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Petitioner: AMIR HUSSAIN SHAH AND 3 OTHERS VS Respondent: THE STATE
Court Name: Peshawar High Court Judge(s): Mian Burhanuddin Khan, Abdul Ghani Khan Khattak Title: AMIR HUSSAIN SHAH AND 3 OTHERS vs THE STATE Case No.: Criminal Appeal No, 4 of 1976 Date of Judgment:1976-10-31 Reported As: PLD 1977 Peshawar 1 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' MIAN BURHANUDDIN KHAN, J.-The appellants Amir Hussain Shah, aged 55 years son of Murid Hussain Shah, his son Sibtul Hassan Shah aged 24 years, his brother Faqir Hussain Shah, aged 60 years and Ashiq Hussain Shah aged about 27 years son of Faqir Hussain Shah, residents of Kiri Khaisor, District D. I. Khan were charged under section 302/347/34, P. P. C. For the murders of Ghulam Sarwar, Khaliqdad and Qadirdad their co-villagers and attempted murder of Mohammad Ashraf P. W. Committed in furtherance of their common intention. All the four appellants were found guilty of the aforesaid charges and were convicted and sentenced as follows:- (1) Amir Hussain Shah, Sibtul Hassan Shah and Faqir Hussain Shah to death under section 302/34, P. P. C. On 3 counts, under section 307/34, P. P. C. To one year R. I. And a fine of Rs, 3,00d each or in default to suffer further one year R. I. The fine, if realized has to be paid to the heirs of the deceased. (2) Ashiq Hussain Shah, to imprisonment for life under section 302/34, P. P. C. On 3 counts and one year R. 1. Under section 307/34, P. P. C. And a fine of Rs, 3,000 or in default to suffer further one year R. 1. The fine if realized was also ordered to be paid as compensation to the heirs of the deceased. ' All the four appellants have come in appeal against the order of the learned Sessions Judge, D. I. Khan dated 6-12-1975 and there is also a murder reference under section 374, Cr. P. C. Before us in respect of the 3 accused appellants sentenced to death for confirmation of their sentences by this Court. This order will dispose of both the appeal and the murder reference. 2. The facts of the prosecution case are that on the 3rd of May, 1974 at about 'Peshin Qazawela' the three deceased namely Ghulam Sarwar, Khaliqdad and Qadirdad accompanied by Mohammad Ashraf P. W. 14 and Mst. Bibi widow of Khaliqdad deceased P. W. 17, while returning from their fields
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found the appellants busy in erecting a fence of reeds alongwith the boundary of their fields. Ghulam Sarwar deceased objected to the raising of the fence and asked the accused not to do so as the fence was being raised in their field to which the appellants replied that they would not oblige him. On this it is alleged that Khaliqdad deceased told the appellants that he could do so only when the matter had been settled by someone amicably. The appellants, it is alleged, did not agree to this end and said that they would settle the matter themselves and with this Sibtul Hassan Shah appellant who was armed with a shot-gun fired at Khaliqdad deceased who was hit and fell down. Amir Hussain Shah appellant then followed suit and fired at Ghulam Samar deceased who was also hit and fell to the ground. Sibtul Hassan Shah appellant after having fired at Khaliqdad deceased stumbled and the shot-gun fell from his hands which was picked up by Faqir Hussain Snah appellant who aimed it at Qadirdad deceased who was then running and was fired at by him, this shot also proved effective and Oadirdad dropped to the ground. But he got up and started running. Faqir Hussain Shah fired second shot at Qadirdad with which he also fell to the ground. In the meantime Haq Nawaz P. W. 13 while returning from his field situtate in Yari Khel village, reached the spot and saw Amir Hussain Shah appellant advancing towards Ghulam Sarwar deceased with a gun in hand. He entreated him not to shoot Ghulam Sarwar but all the same Amir Hussain Shah fired at Ghulam Sarwar from a close range; killing him on the spot. Mohammad Ashraf P. W. 14, Mst. Bibi P. W. 17 tried to intervene whereupon Ashiq Hussain Shah appellant who was armed with a 'Danda' hit Mohammad Ashraf P. W. 14 on his head but Mohammad Ashraf P. W. 14 warded off the blow with his hand. Haq Nawaz P. W. 13 continued requesting the accused not to cause any more harm to the complainant party and the appellants then decamped from the spot. Haq Nawaz P. W. 13 then left for the Levy Police Post Kiri Khaisor to give information of the occurrence, situated at a distance of 2 to 3 miles from the spot. On reaching the Levy Police Post he informed Rehmatullah P. W. 11 incharge of the Police Post about the occurrence who gave a telephonic message to Police Station, Paharpur lying at a distance of 24 miles from the spot and received instructions to go to the spot and keep a watch over it. He accordingly, with four constables, left for the spot. On reaching the spot Rehmatullah P. W. 11 found that the injured persons and the dead bodies were being carried away by the villagers. He observed blood and empty-shell card-board discs lying around the spot. He therefore, posted a guard to look after the spot. The dead bodies of Ghulam Sarwar and Khaliqdad; and Qadirdad who was still alive, were taken to Civil Hospital, Paharpur, where Dr. Mohammad Iqbal Khan the then Incharge of the Civil Hospital, Paharpur P. W. 1 recorded the dying declaration of Qadirdad. Exh. P. Y. At about 10-25 p. m. After recording the dying declaration the said doctor informed the Police Station, Paharpur about the arrival of the dead bodies and Qadirdad injured person. On the arrival of the A. S. 1. Khalid Masood P. W. 18, he handed over the dying declaration to him. Qadirdad deceased, however, succumbed to his injuries in the Hospital on 11-5-74 at about 4-00 p.m. And the post- mortem examination was performed on the same date by Dr. Jehanzeb Khan P. W. 12. 3. At the trial the prosecution in support of its case examined Dr. Mohammad Iqbal Khan P. W. 1, Misal Khan, F. C. P. W. 2, Badshah Khan, H. C. P. W. 3, Nazir Hussain Shah P. W. 4, Mohammad Akarm Khan, S. I. P. W. 5, Awal Noor F. C. P. W. 6, Sher Afzal Khan, F. C. P. W. 7, Abdul Manan, A. S. I. P. W. 8, Ghulam Akbar Khan P. W. 9, Abdul Qadoos Patwari P. W. 10, Rehmatullah Khan P. W. 11 Dr. Jehanzeb Khan, P. W. 12, Haq Nawaz Khan P. W. 13, Mohammad Ashraf P. W. 14, Ghulam Subhani, P. W. 15, Rab Nawaz, P. W. 16, Mst. Bibi P. W. 17, Khalid Masood P. W. 18 and Bashir Ahmad Khan Ballistic Expert, P. W. 19. 4. The appellants did not plead guilty. They, however, declined to produce defence. 5. Dr. Mohammad Iqbal Khan, Medical Officer, Civil Hospitals Miranshah, N. W. Agency P. W. 1 conducted autopsy on the dead body of Khaliqdad, aged 42/44 years, brought by Levy Police Kiri
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Khaisor and identified by Rabnawaz and Mohammad Nawaz on 4-5-1914 at 7-15 a.m. And observed the following injuries on his person:- ' External Examination: ' Condition of subject.-P. M. Staining present on back. P.M. Rigidity present. Decomposition not started. Foul smell present. (1) Wounds.-Lacerated wound inverted 'U' shaped on the occiput, 2" long x 1" each limb x scalp muscles deep. (2) (a) Seven entry wounds, close to each other, 1/2" x 1' apart in area of 3" x 3' on the inferior-lateral aspect of right scapula, posterior laterally. (b) Six exit wounds close to each other, 1/ 2' x 1" apart in front of the chest in area of 4' x 4". ' Three wounds on the body and manumbrium sterni and three wounds 1/2" to the right of the sternum. Wounds were 1/4' in diameter. One pellet recovered from under the skin on the body sternum. Exit wounds were slightly above the level of right nipple and 2' to the left of it. Sternum and 4th rib fractured. (3) Abrasion with clot formed 1/2' above right eye brow. (4) Abrasion on left cubital forma anterior-medially. (5) Abrasion on right upper chest posteriorly. (6) Old wound on left index finger, bandage already applied. Two card-boards recovered from underneath the shirt anteriorly. ' Internal examination: ' Walls, 4th right rib anteriorly, inferior scapula fractured posteriorly, pleura damaged. Right lung injured. Stomach healthy and empty. Small intestines healthy and empty. Large intestines healthy, empty and containing gas. Bladder hoalty and empty. Organs of generation well developed. ' In his opinion death occurred due to extensive damage of right lung caused by fire-arm resulting in profuse haemorrhage, shock followed by death, probable time between injury and death was 10/20 minutes while time between death and P. M. Examination 15-16 hours. ' The post-mortem report Exh). P-Z/3 is in his hand and correct. ' He also performed post-mortem examination on the dead body of Ghulam Sarwar, aged 24/25 years, son of Khakqdad, identified by Haq Nawaz and Rab Nawaz, the same day at 8-30 a. m. And found the following:- ' External Examination: ' Condition of subject.-Foul smell. P. M. Staining on back and P. M. Rigidity present. ' Wounds.-(1) Lacerated irregular wound on upper and lower lips. Left upper inciser bracken. (2) Left thumb, Index Finger, Middle Finger, Ring Finger badly crushed and fractured except little finger. (3) Gun Powder (some black matter) present on left forearm, 3' above left wrist anteriorly. Smell not perceptible. Left sleeve also blackened with black matter. (4) (a) Huge entry wound 1 in diameter with lacerated edges on front of the chest just below and close to right side Xiphi sternum. Edges blackened and tattooed. ' Huge tear corresponding to entry present in the shirt which is also blackened. (b) Five exit wounds 1" apart on the right lower chest posteriorly. Three exit wounds in upper lumber region on the right side. Pieces of cardboards recovered from exit wounds. Corresponding holes present in shirt. ' Internal Examination: ' Pleura, right lung (lower lobes) injured and congested. Walls, peritoneum and diaphragm injured. Stomach healthy and empty. Small intestines contained gas and semi-solid food material. Large intestines contained formed stools, gas and healthy. Liver (right lobe) injured.
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' Probable time between injury and death 5-10 minutes while between death and post-mortem examination was 16 to 17 hours. ' The post-mortem report Exh. P-Z/4 is in his handwriting and correct. ' In his opinion death occurred by firearm injury causing extensive damage to liver and lower lobe right lung resulting in profuse haemorrhage and shock followed by death. 7. On 3-5-1974 at 11.45 he examined Mohammad Ashraf son of Khaliqdad and found the following Injuries on his person:- (1) Little finger tip of the left hand was badly crushed with nail and skin denuded dorsely bleeding continued. (2) Skin of the left right finger is also denuded dorsely of the terminal phalenx. (3) Contusion of the left forearm 3' below left elbow joint laterally. (4) Swelling and contusion 5(1/2) above pinna of left ear. ' The injuries were caused with blunt means within a duration of 8 to 9 hours. The injuries were kept under observation and admitted to hospital. The result later on was given as simple. ' The medico-legal report Fxh. P-Z/6 is in his handwriting and correct. 8. He also examined Ashiq Hussain Shah, aged 23/24 years (accused) son of Faqir Hussain Shah and found the following injuries on his person:- (1) Two abrasions 1' apart on the left elbow posteriorly scab formed. (2) Abrasion left forearm 4" above left wrist on ulner border. Swelling also present. Scab formed. No fracture detected clinically. No crepities detected clinically. (3) No definite injury or contusion observed right upper chest posteriorly. No tenderness present. ' The injuries were caused with blunt means or rough object within a duration of about 24 hours. ' The patient was kept under observation but latter referred to District Headquarters Hospital, D. I. Khan where tie was X-rayed and his left ulna was found fractured. Copy of the X-Ray report and that of the injury sheet are Exh. P-Z/12, and Exh. P-Z/13, respectively. 9. He also examined Sibtul Hassan Shah (accused) aged 23/24 years, son of Amir Hussain Shah at 5-30 p.m. On 4-5-1974 and found the following injuries:- (1) Linear abrasion 24" long x 1/4" broad on dorsal aspect of left forearm, commencing 14" below elbow to middle of left forearm. Scab formed. (2) Superficial small abrasion 2" above right knee joint anteriorly. Scab formed. (3) Slight swelling on top of scalp present. (4) No injury or definite tenderness observed on the back as claimed. ' The injuries were caused with blunt means within a duration of 24 hours. The injuries were simple and possibly self-inflicted and fabricated. The injury sheet. Exh. P-Z/9, is in his hand and correct. 10. The same day at 4-45 p. m. He examined Faqir Hussain Shah (accused aged 50/55 years), and noticed the following injury on his person:- ' A very superficial linear abrasion on the enterior scalp directed anterior posteriorly. No scab formed. No puss or swelling present. ' The injury was caused with blunt or rough object within a duration of 4 to 6 hours and was simple in nature. The injury seemed self-inflicted. Exh. P-Z/8 is the injury sheet in this behalf which is in his hand and correct. 11. Dr. Jehanzeb Khan, Medical Officer, District Headquarters Hospital, D. I. Khan performed post- mortem examination on the dead body of Qadirdad, aged 22/23 years, son of Kbaliq Dad, brought by F. C. Awal Noor and identified by Shah Nawaz and Ghulam Suban of Kiri Khaisor, and found the following injuries on his person:- ' External examination : (Week fresh body wearing hospital Pajama). ' Wounds.-(1) One partially healed laceration on left lateral top of left shoulder, 1/3' x 1/3'.
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(2) Two partially healed lacerations on posterior lateral aspect of left arm 3" apart, 1/3' IX 1/13" each. (3) One partially healed laceration to the left and slightly below left nipple 1/3" x 1/3'. (4) One partially healed laceration on lateral aspect of loft lumber region, 1/3' x 1/3". (5) One big laceration on right lower back of chest 1(1/1)" x 1(1/4)". (6) One big laceration on left lower back of chest 1(/4)" X 1(1/4)". (7) One laceration on left temple 1" x 1/2". (8) One stitched operation wound on right upper abdomen. ' Internal Examination : ' Walls injured in the left 5th intercostal space. Left pleura and left lung injured. Stomach healthy and empty. Peritonum injured. ' Small intestines:-Dudenum injured and stitched. Large intestines contained gases. ' In his opinion the death occurred due to injury to vital organ-left lung resulting in gradual heamorrhage, shock and then death. ' One pellet from left lung corresponding to Injury No, 3, one from below the skin of laceration on right back of chest and one from wound on left shoulder top recovered, weighed, sealed in a bottle and handed over to police. Weight of pellets was 172 grains. Means used firearm. ' Probable time that elapsed between injury and death was 5 to 10 days while that between death and post-mortem examination within 1 hour. ' The post-mortem report Exh. P-Z/7 is in his handwriting and correct. 12. Badshah Khan P. W. 3 was posted to Police Station, Paharpur during the days of occurrence. He stated that on the 4th May, 1914, Amir Hussain Shah accused-appellant came to P. S., Paharpur and produced his licensed shot-gun Exh. P-I0 alongwith 7 cartridges which were taken into possession by Nazir Hussain Shah, the then Muharrir of the P. S. Vide memo. Exh. P. G. The gun and the cartridges were sealed by the said Muharrir in his presence. Nazir Hussain Shah P. W. 4 stated that during the relevant time, he was Muharrir in P. S. Paharpur and on the receipt of the dying declaration Exh. P. Y, he registered the case vide F. I. R. Exh. P. A. He also corroborated the fact that Amir Hussain Shah appellant had come to the Police Station on 4-5-1974 and produced his licensed gun Exh. P. 10 with 7 cartridges which he took into possession vide memo. Exh P. G. It was smelling of fresh gun-powder discharged. 13. In cross-examination he stated that he had also received information about the occurrence from Rehmatullah P. W. 11, Incharge of Police Post, Kiri Khaisor, who had informed him that some persons were shot-dead and one was seriously wounded and the dead bodies and the injured persons were on their way to the Police Station. He directed Rehmatullah P. W. 11 to go to the spot and guard the scene of occurrence and as the report was incomplete, therefore, he did not make any entry either in the F. I. R. Register or in the Daily Diary. He also informed A. S. I. Khalid Masood P. W. 18 about the message received through Rehmatullah P. W. 11. The statements of Misal Khan P. W. 2, Mohammed Akram Khan, S. I. P. W. 5 Awal Noor F. C. P. W. 6 and Sher Afzal Khan F. C. P. W. 7 are of formal nature and need not be discussed. Abdul Manan A. S. I., P. W. 8 stated at the trial that he arrested Sibtul Hassan Shah, Faqir Hussain Shah and Ashiq Hussain Shah on 4th of May, 1974 prepared the injury sheets Exh. P-Z/8, P-Z/9 of Faqir Hussain Shah and Sibtul Hassan Shah and injury sheet Exh. P. W. 8/1 of Ashiq Hussain Shah respectively. Ghulam Akbar P. W. 9 accompanied I. 0. Who picked up 4 empty shells of, 12 bore Exh. P. 1, one live cartridge of the same bore Exh. P. 2, two cardboard discs and one wad Exh. P. 3, two more wads and 3 pellets Exh. P. 4, another pellet Exh. P. 5 recovered from the spot and took them into possession vide memo. Exh. P. J. The four empties Exh. P. 1 were sealed into a parcel. An S. B. Shot-gun Exh. P. 6 was also taken into possession by the I. O. In his presence vide memo. No, Exh. P. N. And he thumb-impressed these memos as attesting witness.
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14. In cross-examination he admitted that P. Ws. Haq Nawaz and Ghulam Sarwar are his sons. Abdul Qadus Patwari P. W. 10 prepared the 'Axeshajra Kistwar' Exh. P. D. A/2 in respect of field No, 1200 showing the adjoining fields. He further stated that a fence of reeds was noticed by him on the spot and was shown in the site plan between points Nos. 1 and 11. The portion "Alif" was in the possession of the deceased party and that mark "Bay" was in possession of Murid Hussain Shah and the fence was on the 'Banna' in-between portions "Alif" and "Bay". The next witness Rehmatullah Pan P. W. 11 Mated that during the days of occurrence be was incharge of Police Post, Kiri Khaisor and the duty entrusted to him was merely to patrol the area within jurisdiction of the Police Post. According to him, Haq Nawaa P. W. 13 came to him at the Levy Police Post at about 'degar' time and informed him that a fight had taken place between Mero Shah (Amir Hussain Shah) and other syeds and Khaliqdad etc. Which had resulted in injuries to some persons but he did not give the other details. He rang up the Police Station, Paharpur and gave the information so received by him. By the Police official of Paharpur, he was instructed to go to the spot and keep watch over the scene of crime and he accordingly went there alongwith 4 constables. On the spot he observed blood at various points and empty shells, card-board discs which he kept intact till the arrival of the I. 0. In the cross-examination he admitted that Gul Akbar F. C. Was acting as a 'munshi' in the police post and used to record the arrival and departure of the Levy personnel. 15. The ocular account in the instant case is furnished by Haq Nawaz P. W. 13, Mohammad Ashraf, P. W. 14, and Mst. Bibi P. W. 17. Haq Nawaa P. W. 13 stated at the trial that he had gone to Wand Yari Khel in the morning of the day of the occurrence and while he was returning to his house the same day at 'pashin qaza wela' he heard the report of gun shot and rushed towards that direction where he found Khaliqdad lying wounded. He also saw Ghulam Sarwar deceased lying injured and Mst. Bibi sitting and weeping by his side. He also met Mohammad Ashraf P. W. 14 who was injured on his finger and was crying for help. He alleged that in his presence Amir Hussain Shah accused fired from a close range at Ghulam Sarwar deceased. He also saw Sibtul Hassan Shah, Ashiq Hussain Shah and Faqir Hussain Shah appellants present on the spot, out of these Sibtul Hassan Shah appellant was empty- handed, while Ashiq Hussain Shah was armed with a club (danda) and Faqir Hussain Shah had a gun with him. The witness stated that he entreated the accused-appellants not to cause more harm to the complainant party and on this they left the spot. Thereafter he went to the Levy Police Post situate at Kiri Khaisor at a distance of one mile. On reaching the Police Post, he informed Rehmatullah P. W. 11 about the occurrence but did not give any detail nor his report was recorded. He returned to the spot later on and found Khaliqdad and Sarwar deceased lying dead, while Qadirdad was still alive and was lying in the field of Sarwar Lambardar. Many people from the village had gathered on the spot and carried the dead bodies and injured Qadirdad to the hospital and the witness accompanied them to the Hospital. In his presence he alleged that Qadirdad's dying declaration Exh. P. Y. Was recorded when he was in his senses and he attested the same as marginal witness. Mohammad Ashraf P. W. 14 was examined and he stated at the trial that Khaliqdad deceased was his father, while Qadirdad and Sarwar deceased were his brothers. They had no enmity with the accused and their lands were situated contiguous to one another; that on the day of occurrence he alongwith the 3 deceased and his mother Mst. Bibi P. W. 17 were returning to their village after harvesting their wheat crop; when they reached near the spot they found the accused-appellants erecting a fence of reeds by breaking the 'Barna' of his father's field. Sibtul Hassan Shah appellant and his father Amir Hussain Shah were allegedly armed with shot-guns, while Ashiq Hussain Shah and Faqir Hussain Shah were carrying 'dandas'. On seeing the appellants erecting the fence Sarwar deceased asked the appellants not to do so but they did not stop. On this it is stated by the witness that Khaliqdad deceased told the appellants that the matter should
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be settled, regarding the boundary between their fields and till then the erecting of the fence should be postponed. But the appellants replied that they would settle the matter then and there. Sibtul Hassan Shah accused-appellant came forward and fired a shot at Khaliqdad deceased who was hit and fell down. Amir Hussain Shah appellant fired at Sarwar deceased who was also hit. Appellant staggered and fell down and his gun was picked up by Faqir Hussain Shah appellant who fired at Qadirdad who had by then started running but Faqir Hussain Shah appellant followed him. With his shot Qadirdad was hit and fell down, but he got up and started running when Faqir Hussain Shah appellant fired another shot at him and with this he dropped to the ground; that Haqnawaz P. W. 13 also appeared at this moment and tried to intervene but Amir Hussain Shah appellant fired another shot from a close distance at Samar deceased; that Ashiq Hussain Shah appellant who was armed with a Vanda' came towards the witness and dealt him a blow which he warded off with his hand and in this his little finger was injured. Thereafter the appellants decamped from the spot, while Haqnawaz proceeded to Police Post Kiri Khaisor. The witness stated that the villagers came to the spot later and the dead bodies and the injured were carried to the hospital in a truck. Mst. Bibi P. W. 17 also gave ocular account of the occurrence. Her statement is similar to that of Muhammad Ashraf P. W. 14 and there is nothing in point of fact at variance with the statement of Muhammad Ashraf P. W. 14. Khalid Masood P. W. 18 stated that he was attached to the Police Station, Paharpur during the days of occurrence, and that on the day of occurrence, he was present in his quarter attached to the Police Station and on coming out at about evening time he received information about the occurrence. He waited for the complainant party as there were two different routes to Kiri Khaisor. He was not sure on which route the complainant party was coming. Therefore, he made an entry in the Daily Diary at S, No 18 copy Exh. P. W. 18/1. Later on he was informed by the doctor from hospital that two deadbodies were brought alongwith one injured to the hospital so he requested the doctor to record the dying declaration of the injured person and then he himself proceeded to the hospital where on reaching there the doctor handed over to him the dying declaration Exh. P. Y. He then prepared the injury sheet of Qadirdad Exh. P. Y/I and the injury sheet of Muhammad Ashraf P. W. 14, Exh. P. Z/5 whom he referred to the doctor for examination. He t![en prepared injury sheet of Ghulam Sarwar deceased Exh. P. U. And inquest report Exh. P. Q. He also prepared the injury sheet Exh. P. S. Of Khaliqdad deceased and inquest report Exh. P. T. The next morning he proceeded to the spot accompanied by Muhammad Ashraf P. W. 14 where Rehmatullah P. W. 11 was present guarding the spot. He then prepared the site plan Exh. P. D. With…
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