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Petitioner: MUHAMMAD ISHAQ KHAN And 3 Others VS Respondent: THE STATE-
Court Name: Lahore High Court Judge(s): Fazal Karim, Munir A. Sheikh Title: MUHAMMAD ISHAQ KHAN And 3 Others vs THE STATE- Case No.: r. A. No.101 of 1989 Date of Judgment:1992-03-17 Reported As: 1992 P Cr. L J 2059 Result: Order accordingly
JUDGMENT
JUDGMENT FAZAL KARIM, J: -- This is an appeal from a judgment of the learned Additional Sessions Judge, Khanewal, dated 17-4-1989, convicting the appellants, Muhammad Ishaque, Shaukat Hayat, Ejaz and Ghulam Muhammad alias Watni, under section 302 read with section 34 of the P.P.C. 'and sentencing each of them to imprisonment for life, to pay a fine of Rs.10,000 and in default to suffer R.I. For two years, for the murder of Khalid Mahmood and convicting them under section 324 read with section 34 of the P.P.C. And sentencing them to two years' R.I. Each for causing injuries to Abdul Sattar P.W. The sentences were directed to run concurrently. 2. While Cr. A. 101 of 1989 by the appellants is against their conviction and sentence, the complainant, Abdul Jabbar (P.W.7) has filed Cr.Rev. 71/89, praying that "the judgment of the trial Judge may kindly be modified and sentence may kindly be enhanced to the extent that the accused-respondents may kindly be awarded capital punishment". 3. The appellants, Muhammad Ishaque and Shaukat Hayat, are real brothers; the appellant, Ejaz, is their cousin and, the appellant, Ghulam Muhammad alias Watni, isstated to be their tenant. 4. The deceased man, Khalid Mahmood, was a son of the injured Abdul Sattar P.W., and a brother to Abdul Jabbar P.W. 5. The incident occurred at about Jumma prayer time on 29-1-1988 in the fields in Chak No.29/10-R, which place is about 12 kilometres from P.S. Kacha Khooh, District Khanewal. Its first information was laid at the police station by Abdul Jabbar (P.W.7) at 3-00 p.m. On the same day before the S.H.O. Allah Ditta Inspector. The F.I.R. Is Exh.P.K. 6. The substance of the prosecution case was as follows. Killa Nos. 12, 13 and 14 of Square No.55 are Government land. One part of Killa No.12 was in possession of the complainant party and the other
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part was in possession of the accused party. Both the parties had obtained land of Square No.55 from the Government on lease. The period of lease of the accused party had come to an end some two years before the incident, the period of lease of the complainant party was 15 years. There had been a dispute between the parties about the Watt, dividing Killa No.12 for 3/4 years. The accused party wanted to usurp the complainant party's land. 7. On the day of occurrence at about 1-30 p.m., Abdul Jabbar P.W. Was irrigating Killa No.14; his uncle's son, Muhammad Iqbal, (who was given up at the trial) was also with him. His father, Abdul Sattar P.W., was sitting at his Bhaini in Killa No.13 and his brother, Khalid Mahmood deceased, was cutting grass in, Killa No.12. The appellants, Muhammad Ishaque and Shaukat Hayat, armed with .12 bore guns, Ejaz, appellant, armed with a .32 bore revolver and Ghulam Muhammad alias Watni appellant, armed with a knife, arrived. They stood on the Watt in the middle of Killa No.12. Muhammad Ishaque, appellant, directed a tractor driver "to demolish the Watt running in the middle of Killa No.12" and the tractor driver (his name is not known) did so. Khalid Mahmood deceased asked the appellants not 'to demolish the Watt. They shouted, saying that "he was preventing not to demolish the Watt but 'they were thirsty of his blood". On hearing this, Abdul Jabbar and Muhammad Iqbal proceeded towards the spot and so did Abdul Sattar P.W. Muhammad Ishaque and Shaukat Hayat, appellants, fired at Khalid Mahmood hitting him in his chest. Khalid Mahmood fell down. Ejaz, appellant, fired his .32 bore revolver, hitting him near his left ear. Ghulam Muhammad, appellant, struck the deceased with his knife on the backside of the left shoulder. Abdul Sattar P.W. Laid himself on Khalid Mahmood and Ghulam Muhammad, appellant, started hitting him with his knife and caused him injuries on the ear, on the left arm and on the left shoulder. Muhammad Ishaque, appellant, then struck the deceased Khalid Mahmood with the butt of his gun. Shaukat Hayat, appellant, reloaded his gun and fired at Abdul Sattar P.W. And a pellet struck him in the back. Shaukat Hayat and Muhammad Ishaque, appellants, also gave butt blows on the head and chest of Khalid Mahmood deceased. Thereafter the appellant left the spot raising Lalkaras. Khalid Mahmood died at the spot. 8. Abdul Sattar P.W. Was removed to the hospital at Khanewal. Abdul Jabbar P.W. Went to the police station, where he lodged the F.I.R. Exh, PK. 9. Dr. Abdul Malik (P.W.1) medically examined Abdul Sattar P.W. At 3-45 p.m. On 29-1-1986 and found on his person the following injuries:-- (1) Incised wound 2.5 c.m. On upper part of left ear, cutting the car from above downward. (2) Incised wound 1 c.m. x 0.5 c.m. Going skin deep on the outer side of left upper arm, 6 c.m. Above the left elbow joint corresponding cut mark present on Kameez. (3) Incised wound 3 c.m. x 0.5 c.m. On the back of right chest 17 c.m. Below the right shoulder and 3.5 c.m. From the posterior mid line, corresponding cut mark present on the Kameez. The wound was going deep. (4) Fire arm wound 1 c.m. x 0.5 c.m. With blackish area around the wound. The wound was superficial, the wound was on back and outer side of left chest, 13 c.m. Below the left shoulder, He found that his pulse was 104 p.m. And B.P. Was 95/65 M.M. Of Hg. Injuries Nos.1 to 3 were caused by sharp-edged weapon and injuries Nos.4 by fire-arm. Injuries Nos.1 and 3 were X-rayed but no bony injury was seen. Injury No.1 had caused disfigurement of face and was declared grievous. The rest were declared simple. Exh. P.A. Is a copy of the medico-legal examination of the injuries of Abdul Sattar P.V1i , 10. When cross-examined by the learned defence counsel Dr. Abdul Malik stated that he had brought the register relating to the medico-legal examination of Muhammad Ishaque appellant. He had examined him on 29-I-1988 and had found the following injury on his person:-- Fire-arm wound 0.7 c.m. x 0.7 c.m with reddish area around the wound on the front and lateral side of left chest, 6 c.m, above and lateral to left nipple. The edges of the wound were inverted and
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blackish, the wound was going deep. Corresponding marks were present on Kameez and Bunyan. On palpation crepitus was present on whole of front and lateral side of left chest and on front of right side of chest. At that time his pulse was 100 p.m. B.P. 1(10/65 M.M. Of Hg and he was breathless. According to the Doctor, the injury was kept under observation; it was a fire-arm injury. Probable duration between the injury and examination was 2 to 4 hours. Exh.D.A. Is a copy of his medico-Legal report. The Doctor stated with reference to the X-ray that no bony injury was seen but there was evidence of "surgical emphysema with shadow of metallic bullet" and therefore, the injury was declared grievous. Exh. D.A./1 is a copy of his opinion and Exh. D.B./1 is a copy of the "final result" relating to the injuries of Muhammad Ishaque. In answer to a question by the learned defence counsel, the Doctor stated that "the injuries on the person of the deceased recorded by me and on the person of Abdul Sattar and also recorded on the person of Ishaque accused appear to have been inflicted at one and the same time". Dr. Abdul Malik also performed the forensic post-mortem examination of the dead body of Khalid Mahmood deceased on 30-1-1988. He noticed the following injuries on the dead body:-- (1) Fire-arm wound 1-1/2 c.m. x 1-1/2 c.m. On the upper and outer side of left neck, just on the mestoid, with inverted margine. (2) Contusion 4 c.m. x 2 c.m. On front and middle part of head 13 c.m. Above the root of nose. (3) Contusion 2 c.m: x 1 c.m. On the left side of head, 1 c.m. Above the left ear. (4) Fire-arm wound 1 c.m. x 1 c.m. Oval in shape with inverted and burnt margine on the upper and lateral side of right chest anteriorly 5 c.m. Below and lateral mid of clavical (right). (5) Fire-arm injury 1 c.m. x 1 c.m. Oval in shape with inverted and burnt margine on upper part .Of right chest anteriorly 1.5 c.m. Below and slightly lateral to injury No.4. (6) Fire-arm wound 1 c.m. x 1 c.m. On the upper and anterior part of right side of chest, 4.5 c.m. Below and medial to injury No.4. (7) Fire-arm wound 1 c.m. x 1 c.m. On the anterior and upper part of right side of chest 0.5 c.m. Medial to injury No.6 with inverted and burnt margine. (8) Fire-arm wound 1 c.m. x 1 c.m. On the anterior and upper part of right side of chest 0.7 c.m. Medial and slightly above the injury No.7 with inverted and burnt margine. (9) Fire-arm wound 1 c.m. x 1 c.m. On anterior and upper part of left chest oval in shape with inverted and burnt margine, 5 c.m. Lateral to mid sternum. (10) Fire-arm wound 1 c.m. x 1 c.m. Oval in shape with burnt margine on anterior and middle of left side of chest 10 c.m. Below the injury No.9. (11) Fire-arm injury 1 c.m. x 1 cm. Oval in shape with inverted and burnt margine on anterior and lower part of left side of chest, 7 c.m. Below the left nipple. (12) Fire-arm wound 1 c.m. x 1 c.m. Oval in shape with inverted and burnt margine on anterior and lower part of right side of chest 11 c.m. Below the injury No.6. (13) Incised wound 3 c.m. x I c.m. Muscle deep on outer and upper part of left shoulder. (14) Contusion mark with deformity and fracture of the bone (left humerus) in the middle part of the left arm. (15) Lacerated wound 1-1/2 c.m. x 1-1/2 c.m. With everted margine on the back and lower part of left chest; 14 c.m. Below the lower end of left scapula (wound of exit). (16) Lacerated wound 1-1/2 c.m. x 1-1/2 c.m. With everted margine on the back and lower part of right chest, 1 c.m. Below the lower end of right scapula (wound of exit). (17) Lacerated wound 1-1/2 c.m. x 1-1/2 c.m. With everted margine on the back and lower part of right chest, 4 c.m. Below and lateral to injury No.16 (wound of exit). Injuries Nos.1 and 4 to 12 were all fatal "and could cause death individually as well as collectively". Injury No.14 was grievous and injuries Nos.2, 3 and 13 were simple.
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11. On dissection fracture of third rib on right side was noticed; both lungs and pleura were found punctured "with massive collection of clotted blood in the thorax". Pericardium and left ventrical of heart were found punctured and the heart chambers were empty. 12. In the opinion of the Doctor, death was due to severe haemorrhage, leading to shock resulting from damage to heart and lungs and this was sufficient in the ordinary course of nature to cause death. Time between injuries and death "could be sudden within half an hour" and time between death and post-mortem examination was about 24 hours. 13. The case was investigated by Allah Ditta Inspector (P.W.9). After recording the F.I.R. Exh.P.K, he reached the spot, prepared the injury statement Exh.P.L. And the inquest report Exh.P.M. In respect of the dead body and had the dead' body sent for post-mortem examination. He collected blood- stained earth and made it into a parcel vide memo Exh.P.E. He found two crime-empties P.7/1-2 at the spot and made them into a parcel vide memo Exh.P.F. . 14. He then went to the hospital, where he recorded the statement of Abdul Sattar P.W. After obtaining the opinion of the Doctor vide memo Exh.P.N. He also took into possession blood-stained clothes of Abdul Sattar vide memo. Exh.P.G. 15. Allah Ditta Inspector arrested the appellants, Ghulam Muhammad, Shaukat Hayat and Ejaz, on 5-2-1988. 16. On 16-2-1988, Ghulam Muhammad, appellant, led to the recovery of knife P.12 and he took it into possession vide memo Exh.P.H. On the same day, the appellant, Shaukat Hayat, led to the recovery of .12 bore gun P.13 and he made it into a parcel vide memo Exh.PJ. On 19-2-1988, Muhammad Ishaque, appellant, appeared before him and he arrested him. He had the site plans Exhs.P.D. And P.D./1 prepared. He also obtained copies of Jamabandi and Khasragirdawri Exhs.P.O. And P.O. 17. In cross-examination, Allah Ditta Inspector said that he had reached the hospital at about 5-30 p.m. At that time, it was not brought to his notice that Muhammad Ishaque, appellant, lay admitted in the hospital. He admitted that on 30-1-1988, the D.S.P. Had visited the spot; that he had accompanied the D.S.P. And that 43 persons had appeared in support of the defence version, namely, that "aggression was committed by Sattar and Khalid deceased against them and that according to him First fire was shot by the deceased Khalid which hit him in the chest"; that "he had caused injuries to Khalid Mahmood and Abdul Sattar in his self defence with his small knife" and that "the injuries with fire arm on the person of the deceased and Abdul Sattar P.W. Were in result of the firing by Iqbal Nai". On 2-2-1988, one Dost Muhammad made application Exh.D.E. Before him on behalf of Muhammad Ishaque, appellant This was accompanied by his medico-legal certificate. He had recorded the statement of Muhammad Ishaque, appellant under section 161 of the G.P.C. On 3-2-1988 in the hospital. He admitted also that Muhammad Ishaque, appellant "was found admitted in the hospital since 29-1-1988." 18. At the trial, the prosecution called 9 witnesses in support of its case; they included Dr. Abdul Malik (P.W.1) and Allah Ditta Inspector (P.W.9). The ocular account of the occurrence was given by Abdul Sattar (P.W.8) and Abdul Jabbar (P.W.7); they were father and son. As noticed above, Khalid Mahmood deceased was also a son of Abdul Sattar P.W. 19. The evidence of the remaining P.Ws. Can be shortly dealt with as follows. Muhammad Aslam A.S.I. (P.W.2) had kept the sealed parcels in safe custody and had delivered them intact to Muhammad Rafique Constable for being taken to Lahore. Muhammad Rafique Constable (P.W.3) had escorted the dead-body of Khalid Mahmood from the place of occurrence to the mortuary. On 4-2-1988, he had delivered two scaled parcels, one containing blood-stained earth and the other containing-crime empties at the offices of the Chemical Examiner and Forensic Science Laboratory respectively. On 17-2-1988, he had delivered the parcel containing the gun of Shaukat Hayat, appellant, safely at the office of the Forensic Science Laboratory. Abdul Ghafoor Patwari (P.W.4) had prepared the site-plans Exh.P.D. And Ex.P.D./1 in the scale of 16 karams to an inch. Aalam Khan
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(P.W.5) had joined investigation and had witnessed the collection of blood-stained earth and the empties P 7/1-2 from the spot vide memo Exh.P.F. He had also identified the dead body of Khalid Mahmood deceased at the time of post-mortem examination. Mushtaq Khan (P.W.6) testified that Ghulam Muhammad, appellant, had led to the recovery of knife P.12 and that Shaukat Hayat, appellant, had led to the recovery of gun P.13 vide memos Exhs.P.H. And P.J. Respectively. 20. The prosecution also tendered in evidence the Chemical Examiner's report Exh.P.R., Serologist's report Exh.P.S. And the report of the Forensic Science Laboratory Exh.P.T. Exh.P.T. Shows that the empties P.7/1-2 were found to have been fired from the gun P.13 of Shaukat Hayat, appellant. 21. It is also note-worthy that the learned Prosecutor had, by his statement dated 13-3-1989, given up Ghulam Muhammad and Muhammad Amir P.Ws. "as being won over". These two persons were later, on the application of the appellants, examined as Court witnesses. 22. In their statements under section 342 of the Cr.P.C. The appellants, Shaukat Hayat, Ejaz and Ghulam Muhammad, denied their participation in or even presence at the time of, the occurrence: Shaukat Hayat and Ghulam Muhammad, appellant, also denied the recovery of gun P.13 and knife P.12 from them, They did not give evidence on oath under section 340(2) of the Cr.P.C. And did not lead any evidence in defence either. 23. It should be mentioned here that the statements under section 342, of the Cr.P.C. Of the appellants were recorded on 25-3-1989. On 3-4-1989 a written application was made by Ghulam Muhammad, appellant, saying that in his statement under section 342 of the Cr.P.C. "in reply to question 9, my reply has inadvertently been written that I was not present at the time of occurrence" and praying that "my statement may kindly be recorded". Accordingly, a supplementary statement under section 342, of the Cr.P.C. Of Ghulam Muhammad, appellant, was recorded. In that statement, he said with reference to question No.9 in his first statement under section 342 of the Cr.P.C. "I was present at the time when Khalid Mahmood and Abdul Sattar came there, Khalid Mahmood fired at Muhammad Ishaque and soon thereafter I ran away and that I did not sec the rest of occurrence". 24. It is note-worthy that question No.9 was:-- "Is it a fact that Ejaz Hussain fired from his revolver and injured Khalid and then you caused injuries with your knife to Khalid deceased". and its answer was:-- "I was not present at the time of occurrence". 25. Both in his statement under section 342, of the Cr.P.C. And in his statement on oath, Muhammad Ishaque, appellant, gave his own version of the incident. It was, to quote from his statement on oath, as follows:- "About thirteen months ago, it was Juma prayer time. We are two brothers, the name of my other brother is Shaukat Hayat who is also accused in this case. Besides me Ghulam Muhammad accused was present in Square No.55, we were ploughing field through the tractor, Khalid Mahmood deceased and Abdul Sattar P.W. Came there. Khalid Mahmood on coming there abused me and stated that he is going to teach a lesson about registration of case of Zina of Mst. Azizan against them. I in return also abused him, therefore, Khalid fired at me with a revolver which hit at my chest on the left side near my nipple, he was going to fire a 2nd shot which missed, I had a knife with me, I took out the same and caused injury on his person on the left shoulder. Thereafter I gave him two fist blows and one kick blow. I tried to catch the revolver so that he may not fire another shot. Abdul Sattar came there, he tried to release his son from my hand and tried to remove my grip from the hand of the deceased in which he was holding the revolver. In the process, I dealt three knife blows on the person of Abdul Sattar. I got a push and fell down backward. Khalid deceased tried to aim at me another shot when in due course Iqbal Nai came, he fired which hit
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Khalid and Abdul Sattar, both fell on the ground. The occurrence was watched by Muhammad and Amir. In the Court premises Alam Khan, Ghulam Qasim brother of Aalam Khan are present, also uncle of Mushtaq P.W., Muhammad Nawaz Khan is present, they are my opponent. I was medically examined. The document Ex.DE bears my thumb impression". 26. In his defence, he called Dr. Ahsan Mian (D.W.2), who stated that on 29-1-1988, he had X-rayed the injury of Muhammad Ishaque, appellant, and made report Exh.DH. Which is a photo copy of the original report. According to his report, "the accused was suffering from surgical emphysema and there was shadow of metallic bullet in the chest". He admitted that he had not "gone through any course in order to hold the job of Radiologist". The X-ray was obtained on 29-1-1988 and its result was given on 18-2-1988. In the meantime, the X-ray had remained with him. In answer to a Court question as to the presence of the bullet in the body, he said that it was a bullet for the reason that its shape was like bullet". When asked to affirm or deny "that the object in question was above the bone", he could not " say about it inasmuch as, surgical emphysema cannot be given without opening of the theorax capacity of the pleaura". When asked if he had brought the X-rays in question, he said: "I have seen the X-ray annexed with the file, I cannot say as if it is the same X-ray which was drawn by me for the purposes of opinion. Inasmuch as, the same does not bear my signatures." 27. As has been noticed above, Muhammad Amir and Ghulam Muhammad P.Ws were given up as having been won over and on the request of the appellants, they were called as Court witnesses, Muhammad Amir as C.W.1 and Ghulam Muhammad as C.W.2. The purport of their testimony was as follows. Muhammad Amir had his cattle-shed near the place of occurrence, where he and Ghulam Muhammad were present. They heard an alarm. They saw that the appellants, Muhammad Ishaque and Ghulam Muhammad, were ploughing their land with a tractor and Khalid Mahmood deceased and Abdul Sattar P.W. Were abusing them and advancing towards Muhammad Ishaque etc. Khalid Mahmood deceased said that they had the case relating to Mst. Azizan "on the allegation of Zina Biljabar" registered and that he was going to teach a lesson to them. When he was at a distance of 2 or 3 karams from Muhammad Ishaque, appellant, Khalid Mahmood deceased gave abuses to Muhammad Ishaque; Muhammad Ishaque, appellant, returned the abuses. Thereupon Khalid Mahmood deceased pulled a pistol from his Dub and fired at Muhammad Ishaque, appellant, hitting him in his chest. Khalid Mahmood deceased "attempted second time" but it missed. Muhammad Ishaque, appellant, had a small knife with him. He dealt a knife blow to Khalid which struck him on left side of the chest , .. ... ... ... ... ... ... Thereafter Ishaque dealt a fist blow which hit his nose. Thereafter Ishaque dealt another blow which struck on the head of Khalid on the left side above the ear. In the meanwhile, Abdul Sattar P.W., father of Khalid Mahmood deceased, arrived and attacked Muhammad Ishaque, appellant. Abdul Sattar P.W. Was empty- handed. Muhammad Ishaque, appellant, "had held the pistol in the hand of Khalid with his left hand, with his right hand he dealt three knife blows on the person of Sattar. Ishaque accused saved himself and while running he fell at a distance of 2/3 karams". In the meanwhile, Iqbal Nai "came forward and he fired with a gun which hit Abdul Sattar and Khalid". Both Khalid and Abdul Sattar fell down. Ghulam Muhammad (C.W.2) went and informed Dost Muhammad Khan, an uncle of Muhammad Ishaque, appellant. The police arrived at 5-00 p.m. And he appeared before the police. According to Ghulam Muhammad C.W. The police "took Bala Nai and the gun". 28. The learned trial Court held that despite the fact that the eye--witnesses were closely related to each other and to the deceased and their statements were not corroborated "by some any other witness", their presence at the spot could not be doubted and there was nothing to suggest "that they stated falsely or had the purpose to falsely involve the accused party". In the opinion of the learned trial Judge, the motive, as set up by the prosecution, was also proved. He dismissed the defence version that the complainant party had attacked the deceased because of the Zina case
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or that there could be no fight over the land because the land was government land and the lease of the appellants had come to an end some two years before the incident. If the appellants had no interest left in the land, so observed the learned trial Court, then why they were holding the same and cultivating it on the fateful day. The learned trial Judge was of the view that the C.Ws. Muhammad Amir and Ghulam Muhammad were close relatives of Ghulam Muhammad, appellant, that the defence story, deposed to by them at the trial, was recorded after about six days of the incident. In his view, therefore, the C.Ws. Could not be believed, for in making statements for the accused, they were "motivated by the certain ulterior ends". In the opinion of the learned trial Judge, the nature of the injuries on the dead body and on the person of Abdus Sattar P.W. Was more consistent with the testimony of Abdus Sattar and Abdul Jabbar P.Ws. As to the manner in which Muhammad Ishaque, appellant, was able to cause injuries both to the deceased and Abdus Sattar P.W., this act of his appeared to the learned trial Court to be "somewhat a superman task", in that "he with one hand held a knife, caused injury on the person of the deceased and thereafter immediately he caused two fist blows resulting in injury Nos. 2 and 3 on the person of the deceased and also dealt a kick resulting in injury No.14 on the left arm". In the opinion of the learned trial Judge, it was not humanly possibly for him to "hold knife with one hand and to apply his blow with the same hand". Dealing with the injury of Muhammad Ishaque, appellant, and the evidence of Dr. Abdul Malik (P.W.1) on the point, the learned trial Judge held that it did not inspire confidence. "In the first instance the diametre of this fire-arm wound create doubt as if the same had been inflicted with a revolver keeping in view the diametres of the injuries relating to the deceased". The shot had been fired from a close range,…
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