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Petitioner: Haji MIR AFTAB AND 4 Other VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Shah Abdur Rashid, Karimullah Khan Durrani Title: Haji MIR AFTAB AND 4 Other vs THE STATE Case No.: Criminal Appeal No: 299 of 1978 Date of Judgment:1980-05-24 Reported As: PLD 1981 Peshawar 23 Result: Order accordingly
JUDGMENT
JUDGMENT SHAH ABDUL RASHID, J.-On charges under sections 148, 302 and 307 read with section 149 of the Pakistan Penal code, the Additional Sessions Judge, Peshawar tried together eight persons residents of village Powaka, within the jurisdiction of Police Station Tehkal, in Tehsil and District Peshawar. They are :- (i) Haji Mir Aftab (70) son of Muhammad Anwar Khan. (ii) Musam Khan (68) son of Dilawar. (iii) Ism" (50) son of Haji Ibrahim. (iv) Bakhtiar (24/25) son of Haji Mir Siab. (v) Muhammad Usman (32) son of Haji Mir Aftab. (vi) Shah Mehmood (20) son of Haji Mir Aftab. (vii) Zubair Khan (17/18) son of Ismail. (viii) Iqbal Khan (25) son of Musam Khan. The allegations against the accused were that they, on the 29th day of August, 1.976, at 20-30 hours when members of unlawful assembly, armed with deadly weapons, committed the offence of rioting and further, in the prosecu--petition of the common object of the said unlawful assembly, murdered their co-- villagers Jehanzeb and Ghulsm Rafiq, and also caused grievous hurts with fire-arms to Ghulam Sarwar (now dead). Illauddin P. W. 15 and Ghulam Haider P. W. 14. Under such circumstances that if by their act the deaths of these victims had been caused they would have been guilty of murder, 2. The trial Judge, by his judgment dated 21-11-1978, acquitted the last named three accused persons, while the first named five were convicted and sentenced as under :-
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(a) Haji Mir Aftab was convicted under section 302, P. P. C. For committing the murder of Ghulam Rafiq and sentenced to undergo R. I. For life and also to pay a fine of Rs. 3,000, in default of which he was to undergo S. 1. For one year. (b) Musam Khan accused was convicted under section 302 read with section 34, P. P. C. For committing, in furtherance of his common intention with Ismail accused, the murder of Jebanzeb, and sentenced to undergo R. I. For life and also to pay a fine of Rs. 3,000 or in default to undergo S.1. For one year. He was also convicted under section 326, P. P. C. For causing grievous hurt with fire- arm to Ghulam Sarwar and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000 or in default to undergo S. 1. For three months. The sentences of imprisonment were to run concurrently. (c) Ismail accused was convicted under section 302 read with section 34, P. P. C. For committing, in furtherance of his common intention with Musam Khan accused the murder of Jehanzeb and sentenced to undergo R. 1. For life and also to pay a fine of Rs. 3,000 or in default to undergo S. I. For one year. (d) Bakhtiar accused was convicted under section 326, P. P. C. For the intentional causing of grievous hurt to Illauddin and sentenced to undergo five years' R. 1. And to pay a fine of Rs. 1,000 or in default to undergo S. I. For three months. (e) Muhammad Usman accused was convicted under section 326, P. P. C. For the intentional causing of grievous hurt to Ghulam Haider and sentenced to undergo five years' R. I. And to pay a fine of Rs. 1,000 or in default to undergo S. I. For three months. The learned trial Judge also directed that the fine, if realized shall be distributed among the heirs of Ghulam Rafiq and Jeharizeb deceased to the extent of one half share and the injured persons to the extent of other half as compensation under section 544-A, Cr. P. C. 3. Appeal No. 299 of 1978 has been filed on behalf of the convicted persons challenging their convictions and sentences. Cr. R. No. 159 of 1978 has been filed by Ghulam Siddique P. W. 12 who prays that the sentences of life imprisonments imposed on Mir Aftab, Musam Khan and Ismail accused be enhanced to those of deaths and the sentences awarded to the other two convicts, namely, Bakhtiar and Usman accused may also be enhanced adequately. In Cr. A. No. 129 of 1979, filed by the State under sec--petition 417, Cr. P. C. The acquittal of the three accused persons of all the charges, acquittal of the five convicted persons of charges under sections 148 and 307 read with section 149, P. P. C. And acquittal of Bakhtiar and Muhammad Usman of charges under section 302 read with section 149, P. P. C. Have been challenged and it has been prayed that all the eight accused persons be convicted under section 148, 302/307 read with section 149, P. P. C. And awarded appropriate sentences accordingly. The State has also filed Cr. R. No. 53 of 1979 for the enhancement of the sentences of three of convicted accused, who have been found guilty of murder, from imprisonment for life to that of death. This order shall dispose of all these matters. 4. It is alleged that on the night of occurrence Fazal Hussain Khan P. W. 17 who was then posted as Station House Officer of University Town Police Station was on blockade duty on Jamrud Road alongwith the Police party when he received information from Police Station Tehkal that there was some firing in village Powaka. He, along with the police party, went to the village mosque which is the place of occurrence and found that the firing had already stopped. Ghulam Siddique P. W. 12 was present in the mosque where the dead bodies of Jehanzeb and Ghulam Rafiq were lying. The said Ghulam Siddique P. W. 12 narrated the facts of the case to Fazal Hussain Khan, S. H. O., P. W. 17 and these facts form the prosecution story which is recorded in Exh. P. A/1. This, when translated into English, would read as follows :- "I along with my brother Ghulam Rafiq, my other collateral, Haji Mir Aftab (accused) and Ismail (accused) residents of our village used to offer our prayer in the same joint mosque in Kundi Umar Zai. On the night between 27th and 28th August, 1976 when we collected in the mosque to offer
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khufiin prayer and tarawih Mir Aftab (accused and his cousin Ismail (accused) had also gathered in the mosque for offering the prayer. For Khatm-e-Qur'an they had brought one Maloom Jan alias Hafizji of Bajoor. The said Hafiz had remained our imam a year before but he was removed from imamat due to differences. For this reason my cousin Ghulam Haider Khan (P. W. 14) objected saying that Hafiz Maloom Jan would not perform Khatm-e-Qur'an in the holy month of Ramzan. Mir Aftab (accused) etc. Insisted that the said Hafiz would perform the Khatm-e-Qur'an in the holy month of Ramzan. At this our two parties had altercation. Our party offered the tarawih prayer behind our present Imam Adam Khan (C. W. 1) and thereafter Mir Aftab etc. Offered their tarawih prayer behind Hafiz Maloom Jan. On the next day Maloom Jan left the village. Today before the Khuftin prayer Abdul Majeed (C. W. 2) son of Samundar Khan of our village came to my house and persuaded us and brought me alongwith my brother Ghulam Rafiq (deceased) and my cousins Ghulam Haider (P. W. 14) and Ghulam Sarwar (now dead) to the mosque. Outside the mosque Zubair, Iqbal Shah and Shah Mehmood were standing armed with rifles. When we reached the mosque Mir Aftab and Musam Khan (accused) aimed their tamachas at Ghulam Rafiq (deceased) and Ghulam Sarwar (now dead) who were already in the mosque and caught hold of their hands and told them to get out of the mosque. Basides Usman, Ismail and Bakhtiar (accused) armed with tamachaswere present in the mosque at this there was altercation between them. Mir Aftab (accused) fired at Ghularn Rafiq (deceased) and Musam Khan (accused) fired at Jehanzeb (deceased). Both the victims were bit and died on the spot. After this Musam Khan (accused) fired with his tamacha at Ghulam Sarwar (now dead). Usman (accused)fired at Illauddin (P. W. 15) and Bakhtiar (accused) fired at Ghulam Haider (P. W. 14) with their respective tamachas. Ghulam Sarwar (now dead), Illauddin (P. W. 15) and Ghularn Haider (P. W. 14) were sent to the Lady Reading Hospital in injured conditions. At the time of occurrence the electric bulbs were on in the mosque. To help the accused, Zubair, Iqbal and Shah Mebmood (accused) were indiscriminately firing with their rifles. At the place of occurrence, besides other persons, Musharif son of Noor-ul-Basar, Tila Muhammad (C. W. 2) son of Ghulam Muhammad and Zain-ul-Abidin (P. W. 16) son of Muhammad Rihan of our village were present and they saw the occurrence with their own eyes. I complain against the accused for murdering Ghulam Rafiq and Jehanzeb and for injuring Ghulam Sarwar (now dead), Ghulam Haider (P. W. 14) and Illauddin (P. W. 15). [Parenthesis are supplied]. 5. For the facility of reference the first named five persons in para. No. I shall hereinafter as a group be referred to as the convicts and the last three as the acquitted accused. The convicts and the acquitted accused together shall be referred to as the accused party while the deceased, the injured persons and the persons who appeared as eye-witnesses for them shall be referred to as the complainant party. 6. The prosecution case is that after recording the report P. A/I the S. H. O. Fazal Hussain Khan (P. W. 17) sent it to the Police Station Tehkal where it was formally incorporated as First Information Report Exh. P. A. And a case was registered. Fazal Hussain Khan P. W. 17 prepared the injury statements of the two dead bodies and also held inquests thereon. The dead body of Ghulam Rafiq under the escort of F. C. Mashal Khan P. W. 3 and the dead body of Jehanzeb under the escort of F. C. Taza Gul P. W. 2 were sent to the mortuary. The S. H. O. Then commenced the investigation of the case by inspecting the spot. He took into possession two parts of the blood-stained earth from the places where the dead bodies were lying and made them into separate sealed parcels. He recovered from the spot four empties of .32 bore Exh. P. 1. These two were made into the sealed parcel under memo. Exh. P. C/2. Six pieces of spent bullets Exh. P. 2 were taken into possession from the spot and made into sealed parcel under memo. Exh. P. C/3. A coin of eight annas having bullet mark on it too was taken into possession and memo. Exh. P. C/4 was prepared. From different places, outside the mosque, the 1. O. Recovered twelve empties of '303 bore Exh. P. 4. They were also sealed in a parcel under memo. Exh. P. C/5. An empty charger Exh. P. 5, was recovered from the shot and seized under
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memo Exh. P. C/6. Two bulbs of 100 Watts in working condition were taken from the spot vide memo. Exh. P. C/7. Thereafter on the same night Ghulam Sarwar (now dead) came to the mosque and produced pistol No. 941434 of .32 bore Exh. P. 7 which he claimed to have :snatched from the possession of Musam Khan convict. This was taken into possession under memo. Exh. P. C/8. The said Ghulam Sarwar also handed over to the I. O. His clothes which had stains of blood. These too were taken into possession. The statement of Ghulam Sarwar was recorded by the I. O. And on the same night he examined Zain-ul-Abidin P. W. 16. 7. The site plan Exh. P. B. Was prepared on the following day at the instance of Ghulam Siddique P. W. 12 and Zainul Abidin P. W. 16. This site plan indicates the different points relevant to the case. The clothes of the two deceased persons were also brought to the 1. O. And they were taken into possession. A sealed parcel containing bullet Exh. P. 22 recovered from the dead body of Jehanzeb deceased was produced to the 1. O. By F. C. Taza Gul P. W. 2 and this was taken into possession under memo. Exh. P. D/2. The I. O. Took into possession a pistol of .32 bore bearing No. 83879 which had been recovered earlier by S. I. Sher A.I P. W. 6 from the house search of Ismail convict. The house of Mir Aftab convict was searched by S. I. Sher A.I P. W. 6 and the said convict produced before: him a shot-gun Exhs. P. 12, rifle P. 16 and some cartridges. Mir Aftab convict Usman, Shah Mehmood and Zubair, the acquitted accused, were arrested by S. I. Sher A.I P. W. 6. In due course the fire-arms and empties were sent to the Firearm Expert whose report is Exh. P. J. The blood- stained articles were sent to the Chemical Examiner and his report is Exh. P. K. When the investigation was completed the eight accused were challaned by Fazal Dad P. W. 7, who was S. H. O. Of Tehkal Police Station, to the Court of the Additional Sessions Judge, where they were tried, convicted and sentenced as already stated. 8. It is not denied, and in fact it is established from the medical testimony and the evidence of the I. O. That on the night of occurrence there was firing in the mosque as a result of which two persons died and three were inured with fire-arms. The autopsy on the dead body of Jehanzeb deceased was performed at 7-30 a.m. On 30-8-1976 by Dr. Pervaiz Akbar Khan P. W. 10. On the same day earlier at 7-00 a.m. He performed the autopsy on the dead body of Ghulam Rafiq deceased. Jehanzeb, according to the opinion of the doctor, was 45-50 years old at the time of his death. He had a fire-arm entry wound on the front of chin which was ----- x ----- in size. The internal examination disclosed injuries to third survival vertebrae, survival part of spinal cord, right internal carotid artery, pharynx, oesophagus and facial and neck muscles. Stomach contained semi- digested food. In the opinion of the doctor the death was caused due to fire-arm, injury to survival part of the spinal cord and to right internal carotid artery. The doctor also recovered a bullet from the dead body. 9. The dead body of Ghulam Rafiq deceased had a fire-arm entry would on the right cheek ----- x -----' in size and a fire-arm exit wound on the back of skull 1' x ----- in size. The internal examination disclosed that scalp, base of skull, membrane, brain and cheek muscles were injured. Stomach contained semi-digested food. The doctor opined that the death was caused due to fire- arm injury to the brain, resulting in shock. 10. The three injured persons, namely, Ghulam Sarwar, who sub--sequently died in some other incident, Illauddin P. W. 15, and Ghulam Haider P. W. 14 were medically examined by Dr. Qamar Nazeer. This doctor was not available at the trial and the evidence was led to the effect that he had gone abroad and there was no likelihood of his return in the near future. The record of the medico legal examination performed by him was, however proved by Dr. Parvaiz Akbar P. W. 10 himself who was fully conversant with the handwriting of the absentee doctor. The reports of the medical examination of Ghulam Sarwar (now dead), Ghulam Haider P. W. 14 and Illauddin P. W. 15 which are Exhs. P. G-1 and P. G-2 respectively are as under :- Ghulam Sarwar :
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"A fire-arm entrance wound ICM x 1CM on the right side of shoulder with charring around, and with corresponding charring marks on the cloths. An exit wound 1----- to the left side of entrance wound in horizontal position ----- x ----- in size with a grazed wound on the left side. X-Ray :Chest taken. Duration :Within six hours. Weapon :Fire-arm. Result :Later on. Ghulam Haider An entrance wound ----- x ----- on the outer aspect of right thigh at junction of middle and lower third. No charring present. An exit wound 3' x 3' on the inner aspect of right thigh at junction of middle and lower third. X-Ray (R) :Thigh taken. Duration :Within six hours. Weapon :Fire-arms. Result :Later on. Illauddin An extensive F. A. Grazed wound 5` x 4" x muscle-deep on the back of left elbow. X-Ray Circle (L) :Elbow taken. Duration :Within six hours. Weapon :Fire-arm. Result :Later on." The above medical reports are sufficient to establish that the two persons died as a result of violence and three persons were injured by firearms. 11. The only question to be determined is as to who were responsible for causing the deaths and injuries and under what circumstances. Before we examine the evidence led in this behalf it appears desirable to give the relationship of the members of the accused and the members of the complainant party inter se and with one another as they are inter-related. Muhammad Usman convict and Shah Mehmood, the acquitted accused, are brothers. They are sons of Haji Mir Aftab convict. Bakhtiar convict is the son of Mir Siab, a brother of Haji Mir Aftab convict. Musam Khan and Ismail convicts are cousins of Haji Mir Aftab convict. Zubair Khan, the acquitted accused, is the son of Ismail convict while lqba1 Khan, the other acquitted accused, is the son of Musam Khan convict. 12. Ghulam Rafiq deceased was the brother of Ghulam Siddique P. W. 12 and Jehanzeb deceased was the son of his paternal aunt. Ghulam Sarwar who was injured in the occurrence but subsequently died in another incident is the brother of Ghulam Haider P. W. 14 and I1lauddin P. W. 15. Zainul Abidin P. W. 16 is the son of Muhammad Aman who was the brother of Muhammad Rihan Khan and father of Ghulam Sarwar, Ghulam Haider P. W. 14 and Illauddin P. W. 15. The sister of Ghulam Sarwar is the wife of Ghulam Siddique P. W. 12. Likewise the sister of Ghulam Siddique P. W. 12 was married to Ghulam Sarwar. Tila Muhammad who was originally cited as a prosecution witness but was examined by the Court as C. W. 3 is the son of the paternal aunt of Ghulam Siddique P. W. 1?. The daughter of Ghulam Siddique's sister is also married to Tila Muhammad C. W. 3. Tila Muhammad C. W. 3 and Jehanzeb deceased were brothers. 13. The members of the accused party and the deceased party are inter-related also. The wife of Haji Mir Aftab convict is the daughter of a brother of Ghulam Siddique P. W. 12. Ghulam Sarwar (now dead), Ghulam Haider P. W. 14, Illauddin P. W. 15 and Zainul Abidin P. W. 16 are the sons of the sister of Haji Mir Aftab convict. The daughter of the sister of Ghulam Haider P. W. 14 is married to one lbrar who is the brother of Jehanzeb deceased. Sister of Ismail convict is the wife of one Ajmal who is the son of a sister of Ghulam Sarwar, Ghulam Haider P. W. 14, etc. The daughter of the sister of Mir Attab
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is married to Chashti Muhammad Azam and this Muhammad Azam is the brother of Muhammad Ajmal Khan to whom the sister of Ismail convict is married. Ismail convict had a maternal uncle whose daughter was married to Ghulam Siddique P. W. 12. Again, the daughter of the maternal uncle of Ismail convict is married to Ghulam Haider P. W. 14. 14. From the above narration it would appear that all the accused are inter-related and similarly the members of the complainant party are inter-related. The members of the complainant party and the accused party are also related with each other closely through marriages. 15. To establish the guilt of the accused, reliance had been placed on the testimony of Ghulam Siddique P. W. 12, Ghulam Haider P. W. 14 and Illauddin P. W. 15. Zainul Abidin P. W. 16 who is also an eye-witness was examined at the trial but neither the prosecutor nor the defence counsel examined him with regard to the occurrence as it was considered unnecessary, his evidence being the same which had been given by the other witnesses. Corroboration was sought from the medical evidence, the recovery of four empties from the spot out of which two were matching with the pistol alleged to have been snatched by Ghulam Sarwar (now dead) from Musam Khan convict and the alleged abscondence of Musam Khan, Ismail. And Bakhtiar convicts and of Muhammad Iqbal the acquitted accused after the occurrence. All the accused had pleaded not guilty and had stated that they had been involved in the case on account of civil litigation which was pending between the parties. The convicts, against whom abscondence was alleged, stated that they did not abscond but had approached the Court to obtain bail before arrest but when that was not allowed they voluntarily surrendered to the Police. 16. Ghulam Sarwar, one of the persons injured on the night of occur--rence, could no be produced at the trial as he, as already stated, had died in another incident after the occurrence. The first eye- witness relied upon by the prosecution is Ghulam Siddique P. W. 12 who had lodged the report to S. H. O. Fazal Hussain Khan P. W. 17 in the mosque on the night of occurrence. At the trial, he first gave the relationship of the accused party and the deceased party inter se and of the two parties with each other. He then stated that both the parties lived in the same kundi of village Powaka and there was no previous enmity between them. According to him in the month of Ramzan, 1976, both the parties had to perform tarawih prayer in the common mosque where the occurrence is alleged to have taken place. On the first night of Ramzan he, alongwith others, went to the mosque and was preparing to offer tarawih prayer. According to him Haji Mir Aftab and other members of the accused party were present in the mosque and they had brought an Imam named Hafiz Maloom Jan of Bajoor for Khatm-e-Qur'an. This Imam had come in the previous Ramzan also but Ghulam Haider P. W. 14 had refused to offer prayer behind him. Ghulam Haider P. W. 14 objected to the leading of prayer by Hafiz Maloom Jan because he and other members of the complainant party were in favour of the existing posh imam named Adam Khan C. W. 1 and they desired that he should lead the congregation and also recite the holy Qur'an. This difference led to an altercation between the complainant party and Haji Mir Aftab and other accused on the first night but it was then settled that the members of the complainant party should first offer their prayer behind Adam Khan C. W. 1, the existing Imam and thereafter the accused party should hold a separate congregation behind Hafiz Maloom Jan. This was done and no untoward incident took place on the first night of tarawih. On the following day Abdul Majeed, who had been examined by the trial Judge as C. W. 2, according to the witness, came to his house where Ghulam Haider P. W. 14, Ghulam Sarwar (now dead) and Ghulam Rafiq deceased were also present and informed them that the matter had been settled with Haji Mir Aftab convict. Abdul Majeed C. W. 2 also informed the witness that Hafiz Maloom Jan had left the village and that he had been assured by the accused party that Adam Khan Imam C. W. 1 would lead the congregation. The witness goes on to say that Ghulam Rafiq deceased, Ghulam Haider P. W. 14, Ghulam Sarwar (now dead) and Illauddin P. W. 15 left the hujra for the mosque. When they reached outside the mosque they found that Shah
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Mehmood, Iqbal and Zubair, the acquitted accused, were standing there with topaks. The witness, however, entered the mosque along with his companions Ghulam Hafiz deceased Ghulam Haider P. W. 14, Ghulam Sarwar and Illauddin P. W. 15. Jehanzeb deceased was already present in the mosque. The witness and his companions entered the hall of the mosque and there they found Mir Aftab. Musam Khan and Ismail convicts sitting in the front row. They were armed with tamachas. In the second row were Usmam and Bakhtiar convicts who too were carrying tamachas. The witness sat in the second row. Ghulam Haider P. W. 14 Ghulam Rafiq deceased and Ghulam Sarwar were sitting in the first row. According to the witness Mir Aftab and Musam Khan convicts asked Ghulam Rafiq deceased and Ghulam Sarwar to leave the mosque. At this Ghulam Rafiq deceased stood up and inquired from Mir Aftab convict as to why they should leave the mosque. At this Mir Aftab stepped back and fired at Ghulam Rafiq deceased who was hit on his face and dropped on the ground After this Musam Khan and Ismail convicts fired at Jehanzeb deceased with their tamachas. He too fell down on the ground. Musam Khan brought out a tamacha but Ghulam Sarwar tried to snatch it from him. Ghulam Sarwar was also injured and fell on the ground but he succeeded in snatching the tamachas. In the meantime Bakhtiar convict fired at Ghulam Haider P. W. 14 and injured him. Usman convict fired at Illauddin P. W. 15 who too got injured and tell on the ground. Other villagers were present in the mosque and they saw the occurrence. The acquitted accused, namely, Shah Mehmood Iqbal and Zubair started firing to scare away the villagers from the courtyard of the mosque. The witness saw that Ghulam Rafiq and Jehanzeb had died. Illauddin P. W. 15 managed to run out and though the acquitted accused fired at him, he did not suffer any injury from their hands. Ghulam Haider P. W. 14 and Ghulam Sarwar (now dead) remained in the mosque in injured condition. 17. The second eye-witness is Ghulam Haider P. W. 14 who himself also had sustained injuries on the night of occurrence. He stated that in the Ramzan preceding the Ramzan of 1976 he did not like to offer prayer behind Hafiz Maloom Jan to whom Mir Aftab convict had brought from Bajore to the village. According to him on the first night of Ramzan he and his…
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