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Petitioner: GULZAR AND 2 OTHERS VS Respondent: THE STATE--
Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema, Bashir-ud-Din Ahmad Title: GULZAR AND 2 OTHERS vs THE STATE-- Case No.: Criminal Appeal No. 3 1 3 and Murder Reference No. 219 of 1968 Date of Judgment:1970-12-08 Reported As: 1970 PCr.LJ 1145 Result: Appeal partly accepted
JUDGMENT
JUDGMENT MUHAMMAD AFZAL CHEEMA, J.---Gulzar, aged 52, and his two sons, Haider and Fazal, aged 32 and 28 respectively, were tried and convicted by the learned Additional Sessions Judge, Dera Ghazi Khan, for the double murder of two brothers, Farid and Rahim, at about sunset time on the 21st of November 1966, in the area of Bait Patti Makwal, Police Station Kala, District Dera Ghazi Khan. They were sentenced to death and have now appealed against their conviction and sentence. Their case has also been referred to us under section 374, Cr. P. C. For the confirmation of the sentences of death. This judgment will dispose of the appeal as well as the murder reference. 2. The relevant background of the case briefly is that about six years before the occurrence, Azim complainant (P. W. 7) and his two deceased brothers were forced to shift their residence from Chah Hasilwala in the revenue estate of Mauza Notak Sikhani, a couple of miles away from their present place, i. e., Bait Patti Makwal, owing to the leakage of the complainant's illicit connection with Mst. Sabali, wife of Haider appellant. The relations between the parties got strained, and the appellants also allegedly disposed of Mst. Sabali in the tribal area. Since then, the parties were not on visiting terms and in fact the police had had recourse to security proceedings against them under sec--tion 107/151, Cr. P. C. About four days prior to the occurrence, while the two deceased Rahim and Farid, were present at their well in Patti Makwal, Gulzar appellant came there on horseback in the absence of Azim complainant and his father Qadir Bakhsh. The two deceased took exception to the visit, exchanged abuses with Gulzar and even went to the extent of hurling brickbats at his mare. Gulzar left threatening to take revenge for the insult. This incident was witnessed by Khan Muhammad (P. W. 8) and ` one Haider who did not enter the witness-box. The complainant party does not appear to have taken seriously the threats of Gulzar appellant.
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3. On the 21st of November 1966, at about sunset time, Azim complainant, accompanied by Khan Muhammad (P. W. 8) proceeded from their well in Bait Patti Makwal towards the tubewell of Sardar Meharullah Khan, a landlord of the area, who on that day was supposed to visit his land. The two deceased, C Rahim and Farid, aged 20 and 14 years respectively, had already proceeded ahead of them in order to bring fodder for the cattle from the tubewell. While Azim and Khan Muhammad were 6/7 killas short of the tubewell, they heard an alarm at some distance in front of them and rushed to the spot. As they cleared out of a cluster of bushes they found in the open space the three appellants of whom Gulzar was armed with a sword, and his two sons, Haider and Fazal with kulharis, giving blows to the deceased with their respective weapons. Within their sight, Farid fell down injured and Haider continued giving him blows on his neck. Rahim deceased tried to escape towards the east closely followed by Gulzar and Fazal, who being unable to run fast on account of the injuries was overtaken by them at a short distance. Gulzar and Fazal appellants gave him blows on the face and neck with their respective weapons. Azim and Khan Muhammad raised an alarm, but did not venture to go near and physically intervene owing to fear. In the meantime, Hussain (P. W. 9) and Banal (not produced) appeared from the opposite direction and also tried to intervene but were threatened by the appellants with dire consequences in case they came near. Having killed the two deceased, the appellants ran away towards the north-west and brandishing their weapons disappeared in the jungle. On going near, the eye-witnesses found that Rahim and Ghulam Farid had already expired on account of the injuries. The two bundles of Gowara fodder, the pairs of shoes of the two deceased, their patkas, which had corresponding cuts, were found at the spot. Khuda Bakhsh, a Mukhtar of Sardar Meharullah, also arrived soon thereafter and was informed by the eye-witnesses of the occurrence, but he too was withheld by the prosecution. It took Azim quite sometime to recover from the overwhelming shock of the murder of his two brothers. He then proceeded to the Police Station but on his way learnt that the Sub-Inspector was present in village Shedan Lund where he reached at about midnight and made statement Exh. P. A. Before him on the basis of which a formal F. I. R. Exh. P. A./1 was drawn up at Police Station Kala, at a distance of six miles from the place of occurrence. 4. Having recorded the statement Exh. P. A., Ch. Asghar Ali, Sub-Inspector (P. W. 11) proceeded to the place of occurrence arriving there at about 3 a.m., after traversing a distance of about seven miles. He found the dead bodies lying in the area of Bait Patti Makwal. He prepared the injury statement Exh. P. X/1 and the inquest report Exh. P. X. Of Ghulam Farid deceased, and injury statement Exh. P. Y./1 and inquest report Exh. P Y. In respect of Rahim deceased. The dead bodies were then sent for post-mortem examination to the mortuary under the escort of F. C. Muhammad Wazir (P. W. 5). The Sub-Inspector took into possession blood-stained earth from the place where Ghulam Farid lay dead vide memo. Exh. P. B. And from the place where the dead body of Rahim was found vide memo. Exh. P. C. A trail of blood could also be seen leading to the place where Rahim fell dead. Blood--stained earth was also taken into possession vide memo. Exh. P. D. The shoes of Ghulam Farid and Rahim were recovered vide memo. Exh. P. E. And P. F. Respectively Blood-stained turban Exh. P. 3 of Ghulam Farid was recovered vide memo. Exh. P. G. Blood--stained turban Exh. P. 4 of Rahim deceased was recovered vide memo. Exh. P. H. Both the turbans had corresponding cut marks and were made into separate sealed parcels. Two bundles of fodder were also taken into possession vide memo. Exh. P. K. And Exh. P. L. Significantly enough, a broken piece of wooden handle of a hatchet was also taken into possession vide memo. P. J. 5. All the three appellants were arrested on the 22nd of November 1966. The blood-stained clothes of Haider appellant, i.e., chadar Exh. P. 5 and shirt Exh. P. 0, were got removed from his person and taken into possession vide memo. Exh. P. M. Similarly, blood-stained chadar Exh. P. 10 and shirt Exh. P. 11, were got removed from the person of Fazal appellant and taken into possession vide memo. Exh. P. N. Likewise, chadar Exh. P. 12 was removed from the person of Gulzar appellant and taken into
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possession vide memo. Exh. P. O. The clothes of the three appellants were made into separate sealed parcels. While in police custody, Haider appellant led to the recovery of hatchet Exh. P. 13 from inside a khola in his hawli where it lay buried and was dug out. It was blood-stained and its broken handle was found to fit in with the part of the broken handle recovered from the spot. It was taken into possession vide memo. Exh. P. Q. Fazal appellant led to the recovery of blood-stained hatchet Exh. P. 14 from an adjoining khola (deserted hut), which also lay buried there and was dug out. The relevant recovery memo. Is Exh. P. R. On the following day, i.e. 23rd November 1966, Gulzar appellant got recovered blood-stained sword Exh. P. 15 from his Haveli, which was also dug out from the ground where it lay buried. The relevant recovery memo. Is Exh. P. S. The three weapons were made into three separate sealed parcels. ' 6. Foot Constable Muhammad Wazir (P. W. 5) brought back the clothes of the deceased after post- mortem examination, which were taken into possession vide memos. Exhs. P. T. And P. U., the former related to blood-stained shirt Exh. P.16 of Rahim deceased and the latter to a blood-stained shirt Exh. P. 18 and a blood-stained poplin chadar Exh. P. 17 belonging to Ghulam Farid deceased. It may be pointed out in this context that all the eleven parcels containing blood-stained earth, blood- stained clothes of the deceased, blood-stained clothes of the accused, blood-stained hatchets and sword were delivered by F. C. Muhammad Wazir P. W. 5 to Muhammad Munawar Head Constable P. W. 2 on the 23rd of November 1966, which on the following day were delivered intact by the latter to A. S. 1. Ghulam Rasul who took over charge of the Malkhana, kept the parcels in safe custody and on the 29th of November 1966 handed them over intact to F. C. Nazar Muhammad (P. W.4) for delivery at the office of the Chemical Examiner. These parcels were received by Dr. Muhammad Aslam, Assistant Chemical Examiner in his office at Lahore on the 2nd of December 1966, and were found to be stained with blood vide report Exh. P. Z., which was determined to be of human origin vide Serologist's report Exh. P. B. B. 7. On the 23rd of November 1966, at about 9 a.m. Dr. Muhammad Bashir, Medical Officer, Dera Ghazi Khan, whose statement before the Committing Magistrate was transferred to the Sessions File, conducted the post-mortem examination of the dead body of Rahim and Ghulam Farid deceased. Vide his post-mortem report Exh. P. Y/2, the doctor found the dead body of Rahim that of a well- built young man of moderate height having the following injuries:-- (1) An incised wound 2" x -- " x bone deep, cutting the bone on the left side of head --" above the left ear. It went from behind to the front side. (2) An incised wound 2" x -- bone deep which was cut in the middle on left side of the head going from front side towards back. (3) An incised wound 3" x 1", bone deep which was also cut on the right back side in the head going from right to left. (4) An incised wound 4" x 1" x muscle deep on the lower part of the back of the head. (5) An incised wound 4" x 1-- one deep starting from the middle of the upper lip and went to the upper and lower part up to 1" to the left of left angle, of mouth. Left lower jaw and upper jaw in the middle were cut. Right upper inciser teeth are dislocated. (6) An incised wound 6" x 3" on the upper part of the neck on the front side. Big blood vessels of neck wind pipe and food pipe were cut. (7) An incised wound 1" x 1/3", muscle deep on the lower part of the right side of neck. (8) An incised wound 3" x 1/3 ", bone deep which was cut starting from -- below the inner angle of left eye and going downwards towards left side of the face. (9) Two abrasions 4" x 1" and 3" x --" on the top of right shoulder. On internal examination all the organs were found healthy except that under injury No. 1 left parietal bones and the right occipital bones were found partially cut. The big blood vessels of the neck were' cut on both sides. The oesophagus was cut. The stomach was found healthy and empty. The
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bladder was also found healthy and empty. 7 he small intestines contained semi---digested food and the large intestines contained faeces. In the opinion of the doctor, death had occurred due to shock and haemorrhage as a result of multiple injuries cutting the wind pipe food pipe and big blood vessels of both sides of the neck. Injury No. 9 was caused by a blunt weapon while others by a sharp weapon. Injuries Nos. 1, 2, 3, 5, 6 and 8 were grievous while others were simple. Injury No. 6 was fatal and was sufficient to cause death in the ordinary course of nature. Death had occurred instantaneously and the probable time between death and post---mortem examination was 24 to 48 hours. 8. Vide post-mortem examination report (Exh. P. X /2), the doctor found the dead body of Ghulam Farid aged 14 having the following injuries: - (1) An incised wound 3 --"x --", bone deep which was cut on the left side of head 4" behind the left eye-brew. It went from front to backwards. (2) An incised wound 2" x --" scalp deep on the middle of back of head going from left to right. (3) Two incised wounds --' x 1/3" and 1" x 1/3" on the tip of lower jaw in its middle. (4) An incised wound 1" x 1" x bone deep which was partially cut on the middle of right clevicle, cutting the shirt. (5) An incised wound 2" x --", muscle deep on the front middle side of the left arm. (6) An incised wound --' x 3" on the lower part of front of neck. Wind pipe and the big blood vessels of the neck were cut off. (7) An incised wound 6" x 4" in the upper part of front of neck. The head connected with the rest of the body by only a flap of skin on the back. Wind pipe food pipe, and big blood vessel of neck and clavicle vertebra and spinal cord were cut on both sides of the neck. (8) An incised wound -- " x. --", muscle deep on the lower part of the back of left chest. (9) A scratch 4" long on the lower part of front of left arm. On internal examination, the doctor found that left parietal bone was cut through and through. The membranes and the brain were cut on the left side. The spinal cord was also cut as also the blood vessels on both sides of the neck. The stomach was healthy and empty. The small intestines were healthy and contained semi-digested food. The large intestines contained faeces. The bladder was full of urine. In the opinion of the doctor, death had occurred due to shock and haemorrhage as a result of multiple injuries causing fracture of the skull injury to brain, cutting of wind pipe, food pipe, big blood vessels of neck and spinal cord. Death had occurred instantaneously and the probable time between death and post-mortem examination was 24 to 48 hours. According to his estimate the deceased had taken food six to eight hours prior to his death. Having been shown the hatchets and sword the doctor opined that the injuries on the person of the two deceased could be caused by these weapons. 9. After completing the investigation and getting the site plan Exh. P. Y. Prepared by Khushi Muhammad Bakhsh Petwari (P. W. 6), the Sub-Inspector sent up the three appellants who on commitment were tried by the learned Additional Sessions Judge, Dera Ghazi Khan and were convicted and punished as stated earlier. 10. At the trial the prosecution case rested principally on the testimony of Azim complainant (P. W. 7), Khan Muhammad (p. W. 8), Hussain (P. W. 9), supported by the medical evidence and further corroborated by the recoveries of the blood stained clothes of the appellants and their blood- stained weapons. The appellants pleaded not guilty to the charge and denied all the recoveries. They took the plea that it was a case of an unwitnessed occurrence and that they had been falsely implicated at the instance of Karim Bakhsh Lambardar who was inimical to them. Before the committing Magistrate Gulzar appellant explained his position as follows: - "I have a dispute with Karim Bakhsh Khan, Lambardar of village Bait Narh Haki as I had abducted his brother's wife Mst. Zenib. Ali Muhammad son of the Said Karim Bakhsh is a B. D Member, who has
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close relation with the police. He has concocted this false case against me. I have already undergone two years' imprisonment due to said Karim Bakhsh." At the trial, he confined himself only to pleading innocence and attributed his false implication to his enmity with the P. Ws. Haider appellant more or less reiterated the same position before the Committing Magistrate, but made the following statement at the trial: - "A niece of my father was married to Hassan, an uncle of Azim P. W. On account of certain differences Qadir Bakhsh, father of Azim P. W. Had initiated security proceedings against us in which Hassan above mentioned was on our side and challaned with us." He further stated that a false case had been trumped up by the prosecution witnesses against them on account of enmity. The same position was taken by Fazal appellant at the trial. No evidence was produced in defence. 11. Placing full reliance on the testimony of the eye-witnesses and other incriminating evidence, referred to above, the learned trial Judge came to the conclusion that the offence had been fully brought home to the appellants and accordingly convicted them as stated earlier. 12. Learned counsel for the appellants raised the following contentions: - (1) That there has been considerable delay in the lodging of the F. I. R., which remained unexplained; (2) that in all probability the F. I. R. Had been recorded after the Sub-Inspector had visited the spot and made some preliminary investigation ; (3) that the principal motive of illicit connection was directed against, Azim complainant who should not have been spared by the appellants whereas the two victims of the assault were not even a party to the security proceedings under section 107/ 151, Cr. P. C.; and (4) that the evidence of recovery in general and that of the broken handle in particular was a fabrication pure and simple resorted to by the Sub-Inspector to connect incriminating evidence against the appellants. 13. Before proceeding to discuss the merits of the conten--tions raised by the learned counsel, we may also observe that in the course of arguments learned counsel submitted an application under section 423/375, Cr. P. C. With the prayer that Khan Muhammad and Husain P. Ws. Should be re- examined by any of additional evidence in the interest of justice. The points precisely sought to be brought on the record were (i) that Khan Muhammad P. W. 8 had mentioned in the Court of the Committing Magistrate peshiwela as the time of the occurrence although at the trial, he stated it to be late digarwela. He was not confronted with his statement made before the Committing Magistrate and it was for this purpose that he was sought to be re-examined. (ii) In answer to a suggestion at the trial, Azim P. W. 7 stated that Babal, Hussain and Khan Muhammad P. Ws. Might have been called as suspects in the murder case of Ahmad, sister's son of Gulzar appellant. The question whether he himself was also one of the suspects had not been pressed by the defence counsel and it was to supply this omission that the re-examination of this witness was sought. Having considered the prayer made in this petition, we do not regard the taking of this additional evidence necessary for the disposal of this case and consequently dismiss this application. 14. In support of the first contention relating to the question of delay in the lodging of the report, learned counsel again relied on the statement of Khan Muhammad P. W. Made before the Committing Magistrate wherein the time of occurrence had been mentioned as peshiwela, contrary to late digerwela, stated by him at the trial. Since he was not confronted with his statement before the Committing Magistrate, we do not attach much importance to the timing given by him before the Committing Magistrate and would rather prefer late digerwela, the time consistently mentioned by the prosecution witnesses at the trial, It may also be mentioned in this context that in the F. I. R. Exh. P. A. The time mentioned was the sunset time. Obviously there would not be much difference between late digerwela, and sunset time particularly in the third week of
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November. It was further contended by the learned counsel in this regard that in fact peshiwela fitted in better with the medical evidence, which referred to the presence of semi-digested meals in the small intestines of both the deceased whose stomachs were found to be healthy and empty. In reply to a specific question, the doctor opined in cross-examination that Ghulam Farid deceased had taken his food six to eight hours prior to his death. The sunset time on the 21st of November 1966, i.e. The day of occurrence at Lahore, was 5-4 p.m. Peshiwela would be roughly around 2 p. m. If the time of the taking of meals by the deceased is calculated back by six to eight hours it would mean that they had taken their meals between 6 a.m. To 8 a.m. In the morning which would obviously rather early in the winter season. On the contrary, if the time of meals is taken to be some where between g a.m. To 10 a.m. It would approximately bring the time of death in the neighbourhood of late digarwela or sunset time, which fits in with the prosecution version. The distance between the place of occurrence and the police station is about seven miles whereas according to the Sub-Inspector village Shedan Lund where he was contacted by Azim P. W. Complainant was seven miles away from the spot. After covering this distance the Sub-Inspector reached there at about 3 a.m. In other words, the report was h lodged by Azim P. W. Around midnight i.e. Between I1 and 12. Thus after leaving some margin for him to recover from the overwhelming shock of the death of his two brothers, we do not think that there has been any appreciable delay in the lodging of the F. I. R. Consequently, the contention is repelled. 15. Coming to the next contention that in all probability the report had been lodged after the Sub- Inspector had actually visited the spot and made some preliminary investigations we consider it to be merely an elaboration of the first contention. Two-fold argument was advanced in support of this contention, firstly, that the F. I. R. Was recorded' at a place other than the police station which should normally put the Courts on guard as such tactics are usually employed by the Investigating Officers in cases where the F. I. R. Is prepared at the spot, and secondly, that the conspicuous absence of any reference to the broken handle of the hatchet in the F. I. R. Which was later found to have fitted in with the other part of the handle of the hatchet Exh. P. 3 recovered at the instance of Haider appellant also lent support to the view. No doubt, there are authorities to the effect that where the first information report is recorded by the police at a place other than the police station the Courts should be rather cautious in accepting that position. This does not, however, amount to saying that such an eventuality is inconceivable and that in all cases where the report has been lodged at a place other than the police station it should be deemed to have been prepared at the spot. As a matter of fact, all that the authorities have laid down is that normally such a situation would call for care and caution instead of readily accepting the position. However, the truth of the allegation that in such cases the report was lodged by the police after having made some preliminary investigations at the spot would depend on other concomitant circumstances of each individual case and as such no inflexible rule of uniform applica--tion can be laid down in this regard. If, as contended before us, the F. I. R. Had been prepared at the spot after the Sub-Inspector had made some preliminary inquiry, there is no reason why the broken handle of the hatchet recovered by the Sub-Inspector at the spot vide memo. Exh. P. J. Should not have found a specific reference in the F. I. R: The significant omission in the F. I. R. In this regard could possibly be construed as one of the grounds of attack on the genuineness of the recovery but it can hardly be advanced as one in support of this contention. We are, therefore, not satisfied that the F. I. R. Was prepared after the Sub-Inspector had actually visited the spot. The contention is, therefore, overruled. 16. This brings us to the next contention regarding motive. It may be observed at the outset that in addition to Azim complainant's illicit connection with Mst. Sabali wife of Haider appellant which necessitated the shifting of the former's residence from Chah Hasilwala yet another motive rather immediate was also alleged in the F. I. R. And deposed to before the Committing Magistrate as well
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as at the trial. There is nothing on the record to suggest that either the admission of Azim complainant of carrying on a liaison with Mst. Sabali about six years prior to the occurrence was incorrect or that in consequence thereof Azim and his family were forced to shift their residence to Patti Makwal or further that Mst. Sabali wife of Haider appellant had not been disposed of in tribal area as alleged by Azim P. W. We are, therefore, inclined to admit this position as correct. The principal argument raised in support of this contention, however, was that the two deceased of whom Ghulam Farid was a youngster of fourteen years of age, were not even parties to proceedings under section 107/151, Cr. P. C. Resorted to by the police against both the parties and that the grievance entertained by the appellant was principally against Azim complainant who should have been the main target of their attack and was yet spared. We are not impressed by this argument for the simple reason that notwith--standing the strained relations between the…
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