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Petitioner: MUHAMMAD FAZIL AND Others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Saad Saood Jan, Sardar Muhammad Title: MUHAMMAD FAZIL AND Others vs THE STATE Case No.: Criminal Appeal No. 210 and Murder Reference No, 77 of 1979 Date of Judgment:1981-06-28 Reported As: 1982 P Cr. L J 510 Result: accused refused
JUDGMENT
JUDGMENT SARDAR MUHAMMAD, J.----Muhammad Fazil, Muhammad Khan Ghulam Hussain, Fazal Elahi, Mahbub, Muhammad Asghar, Lehrasap, Muhammad Zammurad, Mahmood and Abdul Sattar appellants were tried and con--victed by Ch. Taj Muhammad, Additional Sessions Judge, Rawalpindi and were sentenced as under :- (i) Under section 302/149, P.P.C.-Death sentence to Muhammad Fazil, Mahbub, Ghulam Hussain and Fazal Elahi in addition to a fine of Rs. 5,000 each, in default whereof to undergo further R.I. For two years. The fine in case of recovery was ordered to be paid to the legal heirs of the deceased Altaf and Muhammad Afsar. Life imprisonment to Muhammad Khan, Lehrasap, Abdur Sattar, Asghar, Zamurrad and Mahmood appellants in addition to a fine of Rs. 5,000 each in default whereof to suffer further R.I. For 2 years. The fine, if recovered was ordered to be paid to the legal heirs of both the deceased. (ii) Under section 148, P. P. C.-- All the appellants have been sentenced to undergo one year R.I. Each. (iii) Under section 307/149, P. P. C.--- All the appellants have been sentenced to suffer 3 years' R.I. Each. (iv) Under section 452, P. P. C.--- All the appellants have been sentenced to undergo two years' R.I. Each. (Sentences regarding imprisonment have been ordered to run con--currently). The appellants have filed Crl. Appeal No. 216 of 1979. The learned Sessions Judge has also sent a reference for the confirmation of death sentence awarded to Muhammad Fazil, Mahbub, Ghulam Hussain and Fazal Elahi appellants, vide Crl. Revision No. 450 of 1979. Manzur Hussain (P. W.) has
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sought conviction and sentence of the acquitted accused. Since all the three matters are interconnected, we therefore, propose to dispose of all the matters by the same judgment. 2. The alleged occurrence took place on the 5th July, 1975 at 10-00 a.m. In village Kak. Police Station Jatli, District Rawalpindi. The matter was reported to the Police by P. W. 11 Naib Subedar Muhammad Ashraf (henceforward to be written only Muhammad Ashraf P. W.). Briefly the prosecution case is that Muhammad Ashraf PW 11 was sitting with his brother Muhammad Afsar deceased in the house of Allah Ditta, his sister's husband. On hearing noise and lalkaras they ran up to the roof of the house of Allah Ditta. Allah Bakhsh P.W. Was already present at the roof of his house. Bagh Hussain and Ashiq Hussain were standing on the roof of the house of Bagh Hussain which is situate quite close to the house of Altaf Hussain and Manzur Hussain. Within their view Altaf Hussain (deceased) out of fear ran up to the roof of the house. In the meantime Fazal Elahi and Chulam Hussain appellants who were armed with .12 bore guns fired a shot at him from the back who fell down. During this the accused came up to the roof of Altaf Hussain (deceased). The complainant and Muhammad Afsar (deceased) beseeched them and tried to stop them but Muhammad Fazil Naib-Subedar appellant, who was armed with a stengun fired at the complainant and Muhammad Afsar deceased. The burst struck Muhammad Afsar deceased at the chest and arms. Then Mahboob appellant fired a revolver shot at the deceased which hit him on his left arm. In the meantime, Muhammad Hussain, brother of the complainant also came there, He picked up Muhammad Afsar deceased and took him downstairs to the house, but the complainant continued beseeching the accused. Ahmad Hasan PW (not produced) and Manzur Hussain P. W. Also came up the roof. Muhammad Khan, Lehrasab, Abdul Sattar and Muhammad Aslam started indiscriminate firing which injured the two. Zamurrad and Mahmood appellants fired from the roof of Sajawal Khan. Bagh Hussain and Ashiq Hussain PWs were witnessing the occurrence from the roof of the house and were crying for help. In the meantime, Mazhar Hussain (not produced), Mst. Fatima Bibi (P.W. 16), Mst. Rehmat Bibi P.W. 15, Mst. Parveen Akhtar, Mst. Jamila Bibi and Mst. Mazloom Akhtar P.Ws. (not produced) who were present on the roof of the house of Altaf Hussain deceased and were making noise, were also fired at indiscriminately by the accused whereby Mst. Fatima Bibi PW 16 and Mazhar Hussain PW (not produced) apart from the other four, were injured. The occurrence was stated to be seen apart from the complainant and injured PWs.By Muhammad Hussain and Allah Bakhsh P.Ws. Also. While the occurrence was coming to an end. Mahbub appellant threw a handgrenade which burst at the roof of Irshad Hussain (P. W. 31). Thereafter the accused roamed in the village making lalkaras. The accused are alleged to have tried to remove the blood from the roofs and other evidence also. The occurrence was alleged to have happened on the mischief of Ghulam Rabbani. Altaf Hussain and Muhammad Afsar died on the spot. The FIR Exh. PA/1 was recorded on the basis of Exh. PA, i.e. The statement of Muhammad Ashraf, which was recorded at Addhi Moar by Muhammad Zaman ASI (P.W. 20). Exh. PA is concluded by the following sentence ; 3. The motive for the occurrence as set out in Ex. PA/1 (formal F.I.R.) is (a)that the two parties, one headed by Altaf Hussain (deceased) and the other by Ghulam Rabbani (acquitted accused) were on inimical terms since 7-8 years ago. The cause of this enmity was that Ghulam Rabbani appellant and Irshad Hussain PW 3, etc. Had injured Altaf Hussain (deceased), the case was registered and was pending trial in the Court of the Resident Magistrate, Gujjar Khan ; (b) that civil litigation was also pending between the parties ; and (c) that sister of Mahbub appellant, namely Mst. Fazal Nur was divorced by Manzur Hussain, a brother of Altaf Hussain (deceased) due to which also relations had been strained. The immediate igniting cause is stated to be the occurrence of previous evening, i.e. 4th July, 1975 when at about 6.00 p.m. It was raining, two of the cattle of Sakhawat Hussain Moghal (P.W. 7) while
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returning from the bela after grazing. Ran into the crop of groundnuts of Fazal Hussain Moghal. Fazal Hussain Moghal arrived at the spot, abused Sakhawat Hussain P.W. 7 and gave him slaps and fist blows. Sakhawat Hussain P.W. 7 on returning home told his father who in order to complaint about the same went to the house of Fazat Hussain but there hot words were exchanged with Allah Ditta, Mehbub, Zamurrad and Ashiq Hussain. The complainant who was returning from the mosque after saying his prayers learnt about the occurrence and prevented both the parties and as such the matter was dropped but after a short while the party of Ghulam Rabbani appellant gathered, went up the roof and started raising lalkaras, "If there is any, he should come out". As it was raining heavily no person from the complainant party felt inclined for a fight. 4. Muhammad Zaman, Sub-Inspector (P. W. 20) after recording Exh. PA despatched the same to the Police Station for registration of the case through Muhammad Zaman F.C. No. 395 and proceeded to the spot. He examined the dead bodies of Muhammad Afsar and Altaf Hussain deceased prepared the injury statement of Muhammad Afsar (Exh. PQQ) and inquest report (Exh. P-QQ/1), injury statement of Altaf Hussain (deceased) (Exh. P-RR) and inquest report (Exh. P-RR/1), despatched the dead bodies of both the deceased for post-mortem examination in the custody of Muhammad Siddiq Foot Constable. He prepared the injury statement of Mst. Parveen Akhtar (Exh. P-SS) of Mst. Rehmat Bibi PW (Exh. P-TT). Of Mst. Jamila Bibi (Exh. P-UU) and that of Mst. Mazloom Akhtar (Exh. P-VV), inspected the spot, collected the blood-stained earth from the roof of the house of Altaf Hussain deceased, took the same into possession vide memo. Exh. PE and sealed the same into a parcel, took into possession blood-stained earth from the roof of the chhappar of Bagh Hussain PW 12 vide memo. Exh. PF and made a sealed parcel of the same. He collected three pieces of handgrenade Exh. P. 9/1-3, sealed them into a parcel and prepared memo. Exh. PC. He also took into possession 3 empties, Exh. P6/1-3 from the kothri of Raja Khan (acquitted accused), sealed them into a parcel and took the same into possession vide memo. EXh..PH. He collected 13 empties Exh. P7/1-13 from the roof of the house of Raja (acquitted accused), sealed them into a parcel and took the same into possession vide memo. Exh. PJ. 5. After the post-mortem examination Muhammad Siddiq F. C. (P.W. 4) produced blood-stained chaddar (P. 1) and blood-stained shirt (P. 2), last worn clothes of Altaf Hussain deceased which he took into possession vide memo. Exh. PB. The same constable also produced last worn clothes of Muhammad Afsar deceased, i.e. Blood-stained shalwar P. 3, blood-stained shirt P. 4 and handkerchief P. 5 which he took into possession vide memo. Exh. P. C. He got prepared site plan Exh. PD, PD/I and PD/2 from Nawab Khan Draftsman (P.W. 6). He handed over the sealed parcels prepared by him to the Moharrir for safe custody in the malkhana. On 8th July, 1975 he handed over the investigation to the Station House Officer Muhammad Ashraf (P.W. 18). Muhammad Ashraf PW 18 took into possession blood-stained shalwar P. 11 produced by Mst. Rehmat Bibi P. W. 15 on the 14th July, 1975 vide memo. Exh. P-GG. Mst. Fatima Bibi P. W. 16 produced her blood-stained shalwar P. 12 which he took into possession vide memo. Exh. P-HH. Ashiq Hussain P. W. 17 produced his blood-stained vest P. 13 and shirt P. 14 on 15th May, 1975 which were taken into possession vide memo. Exh. P-JJ Mazhar Hussain P. W. (not produced) produced his blood-- stained vest P. 17, shirt P. 18 and shalwar P. 19, which were taken into possession vide memo. Exh. P- LL Ahmad Hussain P. W. (not produced) produced his blood-stained shirt P. 20 and chaddar P. 21, which were taken into possession vide memo. Exh. P-MM Mst. Parveen Akhtar P. W. (not produced) produced her blood-stained shirt P. 22 which was taken into possession vide memo, Exh. P-NN Blood-stained saluka P. 3 and kurta P. 4 produced by Bagh Hussain P. W. 12 were taken into possession vide memo. Exh. P-00. Blood-stained vest P. 25 and shirt P. 26 produced by Manzur Hussain P. W. 13 were taken into possession vide memo. Exh. P-CC. 6. On the 18th July, 1975 P. W. 18 Muhammad Ashraf Sub-Inspector arrested the accused Lehrasab, Mahbub Ghulam Rabbani, Ghulam Hussain and Raja Khan. On 23rd July, 1975 he arrested Fazal
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Elahi, Iqbal son of Fazal Elahi, Fazal Hussain, Zamurrad, Muhammad Afsar alias Asghar, Abdul Khaliq, Muhammad Aslam, . Muhammad Khan, Muhammad Ashraf and Allah Ditta accused. On the 24th July, 1975 he made query from the doctor vide application, Exh. P Z regarding the injuries of Muhammad Afsar deceased. He also made query from the doctor through application Exh. P-AA about the injuries of Mahbub accused, and about the injuries of Lehrasab accused vide application Exh. P-BB on the 24th July, 1981. 7. On the 29th July, 1975 Mahboob accused while in Police custody led to the recovery of revolver P. 9 and two live cartridges P. 10/1/2, from his house which were taken into possession by the Investigating Officer vide memo. Exh. P-SS. On the same day Fazal Elahi accused while in police custody led to the recovery of gun P. 15 and 2 cartridges P. 16/1-2 from his residential kothri which were taken into possession by the Investigating Officer vide memo. Exh P-KK. These recovery memos beside other witnesses were also attested by the Investigating Officer. After the completion of investigation the accused were challaned. At the trial the learned Additional Sessions Judge charged the accused under sections 148, 302/149, P. P. C. For causing the death of Altaf Hussain and Muhammad Afsar deceased under section 452/1.49 and under section 307/ 149, P. P. C. For having launched a murderous assault and causing injuries to Manzur Hussain, Ahmad Hussain, Mazhar Hussain Ashiq Hussain, Bagh Hussain, Mst. Fatima Bibi, Mst. Parveen Akhtar, Mst. Mazloom Akhtar, P. Ws. Who were present in the house of Altaf Hussain deceased and on the roof top of their house in the vicinity. All the accused pleaded not guilty and claimed to be tried. 8. [Medical Evidence.] 9. The prosecution to prove its case had, apart from Dr. Muhammad Arshad Aslam, produced ocular evidence, viz. The statements of Muhammad Ashraf P. W. 11 (complainant), Bagh Hussain P. W. 12, Manzur Hussain P. W. 13 Allah Bakhsh P. W. 14, Mst. Rehmat Bibi P. W. 15, Mst. Fatima Bibi P. W. 16 and Ashiq Hussain P. W. 17, evidence of motive, viz. Statement of Sakhawat Hussain P. W.7, P. W. 11 Muhammad Ashraf has also in his statement mentioned the motive for the occurrence. Gulzar Hussain P. W. 8 was examined to prove the recoveries effected from the spot and the recovery of weapons of offence. Muhammad Ashraf Sub-Inspector (P. W. 18), Muhammad Zaman A. S. I. (P. W. 20) were examined as Investigating Officers and also as witnesses of recoveries. Apart from these witnesses the statements of Sh. Maqbul Ahmad A. S. I. (P. W. 1) who recorded the formal F. I. R., that of Muhammad Hussain P. W. 2 and Irshad Hussain P. W. 3 who identified the dead bodies of Muhammad Afsar and Altaf Hussain deceased respectively at the time of post-mortem examination, that of Muhammad Latif F. C. (P. W. 4) who had escorted the dead bodies of both the deceased for post-mortem examination that of Manzur Hussain A. S. I. (P. W. 5) who kept the parcels containing gun, cartridges and splinters of hand-grenade along with other parcels in the malkhana and had despatched the same for onward transmission to the Forensic Science Laboratory, that of Nawab Khan Draftsman (P. W. 6) who prepared the site plans Exh. PD, PD/ 1 and PD/2 and that of Rabnawaz F. C., who had transmitted the parcels to the Forensic Science Laboratory, Lahore, were recorded at the trial. 10. After the close of the prosecution case the accused were examined under section 342 of the Code of Criminal Procedure, all the accused except Mahboob and Lehrasap, denied the charges, pleaded their innocence and stated that they had been involved because of enmity. Mahbub appellant in answer to question No. 14, "why this case against you and why, the witnesses have deposed against you"; stated "Two deceased fired indiscriminately as a result of which Lehrasap my co-accused and I was injured. 1n order to save their own skin the prosecution has concocted a false case with the connivance of Anwar Hussain, their relative."
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Lehrasap appellant in answer to question No. 12, "why this case against you and why the P. Ws. Deposed against you" stated ; "The deceased and some of their companions started firing and injured Mahbub and me. In self- defence I had fired one or two shots in order to deter the deceased from causing more damage. The P. Ws, are false. They were not present at the spot. Their evidence has been produced by Anwar Hussain S. I. Their relative who concocted minor pellet injuries on different persons to magnify the part played by me in self-defence and a portion blame on a large number of male section of village, whom they considered their enemies. 11. All the accused except Lehrasab, refused to produce defence. Lehrasap appellant produced certified copy of the judgment of the case Mst. Razia Begum v. Muhammad Rafiq, Altaf Hussain and others in which Ghulam Rabbani and Muhammad accused appeared as witnesses against Altaf Hussain deceased and Rafiq, Manzur and Ahmad Hussain P. Ws. This is Exh. DM. He also produced a certified copy of the judgment of case, "State v. Ashiq Hussain, Bagh Hussain P. Ws. And Mst. Irshad Begum in which Sher Muhammad and Allah Bakhsh relatives of the accused party appeared as prosecution witnesses. It is Exh. D N. He also produced a certified copy of the judgment in case. "State v. Talib Hussain and others" in which Ashiq Hussain and Manzur Hussain P. Ws. Appeared as P. Ws. Against the accused who are all accused in the case in band except Talib. This is Exh. DO. He examined Muhammad Ashraf, Sub-Postmaster as D. W. 1 who produced the register which contained the entry of licence of 7 mm. Rifle in the name of Sep. Muhammad Safiq son of Sahib Din resident of village Kak, and Abbas son of Hashim as D. W. 2 who is the real brother of Muhammad Afsar deceased and Muhammad Ashraf P. W. 11 (com--plainant), who admitted that Raja Anwar Hussain A. S. I. Was his nephew who was posted at Gujrat, and after having heard about the occurrence had come with him to the village on a taxi. 12. All the appellants and the acquitted accused are related inter se. As stated by Muhammad Ashraf P. W. 11, their relationship is as under :-- Ghulam Hussain appellant is son of Ghulam Rabbani (acquitted accused). Lehrasap and Abdul Sattar appellants are real brothers, and are nephews of Ghulam Rabbani (acquitted accused). Fazal Elahi appellant is brother-in-law (behnoi) of Ghulam Rabbani (acquitted accused). Sister of Fazal Elahi appellant is the wife of acquitted accused Allah Ditta. Mahbub and Zamurred appellants are sons of Allah Ditta (acquitted accused). Fazal Elahi appellant is real brother of Raja Khan (acquitted accused) while Muhammad Khan appellant is his son. Muhammad Khan (acquitted accused) is also nephew of Fazal Hussain (acquitted accused). Fazal Elahi appellant is father of Iqbal (acquitted accused). Fazil appellant is real brother of Ashraf, Khaliq and Aslam (acquitted accused). Khaliq and Muhammad Aslam (acquitted accused) are married to the daughters of Fazal Elahi appellant. Wife of Nawaz accused is sister of Fazal Elahi appellant. Muhammad Asghar appellant is real brother of Nawaz (acquitted accused). Muhammad Iqbal (acquitted accused) is maternal-uncle of Mahmud Hussain appellant. Muhammad Ashraf son of Sher Zaman (acquitted accused) is nephew of Fazal Elahi appellant. 13. The prosecution witnesses, who were examined in Court, are related inter se as under: Muhammad Ashraf P. W. I1 is brother of Muhammad Afsar deceased, husband of Rehmat Bibi P. W. 15, who is sister of Allah Bakhsh P. W. 14 and Manzur Hussain P. W. 13. Altaf Hussain deceased was also their brother. A sister of Bagh Hussain P. W. 12 is mother-in-law of P. W. 11, Muhammad Ashraf P. W. 14, Allah Bakhsh is maternal-uncle of Gulzar Khan P. W. 10 and Ashiq Hussain P. W. 17. P. W. 7 Sakhawat Hussain is son of P. W. 17 Ashiq Hussain. Gulzar P. W. 8 is real brother of Ashiq Hussain P. W. 17. Mst. Fatima P. W. 16 is the sister of Mst. Rehmat Bibi P. W. 15. 14. It is argued by the learned counsel for the appellants that the learned trial Court failed to properly appreciate the infirmities of ocular account and of other evidence. They have challenged the
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(a) evidence of motive ; (b) medical evidence ; and (c) ocular account and have raised the following points :-- (i) that the evidence of motive read with the history of relationship between the parties instead of lending support to the prosecution, has been a reason for false implication of the appellants by the complainant party ; (ii) that the medical evidence is contradictory of the eye-witness account. Dr. Muhammad Aslam Arshad who had conducted the post-mortem examination of both the deceased and had examined all the injured P. Ws and the two appellants, has expressed certain opinions which are not in consonance with the eye-witness account and the other evidence on record ; (iii) the ocular evidence has been challenged on the grounds of being inimical, interested and contradictory of the medical evidence ; (iv) that the appellants Mahbub and Lehrasab were injured during the occurrence. They were medically examined by the same doctor on the same day but no explanation regarding their injuries has been furnished by the prosecution ; (v) that the prosecution has failed to prove that the accused party were the aggressors, and that even if it be admitted for the sake of argument that some of the appellants might have taken part in the fight, there is no material on the file to pinpoint the same ; (vi) that the First Information Report was not lodged in the manner stated and the investigation was conducted in a biased manner ; and (vii) that the appellants inter se have some such differences that it is not possible for them to join in one venture. We propose to discuss these points in detail. Motive : Having gone through the file it is abundantly clear that the parties were pitched against each other in murder cases, in other injury cases and also in civil litigation. There have been some other unhappy incidents, due to which the parties were equally aggrieved. None of the parties had shown any weakness in any earlier incidents and the situation had developed to such a position that both the parties were upto anything against the other. Learned counsel for the appellants has argued that in such circumstances the motive which could have become the basis for the appellants to have attacked the complainant party on the fateful day, the same history of events could be a reason for false implication of the appellants or some of the appellants or their other relatives meaning thereby the acquitted accused. The immediate igniting cause stated by Sakhawat Hussain P. W. Does not lend much support to the complainant side because even if it be believed that such a thing had happened, the accused side by slapping and abusing Sakhawat Hussain P. W. And by almost insulting his father when he went to their house for complaining, and by throwing a challenge on the same evening, having gone up the roofs and hurling abuses thereby, had taken enough lead and that would have been sufficient to satisfy their ego particularly in view of the fact that the complainant party had not reacted to the abuses hurled upon them by the accused party going up the roofs. We are inclined to accept this argument of the learned counsel for the appellants and we are of the view that the present occurrence which, of course, had taken place in which two persons lost their lives and many others were injured was the result of some other incident, which is not on file. It will have to be analysed as to how the occurrence started. Medical Evidence : The medical evidence consists of post-mortem examination of Muhammad Afsar and Altaf Hussain deceased, medico-legal examination of the prosecution witnesses and medico-legal examination of Lehrasab and Mahbub appellants, conducted by Dr. Muhammad Aslam Arshad, (P. W. 9). It is argued by the learned counsel for the appellants that the corroboration sought by the learned trial Court from the medical evidence can extend only to the
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extent that the persons who were stated to have been killed or injured by fire-arms in the incident were found to have suffered fire-arm injuries as alleged but in matters of opinions the medical evidence instead of extending any corroboration to the ocular account has rather contradicted the ocular account. According to the doctor there was blackening and burning of edges of all wounds of entrance on the person of Muhammad Afsar deceased. He had observed slight blackening around the holes on the shirt corresponding to the injuries. The distance from which the appellants are alleged to have fired at Muhammad Afsar deceased is such that the presence of blackening and burning around the wounds of entrance would not be possible. The doctor on query by the Police vide application Exh. P Z had opined that blackening and burning of edges is possible from a distance of 20 feet. According to the learned counsel for the appellants this is obviously an incorrect opinion. There is no such authority in the medico-legal cases, and the doctor himself had failed, to quote any. The doctor who had on examination found Lehrasab and Mahbub appellants to have received two fire-arm injuries each and had issued the medico-legal certificates, on query by the Police on 24th July, 1975 gave an obliging reply that the injuries on these persons could be self-suffered. The doctor failed to take into account that injury No. 2 on the person of Mahbub appellant bore blackening and burning around the wound of entrance. Naturally this injury must have been received from a close range and it is impossible to believe that anybody would take the risk of getting himself shot from such a close range. According to the learned counsel for the appellants the corroborative value of the medical evidence in such circumstances cannot be termed as untainted. Ocular Account.-The ocular account has been furnished by Muhammad Ashraf P. W. 11, Bagh Hussain P. W. 12, Manzur Hussain P. W. 13, Allah Bakhsh P. W. 14, Rahmat Bibi P. W. 15 and Mst. Fatima Bibi P. W. 16: They are all related inter se. Their relationship has already been enumerated above. Learned counsel…
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