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Petitioner: ALAM SHER AND 5 Others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Aslam Riaz Hussain, M. S. H. Qureshi Title: ALAM SHER AND 5 Others vs THE STATE Case No.:Criminal Appeal No. 949 of 1972 and Murder Reference No. 26 of 1973 Crl.
JUDGMENT
Reported As: 1975 P Cr. L J 1188 Result: Order accordingly Judgment JUDGMENT ASLAM RIAZ HUSSAIN, J.---Alam Sher aged 45 years, Gul Sher, aged 20 years, Lai Khan, aged 50 years, Ahmad Khan, aged 50 years, Ghulam Haider, aged 25 years and Muhammad Khan, aged 43 years were tried by the learned Sessions Judge, Multan, for offences under sections 148 and 302/307/149, P. P. C. And found all six of them guilty of different offences given below and sentenced them as follows, by his judgment dated 11-12-1972:- (1) Under section 302/149 for the murder of Noor Muhammad deceased, he sentenced Alam Sher and Ahmad Khan to death and the remain--ing four, namely, Gul Sher, Lai Khan, Muhammad Khan and Ghulam Haider to transportation for life (now called imprisonment for life); (2) for assaulting and causing injuries to Ghulam A.I Mirasi. He sentenced all the six accused to three years' R. I. Under section 307/ 149, P. P. C; (3) for causing injuries to Lai Khan P. W. He sentenced each accused to one year's R. I. Under section 324/149, P. P. C.; (4) he, sentenced each accused to 6 months' R.I. For rioting under section 148, P. P. C. The sentences of imprisonment awarded to Alam Sher and Ahmad Khan (who were also sentenced to death under section 302/149, P. P. C.) were to be operative only if their sentence of death was not confirmed by the High Court. It was further ordered that all the sentences were to run concurrently. 2. All the six accused first filed an appeal against their conviction and sentences through Mr. D. M. Awan, Advocate (Criminal Appeal No. 949 of 1972). Subsequently Muhammad Khan, Ghulam Haider
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and Ahmad Khan filed another appeal (Criminal Appeal No. 30 of 1973) through Ch. Nazir Ahmad Khan, Advocate. Piran Bakhsh complainant also filed a revision under section 439, Cr. P. C. (Criminal Revision No. 474 of 1973) for enhancement of sentences of Muhammad Khan, Gul Sher, Ghulam Haider and Lai Khan as provided by section 544-A, Cr. P. C. The matter has also been referred to us under section 374, Cr. P. C, for consideration of the question of confirmation of the death sentence awarded to Alam Sher and Ahmad Khan. We propose to dispose of the two appeals and the murder reference as well as the revision for enhancement by a single judgment. 3. The facts of the prosecution case, briefly stated, are as follows:- Both the parties are residing in Chak No. 377/W. B., Tehsil Lodhran, District Multan. The six accused can be divided into three groups. Alam Sher appellant is the father of Gul Sher appellant. Lal Khan appellant is the real brother of Muhammad Khan appellant and Ahmad Khan appellant is the father of Ghulam Haider appellant. But the three groups are not related although all the six appellants belong to the same party and are said to be running joint business. About two and a half years prior to the occurrence, some Government land was auctioned in Chak No. 377/W. B. In which some members of each party bid against each other thereby enhancing the price of the land. Lot No. 1 was auctioned in favour of Fateh Khan of the complainant party. Lot No. 2 was auctioned in favour of Ahmad Khan appellant and lot Nos. 3 and 4 were auctioned in favour of Muhammad Khan appellant. Ahmad Khan and Muhammad Khan appellants paid the lease money for the year 1968-69 but failed to pay the same for the year 1969-70. Noor Muhammad deceased, Piran Bakhsh complainant and the aforementioned Fateh Khan made an application (Exh. P. N.) to the Colony Assistant, Multan, against Ahmad Khan and Muhammad Khan with regard to the non- payment of lease money, on 10th March 1,969. A similar application (Exh. P. N./1) was also made by them to the Assistant Martial Law Administrator on 8th April 1969, against Muhammad Khan appellant. Proceedings were started against Ahmad Khan and Muhammad Khan appellants and notices were issued against theca, demanding tae payment of arrears of the lease money, including substantial amounts as penalty for non-payment of the instalments in tine. The matter was then referred to Tehsildar for realisation of those amounts. This is said to have given rise to the motive which ultimately led to the present occurrence. 4. The marriage of Mehboob Elahi son of Piran Bakhsh complainant (P. W. 11) was to take place on 22-10-1910. The marriage party (barat) was to proceed from Chak No. 377/WB from the house of Piran Bakhsh complainant and was to go to Multan. Piran Bakhsh complainant had hired a bus for carrying the barads to Multan. It was naked at a short distance outside the village abadi on the southern side of the village. However, to reach the bus the barat had to pass from the street in which the house of Alam Sher was situated. According to the prosecution case, as put forward at the trial, at about 8 a.m. Alam Sher appellant sent a message to Piran Bakhsh P. W. 11 that he would not allow the marriage party to pass in front of his house. On receiving this message Piran Bakhsh complainant went to Alarn Sher's house, where the other five appellants were also present. He apologised to Alam Sher etc. And asked for forgiveness and requested that he (Alam Sher) should allow the barat to pass from in front of his house, for reaching the bus which was parked outside the village towards the end of the street passing in front of the appellant's house. Alam Sher is said to have accepted the apology and permitted the complainant to take the barat from the street in question. The complainant then went home and told Muhammad Nawaz P. W. 12 about the permission given by Alam Sher. Accordingly the marriage party left the house of Piran Bakhsh complainant at about 9 a.m. Piran Bins a complainant, Noor Muhammad, deceased, Muhammad Nawaz P. W. 12, LAl Khan P. W. 13, Haji Bashir Ahmad P. W. 14 and Miran Bakhsh were at the head of the barat. Ghulam A.I, the village Mirasi, was walking in front of the pand, playing the shehnai, in
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accordance with the usual custom. The rest of the barat was following these persons at some distance. When the above-mentioned persons leading the birat reached the street where the house of Alam Sher appellant was situated, all the six accused came out with single carrel guns and raised a lalkara saying that they Piran Bakhsh complainant and his party) were their (appellants') enemies an it would not allow to go. Thereafter Alam Sher opened the attack with a shot fired at Noor Muhammad (deceased) hitting him in the abdomen. This was followed by a shot fired at Noor Muhammad deceased by Ahmad Khan appellant, which hit the former on his chest. Ghulam Haider appellant then fired at Ghulam A.I Mirasi injuring him in the abdomen. Both. Noor Muhammad deceased and Ghulam A.I Mirasi fell down hat receiving injuries. The assailants then started firing at the rest of the marriage party, which had, in the meanwhile, taken shelter behind the walls of the well situated in the middle of the village chowk and were thus protected from the shots fired at them because of the height of the wails of the aforementioned well as well as the distance between them and the assailants. However, Lai Khan P. W. 13 was injured by the indiscriminate firing by the appellants at the marriage party. But due to the confusion prevailing at that time the complainant did not come to know about his (Lal Khan P. W.'s) having been injured during the firing. The assailants then ran away with their guns. After their departure, Piran Bakhsh complainant left for police station to lodge the F. I. R. (Exh. P. A.) at Police Station Dunyapur, which is at a distance of 11 miles from the place of occurrence. It was recorded by Fateh Naseeb S. I., P. W. 15 at 12-15 p.m. He narrated the whole version as given above but did not mention the injury received by Lai Khan during the incident as he did not know about it. 5. After recording the F. I. R., the S. I. Proceeded to the spot and reached there at about 3 p.m. He prepared the inquest report and injury statement of Noor Muhammad deceased and despatched the dead body for post-mortem examination. He also got the site plan (Exh. P. M.) prepared. He recorded the statements of available witnesses. On 24-10-1970 Alain Sher and Muhammad Khan appellants appeared before him. Muhammad Khan produced before him a gun P. 6, while Alam Sher produced before him gun P. 7 together with its licence. The two weapons were taken into possession by the S. H. O. Vide memo. Exh. P. C. And P. D. Respectively. He searched for the remaining accused up to 19-11-1970. He was, however, able to arrest Gul Sher and Ghulam Haider on 3rd November 1970. Ahmad Khan appellant was arrested by the Muharrir A. S. I. On 19-11-19`0. Lai Khan appellant was not traceable. Warrant; for his arrest were issued and he was also declared as proclaimed offender. At last he was arrested on 21-11-197.), It may be mentioned that no blood was found at the spot. As such, no blood-stained earth was taken into possession by the Investigat-- ing. Officer. 6. Dr. Altaf Hussain Gardezi (P. W. 5) performed the post-mortem examination on the body of Noor Muhammad deceased. He found nine firearm injuries on the dead body, two of which were wounds of exit. The injury shown as No. 10 in the doctor's evidence merely relates to the presence of palpable pellet on the back side of the left elbow and does not describe a separate injury. Captain Dr. Muhammad Aslam Maan (P. W. 10) examined Ghulam A.I Mirasi on 22-10-1970, at 7-15 p.m. And found three injuries on his person. Injuries Nos. 1 and 2 were firearm injuries. Of these injury No. 1 had obviously been caused by a shot fired from a very close range, as indicated by the blackening on its margins. Lai Khan P. W. 13, on having been injured during the incident, had himself gone to Civil Hospital, Dunyapur without informing anyone. There he got himself examined by Dr. Nazir Ahmad (P. W. 9), who found two gun-shot wounds on his person. These have been described by the doctor as follows:- (1) A gunshot wound of entry 3/10' x 3/10' on the radial side (lateral side) left wrist-joint, wound of exit did not exist.
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(2) A gunshot wound of entry 3/10' x 3/1.0' on the lateral side of left Palm, margins are lacerated, this wound extended in the Palmer sikn and sub-outaneous tissues along the palm transversely to the medial border producing a lacerated injury in the Palmer skin thus that produced wound of exit in the medial border of the palm. It may bs mentioned that after Lai Khan P. W. 13 got himself examined at Dunyapur Hospital, he went to Nishtar Medical Hospital and got admit--ted. He remained there for four days and thereafter left for his village in District Sargodna, where he stayed for 11 months. It was only thereafter that he came to Chak No. 377/W. B. Where the S. I. Recorded his statement under section 161, Cr. P. C. 7. At the trial, the prosecution produced 15 witnesses in support of its case. The prosecution case rests mainly on the evidence of motive, the testimony of the eye-witnesses, the recovery of guns from the two appellants and the medical evidence. The appellants when examined, denied their guilt and pleaded innocence before the Committing Magistrate as well as before the learned trial Judge. They simply stated that they have been involved falsely by the complainant party. They also denied of having any connection with each other and said that they did not belong to o-a party and did not run joint business. They also denied the allegations about the motive alleged by the prosecu--petition and stated that they did not have any enmity with the complainant. At the trial, however, their counsel put forward the defence version by putting certain suggestions to Piran Bakhsh complainant (P. W. 11), during his cross-examination. The suggestions were to the following effect:- That Piran Bakhsh had called some mirasis to play musical instruments for the guests on the night preceding the day of occurrence; that those mirasis came to the complainant's baithak by passing through the street in which the house of Alam Sher appellant is situated; that while they were passing by his house, Alain Sher appellant gave some money, by way of veil to those mirasis. 8. Its admissibility was, therefore, rightly attacked by the defence that Noor Muhammad deceased took the money from the mirasis and threw ft at the baithak of Alam Sher appellant and also gave a beating to the mirasis ; that the marriage party had to leave for Multan on the evening of the 21st of October 1970, and not on 22nd morning ; that the complainant party has planned to take the barat by force through the street passing in front of the house of Alam Sher appellant ; that they, therefore, collected some gun-men and took the marriage party from in front of Alam Sher appellant's house and that the gun-men actually fired ; that Fateh Khan, Gul Baz and Muhammad Nawaz of the complainant party were sitting in the latter's baithak, armed with their guns, in order to fire at the accused party ; that the complainant's son, Zafar lqbal, and Noor Muhammad deceased, were also armed with guns ; that when the marriage party started, crackers were let-off and guns were fired in the air ; that Muhammad Khan, Fateh Khan and Muhammad Nawaz P. W. 12 fired from the latter's (Muhammad Nawaz P. W.'s) baithak ; that when the marriage party reached in front of the baithak of Alam Sher, a few members of the complainant party "mounted" on the thara of his baithak and that some from amongst 15/16 men sitting in the baithak of Alam Sher fired and injured Noor Muhammad deceased. 9. We have heard the learned counsel for the appellants in the two appeals, the learned State counsel as well as the learned counsel for the petitioner in the revision for enhancement of sentences. The counsel for the accused-respondents were also beard in this revision petition. We have also gone through the entire record with the help of the learned counsel. The case of the appellants was argued mainly by Mr. D. M. Awan, Advocate. The case of Muhammad Khan, Ghulam Haider and Ahmad Khan was also argued by Ch. Nazir Ahmad Khan, Advocate. They raised of contentions which shall be discussed presently. 10. But before going into those contentions or proceedings to discuss the evidence on the record we would like to mention that the recovery of guns from the two appellants was not relied upon by
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the learned trial Judge, and it did not advance the prosecution case because the recovered guns P. 6 and P. 7 have not been matched with any crime empties, none having been recovered from the spot. (They were probably picked up by the assailants before the police arrived at the spot. Hence no empty cartridge 4 could be recovered). As a result we propose to leave the evidence as to the recovery of guns P. 6 and P. 7 produced by Muhammad Khan and Alam Sher appellants out of consideration. 11. The first contention raised by Mr. Dost Muhammad Awan, one of the learned defence counsel was that the learned trial Judge has held that the motive for the offence, as alleged by the prosecution, has not been proved. This argument is based mainly on the observation of the learned trial Judge at the end of paragraph No. 34 of his judgment, wherein it has been observed that:- "God knows what went in the minds of the accused at the time of occurrence and they resorted to fixing." We are not impressed with this argument. The learned trial Judge has not held that the motive has not been proved. He has only observed that the mere fact that the motive is weak does not cast doubt on the prosecu--petition story. The fact that an auction of Government land took place in April 1968, wherein the members of each side took part, stands fully proved through the testimony of Dost Muhammad, who was employed in the office of Colony Assistant, Multan, in 1968. He has appeared Gs P. W. 4 and stated, inter alia, that Fateh Khan was successful in obtaining one lot of land while Ahmad Khan and Muhammad Khan appellants secured the remaining three lots. The auction forms Exhs. D. D., D. E., D. F. And D. G. Have also been proved by Dost Muhammad P. W, 4. Piran Bakhsh (complainant) P. W. 11 has mentioned that Fateh Muhammad had made bids on behalf of the decease;) and other members of the complainant party, while Ahmad Khan and Muhammad Khan appellants made bids for the accused-party. It is quite possible that bidding against such other may have enhanced the base money and thereby also caused some friction between the two patties. Dost Muhammad P. W. 4 stated further applications (Exh. P. N and Exh. P. N./1) against Ahmad Khan and Muhammad Khan appellants were made by Fateh Khan, Nur Muhammad (deceased) and Piran Bakhsh (complainant) to the Colony Assistant, Multan, on 10-3- 1969, and to the Assistant Martial Law Administrator on 8-4-19169, respectively, informing the aforementioned authorities that Ahmad Khan? And Muhammad Khan appellants had failed to pay the instalments of the lease money to the Government and requested for action against them. Notices were issued against Muhammad Khan acid Ahmad Khan appellants requir--ing them to pay Ps. 22,776 and Rs. 7,314 as arrears of land revenue respectively including the proportional penalty for non-payment in time and the matter was referred to the Tehsildar for the realisation of the above--mentioned amounts and subsequently on his failure to pay the money, the lease of the land of Ahmad Khan appellant was even cancelled by Assistant Commissioner, Lodhran by his order dated 22-10-1970. The learned counsel for the appellants referred to Exh. D. H./1 (at page 45 of the paper-book) and contended teat it is stated therein that the notice was issued to Ahmad Khan appellant on 18-3- 1970 whereby he was required to appear before the A. C. On t6-4-1970 and that it was thereafter that the orders of attachment of the land and the recovery of the arrears of the lease money along with penalty was ordered. He wanted to show thereby that the notices were issued by A. C. Suo moto against all defaulters because it was issued in March 1971, while the application (Exh. P. N.) by the complainant had been made as far back as March 1969. We are afraid that the conclusion reached by the learned defence counsel has no basis. Exh. D. H./1 is report made by Dost Muhammad P. W. 4, op an applica--petition (Exh. D H.) made by Muhammad Afzal son of Ahmad Khan appellant to the A. C. On 15-2-1971 protesting against the order of attachment of the land and the recovery of the arrears of lease money and penalty from his father Ahmad Kh in appellant, asserting that all the money had been paid in time. He requested that the accounts be gone into
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again and the appropriate action (i.e cancellation of the earlier orders, referred to above) may be taken. In the report Exh. D. H./I Dot Muhammad P. W. 4 gave a brief history of the matter and it is in this connection that he mentioned the notices issued by the A. C. To Ahmad Khan appellant on 18- 3-1970. But this does not mean that no earlier notices had been issued to them before this because only one line earlier Dost Muhammad P. W. 4 has stated that the allottees (aforementioned appellant) were liable to pay the lease money for the year 1969-70 and in that connection the A. C. Had called for them. The Persian expression " MA-BAAD" used by Dost Muhammad P. W. After this shows that notice dated 18-3-1970 referred to by him in Exh. D. H./1 refers to a subsequent notice. From the entire version about the auction of land as well as filing of the complaint Exh. P. N. And Exh. P. N./1 and the orders passed thereon by the Colony Assistant and then by the Assistant Commissioner, Lodhran, we feel that this action was taken on the application (Exh. P. N.) moved by the members of the complainant narty. Even if it be assumed that the concerned officer had issued demand notice against the all defaulters including the two appellants (Ahmad Khan and Muhammad Khan appel--lants, it can be safely assumed that the latter were under strong impression that it was on the application of Nur Muhammad (deceased) and Piran Bakhsh complainant and others that the revenue authorities bad taken these actions against them. We know that in our rural community such matters can give rise to serious enmity between the concerned parties and can easily lead to murders. And even if it be assumed that something else intervened which constituted the 'immediate' motive or cause of the ignition of the explosive situation, which already existed between the parties, the main reason for the enmity was the aforementioned hostility generated by the auction of the Government land and subsequent application made against two of the appellants by Piran Bakhsh (complainant), Nur Muhammad (deceased) anal some other members of the complainant party. However, there is sufficient indication on the record as to the incident which may have provided the immediate motive for the occurrence. This is provided by a suggestion made to Piran Bakhsh complainant P. W. 11 by the defence counsel itself, while cross-examining the former at the trial. It was suggested to him at the trial that on the night preceding the day of occurrence Piran Bakhsh complainant had called some mirasis to entertain the guests invited to the marriage of his son, by playing on musical instru-- ments; that those mirasis came to Piran Bakhsh's house by passing in front of the Baithak of Alam Sher appellant; that some person sitting at the Baithak of Alam Sher gave some money by way of wail to those mirasis; that Noor Muhammad (deceased) took that money back from the mirasis and went and threw the same at the Baithak of Alam Sher and also gave a beating to the mirasis. This appears to have aggravated the matters and, notwithstanding the enmity, the complainant had planned to take the marriage party from in front of the house of Alam Sher appellant by force and that for this purpose they armed themselves and when they reached in front of the house of Alam Sher, some men from the complainant party, who were carrying guns, fired. Mr. D. M. Awan, Advocate submitted before us that the fire was returned by the opposite side. There was thus cross-firing between the parties. The matter of vail has also been referred to by Ghulam A.I mirasi in his statement Exh. P. J. Made before the police in the following words:--- (Note:---But it may be mentioned that Ghulam A.I Mirasi died his natural death sometime afterwards, even before he could be examined by the learned Committing 14agistrate. His statement under station 151, Cr. P. C. Was not brought on the record, as evidence under section 32 or any other section of the Evidence Act). 12. The learned defence counsel contended next that the name of Lai Khan P. W. 13, who is an eye- witness in the case, has not been mentioned in theF. I. R., Exh. P. A. He also referred to the description of the injury on his hand, as mentioned by Dr. Nazir Ahmad W. 9 to argue that this injury was caused when LA Khan P. W. Was himself aiming a gun at the complainant party. He contended
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further that this witness was taken to the Civil Hospital, Dunyapur by a constable, as mentioned by Dr. Nazir Ahmad P. W. 9 During his cross-examination, but he did not lodge an F. I. R. And in fact absconded and was examined by the police only after It months. The learned counsel argued that this conduct on the part of Lai Khan P. W. Is indicative of his guilty conscience because, in fact, it is the complainant party, including Lai Khan P. W., who had attacked the appellants at their thara. We are afraid these contentions have no merit whatsoever. The argument teat injuries Nos. 1 and 2 on the arm and wrist of Lal Khan P. W. Were caused when he was aiming his gun at the appel--lants is extremely far-fetched sad fantastic, It would be safe to assume that the baratts including Lai Khan P. W. Were not standing still like dummies, with their limbs in a stationary position. Evidently there must have been a lot of commotion and movements when the firing started. Lai Khan P. W. Must have received the shot when he was moving about and his hand was in a particular direction which caused the injury in question. He has fully explained the reason for his prolonged absence from the village. He first went to Civil Hospital, Dunyapur to get himself examined. Thereafter he went to Nishter Hospital, and got himself admitted there for four days and then he went to his own village in District Sargodha and remained there for about 1-- months. Since he is said to be a party-man of the complainant, he must have got to know, soon after the incident, that the other side had been made accused persons in the incident. It cannot, therefore, be…
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