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Petitioner: KHALID MAHMOOD AND 3 OTHERS VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Abdul Jabbar Khan Title: KHALID MAHMOOD AND 3 OTHERS vs THE STATE Case No.: Criminal Appeal No. 208 and Murder Reference No. 69 of 1974 Date of Judgment:1974-12-05 Reported As: 1975 P Cr. L J 772 Result: Appeal allowed
JUDGMENT
JUDGMENT ABDUL JABBAR KHAN, J.----Khalid Mahmood son of Muhammad Shafi (22), Khaliq-ur-Rehman son of Muhammad Ismail (25), Aziz-ur-Rehman son of Muhammad Ismail (24) and Ghulam Muhammad son of A.I Muhammad (65), were tried alongwith Muhammad Ismail son of Hakim Din, Muhammad Shafi son of Barkat A.I, Tariq Masood son of Muhammad Shaft and Nazir Ahmad son of Karim Bakhsh, under sections 148, 302/307/ 149, P. P. C., by the learned Additional Sessions Judge, Lyallpur, who vide his judgment dated 5th March 1974, while acquitting Muhammad Ismail, Muhammad Shafi, Tariq Masoad and Nazir Ahmad co-accused, convicted and sentenced Khalid 1 Mahmood, Khaliq-ur-Rehman, Aaiz-ur-Rehman add Ghulam Muhammad under section 302/34 P. P. C. For the murders of Mushtaq Ahmad, Khadim Hussain, Mubarik A.I and Muhammad Malik, to death each on four counts with a fine of Rs. 2000 on each count or in default to undergo two months' R. I. Each with the direction that out of the fine if realised, Rs. 500 each was to be paid to the legal heirs of the deceased as compensation. He further convicted and sentenced them under section 307/34, P. P. C. For making murderous assault on Muhammad Rafiq P. W. 20, to five years' R. I. Each and a fine of Rs. 1000 each or in default to undergo two months' R. I. Each. Out of the fine if recovered, Rs. 200, was ordered to be paid to Muhammad Rafiq P. W. 20, as compensation. It was further directed that in case the death sentence awarded to the accused each, is not confirmed by the High Court, then the sentences under section 307/34, P. P. C. Will come into operation. Khalid Mahmood, Khalid-ur-Rehman, Aziz-ur-Rehman and Ghulam Muhammad have come up in appeal against their conviction and sentences. The matter has also been referred to us under section 374, Cr. P. C. For the confirmation of the sentences of death. We propose to dispose of the appeal as well as the reference (Murder Reference No. 69 of 1974) together by this judgment.
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2. The occurrence took place on 26th December 1970, at 8-00 a.m. In the area of Ghulam Muhammad Abad in house No. 310-C, situated at a distance of three miles from Police Station Gulberg, Lyallpur City. State--ment Exh. P J was made by Munir Ahmad P. W. 15, on the same day at Police Post Ghulam Muhammad Abad, which was recorded by Muhammad Khan S. I. (P. W. 22), at 9-00 a.m., on the basis of which formal F. I. R. Exh. P. J/1 was registered at Police Station Gulberg Lyallpur by Sardar Bakhsh A. S. I. (P. W. 4) at 9-30 a.m. On the same day. 3. The history of the dispute between the complainant party and the appellants has been summed up as follows :-- There existed a dispute regarding the possession and ownership of House No. 310-C, between the appellants and the complainant-party. Khaliq-ur-Rehmad appellant claimed that the said house was allotted to him in 1955 and since then it was in his possession. Khaliq-ur-Rehman appellant had lodged a report Exh. D. J. With the police under section 148/448/149, P. P. C. Against the complainant-party on 16th November 1970, in which he had alleged that Plot No. 310-C was under his possession that he had raised construction over it and that he was living in the same house for the last seven years. He asserted that one Asghar A.I H. C. Posted at Toba Tek Singh was often insisting on Khaliq-ur-Rehman appellant to vacate the plot as he claimed that he had secured the allotment of the said plot in his name. It was further contended that said Asghar A.I alongwith miscreants of the locality had tried to secure the possession of the said house in his absence and harassed his sister as well as his mother. He also alleged that even at the time of the said report certain persons who had forcibly entered his house were still present in it and the rest of them had actually besieged his abode. Khaliq-ur-Rehman appellant lodged another report Exh. D. H. On 19th December 1970, at Police Post Ghulam Muhammad Abad, in which he complained that Munir Ahmad P. W. 15, Mushtaq Ahmad deceased, Muhammad Rafiq P. W. 20 and Muhammad Ismail son of Ata Muhammad, were planning to forcibly occupy the house. He also reiterated that these persons were figuring as accused in the criminal case of trespassing when they had earlier attempted to take forcibly possession of his house. This Khaliq--ur-Rehman, has also filed a civil suit regarding the property in dispute and had obtained a stay order Exh. D. L. From the Court of Administrative Civil Judge on 28th November 1970, by which a status quo was maintained till 16th January 1971. In consequence of an application to the S. P. a challan Exh. D. K. Was put up by the police under section 148/448/149, P. P. C. Which shows Muhammad Ashraf son of Abdul Aziz, Asghar A.I son of Abdul Aziz, Khadim Hussain son of Abdul Aziz, Abdul Ghani son of Khadim A.I and Mushtaq Ahmad alias Kaka son of Ghulam Muhammad (deceased), in the column of accused whereas Khaliq-ur---Rehman, Aziz- ur-Rehman appellants, Mst. Muhammad Bibi who Ismail, Ch. Muhammad Shafi, Muhammad Ismail (acquitted accused), Nazir Ahmad, Ch. Sher Ahmad and Muhammad Shafi S. I., as the witnesses. 4. On 26th December 1970, at 9-30 a.m. Munir Ahmad P. W. Made a statement before Muhammad Khan S. 1. Police Station Gulberg, Lyallpur, in which it was stated that Muhammad Ismail son of Hakim Din case Jat resident of Plot No. 311-C, Ghulam Muhammad Abad, (acquitted-accused) got a case registered under section 148/448/149, P. P. C. Against Khadim Hussain and Muhammad Ashraf sons of Abdul Aaiz alongwith five others which was pending in the Court. Muhammad Sharif son of Budha case Jat informed the complainant-party that he has been asked by Ghulam Muhammad Lambardar to let them know that a panchayat was to be held at the house of Muhammad Ismail (acquitted-accused) for settlement regarding the dispute over the plot existing between them. This punchayat was to be held in the evening time on the same day when the information was conveyed to the complainant-party. The complainant Munir Ahmad alongwith Muhammad Ashraf, Mubarik A.I, Khadim Hussain sons of Abdul Aziz, Manzoor Ahmad. Mushtaq Ahmad sons of Ghulam Muhammad, Muhammad Malik son of Muhammad Shafi and Muhammad Rafiq son of Khadim Hussain, all Jat by case, went to the house of Muhammad Ismail on 25th
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December 1970 at 5/6 p.m. (a day prior to the occurrence). They met Muhammad Ismail who told them that as certain members of the panchayat could not assemble they should visit his premises next day at early morning. As suggested by Muhammad Ismail the complainant-party eight in number, went to Plot No. 311-C, the house of Muhammad Ismail and met Mst. Muhammad Bibi, his wife, who was present at the residence at that time. They were told by Mst. Muhammad Bibi that the panchayat had convened itself in Plot No. 310-C and they were asked to join there. On this information from the lady, they entered the courtyard of Plot No. 310-C but instead found Muhammad Ismail armed with a hatchet, Khaliq-ur-Rehman, Aziz-ur-Rehman sons of Muhammad Ismail, Khalid Manmood son of Muhammad Shafi, Nazir Ahmad son of Karim Bakhsh, armed with .12 bore guns, Tariq Masood son of Muhammad Shafi, equipped with a revolver, Muhammad Shafi son of Barkat A.I, armed with a hockey and Ghulam Muhammad son of A.I Muhammad, armed with a lathi. Out of the accused persons mentioned above Muhammad Ismail, Muhammad Shafi and Ghulam Muhammad were standing in the courtyard and the remaining five were on the roof of the house. Muhammad Ismail accused raised a lalkara and told his companions that the complainant-party has arrived and they should not be allowed to go back and all of them should be killed. Thereupon the appellants alongwith their acquitted co-accused opened attack on the complainant-party. During which Mushtaq Ahmad deceased received a gunshot injury on his face by Khaliq-ur-Rehman and on his left shoulder by Aziz-ur-Rehman and on his head by a revolver fired by Tariq Masood acquitted accused. Khadim Hussain deceased was fired upon by Khalid Mahmood appellant and was hit on his right shoulder as well as on his left temple. Mubarik A.I deceased received gunshot wound at the hands of Khaliq-ur-Rehman on his shoulder and Nazir Ahmad (acquitted-accused) fired at him with his gun which hit his head. He was also given hatchet and hockey blows on his head by Muhammad Ismail and Muhammad Shafi accused respectively. Ghulam Muhammad appellant killed Muhammad Malik deceased by inflicting two sota blows on his head. Muhammad Rafiq P. W. 20, received gun-shot wound at the hands of Aziz-- ur-Rahman appellant. The complainant Munir Ahmad alongwith Muhammad Ashraf and Manzoor Ahmad P. W. Laid themselves on the ground and thus saved themselves. All the accused after inflicting injuries on the persons of Khadim Hussain, Mushtaq Ahmad, Mubarik A.I, Muhammad Malik and Muhammad Rafiq P. W. Ran away from the place of occurrence. Khadim Hussain, Mushtaq Ahmad and Mubarik A.I died on their way to the hospital, whereas Muhammad Malik expired on the next day. 5. After recording the statement Exh. P. J. Of Munir Ahmad P. W. S. I. Muhammad Khan sent the same to P. S. Gulberg for the registration of a formal F. I. R. And himself went to D. H. Q. Hospital, Lyallpur. He prepared injury statement Exh. P. A. A. And inquest report Exh. P. B. B. Regarding Khadim Hussain deceased. He also prepared injury statement. Exhs. P. C. C and P. D D. And inquest reports Exhs. P.CC/1 and P.DD/1 relating to the dead bodies of Mushtaq Ahmad and Mubarik A.I deceased, respectively. Thereafter the Investigating Officer went to the spot from where he collected five empties Exh. P. 5/1-5 from the courtyard and three crime empties P. 6/1-3, from the roof top of the room of the house No. 310-C. He found all these empties fired from .12 bore guns. He prepared sealed parcels of these crime empties and took them into possession vide memo Exh. P. B. He collected some blood-stained earth from five different places from the spot vide memo Exhs. P. C., P. D., P. E., P. F. And P. G. These memos pertain to the places where Khadim Hussain, Mushtaq Ahmad, Mubarik A.I, Muhammad Malik and Muhammad Rafiq, were injured respectively. On 28th December 1970, the Investigating Officer Muhammad Khan S.I. Arrested Muhammad Shafi and Khaliq-ur-Rehman accused and as a result of his interrogation, on 30th December 1970, Khaliq-ur-Rehman accused-- appellant disclosed about the weapon of offence used by him in the commis--sion of the crime and offered to get a .12 bore gun recovered from his house 310-C. The S. I. Accordingly recovered gun P. 23 at the instance of Khaliq-ur-Rehman appellant from his house
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and took it into possession vide memo Exh. P. JJ and made it into a sealed parcel. This recovery memo was attested by Kaleemullah P. W. 12 and Ahmad Din P. W. 21. He also prepared a plan Exh. P. KK showing the place of recovery of gun. On 30th December 1970, he arrested Muhammad Ismail and Aziz-ur---Rehman accused and Ghulam Muhammad appellant was arrested by him on 1st January 1971. No recovery of any kind was effected from these accused. This witness partly investigated the case and later on the matter was handed over to the Crimes Branch who found Nazir Ahmad accused as innocent in view of his plea of alibi and the report under section 173, Cr. P. C. Made by the Crimes Branch. Before the case was entrusted to the Crimes Branch, the same came under investigation by Ch. Muhammad Abdullah, D. S. P. Lyallpur City. As a result of the investigation of the Crimes Branch, a case under section 307, P. P. C. Was registered against the complainant-party, regarding the same occurrence vide letter Exh. D.G. Dated 7th July 1971, written by D. I. G. Crimes Branch, Lahore and duly approved by the I. G., Police. 6. Dr. Habib Ullah P. W. 17, performed the post-mortem examination on the dead bodies of Khadim Hussain, Mubarik A.I, Mushtaq Ahmad and Muhammad Malik deceased and also medically examined Muhammad Rafiq P. W. 20, and Mst. Muhammad Bibi wife of Muhammad Ismail accused alongwith Tariq Masood and Muhammad Ismail (acquitted-accused). On 26th December 1970, the doctor conducted the autopsy on the body of Khadim Hussain deceased and found the following injuries on his person :- (1) A fire-arm wound of inlet 1' circular situated in the middle upper part of left shoulder going forward and downwards fracturing the second/third and fourth ribs on the left side. On opening the body the left lung, the left side of heart, the diaphragm, the stomach, the left kidney and the intestine were badly lacerated. A circular piece of cardboard and one metallic pellet were recovered from the wound which were sealed and handed over to the police shirt and bunyan were correspondingly punctured. (2) A fire-arm wound of inlet 1/3' x --' x 3' situated over the lower part of left temporal region going forward and downwards behind the left malar bone. (3) An abrasion 1' x 1' on the right knee. (4) An abrasion --' x --' on the back of left hand above the base of index finger. On the same day at 4-45 p.m. Autopsy on the body of Mubarik A.I deceased was performed by the same doctor who found the following injuries on his person:-- (1) A lacerated fire-arm injury 5'x 3' blowing away the right side of bead at parietal eminence. The brain matter was coming out of the wound. The bones of the skull were badly fractured. 8 metallic pellets were recovered which were sealed and handed over to the police. (2) Six fire-arms superficial wounds each 1/6' circular situated over an area 3' x 3" on the back of right shoulder. No burning or scortching was found around the wounds. In his opinion the death was due to shock and haemorrhage resulted from fire-arm injury to the brain which was sufficient to cause death in the ordinary course of nature. On the same day at about 5-00 p.m. The same doctor conducted post---mortem examination on the body of Mushtaq Ahmad deceased and found the following injuries on his person:- (1) 25 fire-arms wounds of inlet each 1/6' circular scattered over the right side of face from forehead to chin, varying in depth from skin deep to 1/3' deep. (2) Three fire-arms wound each 1/6' circular skin deep on the tip of the nose. (3) Three fire-arms wounds 1/6" circular skin deep on the left malar bone. (4) 35 fire-arm wounds each 1/6' circular over the front, lower middle of the neck going in the thyroid gland. Four metallic pellets were recovered from the left chest and lung. Four metallic pellets were recovered from the wound over the right side of the face. The cause of death in his opinion was
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shock and internal haemorrhage resulted due to fire-arm injuries to the left lung and big blood vessel in the chest. On 27th December 1970, at 11-00 a.m. The same doctor performed autopsy on the dead body of Muhammad Malik and found the following injuries on his person :- (1) A contused wound 2--' x 1--' x bone deep on the left side of head 2' behind the left ear. (2) A contused wound 1' x --' x bone deep situated 1" above over the middle of wound No. 1. (3) A contusion 1' x 1-- ' on the right side of forehead. (4) A contusion with effusion on blood 3' x 1' on the right parital bone. (5) A contused wound --' x --' x --' on the inner side of the middle of right leg. On 26th December 1970, the doctor medically examined Muhammad Rafiq P. W. 20 and found the following injury on his person:-- (1) A fire-arm wound of inlet 1--` circular situated on the back of right chest. There was surgical empysema present. This injury was declared grievous, and was caused by a fire-arm. 7. On the same day at 12-15 p.m. The doctor examined Mst. Muhammad Bibi wife of Muhammad Ismail (acquitted-accused) and found the following injuries on her person. (1) A lacerated wound 2' x -- x bone deep on the left side of head above the ear. (2) Contusion 2' x 1' on the upper part of left shoulder blade. All these injuries were caused by a blunt weapon Injury No. 1 was kept under observation while the other was simple. On the same day the doctor examined Tariq Masood (acquitted-accused) and found 8 injuries on his person, out of which six were abrasions while the other two were contused wounds. All these injuries were simple and were caused by a blunt weapon. On the same day at 11-45 a.m. Muhammad Ismail son of Hakim Din (acquitted-accused) was medically examined and 7 injuries were found on his person, out of which 4 were contusions while two were abrasions and the rest was a swelling. Two of the injuries were kept under observation while the rest were declared simple. All these injuries were caused by a blunt weapon. 8. The defence set up by Muhammad Shafi and Khalid Mahmood accused immediately after their arrest before the police was that they were innocent and the complainant party was the aggressor. They pleaded their absence on the day of occurrence. Aziz-ur-Rehman appellant told the police after his arrest, that on the day of occurrence he was at Burewala. Muhammad Ismail accused told the policy that the complainant-party had committed criminal trespass into his house and he in the right of self---defence had killed the deceased persons. Ghulam Muhammad appellant also pleaded alibi and told the police that he was involved in the case due to enmity. In his statement under section 342, Cr. P. C. Before the trial Court Muhammad Ismail accused filed a written statement in vernacular, denied the prosecution version and gave out his own version, the English translation of which is as follows:--- "In the year 1959 Plot No. 310-C situated in Ghulam Muhammad Abad colony was allotted in the name of my son Khaliqur Rehman. He constructed one room, a chappar and a boundary wall of this plot. The contiguous Plot No. 311-C was allotted in my name and in that house I live. There was a partition wall in between two plots. We had made a door in this wall. On about 8th November 1970, the complainant-party attempted to interfere with Khaliqur Rehman's occupation of the plot. On this Khaliqur Rehman instituted a suit in the civil Court at Lyallpur on 11 April 1970. In that suit, temporary injunction was issued by the Court. A copy of that order is Exh. D. I. On 16th November 1970, Muhammad Asghar, Khadim Hussain, Muhammad Ashraf son of Abdul Aziz case Jat resident of Chak No. 30-JB alongwith four other persons again attempted to forcibly occupy house No. 310- C belonging to my son Khaliqur Rehman. These persons were armed at that time. They howeverth
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failed in their attempt. On this, my son, Khaliqur Rehman got registered a case under sections 448, 148/149, P. P. C., at Police Station Gulberg Lyallpur. That case is still pending trial in the lower Court. On 19th December 1970, the complainant-party again attempted to recover possession of the plot. They challenged us and on this my son Khaliquar Rehman reported the matter to the police of Police Post Ghulam Muhammad Abad. On 26th December 1970, at about Fajar prayer time I was offering my prayer in my house No. 311-C. At that time, my wife Mst. Muhammad Bibi was kindling fire in the courtyard of the house. All of sudden my wife raised alarm that dacoits have come. I rushed to the court--yard and I saw Muhammad Rafiq Butt resident of Ghulam Muhammad Abad armed with hatchet, Khadim Hussain armed with a pistol, Mubarik A.I with a hatchet, Mushtaq Ahmad with a gun, Muhammad Malik armed with a lathi and Muhammad Ashraf armed with kulhari and all of them were beating my wife. I picked up a saroo of a cot from the courtyard and I struck ft on head of Muhammad Malik. In the meantime firing started. I ran inside the room of my house. From there I picked up my licensed gun and went on the roof top of my house. From there, in self-defence, I fired my gun. After some time, this firing stopped. I came out in the courtyard of the house. In the courtyard of house No. 310- C belonging to my son Khaliqur Rehman I saw Khadim Hussain, Mubarik A.I, Mushtaq Ahmad and Muhammad Malik lying in injured condition. I went forward and found Khadim Hussain, Mubarik A.I and Mushtaq Ahmad dead. Muhammad Malik was then alive. In addition to these persons Muhammad Rafiq, Shaukat A.I, Abbas, Ilyas, Manzoor Ahmad, Muhammad Saleem and Abdul Ghani had also attacked. My eldest son Khaliqur Rehman was not present in the house. He was doing exercise outside near the mosque. He ran towards the police post for report. From there, he went to Police Station Kotwali. My younger son Aziz-ur-Rehman who has passed his Overseer Class had gone to Burewala in search of employment. Some time after the occurrence, Muhammad Khan Incharge Police Post Ghulam Muhammad Abad alongwith a few police constables arrived at the place of occurrence. He put Muhammad Malik then injured and the dead bodies of Mubarik A.I, Mushtaq Ahmad and Khadim Hussain in a truck and took them away. Subsequently, through collusion, a case was got registered against us. On our application at later stage, the Crimes Branch police registered a case under section 307/452/148/149, P. P. C. And challaned the accused. That case is pending trial in this Court. The complainant-party aggressed against us and they attempted to forcibly occupy the house of my son Khaliqur Rehman while armed. They beat me and my wife. I had fired in reply to the firing by way of self-defence." Muhammad Shafi accused when asked as to why this case against him, stated that he was falsely implicated in this case because he is a P. W. In the case under sections 448, 148, 149, P. P. C. Registered against the com--plainant-party with the police. He denied the prosecution version from one end to the other. Khalid Mahmood and Tariq Masood accused are the sons of Muhammad Shafi accused. They stated that they were falsely implicated in this case. In reply to a question put to Khalid Mahmood, he stated that he was implicated in this case because his father Muhammad Shafi was a P. W. Against the complainant-party in the aforesaid case under section 448, P. P. C. According to him he was not present at the spot at the time of occurrence. He was in Mamunkajan then. The reply of Tariq Masood to the question as to why this case against him, was, that he was implicated in this case because his father Muhammad Shafi is a P. W. Against the com--plainant in case under section 448, P. P. C. Tariq Masood accused was injured during the occurrence. A question was put to him asking him to explain the injuries on his person. In reply he stated that:-- "On the day of occurrence I came from the mosque after offering prayer. Salim. Ata Muhammad, Ghani and their companions came in a tonga armed with guns and other weapons, and when I passed by them they shouted, "The son of Shafi", these persons gave me a beating. Ghani fired his
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pistol at me but it missed the aim. Salim and Ata Muhammad P. Ws. Gave me a beating with lathis, and I ran away to the house." Khaliqur Rehman appellant when questioned as to why this case against him stated:--- "4/5 days before 16th November 1970, the complainant-party attacked me and on this I instituted a Civil Suit against the complainant-party. I was granted temporary injunction from the civil Court regarding the disputed plot . . . I had also reported the matter to police on 16th November 1970, and got reported a case against the complainant party . . . I had also got recorded report No. 9 dated 19th December 1970,at P. P. Ghulam Muhammad Abad whose copy is Exh. D. H. He stated further that:-- "I was not present at the spot at the time and date of occurrence. I was present on the road near Goad Masjid. The complainant-party came in two tongas and they started firing and then went to the P. P. Ghulam Muhammad Abad to report about this to the police. The police did not record my statement and then I went to the P. S., Kotwali. I also met the emergency police but none recorded my statement then I came back to the spot, by that time, the complainant-- party had left. I did not participate in this case. I am innocent." Aziz-ur-Rehman appellant denied his presence at the spot. According to him he was in Burewala on the day of occurrence. Ghulam Muhammad accused denied the prosecution version. He also pleaded alibi. All the accused did not produce any witness in defence. 9. The case of the prosecution rests on the statements of 22 witnesses in all. Ch. Muhammad Abdullah D. S. P. Who had for some time supervise the investigation of this case was examined as C. W. 1. 10. We have heard both the learned counsel for the appellants as well as for the State and have perused the record very carefully with their assistance. The ocular…
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