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Petitioner: ATTA MUHAMMAD AND Another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Maulvi Mushtaq Hussain, Muhammad Siddiq Title: ATTA MUHAMMAD AND Another vs THE STATE Case No.: Criminal Appeal No. 157 of 1968 Date of Judgment:1969-07-11 Reported As: PLD 1970 Lahore 86 Result: Appeal dismissed
JUDGMENT
JUDGMENT MUSHTAQ HUSSAIN MUNIR, J.-Atta Muhammad (26), his brother Ghulam Farid (19) and their friend Muhammad Shafi (23), have been tried by the learned Sessions Judge, Dera Ghazi Khan, under sections 460, 302 read with section 34 under four counts and 307 read with section 34 of the Pakistan Penal Code under two counts, on the allegation, that at about morning prayer time, on the 24th of November 1966, they trespassed into the house of Ghulam Hussain (P. W. 18), situated in Block No. 3 in Dera Ghazi Khan and murdered his son Allah Bakhsh (20), his daughter Mst. Kundan Mai (17), Mst. Aisha Mai (22) and his wife Mst. Mahar Mai (50) and made murderous assault upon him arid his daughter-in-law Mst. Sakina, wife of his deceased son Allah Bakhsh. They were convicted of all the charges and all three of them were sentenced to death on four counts under section 302/34, P. P. C., 10 years' rigorous imprisonment under section 460, P. P. C. And seven years' rigorous imprisonment under section 307/34, P. P. C. On two counts. The sentences of imprison-- ment were directed to take effect only, if the death sentences imposed upon them on four counts were not confirmed by the High Court. In that eventuality, all the sentences were directed to run concurrently. Atta Muhammad and Ghulam Farid accused were also convicted under the Arms Act and were sentenced to rigorous imprisonment for one year each. These sentence were also directed to run concurrently with the afore--mentioned sentences of imprisonment in case the death sentences were not confirmed. 2. Atta Muhammad and Ghulam Farid accused have come up in appeal bearing No. 157 of 1968 and Muhammad Shafi accused has preferred jail appeal bearing No. 159 of 1968. He was, however, represented by Syed Faqir Hussain, Advocate at the hearing. The cases of all the three convicts are
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also before us for confirmation of their death sentences. This judgment shall dispose of the appeals, preferred by the convicts, and the murder reference. 3. The appeals preferred by Atta Muhammad and Ghulam Farid appellants against their convictions under section 13 of the Arms Act, 1965, shay: be separately dealt with, as they were con- -victed in separate trials held against them. 4. The prosecution story, in brief is, that Mst. Aisha Mai deceased, daughter of Ghulam Hussain (P. W. 18), was married to Atta Muhammad accused about one year prior to the occur--rence. The accused used to maltreat her and as a result, the relations between the spouses got strained. Atta Muhammad who is also known as Atta, did not allow her to meet her parents. On the 31st of October 1966, Allah Bakhsh deceased, brother of Mst. Aisha Mai, made an application under section 100 of the Criminal Procedure Code, in the Court of Makhdoom Mazhar Hussain Shah, Magistrate, Dera Ghazi Khan (P. W. 20), request--ing for the issue of a warrant for the recovery of Mst. Aisha Mai from the custody of Atta Muhammad, Ghulam Farid appellants, their brother Haji and their father Karim Bakhsh. The Magistrate issued warrant (Exh. P. TT/1) on the 2nd of November 1966. Pursuant to the aforesaid warrant the police recovered Mst. Aisha Mai and produced her before Duty Magistrate Syed Riaz Hussain Shah (P. W. 2) on the 7th of November 1966. The Magistrate recorded her statement (Exh. P. TT/2), wherein she expressed desire to go with her brother and father, and accordingly order (Exh. P. TT/3) was passed. She was set at liberty. The police was directed to escort her to the house of her parents, as desired by her. 5. A few days thereafter, on the 24th November 1966, Ghulam Muhammad (P. W. 18) got up at about morning prayer time. He lit a lantern. He awakened his son Ghulam Shabbir (P. W. 17), in order to take him to his shop. Ghulam Hussain runs a Baker's shop. He prepares curry and his son Allah Bakhsh deceased used to bake chapatis on the oven. Ghulam Hussain is a petty shop-keeper. 6. After lighting the lantern and waking up his son Ghulam Shabbir, Ghulam Hussain unchained the door of the room in order to go out for urinating. As he opened the door, the accused who were standing outside, pushed him back into the room and bolted its door from inside. Atta Muhammad was armed with churri (Exh. P. 20), Ghulam Farid with sword (Exh. P. 21) and Muhammad Shafi with hatchet (Exh. P. 22): The accused attacked Ghulam Hussain. When his deceased son Allah Bakhsh came to his rescue, he was also attacked. There--after, the accused gave injuries to Mst. Aisha Mai, Mst. Kundan Mai and Mst. Mehar Mai deceased and Mst. Sakina Mai (P. W. 19). 7. On the alarm, raised by the inmates of the house, Jumma (P. W. 21), Abdul Majid (P. W. 22) and one Faiz Muhammad, who are neighbours of Ghulam Hussain P. W., arrived at the spot. They tried to get into the house of Ghulam Hussain through the door of his courtyard, but they found, that it was chained from inside. Faiz Muhammad entered the courtyard of Ghulam Hussain by scaling over his own wall, his house being the adjoining house, and opened the door, whereupon, Jumma and Abdul Majid also came in. The three of them tried to enter the room wherefrom the alarm had been raised. They found the door of the same chained from inside. They then went to the eastern side of the room and broke open a window. Jumma P. W. Tried to jump into the room through the window when Muhammad Shafi accused threatened him with his hatchet and he receded. The blow of the hatchet fell on the wooden frame of the window. Jumma and Abdul Majid and their companion Faiz Muhammad peeked through the window and saw the three appellants inside it, armed with their respective weapons. They saw them with the help of the lantern, which was burning inside the room. The appellants had already inflicted injuries on the persons of the deceased and the injured witnesses. However, having seen them, the accused ran away by scaling over the wall of hawa Pannah. From there they got on to the roof of the house of Abdul Rahim (P. W. 15), where he resides along with his brothers. Abdul Rahim P. W. Had got up from his sleep for his morning prayer. He heard noise coming from the staircase of his house, which opened in the hall room. He then saw the three accused, emerg--ing from the hall room by opening its western door. When they reached
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the courtyard, Abdul Rahim recognized them as the three appellants. Atta Muhammad had blood- stained chhuri and his clothes were also stained with blood. Ghulam Farid accused had a sword in his hand and his clothes were stained with blood. Muhammad Shafi accused had blood-stained hatchet and his clothes were also stained with blood. Abdul Rahim P. W. Asked them, as to where from they were coming and why they had entered his house. Ghulam Farid accused replied that they were coming after killing the persons, whom they wanted to kill. He at the same time threatened that he would kill him also, in case he came forward. The accused, thereafter, fled away through the outer door of the house of Abdur Rahim. The latter had identified them, because he knew them previously and had seen them with the help of the light of electric lamp which was burning in his courtyard at a height of about ten feet from the ground. 8. Abdur Rehman (P W. 16) saw the accused, when they came out of the house of Abdur Rahim P. W. 9. Mst. Aisha Mai, Mst. Kundan Mai and Mst. Mehar Mai succumbed to their injuries at the spot. Allah Bakhsh died in the hospital on the same day. 10. Ghulam Shabbir P. W. Went to City Police Station, Dera Ghazi Khan, which is at a distance of three furlongs from the spot and lodged report (Exh. P. A.) at 5-00 a.m, It was recorded bye Sub- Inspector Syed Fayyaz Hussain Shah (P. W. 25). 11. After recording the report. Sub-Inspector Syed Fayyaz Hussain Shah P. W., went to the spot. He prepared injury state--ments Exh. P. E. Of Ghulam Hussain (P. W. 18), and Exh. P. FF. Of Allah Bakhsh deceased, then alive, Exh. P. GG. Of Mst. Sakina P. W. And sent them to the hospital for medical examina--petition. He then prepared inquest reports of the dead bodies of Mst. Mehr Mai, Mst. Aisha Mai and Mst. Kundan Mai Exh. P. HH., P. KK. And P. LL. Respectively. 12. Dr. Muhammad Bashir Chohan (P. W. 1), examined Allah Bakhsh deceased, then alive, on 24th November 1966, at 8-10 a.m. He found 16 incised wounds on his person. He died on the same day at 9-00 a.m. Autopsy was held on his dead body at 1.30 p.m. External examination revealed the same injuries as had been noticed by the doctor earlier. Internal examination revealed that the left frontal, left parietal and right frontal bones were cut. The brain was cut into three pieces as also its membrance. Death resulted due to shock and haemorrhage as a result of multiple injuries causing fracture of skull and injury to the brain. All the injuries found on the deceased, were ante--mortem and had been caused by sharp-edged weapon. Injuries Nos. 1, 2 and 4 were fatal and sufficient to cause death in the ordinary course of nature. Probable time that lapsed between the injuries and death was four to five hours and between death and post-mortem examination three to five hours. Exh. P. RR/1 is the post-mortem report. On the same day, at 8-40 a.m., the same doctor examined Ghulam Hussain (P. W. 18) and noticed 12 incised and one punc--tured wound on his body. Injury No. 6--is a punctured wound --" x --", chest cavity deep on the front of the lower part of left chest, air was coming out on breathing. It was found to be grievous and dangerous. Injuries Nos. 11 and 13 were---grievous. Injury No. 11 was an injury between left middle and ring fingers and had cut the first phalan of left middle finger. Injury No. 13 was an incised wound on the front of left leg in its middle. The rest of the injuries were simple. All the injuries had been caused with sharp-edged weapon. Exh. P. EE/1 is the medical examination report. On the same day, at 9-10 a.m., the same doctor examined Mst. Sakina (P. W. 19) and found two incised wound on her person. Both the injuries were grievous and had been caused by sharp- edged weapon. Exh. P. GG/1 is the medical examination report. On the same day, the same doctor, at 2-00 p.m. Performed autopsy on the dead body of Mst. Kundan Mai. On external examination, he found eight incised and five stab wounds on her person. Internal examination revealed that pleura of the left side and peritonaeum were punctured. The heart was punctured at two places. Death was due to shock and haemorrhage as a result of the multiple injuries causing puncture of the heart. All the injuries were ante-mortem. Injuries Nos. 7, 8,
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9 and 10 were caused by sharp and pointed weapon and others by sharp-edged weapon. Injury No. 10 was sufficient to cause death in the ordinary course of nature. Probable time that elapsed between the injuries and death was instantaneous and between the death and post-mortem examination six to 12 hours. Exh. P. MM/1 is the post-mortem report. On the same day, the same doctor, at 2-15 p.m. Perfumed autopsy on the dead-body of Mst. Aisha Mai. He noticed eight stabbed wounds and 12 incised wound, on her body. External examination revealed pleura of the left lung punctured at different places. Left lung was punctured. Heart was punctured at two places. Peritonaeum was punctured as also the large intestines. Death was due to shock and haemorrhage as a result of multiple injuries causing puncture of left lung, heart and gut. The injuries were ante-mortem. Injuries Nos. 2, 3, 4, 5, 7, 19 and 20, which were caused by sharp- edged pointed weapon, were fatal and sufficient in the ordinary course of nature to cause death. The rest of the injuries, which have been caused by a sharp-edged weapon, except injury No. 6, which was caused by a sharp-edged pointed weapon were simple. Probable time that elapsed between the injuries and death was instantaneous and between death and post-mortem between 6 to 12 hours. Exh. P. LL/1 is the post--mortem report. On the same day, the same doctor at 3-00 p .m. Performed autopsy on the dead body of Mst. Mehr Mai deceased. On external examination, he noticed three stab wounds and nine incised wounds on her person. Internal Examination revealed that left frontal bone was partially cut at two places. Rib below injury No. 8 was cut. Pleura of the right lung was cut and right lung was punctured at two places. Death was due to shock and haemorrhage as a result of multiple injuries causing injury to right pleura and puncture of right lung. All the injuries were ante--mortem. All the injuries except injuries Nos. 8, 9 and 10 which were caused by sharp-edged pointed weapon, were caused by a sharp-edged weapon. Injuries Nos. 8 and 9 which on the back of right chest, were fatal and sufficient to cause death in the ordinary course of nature. Probable time that elapsed between the injuries and death was instantaneous and between death and post-mortem six to twelve hours. Exh. P. HH/1 is the post-mortem report. 13. Sub-Inspector Syed Fayyaz Hussain Shah arrested Atta Muhammad and Ghulam Farid accused on the same day (24th November 1966), at about 9-00 a.m. Or 9-30 a.m. From their house. He removed shirt (Exh. P. 14) and chaddar (Exh. P. 15) from the person of Atta Muhammad, as these appeared to be stained with blood, sealed them into a parcel and took there into possession vide memo. Exh. P. R. He also removed blood-stained shirt (Exh. P. 16) and chaddar (Exh. P. 17) from the person of Ghulam Farid accused, sealed them into a parcel, took them into possession vide memo. Exh. P. S. Muhammad Shafi accused was produced before him by Karim Bakhsh, father, of Atta Muhammad and Ghulam Farid accused.--He removed shirt (Exh. P. 18) and chaddar (Exh. P. 19) from his person and sealing them into a parcel took the same into possession vide memo. Exh. P. T. 14. Atta Muhammad accused, on interrogation, disclosed that he could lead to the recovery of churri, the weapon of offence. He led the police officer and the recovery witnesses to his cattle--- shed and therefrom produced blood-stained churri (Exh. P. 20) from a hole at the junction of the wall and the ceiling of the cattle-shed. It was sealed and taken into possession vide memo. Exh. P. D. Ghulam Farid accused, on interrogation, offered to produce sword, the weapon of offence. He led the police and the recovery witness s to the courtyard of his house and got re--covered sword (Uh. P. 21) from underneath a heap of chaff lying in the manger. It was sealed and was taken into possession vide memo. Exh. P. V. At the time of his arrest, Muhammad Shafi accused was in possession of blood-stained hatchet (Exh. P. 22). It was taken from him and was sealed into a parcel vide memo. Exh. P. X. These recoveries were made in the presence of Muhammad Nawaz (P. W. 23) and Muhammad Akbar (P. W. 24). An unsuccessful attempt was made to show that they were interested witnesses and were related to Ghulam Hussain (P. W. 18). But the defence did not succeed in establishing that they had any interest in Ghulam Hussain P. W., whatsoever. We,
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therefore, hold that they are disinterested witnesses and there is no reason, why they should not be fully relied upon. 15. At the time of his arrest, Ghulam Farid accused had an injury on the back of his right hand. He was sent for medical examination. He was medically examined by Dr. Muhammad Bashir Chohan (P. W. 1). The doctor had not referred to this injury, when he was examined in the Court of the Committing Magistrate and thus we find no mention of it in the aforesaid statement, which was transferred to the session's file. When the Public Prosecutor came to know that the aforesaid accused was injured and had been medically examined, he made an application to the learned Sessions Judge. As a result thereof, Doctor Muhammad Bashir Chohan, was summoned and examined as P. W. 26. His testimony reveals that he examined the aforesaid accused on the 24th of November 1966 at 10-40 a.m. And found an incised wound 2" x --" x 1/3" on the middle of back of right hand going from, side to side. Its edges were sharp and regular. The wound was bleeding. The injury was simple and had been caused with a sharp-edged weapon within six hours. 16. Foot-Constable Turrey Baz Khan (P. W. 6), received eleven sealed parcels relating to this case from Sub-Inspector Feroze Din (P. W. 7), who was then Moharrir A. S. I. City Police Station, Dera Ghazi Khan, on the 28th of November 1966 and delivered them at the office of the Chemical Examiner, Lahore. These parcels amongst other articles, contained sword, recovered at the instance of Ghulam Farid accused, churri recovered at the instance of Atta Muhammad accused and hatchet recovered at the instance of Muhammad Shah. Accused and the clothes, which were recovered from the persons of the aforesaid accused at the time of their arrest. The report of the Chemical Examiner Exh. P. UU. Reveals, that all these articles were stained with blood. The report of the Serologist is Exh. P. XX. It reveals, that the blood-stains on the churri of Atta Muhammad accused were disintegrated and their origin could not be deter--mined, while rest of the articles namely, the sword, hatchet and clothes recovered from the persons of all the three accused, were stained with human blood. 17. The accused denied their guilt. Atta Muhammad accused, however, admitted that Mst. Aisha Mai, the daughter of Ghulam Hussain (P. W. 18), was his wife. But he denied that he used to treat her with cruelty and did not permit her to meet her parents. He stated that he had no knowledge that Allah Bakhsh, brother of Mst. Aisha Mai, made an application before a Magis--trate for her recovery and as a consequence thereof, a warrant under section 100 of the Code of Criminal Procedure was issued, and she was recovered by the police from his house on 17th of November 1966, and was restored to her parents. He, however, added, that if any such warrants were issued, those were illegal. He contended that he had been falsely implicated due to suspi--cision and enmity "and on account of wrong identification". He examined Mian Ijaz Nabi, Magistrate 1st Class (D. W. 1) to prove the statement made before him (the Magistrate) by Ghulam Hussain and Mst. Sakina P. Ws. On the 24th of November 1966. Ghulam Farid accused also stated that he bad been falsely involved on account of suspicion and due to enmity: While explaining the injury on the back of his right hand, he stated "I am a peasant. Outer palms of my both hands had old scars sustained by the toka cut. The police in their eagerness had concocted false evidence against me." He produced copies of mutation (Exh. P. D. U. And D. V.). Muhammad Shah accused denied that he was a friend of Atta Muhammad and Ghulam Farid accused. He stated that he had been falsely involved due to suspicion "based on faulty identi--fication". He produced no defence. 18. It is not denied that Mst. Aisha Mai deceased, daughter of Ghulam Hussain (P. W. 18) was the wife of Atta Muhammad accused and had been married to him about a year prior to the occurrence. It is in evidence, that on account of maltreatment of her husband, the relations between the spouses became strained and she was not permitted to meet her parents. Her deceased brother Allah Bakhsh, obtained warrant (Exh. P. TT/1) under section 100 of the Code of Criminal Procedure from
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the Court of Makhdoom Mazbar Hussain Shah, Magistrate (P. W. 20) on the 2nd of November 1966. Pursuant to it, A. S. I. Zia Ullah, Khan (P. W. 8), recovered Mst. Aisha Mai from the house of Atta Muhammad accused on the 6th of November 1966, and produced her before the Duty Magistrate Syed Riaz Hussain Shah (P. W. 2) on the 7th of November 1966. When her statement (Exh. P. IT/2) was recorded, she stated that she was being confined by Atta Muhammad accused, Ghulam Farid accused, their brother Haji and their father Karim Bakhsh. She expressed desire to accompany her brother and her father and accordingly, the police was directed to escort her to the house of her parents. From the aforesaid facts, it is abundantly clear, that Atta Muhammad and Ghulam Farid accused must have felt offended and they thus had a motive to take revenge. 19. With regard to the occurrence, in which four persons lost their lives and two others received serious injuries, ocular evidence has been given by Ghulam Shabbir (P. W. 17), Ghulam Hussain (P. W. 18) and Mst. Sakina (P. W. 19). They have fully supported the prosecution case, which has been mentioned in detail in the narrative of facts. It is needless to add, that Ghulam Hussain and Mst. Sakina P. Ws., who claim to have received injuries at the hands of the accused, must have been present in their house at the time of occurrence, as it took place at dawn, at the time of morning prayers. Ghulam Shabbir (P. W. 17), a lad of about 13 years and son of Ghulam Hussain (P. W. 18), must also naturally have been in his house. His presence, therefore, at the time of the occurrence, is estab--lished beyond doubt. Their testimony finds further corroboration from the statement of Jumma (P. W. 21) and Abdul Majeed (P. W. 22), who on hearing the cries of the inmates of the house of Ghulam Hussain P. W., rushed to the spot accompanied by Faiz Muhammad. The latter has not been produced, but it was he, who finding the door of the courtyard chained from inside, went into the house of Ghulam Hussain by scaling over the intervening wall. His house is adjacent to the house of Ghulam Hussain. He opened the door of the courtyard, whereupon Jumma and Abdul Majeed came in and found that the door of the room, wherefrom the alarm was being raised, was closed from inside. In their attempt to see, as to what was happening inside, they pushed a window, situated towards the eastern side of the room, as a result of whereof, its shutters gave way. Jumma P. W. Tried to enter the room, but was prevented from doing so by Muhammad Shafi accused, who attacked him with his hatchet. He receded and the blow fell on the wooden frame of the window Jumma and Abdul Majeed P. Ws. Are neighbours of Ghulam Hussain. Therefore, their rushing to the spot on hearing the alarm, appears to us to be quite probable and natural. They have no enmity whatsoever with the accused and, therefore, they would not have tried to involve them in a false case. Their version finds corroboration from the circumstance, that the police noticed a cut mark on the window and got it photographed, by Muhammad Sharif (P. W. 9), a photographer by profession. The photograph is Exh. P. DD. Muhammad Sharif deposed, that the photo indicated a cut on the frame of the window. Anyhow, even if this corroboration was not available to the prose--cution, we would have placed reliance on the aforementioned witnesses, as we have pointed out above, that they had no reason to falsely involve the accused, if they had not seen them there. They claimed that they had seen the accused inside the room with their respective weapons and had seen them making good their escape through Hawa Pannah. They have further deposed that they had recognised the accused with the help of the light of the lantern, which was burning inside the room at that time. It was suggested to Jumma that there was a dis--pute between his son-in-law Muhammad Rafiq and the latter's maternal-uncle Patwari Faiz Muhammad over a piece of land, situated near the Khanqah of Mullah Qaid Shah. The witness denied that there was any such dispute. Although no reference was made to the mutations, produced by one of the accused, it appears, that these were produced with a view to prove that such a dispute really existed. We have carefully perused them and we find, that these relate to the purchase of land by Muhammad Rafiq, son-in-law of Jumma and wife of Faiz Muhammad, pro-- bably the wife of the maternal-uncle of Muhammad Rafiq. We do not see how the accused Atta
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Muhammad and Ghulam Farid are connected with it, because in one case, the land was sold by Imam Bakhsk, a Pathan, and the mutation reveals that actual possession was taken over by the vendees, who were Muhammad Rafiq and Muhammad Akram Khan. In the other, the land was sold by Mst. Shah Bibi, a Pathan by case, to Mst. Ghulam Fatima, wife of Faiz Muhammad. The mutation shows, that Mst. Ghulam Fatima had obtained its actual posses--sion. It would not be out of place to mention that Atta Muhammad and Ghulam Farid accused are Bhatti by case. They have not cared to explain as to how the vendors in both the cases, who are Pathans are related to them, and how they had obtained the possession of their land, if they had ever been in…
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