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Petitioner: HASSAN MANSOOR VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Munir Ahmed Mughal Title: HASSAN MANSOOR vs THE STATE Case No.: Criminal Appeal No,759 of 1997 Date of Judgment:2001-05-24 Reported As: 2001 YLR 552 Result: Appeals accepted
JUDGMENT
JUDGMENT ' This judgment will dispose of Criminal Appeal No, 759 of 1997 (titled as Hassan Mansoor v. The State) and Criminal Appeal No,38-J of 1998 (titled as Azhar Hayat v. The State) both arising out of the same judgment, dated 5-12-1997 passed by the learned Additional Sessions Judge, Khushab in Case F.I.R. No, 163, dated 5-8-1995 for an offence under sections 302/ 324/34, P.P.C. 2. Both the appellants were convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with the direction to pay Rs,50,000 each to the legal heirs of the deceased or in default to undergo R.I. For one year. Azhar Hayat was further convicted under section 324, P.P.C. And sentenced him to three years' R.I. And he was further convicted under section 337 F (iii), P.P.C. And sentenced him to one year 'R.I. With a fine of Rs,10,000 out of which half the fine to be paid as compensation to injured P.W. Bahadar Khan and in default to undergo further six months' R.I. The benefit of section 382-B, Cr.P.C. Was also given to the accused. 3. The occurrence took place on 5-8-1995 in the area of village Hamoka at 6-00 p.m. Which is at a distance of 19 K. Ms. From the Police Station Johar Abad, District Khushab. 4. Briefly the case of the prosecution as per contents of the F.I.R. Is that on the relevant date at about 6-00 p.m. The complainant alongwith brother Haq Nawaz, Bahadar Khan and Muhammad sons of Sher Muhammad started firing from Deh Hamoka across the river and when they reached on the old 'Dera' owned by Malik Khuda Bakhsh Tiwana near river bank the accused Muhammad Mansoor son of Allah Dad and Muhammad Azhar son of Nazar Muhammad armed with .12 bore guns suddenly emerged from nearby cluster of trees and Muhammad Azhar accused raised Lalkara that they had come to take revenge of disgrace of that date and instantly Muhammad Azhar and Muhammad Mansoor issued fires from their respective guns. Haq Nawaz who was going
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a few paces ahead of them was hit on the front of his chest he fell down. Muhammad Azhar repeated firing of gun which hit Bahadar Khan on his right calf. Muhammad Baqar cousin who was armed with .12 bore gun issued fire in defence whereby Muhammad Azhar and Muhammad Mansoor ran towards the cluster of trees and issued fires. Haq Nawaz succumbed to the injuries on the spot. The incident was seen by the complainant, Bahadar and Muhammad Baqar with their own eyes. This is the version of Kthe No,163 of 1995. The other version is the police version which has come on the record as per report of section 173, Cr.P.C. It was found during the investigation that on the date of occurrence Azhar Hayat armed with .12 bore gun and Hassan Mansoor armed with 7 M.M. Rifle had gone to the populated Dera of Malik Khuda Bakhsh Tiwana situated near the house of the complainant party. Shahadat Khan armed with .12 bore gun was standing on the western side of the Dera near their house and seeking him. Azhar Hayat and Hassan Mansoor taken the barrel of their guns in tightening manner towards Shahadat Khan and said Shahadat Khan issued fire with his gun on which Hassan Mansoor and Azhar Hayat also issued fires in response. Meanwhile, from the complainant side Muhammad Bahadar, Muhammad Baqar sons of Sher Muhammad, Ghulam Akhtar son of Abdur Rehman armed with guns came out of their house1s, From the side of the complainant Shahadat Khan, Muhammad Bahadar, Ghulam Akhtar son of Abdur Rehman armed with guns came out of their houses. From the side of the complainant, Shahadat Khan, Muhammad Bahadar, Ghulam Akhtar and from the side of the accused party Azhar Hayat and Hassan Mansoor started free firing at open place towards each other. As a result of which from the side of the complainant, Muhammad Bahadar and from the side of the accused Hassan Mansoor were injured. During the firing Hassan Mansoor and Azhar Hayat came down in the bank of the river and took position while the complainant party Shahadat etc. Took defence of the Dara of the bank of the river and for a sufficient long time the firing continued when the parties stopped firing Haq Nawaz who had come to see his relative from Handali reached empty-handed on the spot and the moment he reached on the bank of the river to see the accused Azhar Hayat and Hassan Mansoor who were in ambush down the bank of river and issued firing on him which hit him and he died on the spot. During the investigation, Azhar Hayat got recovered .12 bore gun and Hassan Manzoor 7.M.M. Rifle without licence. 5. Learned counsel for the appellant (Mr. Mansoor Alamgir Qazi, Advocate) submitted that appellant Hassan Mansoor aged 19 years in Criminal Appeal No, 759 of 1997 and appellant Azhar Hayat aged about 22 years in Criminal Appeal No,38/J of 1998. The judgment was announced by Mr. Manzoor Hussain Malik, Additional Sessions Judge, Khushab on 5-12-1997, whereby both the appellants were convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with the direction to pay Rs,50,000 as compensation each to the legal heirs of the deceased or in default to undergo R.I. For one year. Azhar Hayat was further convicted under section 324, P.P.C. And sentenced him to three years' R.I. With a fine of Rs,10,000 out of which half the fine to be paid as compensation to injured P.W. Bahadar Khan and in default to undergo further six months' R.I. The benefit of section 382-B, Cr.P.C. Was also given to the accused. The occurrence took place on 5-8- 1995 in the area of village Hamoka at 6-00 p.m. Which is at a distance of 19 K. Ms. From the Police Station, Johar Abad, District Khushab. F . I . R . No,163 Exh.P.K. Was recorded by Ahmad Khan, S.- I./S.H.O. (P.W.10) at Police Station Johar Abad on 5-8-1996 at 7-45 p.m. On the statement of Muhammad Sarfraz complainant (P.W.9) and Muhammad Baqir who was given up by the prosecution being unnecessary. Bahadar Khan and Muhammad Baqir are real brothers and cousins of the complainant and the deceased. Recovery from the spot was only bloodstained earth which was taken into possession on 6-8-1995 vide memo. Exh. P.L in presence of Muhammad Sarfraz (P.W.8), Muhammad Baqir given up P.W. And Ahmad Khan S.-I./S.H.O. (P.W.10). The report of Chemical Examiner has come on record as Exh.P.O. And the report of the Serologist is Exh.P.P. Accused Hassan Mansoor was arrested on 9-9-1995, Azhar Hayat was arrested on 23-8-1995,
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Ahmad Khan S.-I./S.H.O. (P:W.10). On '11-9-1995, Hassan Mansoor led to his house and got recovered rifle P.4 in presence of the witnesses namely Zulfiqar Ali, A.S.-I. (P. W .7), vide memo. Exh.P.J. Azhar Hayat accused on 4-9-1995 got recovered a .12 bore gun P.3 vide memo. Exh.P1 in presence of Zulfiqar Ali, A.S.-I. (P.W.7) and Muhammad Feroze given P.W. The motive as alleged in the F.I.R. There was an exchange of hot words between P.Ws. Baqar and Bahadar and other accused over the damage of crop of the accused as the land of the other accused adjacent of Bahadar being a common boundary. The post-mortem examination of the deceased was conducted by Dr. Mehmood Ahmad Zubairi (P.W.4) on 6-8-1995 at 7-00 a.m. Post-mortem report is Exh.P.C. And its corbon copy is Exh.PC/1. Bahadar Khan (P.W.9) was, also medically examined by Dr. Mehmood Ahmad Zubairi (P.W.4) on 5-8-1995 and his M.L.R. Is Exh.P.B. Hassan Mansoor accused was also medically examined on 12-8-1995 at 1-45 p.m. By Dr. Rab Nawaz, Medical Officer (P.W.6) and his M.L.R. Is Exh.P.G. And Exh.P.G/1. In their statements under section 342, Cr.P.C. Both the appellants denied the occurrence and pleaded innocence. In answer to question No,9 Hassan Mansoor has stated that because he was due to aggression of the'complainant party, therefore, he had been falsely involved and challaned, and the P.Ws'. Had made false statement to save their skin from the liability of the cross-case. In answer to question No,10 he stated that he was innocent and he had gone to play volleyball and received injuries at the hand of complainant party and that he was not armed with gun and that the police had challaned the complainant party in the cross-case declaring them as aggressors and that; unlicensed guns were also recovered from them. Similarly, Azhar Hayat accused had stated that he was falsely implicated in this case at the instance of Malik Khuda Baldish Tiwana, Ex-Minister and Ghulam Muhammad Tiwana, Ex-M.N.A. Whom he had opposed tooth and nail in every election. In his defence Hassan Mansoor has produced a copy of the judgment, dated 2-1-1996 (Exh.D.F) in case State v. Shahadat Khan alias Shahzad under sections 13/20/65, a copy of judgment, dated 8-1-1996, Exh.D.G in State v. Ghulam Akhtar under section 13/20/ 65, a copy of judgment dated 8-1-1996, Exh.D.H in case State v. Muhammad Bahadar under sections 13/20/65 a copy of judgment, dated 8-1-1996 in case State v. Muhammad Baqir under sections 13/20/65 and report under section 173 of the cross-case. The cross-version had also brought on the record and Shahadat, Ghulam Akhtar, Bahadar and Muhammad Baqar have been challaned under section 324/34, P.P.C. And the case is still pending which relates to custody of Hassan Mansoor. 6. Learned counsel for the appellant further submitted that there were three points. ' The first point was whether the complainant was five feet higher point and whether the complainant was present armed with fire-arm with .12 bore gun and the other point was whether the accused party was alleged to have been standing at the time of occurrence the 'Man' (bank of river) and in-between there were the deceased and the injured as per medico-legal report shows that the fire had been coming from highest to the lowest and the injuries received by the deceased show from the upper side to the exit one of the lower side to substantiate this point. Learned counsel for the appellant submitted that he referred to the evidence of Muhammad Saleem, Draftsman (P.W.3) who deposed that it was correct that the area of 'Man' which was higher than the area which was towards the East of the 'Man' was at a lower level and after some distance its dept was about 40 feet. The witness volunteers that the place of occurrence was about 5 feet deep at point No,1 of the site plan and the lower lever of the area at point No,3 becomes about 8 feet deep than the 'Man' of the river. 7. Learned counsel then referred to the deposition of this witness that the distance between point No,1 and point No,3 from where the accused fired was 25 feet. Learned counsel submitted that the distance between point No,2 where Bahadar Khan P.W. Was injured and the place from where the accused fired which was shown from the point No,3 was about 45/50 feet. Learned counsel then referred to the evidence of Muhammad Sarfraz (P.W.8). Learned counsel for the appellant pointed
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out that the version of the complainant side was that it was a case of two versions but actually it was a case of three versions as Hassan Mansoor was also injured and that fact was concealed by the complainant side and during the deposition of Muhammad Sarfraz that fact was within the line conceded. Learned counsel also referred to the deposition of P W.8 when he deposed that he had not seen Hassan Mansoor accused in injured condition when he appeared before the police and that he had no enmity with Hassan Mansoor accused and that Hassan Mansoor had no .12 bore gun with him at the time of occurrence. Learned counsel submitted that this witness also deposed that it was not within his knowledge that Khuda Bakhsh and Ghulam Muhammad have taken illegally three squares of land of Hassan Mansoor accused but it might be correct because he did not know. This witness also admitted correct the complainant party was living in the houses which were constructed on the land of Khuda Bakhsh and Ghulam Muhammad Tiwana. Learned counsel submitted that P.W.8 was doing knowledge. That Muhammad Baqir, Bahadar, Shahadat and Ghulam Akhtar had been challaned for possessing unlicensed guns in the cross-case of this occurrence, but appellant's side had produced a copy of the judgment showing there conviction of Bandar etc. Which are Exhs. P.G. P.H and P.I. Learned counsel submitted that this shows that they were armed with .12 bore gun and they also fired from those respective guns. Learned counsel then referred to Bandadar Khan (P.W.9) who deposed that Haq Nawaz deceased used to cultivate land in Jauhar Abad which might be at a distance of 19 kilometres from the spot. Learned counsel then referred to (P.W.10) Ahmad Khan, S.-I./Investigating Officer, who deposed that according to his conclusion it was Shahadat; a person of the complainant party, who opened the firing first at the accused and then there was free firing from both the sides. The third version of the accused according to this witness was that Bahadar Khan, Baqir, Shahadat and Akhtar were challaned under section 324, P.P.C. For murderous assault on the accused party after the verification of his investigation by all the abovementioned police officers. Learned counsel then referred to his deposition that Bahadar Khan P.W. Did not produce any cloth having any hole or cut on it. Learned counsel for the appellant submitted that there had been a fire-arm injury of Bahadar Khan and he was intimated that he had left the hospital without X-ray. This witness i.e, P.W.10 also admitted that he does not mention in note number of his rough sketch Exh. PN as to whose fire had hit the deceased and Bahadar Khan P.W. The Investigating Officer also deposed that the deceased was on the 'Man' (bank of the river) while the accused were at a place lower to the deceased. 8. On the other hand learned counsel for the State could not controvert any of the above facts that stood proved on the record. 9. I have given the consideration to the valuable arguments on both sides. 10. The ocular account as has come on the record from the deposition of Muhammad Sarfraz (P.W.8) and Bahadar Khan (P.W.9) and the medical evidence as has come on record through the deposition of Dr. Mehmood Ahmad Zubairi (P.W.4) and Dr. Rabnawaz (P.W.6). Their statements are reproduced for the purposes of reappraisal and scrutiny Muhammad Sarfraz (P.W.8) deposed: ' Azhar and Mansoor accused fired from their respective guns at Haq Nawaz which hit him in the chest. After receiving the tires Haqnawaz fell down. Thereafter Azhar accused fired another shot which hit Bahadar P.W. At his right leg. Muhammad Baqir P.W. Having a .12 bore gun fired in his defence. Azhar and Hassan Mansoor accused went away firing with their respective guns, towards the Kikar trees. Haqnawaz succumbed to the injuries at the spot. The occurrence was witnessed by me, Bahadar and Baqir P.Ws. I left Baqir P.W. And Bahadar P.W. To guard the dead body and myself proceeded to lodge the report to Police Station Jauhar Abad. My statement Exh. P.K. Was recorded in the police station, which was read over to me and I signed the same in token of its correctness. ' The motive for the occurrence was that 20 days before the occurrence there was exchange of hot words and abuses between Baqir, Bahadar P.Ws. And Azhar accused. They had a common
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boundary of their lands and the incident of exchange of hot words and abuses was over the damage of crops. ' I joined the police investigation and in my presence the Investigating Officer collected blood- stained earth from the spot which was made into a parcel and was secured through memo. Exh.P.L which was attested by me and Muhammad Baqir P.W. xxxxx I had not mentioned in the F.I.R. That Hassan Mansoor and Azhar Hayat were close friends. It is correct that Hassan Mansoor accused is Tiwan by caste and Azhar Hayat accused is Arain by caste. I had stated in she F.I.R. That Hassan Mansoor accused was carrying a .12 bore gun. The fires which hit the deceased were made from distance of 10/12 feet. Hassan Mansoor did not fire any other effective shot except the one which he had fired alongwith Azhar Hayat accused and which had hit the deceased. Volunteers that he had been making ineffective shots while going away. ' I had not seen any crime empty on the spot. However, police had collected some crime empties from the spot. The crime empties which were collected from the spot by the police were of .12 bore gun. ' Baqir P.W. Fired two shots. Volunteers that those were in defence. Those fires were in the air and the same did not hit any one. It is not within my knowledge that Hassan Mansoor accused was admitted to hospital at Jauhar Abad as a result of fire-arms injuries. Baqir, Bahadar P.Ws., Shahadat and one Akhtar have been challaned for injuring Hassan Mansoor in this occurrence. Volunteers that they were challaned 9 months after the occurrence. That case is pending in the Court.. ' We were going towards the Dera of our sister because there had been flood in the river and we wanted to shift her luggage to the village. The flood had come 2/4 days before the day of occurrence. It is incorrect that the river was flooded one month prior to occurrence. The graveyard of village Hamoka is towards its North, while the river is towards its East. There is no road which connects the river with the village. Volunteers that there are small passages. The road which leads toward graveyard from the village is made of bricks. The said brick road is at a distance of one Killa from the place of occurrence. The river flows at a distance of 40 feet from the end of the abovesaid brick road. It is incorrect to suggest that at the place of occurrence there is no passage which connects the village with the river. ' The place of occurrence is old Dera of Malik Khuda Bakhsh. There is a volleyball ground near the Dera, Hassan Mansoor accused joined investigation 10/12 days after the occurrence. It is not within my knowledge that Hassan Mansoor took the plea that he had come to play volleyball in the ground when he was attacked by us/complainant party. I had not seen Hassan Mansoor accused in injured condition when he appeared before the police. It is not correct that Hassan Mansoor accused remained hospitalized at Khushab. ' It is correct that Ahmad Khan, Sub-Inspector investigated this case. It is incorrect to suggest that Ahmad Khan, Investigating Officer concluded that Shahadat, Akhtar, Baqir and Bahadar abovesaid persons had initiated the aggression against. Hassan Mansoor accused and made the first fire shot. It is incorrect that he also concluded that Hassan Mansoor accused was injured in this occurrence. It is incorrect that Ahmad Khan also concluded that it was not known who had hit the deceased. I do not know whether Ahmad Khan prepared the challan of this case on 13-9-1995. It is incorrect that in the said Challan Ahmad Khan concluded that the aggression was started by above persons of the complainant side and it was not known whose shot hit the deceased. It is correct that this case was also investigated by Muhammad Aslam Ghori, D.S.P. I do not know that he verified the investigation of Ahmad Khan, S.-I. And also concluded on the lines. Habib Ullah, Inspector also investigated this case. Volunteers that; the investigation was dishonest. I, and Baqir, Bahadar and Shahadat appeared before Muhammad Akram, D.S.P. My statement was not recorded by Muhammad Akram, D.S.P. I had not made a statement before Muhammad Akram,
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D.S.P. To the effect on 17-3-1996; that before the present occurrence Azhar accused had disgraced Baqir P.W. By shaving his head and moustaches. Confronted with Exh.D.0 where it is so recorded. I had no enmity with Hassan Mansoor accused. ' I have no knowledge that the police concluded that Hassan Mansoor had no .12 bore gun with him at the time of occurrence. ' It is incorrect to suggest; that at the time of occurrence that Hassan Mansoor and Azhar Hayat accused were present in the volleyball ground and -Azhar Hayat accused was attacked by Baqir; Bahadar, Shahadat and Ghulam Akhtar abovesaid persons. It is incorrect to suggest that Hassan Mansoor fell on the ground as a result of the injuries caused by Bahadar and Akhtar and Muhammad Hayat Qubbi and Sher Ahmad Shahbazi carried him away telling us not to fire at him any more as he had no enmity with us. ' It is correct; that Khuda Bakhsh Tiwana remained Ex-Provincial Minister for a long time and his brother Ghulam Muhammad is an Ex-M.N.A. And Ex-Parliamentary Secretary and they belonged to my village. It is not within my knowledge that Khuda Bakhsh and Ghulam Muhammad have taken illegally three squares of land of Hassan Mansoor accused but it may be correct because I do not know. It is incorrect to suggest that the complainant party are the tenants of Khuda Bakhsh and Ghulam Muhammad Tiwana. It is correct that the complainant party is living in the houses which are constructed on the land of Khuda Bakhsh and Ghulam Muhammad Tiwana. It is incorrect to suggest that we attacked Hassan Mansoor at the instance of Khuda Bakhsh etc. And are also prosecuting the present case -against Hassan Mansoor at their instance. It is correct that father of Hassan Mansoor had died. Hassan Mansoor has one younger brother, who may be younger to him by five years. The maternal relatives of Hassan Mansoor accused reside in Tehsil Shahpur, District Sargodha. ' My house is situated in the Abadi of village Hamoka. It is at a distance of two Killas from the place of occurrence. I cultivate near Sugar Mills, Jauhar Abad where I have constructed a residential Dera. Volunteers that my residence is also in Haqmoka. I cultivate 12/14 Killas of land near Sugar Mills of Jauhar Abad. I am in self-cultivation of about 60 Bhighas of land at village Hamoka. That land is situated at a distance of 2-1/2 miles from the place of occurrence. It is incorrect that I do not reside at village Hamoka. It is further incorrect that I reside at the land situated near Sugar Mills, Jauhar Abad. The Dera in my land near Sugar Mills is at a distance of about 19/20 kilometres from the place of occurrence. I am not an accused in the cross-case of this occurrence. ' It is correct that Baqir and Bahadar P. Ws. Are real brothers inter se and are my paternal cousins. Ghulam Shabbir P.W. Is maternal uncle of Baqir P.W. It is correct that Feroze P.W. Is son of my cousin. It is correct that Mehboob P.W. Is son of my cousin in the second degree. It is incorrect that I have not seen the occurrence. ' I had stated in my F.I.R. Exh.P.K; that Bahadar P.W. Had also exchanged abuses with the accused persons. Confronted where name of Bahadar is not recorded. I had stated in the F.I.R. That the crop of Azhar accused was damaged. Confronted with Exh. P.K dot so recorded. I had not stated the time and the place of motive incident. I had not stated in the F.I.R. The name of any witness before whom the motive incident took place. Azhar Hayat accused does not own any land in his name. The land is in the name of his father and uncle. It is correct that some time before the occurrence Azhar Hayat accused fired at his uncle and his father got a case registered against Azhar Hayat. No case was registered regarding motive incident. ' I had mentioned in the F.I.R. That the exchange of abuses regarding damage of crop took place between Baqir P.W. And the accused. Baqir P.W. Was not injured during the present occurrence. It is incorrect that I made a statement before Ahmad Khan, S.-I. On 1-9-1995 that motive incident took place one month before the occurrence. Confronted with Exh.D.D where it is so recorded. It is correct that the land of the father of Azhar Hayat accused as situated at a distance of about 2
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squares from the land of Hassan Mansoor accused. It is incorrect that no crop was damaged and on this score there was no altercation or exchange of abuses. It is incorrect that motive part has been fabricated. ' I had not mentioned in the F.I.R. That we were going towards the Dera of Sarwar Khatoon our sister which was across the river. ' It is correct that Baqir, Bahadar P.Ws., Shahadat, Akhtar remained in judicial lock-up for a period of 8/9 months on account of cross-case of this occurrence. I cannot say whether Hassan Manzoor had received grievous injuries like Jaifah and Hashmiah. I have no knowledge that Hassan Mansoor accused remained in a hospital for one month and 9 days. Baqir P.W. Fired from a gun which belonged to Shahadat accused of the cross-case. Muhammad Baqir, Bahadar, Shahadat and Ghulam Akhtar have been challaned for possessing unlicensed guns in the cross-case of this occurrence. I have no knowledge whether they have confessed and have been sentenced to fine in the respective cases of possession of unlicensed arms. ' It is incorrect to suggest that Azhar Hayat accused always…
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