced three eye-witnesses of the -occurrence namely, Muhammad Hanif, Mst.Suban and Mst.Sardaran P.Ws. Mst.Suban P.W. Only is injured among them. Two other eye-witnesses cited namely, Ashiq and his wife Mst.Hanifan who are also stated to have received injuries in the course of the occurrence and Ashiq had received firearm injury, have not been produced. Ashiq was not produced and was given up for having been won over, whereas Mst.Hanifan was not produced because she died a natural death after the occurrence and before the trial. Muhammad Hanif P.W. Made material changes in his statement before the trial Court froth the one on the basis of which the F.I.R. Had been recorded. He stated that when he reached the spot he found that Muhammad Gulzar, Muhammad Aslam and Muhammad Yasin appellants, armed as described above, as well as Atta Muhammad deceased on the accused side armed with dang, were injuring his brothers Allah Bakhsh alias Bakhshoo and Ahmad Ali deceased. He found Allah Bakhsh alias Bakhshoo deceased and Atta Muhammad deceased exchanging dang blows with each other, whereas Ashiq (not produced), Mst.Suban P.W. Mst.Sardaran P.W. And Mst.Hanifan (not produced) were trying to separate them. Then Muhammad Aslam appellant brought out a pistol from the fold of his cheddar and fired at Allah Bakhsh alias Bakhshoo…
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