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Petitioner: MUHAMMAD ALIAS MAMMI VS Respondent: STATE
1983 P Cr
1983 P Cr. L J 1183
[Lahore]
Before Muhammad Rafiq Tarar, J
MUHAMMAD alias MAMMI AND OTHERS-Appellants
Versus
THE STATE-Respondent
Criminal Appeal No. 131 and Criminal Revision No. 347 of 1978, decided on 23rd November, 1.982.
(a) Penal Code (XLV of 1860)-
-- Ss. 302/149 & 307/149-Evidence Act (I of 1872), S. 8-Murder Motive-All accused very closely related inter se and expected to join hands with each other-Motive, held, established against all.-[Motive].
(b) Penal Code (XLV of 1860)-
----Ss. 302/307/149-Evidence Act (I of 1872), S. 32-Dying declara tion-Sufficient material available on record to vouch genuineness of dying declaration-Reliance by trial Court upheld. [Dying declaration].
Mushtaq Ahmad's case 1977 S C M R 129 ref.
(c) Penal Code (XLV of 1860)-
----Ss. 302/307/149-Murder-Evidence-Prosecution producing rela tive-cum-chance witness-Reasons given by him for his presence at spot not convincing-Evidence of such witness excluded from considera tion.-[Witness].
(d) Penal Code (XLV of 1860)-
--- Ss. 302, 307 & 149-Murder-Evidence-Interested witness-Pro secution witness having no animus against accused or any motive to come forward as a false witness against accused of murder-Mere fact that he was formerly nominated by complainant-party as their representative in some negotiation with accused party, held, would not make him an interested witness.- [Witness].
(e) Penal Code (XLV of 1860)-
Ss. 302, 307 & 149-Murder-Evidence-Prosecution witness suffer ing injuries and multiple contusion marks on his person-One injury grievous in nature. Presence of such witness, held, established beyond any shadow of doubt.-[Witness].
(f) Penal Code (XLV of 1860)-
Ss. 302, 307 & 149 -Murder-Evidence -Prosecution witness present at place of occurrence and receiving injuries-Not related to any of deceased persons-Contention that prosecution witness inimical towards accused as he suspected him for theft of his buffaloes replied ---Held, theft of buffaloes two or three years prior to occurrence would not- provide him a motive to falsely implicate all eight accused persons in a case involving capital punishment.
(g) Penal Code (XLV of 1860)-
----Ss. 302, 307 & 149-Murder-Participation of accused-Evidence of eye-witnesses finding full corroboration from motive, medical evidence and dying declaration-Two deceased persons and injured prosecution witness suffering ninety-three injuries .in all-Number of accused such as required for attack in such case and not out of pro portion to number of injuries-Accused so connected inter se that they were expected to join hands with each other-All accused persons, held, participated in occurrence.
(h) Penal Code (XLV of 1860)-
-- Ss. 302, 307, 149 & 300-Murder-Intention as required under S. 300, held, can be gathered from nature of injuries and conduct of assailant-Contention that all injuries caused with blunt weapon and on non-vital parts of deceased persons, intention to kill not proved not upheld as deceased had injuries on his forehead, upper portion of chest and back of chest which are vital pacts of body.
Ahmad Khan's case P I. D 1961 hah. 543 ref.
Dalmir's case 1970 S C M R 840 ref.
(i) Penal Code (XLV of 1860)-
-----Ss. 302, 307 & 149-Murder-Accused persons causing 43 injuries to deceased which in opinion of doctor sufficient to cause death in ordinary course of nature-Accused persons caused 23 injuries to another deceased six being grievous which were collectively sufficient to cause death in ordinary course of nature-Conviction of accused upheld-As death in case of each deceased person being due to shock and haemorrhage resulting from cumulative effect of all injuries, sentence of imprisonment of life on charge of murder, held further, is appropriate-Sentences awarded by trial Court maintained and appeal dismissed.
Zia-ud-Din Khan for Appellant.
Rana Abdul Ghaffar for the State.
Muhammad Ghani for the Complainant.
Dates of hearing : 21st and 23rd November, 1982.
JUDGMENT
Muhammad alias Mammi (40), Ramzan alias Rammi (35); Nasir (25), sons of Khan, Kallu (50) son of Shamma, Nijabat (30), Mammi (26), sons of Baggu, Mohabbat (32) and Meer alias Ali (25), sons of Shera, all Wattu by caste, residents of Chak No. 396/GB, Police Station Tandlianwala, were tried by the learned Additional Sessions Judge, Faisalabad, on the allegations that on 21st February, 1975 at 5 p.m. while being members of an unlawful assembly the common object of which was to commit the murders of Nazir Ahmad son of Bukhtawar and Nur Ahmad son of Nijabat and to make murderous assault on Nur Ahmad son of Sardar, they committed rioting armed with deadly weapons and in prosecution of the; common object of the said unlawful assembly actually committed the murders of aforesaid Nazir Ahmad son of Bukhtawar and Nur Ahmad son of Nijabat and made murderous assault on Nur Ahmad son of Sardar in the area of Chak No. 450/GB. By judgment dated 10th December, 1977 all of them were convicted on the said charges and sentenced to R. I. for one year each under section 148, P. P. C., R. 1. for seven years and a fine of Rs. 2,000 each or in default of its payment to suffer further R. 1. for one year each under section 307/149, P. P. C. and imprisonment for life and a fine of Rs. 5,000 each or in default of pay ment of fine to undergo further R. I. for two years each in each case under section 302/149, P. P. C. The fine imposed under section 307/149, P. P. C. was ordered to be paid to Nur Ahmad son of Sardar and that under section 302/149, P. P. C. to the heirs of the deceased persons in equal shares. All the sentences of imprisonment were, however, directed to run concurrently. The convicts have appealed. Amir Ali son of Bukhtawar has filed Criminal Revision No. 347 of 1978 praying that sentence of imprisonment for life awarded to each of the convicts under section 302/149, P. P. C. be enhanced to death. Both these matters shall be disposed of by this judgment.
2. The brief facts of the prosecution case are that three or four months prior to the occurrence two buffaloes belonging to Nur Ahmad deceased were stolen. He suspected Mammi appellant son of Khan for the theft and demanded the buffaloes through a Panchayat. Eight or nine days prior to the occurrence, aforesaid Mammi, his brother Ramzan alias Rammi, Kallu and Mohabbat accused returned the buffaloes to Nur Ahmad deceased. On 15th February, 1975 Nur Ahmad deceased got a case registered against them (Mammi etc.) upon which they started making efforts through Panchayat for a patch up with him on payment of expenses incurred by him on the search of buffaloes. On 21st February, 1975 Nur Ahmad deceased, Nazir Ahmad deceased, Walla and Nur son of Sardar P. Ws. went to the dera of Waseer situate in Chak No. 396/GB for negotiations with the accused party. Nasir, Mammi son of Khan, Rammi, Kallu and Mohabbat accused were already present there. They had a dialogue with the aforesaid accused persons from 10 a.m. to 3/4 p.m. but the matter could not be settlad. Mammi and his companions then went away. About an hour after their departure, Nur Ahmad deceased and his companions also started for their village. At about 5 p.m. when they reached near the 'Dhari' of Allu Baloch situate in the area of Chak No. 450, all the accused armed with Lathis came from the side of aforesaid 'Dhari' raising Lalkaras and attacked the members of the com plainant party. Mammi gave a Lathi blow on the right leg of Nur Ahmad deceased as a result of which he fell down, Rammi gave a Lathi blow on the leg of Nazir deceased and he too fell down ; Walla P. W. ran away ; the accused persons then gave Lathi blows to Nur P. W. who also fell down and then all the eight accused gave more blows to both the deceased persons and Nur P. W. with their Lathis. On the alarm of the members of the complainant party, Mazhar P. W. got attracted. He challenged the accused and they fled away from the spot. A shortwhile after, Ghulam Muhammad, brother of Nur Abmad deceased, brought a tractor-trolly and took the injured persons to Civil Hospital, Tandlianwala. Nazir Ahmad deceased succumbed to his injuries on reaching the hospital.
3. On the same day at about 10-55 p.m. Dr. Ghulam Rasul, Medical Officer, Civil Hospital, Tandlianwala, sent Ruqqa (Exh. P. A./2) to the S. H. O., Police Station Tandlianwala, intimating him that Nur Ahmad son of Nijabat was in a serious condition but mentally fit to make a statement, upon which Jafar Hussain Shah, A. S. L, reached the hospital. Nur Ahmad deceased, who was then in the operation theatre, reported the occurrence to him at 11-30 p.m. in the presence of the doctor vide his statement Exh. P. B., incorporating the facts as detailed in para. 2 above. On the basis of this statement, formal F. I. R. Exh. P. B./2 was recorded at the police station at 11-15 p.m.
4. After recording the statement of Nur Ahmad deceased, the A. S. I. prepared the injury-statement (Exb. P. L.) and inquest-report (Exh. P. L./1) of Nazir deceased. When he was preparing these documents he received Ruqqa (Exh. P. A./3) from the doctor that Nur Ahmad, first informant, had also expired. The A. S. I. again went to the operation theatre and prepared injury-statement (Exh. P. M.) and inquest-report (Exh. P. M./1) of Nur Ahmad deceased and handed over both the-dead-bodies to Mansab Hussain, F. C., for post-mortem examination.
5. On the next day, i.e., the 22nd of February, 1975, Nabi Bakhsh, S. H. O., Police Station Tandliaqwala, reached the spot and took up the investigation from the A. S. I. He took blood-stained earth into his posses sion and made it into a sealed parcel vide rinemo. Exh. P. K. Walla P. W. produced Sotas, Exhs. P. 6 and P. 7 before him vide memo. Exh. P. J. and Exh. P. J./1, respectively. On the same day all the accused except Meeru appeared before the S. H. O. Nijabat and Kallu accused produced blood stained Sotas Exh. P. 8 and Exh. P. 9, respectively, before him which he made into separate sealed parcels vide memos. Exh. P. K./1 and Exh. P. K./2. Nasir, Ramzan alias Rammi, Muhammad alias Mammi and Mohabbat Pro duced Sotas Exhs. -P. 10, P. 11, P. 12 and P. 13 before him vide memos, Exhs. P. K./3, P. K./4, P. K./5 and P. K./6, respectively. Meer accused was arrested on 23rd February, 1975. After the investigation, all accused were challaned.
6. On 21st February, 1975 at 10-50 p.m. Dr. Ghulam Rasul, Medical Officer, Civil Hospital, Tandlianwala, examined Nur Ahmad deceased, when alive, and found the following injuries on his person :-
(1) A contusion mark 1'' x '' upon forehead 1'' above the outer end of left eye-brow. (2) An abrasion mark 1'' x 1" upon left side of face 1" from outer angle of left eye. (3) A contusion mark 1 " x " upon outer end of right eye-brow. (4) A contusion mark 3" x 1" upon back of right shoulder. (5) Three contusion marks 3'' x 1'', 2 '' x " and 3 " x 1'' close to each other upon back of upper most portion of chest. (6) Six contusion marks close to each other varying from 3" x 1" to 2'' x " upon back of chest in its middle. (7) Five contusion marks close to each other varying from 4'' x 1" to 2 " x " upon back of right side of chest in lower portion. (8) Five contusion marks varying from 4" x 1" to 3" x 1" upon back of left side of chest in upper most portion. (9) A contusion mark 3" x 1" upon back of left shoulder. (10) Five contusion marks close to each other varying from 5'' x I" to 3" x " upon back of left side of chest, lower portion. (11) A contusion mark 3 '' x 1" upon back of left upper arm. (12) A contusion mark 3" x 1 '' upon back and outer side of left elbow. (13) A contusion mark 3'' x 1'' upon front of right upper arm in upper one third. Underlying right hemorrhage bone was fractured. (14) An abrasion mark 2" x 1/6' upon back of right forearm. (15) Four contusion marks varying from 5" x 1" to 3" x 1" upon front and outer side of right thigh in its middle end lower portion, close to each other. (16) A contusion mark 3'' x 1'' upon outer side of right lower leg in its upper portion. (17) A contusion mark 3 x 1" upon outer side of right lower leg just above ankle. (18) A contusion mark 5" x 1" upon back and outer side of left thigh in its middle. (19) A contusion mark 10'' x 9" upon back of right buttock. (20) A contusion mark 10'' x 10" upon back of left buttock. (21) A contusion mark 5" x 1" upon back of right thigh.
Injuries Nos. 6 to 10 were kept under observation, No. 13 was grievous and the rest were simple in nature.
On 22-2-1975 at 7-30 a.m. the same doctor conducted the autopsy on the dead body of Nur Ahmad deceased and found the injuries referred to above on it.
In the opinion of the doctor, death was due to shock and internal hae morrhage caused by injuries Nos. 1 to 21 which were collectively sufficient to cause death in the ordinary course of nature.
On the 22nd of February, 1975 at 00-30 a.m. the same doctor examined Nur Ahmad P. W. and found the following injuries on his person :--
(1) An abrasion mark 1" x 1/6" upon left half of forehead. (2) An abrasion mark 1" x 1/4" upon bridge of nose, close to its root. (3) An abrasion mark 1" x 1/6" upon left upper eye-lid. (4) An abrasion mark 1 x " upon left cheek. (5) A contusion mark 2" x 1" upon upper right eye-lid. (6) A contusion mark 8'' x 5" upon back of right side of chest, and back of right shoulder. (7) A contusion mark 5" x 1" on back of right side of chest in its middle. (8) Two contusion marks 4" x 1" and 3" x 1" close to each other upon back of right side of chest in lower portion. (9) A contusion mark 9" x 1" upon both sit of chest in its lower portion. (10) A contusion mark 4" x 1" upon back of left side of chest in upper portion. (11) A contusion mark 4" x 2" upon back of left shoulder. (12) A contusion mark 4" x 1 '' upon outer side of left upper arm. (13) A contused wound 1" x 1/4" x bone-deep upon outer side of left elbow. . (14) A contusion mark 3'' x 1 " upon back and inner side of left forearm in lower one-third, underlying left ulna bone was fractured in lower 1/3rd. (15) An abrasion mark " x 1" upon back of left thumb. (16) A contusion mark 4" x 1" upon outer side of right upper arm. (17) A contusion mark 4" x 1 " upon outer side of right elbow. (18) A contusion mark 4" x 1" upon back and inner side of right forearm. (19) A contused wound 2'' x " x skin-deep upon back of right thumb.
(20) A contusion mark 3" x 1" upon back of left buttock. (21) Multiple contusion marks in an area 11" x 6" upon back of left buttock. , (22) A contusion mark 2" x 1" upon outer side of left knee. (23) Three contusion marks 4" x 1", 3" x 1" and 3 " x 1" upon outer side of left lower leg, in upper portion. (24) A contusion mark 3" x 1" upon outer side of left lower leg.
Injuries Nos. 6 to 8 and 18 were kept under observation, No. 14 was grievous and the rest were simple in nature. Later on injuries Nos. 6 to 8 and 18 were declared simple.
On 22nd February, 1975 at 9 a.m. the same doctor conducted the post mortem examination on the dead body of Nazir deceased and found the following injuries on it :-
'' (1) A contusion mark 2" x 3/4" upon front of right side of chest.
(2) An abrasion mark 1 " x " upon top of left side of chest.
(3) A contusion mark 3" x I" upon outer side of right upper arm in its middle.
(4) Three contusion marks 1 " x 1/3", l " x 1/3" and 1" x " close to each other upon outer side of right upper arm. (5) A contused wound 1 " x " x bone deep upon outer side of right upper arm, 2 " above right elbow. (6) A contusion mark 1" x 1/3" upon back of right elbow. (7) A contusion mark 3" x 1" with contused wound 1" x '' x bone deep upon back and inner side of right forearm. Underlying right radius bone was fractured. (8) A contusion mark 3" x 1" upon back of right hand. (9) A contused wound 1" x " x bone deep upon back and outer side of left upper arm in lower 1/3rd. (10) A contusion mark 2" x 1" upon back of left elbow with swelling 3" x 4". (11) A contusion mark 3 " x 1" with swelling 4" x 5" upon back and inner side of left forearm, Underlying left ulna bone was fractured. (12) A contusion mark 2 '' x 1" upon back of left hand. Swelling of whole left hand and underlying matacarpal bone of left index finger was fractured . (13) A contusion mark 3" x 1" upon front of right lower leg, below right knee. Underlying right tibia bone was fractured. (14) A contusion mark 31" x 1" with a contused wound 1" x 1/3" x bone deep upon front of right lower leg. Underlying both tibia and fibula bones were fractured. (15) A contusion mark 3" x " upon outer side of right ankle. (16) A contusion mark 4" x 1" upon back of left buttock. (17) A contusion mark 3" x l" upon outer side of left thigh. (18) A contused wound 1 '' x " x skin deep upon front of left knee. (19) An abrasion 1" x 1/3'' upon outer side of left knee. (20) A contused wound 1" x " x bone-deep upon front of left lower leg. (21) A contused wound 2" x " x bone-deep below injury No. 20. (22) A contused wound 1 " x " x skin deep upon outer side of left lower leg.
(23) A contused wound 2" x '' x bone-deep upon outer side of left lower leg above ankle. Underlying left fibula bone was fractured.
Injuries Nos. 7, 11 to 14 and 22 were grievous in nature. In the opinion of the doctor, death was due to shock and haemorrhage caused by aforesaid grievous injuries which were collectively sufficient to cause death in the ordinary course of nature.
In support of its case the prosecution examined three eye-witnesses, namely, Mazhar (P. W. 8), Wali Muhammad alias Walla (P. W. 9) and Nur Ahmad injured (P. W. 10). It also relied on the recoveries, motive and dying statement of Nur Ahmad deceased which forms the basis of the F. I. R. in this case.
8. The appellants pleaded not guilty to the charge. They stated that they had been involved in this case due to enmity and suspicion. Muhammad alias Mammi accused, son of Khan, when asked whether he wanted to say any thing else, made the following statement :-
"I am innocent. In 1974 I had made a report under section 307, P. P. C. against Mammi son of Baggu, Mohabbat and Meer accused. F. I. R. No. 68/74, P. S. Tandlianwala and I had no reason to join with them in the alleged offence. Nazir Ahmad was the habitual offender and he accompanied by Noor son of Nijabat and Noor son of Sardar bad gone to the place of occurrence for cattle lifting and was assaulted by the abadcars."
Kallu accused stated :-
"I am innocent. I produce photostat copy of F. I R., Exh. D. E. Wasir resident of Chak No. 396/GB and Mohabbat, Meer and Mammi son of Baggu accused in this case are my enemies. I got the case registered against them vide Exh. D. E."
No evidence was led in defence:
9. The learned trial Judge accepted the motive, the dying-declaration and ocular evidence furnished by P. Ws. 8 to 10 and convicted and sentenced the appellants as mentioned above.
10. The motive alleged by the prosecution was that three or four months prior to the occurrence two buffaloes of Nur Ahmad deceased were stolen; he suspected Mammi appellant son of Khan for the theft and demanded the buffaloes through a Panchayat; eight or nine days prior to the occurrence aforesaid Mammi, his brother Ramzan alias Rammi, Kallu and Mobabbat appellants returned the buffaloes as promised, but Nur Ahmad deceased got a case registered against them vide F. I. R. dated 15th February, 1975 (copy Exh. P. O.). The learned counsel for the appellants did not controvert this version before me. He rather relied on these facts to contend that the parties were inimical to each other and in that view of the matter the complainant party had the motive to falsely implicate the appellants in this case. The contention has no force. Muhammad alias Mammi, Rammi, Kallu and Mohabbat had returned the buffaloes to Nur Ahmad deceased as promised and they must be expecting that the deceased will not take any action in the matter but, to their great annoyance, he got a case registered against them after getting the buffaloes. The grievance, therefore, was with the aforesaid accused persons, and not with Nur Ahmad deceased. '
Nasir accused is the real brother of aforesaid Mammi and Rammi; Kallu is son of their father's sister; Mohabbat and Meer accused are real brothers and Kallu accused is their maternal uncle; Mammi son of Baggu and Nijabat are real brothers and their father Baggu is the real brother of the father of Mobabbat and Meer accused. In this way, all the accused are very closely related inter se and were expected to join hands with each other. In the circumstances, the motive alleged by the prosecution stands established against all the accused.
11. The learned counsel for the appellants next contended that the dying declaration Exh. P. B. which forms the basis of F. I. R., was recorded five hours after the occurrence and thus sufficient time was gained for deliberations. He further submitted that the Resident Magistrate was residing at a distance of only 100 yards from the hospital but no effort was made to call him for recording the dying declaration, therefore, its authenticity is not free from doubt.
The learned counsel for the complainant and the State submitted that genuineness of the dying-declaration was not open to the slightest doubt as it was recorded in the Operation Theatre in the presence of the doctor where no other person was present. They further submitted that the Resident Magistrate could not be called as the condition of Nur Ahmad deceased was very serious and the doctor thought it fit to call the police officer to record his statement as the police station was just across the road.
12. The occurrence took place at 5 p.m. and the statement Exh. P. B. of Nur Ahmad deceased was recorded at 11.30 p.m. Nur Ahmad deceased was examined, when alive, and his medico-legal report Exh. P. A. shows that he was brought in Civil Hospital Tandlianwala, situate at a distance of six miles from the spot, at 10 p.m. It is in the statement of Walla P. W. that after the occurrence he went to the village (Chak No. 394) and narrated the occurrence to Ghulam, brother of Nur Ahmad deceased, and from there alongwith aforesaid Ghulam, brought a tractor-trolly to the place of occurrence and took the injured to the hospital. It is also in his statement that the distance between Chak No. 394 and the place of occurrence is 10/12 squares. He must have taken quite some time for covering this distance on foot and making arrangement for the tractor-trolly in Chak No. 394. Then he came to the place of occurrence on the tractor and from there took the injured persons to the hospital. It can, however, safely be inferred that on reaching 'the place of occurrence with a tractor-trolly Walla P. W. and the brother of Nur Ahmad deceased would have started for the hospital with the injured persons without losing any time because their foremost anxiety was to save the lives of the injured who were in precarious condition. In any case, it is not believable that the departure of the injured to hospital was delayed to gain time so as to build up a story. It is in the statement of the doctor that Nur Ahmad deceased was given first-aid on his arrival in the hospital and he sent ruqqa Exh. P. A./2 (ac 10-55 p.m.) to the police as the condition of Nur Ahmad deceased became serious when he was still being examined in the Operation Theatre. In view of the facts and circumstances narrated above, I do not find any substance in the contention that the F. I. R./dying declaration was deliberately delayed to gain time for deliberations.
13. There is sufficient material on the record to vouch the genuineness of the dying declaration. The doctor sent ruqqa to the S. H. O. intimating him that Nur Ahmad deceased was in a serious condition but mentally fit to make a statement. On receipt of this ruqqa the A. S. I. reached the hospital and recorded the statement of Nur Ahmad deceased in the Operation Theatre in the presence of the doctor who issued a certificate that the entire statement was recorded in his presence and the deceased remained in sepses throughout. There is nothing on record to suggest that the A. S. I. who recorded the statement of Nur Ahmad injured, was interested in creating a false dying declaration against the accused persons. The doctor e too had no reasons to issue a false certificate that the first informant remained in senses throughout the time when the statement was recorded. He is a highly respectable witness and I feel no hesitation in accepting his statement that the dying declaration was recorded by the A. S. I. in the operation Theatre where no out-sider was present and the statement was read over to Nur Ahmad injured and he thumb-marked it in token of its correctness. There is also no substance in the contention that since the Magistrate who was residing only at a distance of 1,00 yards from the hospital; was not called to record the dying-declaration, therefore, it…
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