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Petitioner: GHULAM MUHAMMAD AND ANOTHER VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Saad Saood Jan, Sardar Muhammad Abdul Ghafoor Khan Lodhi Title: GHULAM MUHAMMAD AND ANOTHER vs THE STATE Case No.: Criminal Appeal No, 511 of 1972 Date of Judgment:1974-06-16 Reported As: 1978 P Cr. L J 420 Result: Order accordingly
JUDGMENT
JUDGMENT ' SAAD SAOOD JAN, J.-The appellants, Ghulam Muhammad (aged, 45 years) and Ghulam Qasim (aged 27 years) both brothers, were tried by the learned Sessions Judge at Mianwali for offences under sections 302 and 307 read with section 34 of the Pakistan Penal Code for causing the death of Khuda Bakhsh and Allah Bakhsh, deceased, and making a murderous assault upon Muhammad Aslem (P. W. 15) and Ghulam Rasul (P. W. 14). For the offence under section 302 they were sentenced to death and for the offences under section 307 they were directed to suffer rigorous imprisonment for a period of two years. Along with them their father Rab Nawaz and their brothers Allah Bakhsh, Amir Afzal and Qadir Bakhsh were also tried but they were acquitted by the learned Sessions Judge. The appellants have filed a joint appeal against their conviction and sentences and the learned Sessions Judge has also made a reference to this Court for confirmation of the death sentence imposed upon them. The first informant, Ghulam Rasul, has also filed a separate revision against the acquittal of Rah Nawaz, Qadir Bakhsh and Allah Bakhsh and Amir Afzal. The appeal, the reference and the revision will be together disposed of by this judgment. 2. The parties are related to each other and belong to village Maibal Sherif. One Jowaysa was their common ancestor in the fourth degree. A daughter of the first informant is married to Amir Afzal who was acquitted by the learned Sessions Judge. Allah Bakhsh deceased was betrothed to the daughter of Allah Bakhsh who too was acquitted by the learned Sessions Judge. 3. Ghulam Ravel (P. W. 14) and his uterine brother Khuda Bakhsh deceased had some joint land which was contiguous to the holding of Rab Nawaz. The land of both parties became submerged under the slyer which flowed by this village. Sometimes prior to the occurrence the river receded and their lands re-emerged. The parties were not agreed as to the precise boundaries of their
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respective holdings. To settle the dispute Rab Nawaz made an application to the local revenue authorities for a proper demarcation. 4. About four months prior to the occurrence the cattle of Qadir Bakhab, who was acquitted by the learned Sessions Judge, trespassed into the land of Ghulam Rasul (P. W. 14) and caused some damage to the crop which was standing there. Allah Ukhah deceased, who was a son of Ghulam Raoul (P. W. 14), rounded up the offending cattle and started to take thorn to the local cattle pond. On the way Qadir Baldish and his sons forcibly took away their cattle from him. This incident which was duly reported to the police further strained the relations between the parties. 5. On the afternoon of 19-8-70 Patwari Muhammad Ismail (P. W. 16) and Girdawar Aziz Muhammad (P. W. 18) arrived in the village for effecting demarcation in pursuance of the application made by Rab Nam,. On hearing about the arrival of these revenue officers Khuda Bakhsh and Allah Bakhsh, deceased, Ghulam Rasul (P. W. 14) and Muhammad Aslam (P. W. 15) went to their land to ensure that the demarcation was properly carried out. They found Rab Nawaz and his five sons including the two appellants already present there. The appellants were armed with guns. Qadir Bakhah, Allah Bakhsh and Amir Afzal were carrying Sotas while Rab Nawaz was empty-handed. Ohulam Qasim appellant told Ghulam Raoul (P. W. 14) and his party to leave the spot but the latter refused to do so. Shortly thereafter the Patwari and the Girdawar along with one Alam Sher left the spot in search of a permanent point for fixing the boundaries. In their absence Rab Nawaz and his sons again asked Ghulam Rasul (P. W. 14) and his companions to go away as they had rounded up their cattle earlier and were obstructing the demarcation proceedings. Ohulam Rasul and Khuda Bakhsh deceased refused to oblige Rab Nawaz and his sons. On this Rab Nawaz abused Ghulam Rasul (P. W. 14) and his companions and raised lalkaros to his sons that they should not allow Ghulam Rasul (P. W. 14) and his companions to escape. Upon this Ghulam Muhammad appellant fired his gun which hit Khuda Bakhah deceased in the face. Khuda Bakhsh fell down. Ghulam Qasim appellant also fired hi) gun which hit Allah Baklosh deceased. Ghulam Qasim then tired a second shot at Ghulam Rasul (P. W. 14) who was not hit. In his place Muhammad Aslam (P. W. 15) was struk in the leg. Allah Bakhah, Qadir Bakhah and Amir Afzal then gave dung blows to Khuda Bakhsh and Allah Bakhsh deceased. After the occurrence the appellant and their companions left the scene of crime with their weapons. Khuda Bakhsh died at the spot while Allah Bakhsh expired on the way to the hospital at Kallurkot. 6. Ghulam Rasul (P. W. 14) went to Police Station, Maibal! Sharif which was at a distance of miles from the scene ofoccurrence. Al the said Police Station he lodged the F. I. R. Exh. P. B. At 9.00 a.m. It was recorded by Muhammad Sher, Head Constable (P. W. 13). As the H ad Constable was about to leave for the scene of crime Allah Bakhsh deceased was brought on a cot to the Police Station by his relatives. The Head Constable then recorded the dying declaration Exh. P. H. A. Of 1,.11ah Bakhsh deceased. 7. Malik Fazal Karim S. I. Conducted most of the investigation in this case. He reached the scene of occurrence in the earlier hours of the morning of 20-8-70. He recovered two empty cartridges from there and prepared the recovery memorandum Exh. R. I. The memorandum was attested by Khuda Yar (P. W. 11) and one Falik Sher who was not examined at the trial. 8. Ghulam Qasim appellant was arrested by Fazal Karim, S. I. On 21-8-70. At the time of his arrest Ghulam Qasim appellant produced his licensed gun (Exh. P. 7) which was taken into possession by the Sub-Inspector through memorandum. Exh. P. K. This recovery was also witnessed by Khuda Yar (P. W. 11). The empty cartridges and the gun were examined by the Fire-arm Expert who was of the opinion that these had been fired with the gun in question. The defence did not challenge this port of the prosecution case and as such the firearm expert was not examined in Court. 9. The post-mortem examination of Khuda Bakhsh deceased was performed by Dr. Nazir Ahmad who was posted as Medical 0fficer in Kallurkot at the relevant time. He found a lacerated firearm
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wound 6' x7' on the face of Khuda Bakhsh. As a result of the firearm wound the blood vessels of the right side of the face and the right upper portion of the neck were damaged. In the opinion of the doctor this injury was sufficient in the ordinary course of nature to cause death. 10. The post-mortem examination of Allah Bakhsh deceased was also performed by Dr. Nazis Ahmad. Allah Bakhsh had two lacerated firearm wounds located on the medial and front portion of the right elbow and metacarpal bone of right thumb as well as one laceration on the back left side at the level of umbilicus and swelling on the but just below the left scapula. According to the doctor the laceration and the swelling on the back could be caused by a fall on the ground. He was also of the opinion that the firearm injury on the right elbow was sufficient in the ordinary course of nature to cause death. 11. Muhammad Alam (P. W. 15) was also examined by Dr. Nazis Ahmad. He had a lacerated firearm wound 1/3' x 1/3' on the anterior aspect of the right lower leg 3' above the ankle. This injury was simple in nature. 12. The appellants pleaded not guilty to the charges against them. Warn Muhammad appellant denied that he was present at the place of the occurrence at the relevant time. Ghulam Qasim appellant on the other hand alleged that after the Patwari and Girdawar had gone in search of a reliable point for the purpose of demarcation he was left alone with the complainant patty. Khuda Bakhsh and Allah Bakhah picked up a quarrel with him which lcd to an exchange of abuses. Both the deceased then trespassed on his land and Khuda Bakhsh deceased who was armed with a pistol fired at him. He had licensed gun with him and in order to frighten Khuda Bakhsh he fired in the air. Khuda Bakhsh deceased was hit In face. Thereafter Allah Bakhsh deceased tried to hit him with a hatchet and be fired at him in his self-defence. Muhammad Aslam (P. W. 15) was hit by stray pellet. The appellants did not lead any evidence in support of their defence. 13. Although, as already indicated, both parties are related to each other it appears that their relations Inter se were strained at the time of the occurrence. Not only there was a dispute between them with regard to the actual boundaries of their respective holdings but only four months prior to the occurrence Allah Bakhsh deceased was responsible for getting a criminal case registered age nest the appellants when the latter forcibly took away the cattle from him. It is also to be noticed that all the five sons of Rab Nawaz along with him were implicated in this case. In view of the bad relations between the parties and the fact that all persons accused in the occurrence belong to the same family the evidence led by the prosecution will require very close scrutiny. 14. The incident occurred shortly after degarwela which in the months of August would be round about 5.30 p.m. The Police Station is located In the very village of the parties and was only a mile and a quarter away from the spot. Thus there is a delay of more than three hours in the recording of the first Information report. This delay has not been satisfactorily explained on the record. It is clear that the first informant had plenty of time to think of story. 15. Muhammad Sher Head Constable (F. W. 13) has deposed that after recording the F. I. R. As he was getting ready to proceed to the place of occurrence, Allah Bakhsh deceased was brought to him on a cot. He recorded the statement of Allah Bakhsh deceased under section 161 of the Code Criminal Procedure. This statement is Exh. P. H. H. Although this statement is admissible under section 32 of the Evidence Act but we do not think that we can safely use it for basing the conviction of the appellants. There is a time leg of more than three hours between the occurrence and the recording of this statement. During this period Allah Bakhsh deceased could have been easily tutored, to say things which were either untrue or which he had not seen. Apart from that it so closely follows the version and language of the F. I. R. That its authenticity becomes doubtful. It is also to be noticed that it was not produced before the committing Magistrate. We would, therefore, exclude this dying declaration from consideration.
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16. The ocular account of the occurrence has been provided by Ghulam Rasul (P. W. 14) and Muhammad Aslam (P. W. 15). Both these witnesses are related with each other. The presence of Muhammad Aslam (P. W. 15) at the scene of occurrence does not admit of any doubt for after the occurrence he was found to be bearing a firearm injury on his leg. The same cannot, however, be said in respect of Ghulam Rasul (P. W. 14). Had he been present at the time, of the shooting it is most unlikely that he would have escaped unscathed. 17. To establish the presence of all the persons accused and the eyewitnesses at the scene of occurrence at the relevant time the prosecution has relied upon the testimony of Patwari Muhammad Ismail (P. W. 16) and Girdawar Asia Ahmad (P. W. 18) and a report prepared by them namely. Exh. P. T. Both these witnesses made admissions favourable to the defence and were as such declared hostile. Thus according to the prosecution's own case they were not reliable persons. It will be noticed that the statements which they had made before the committing Magistrate were not transferred to the Sessions file apparently for the reason that there too they had been declared hostile. The report Exh. P. T. Was denounced by both these witnesses when they alleged that they had been made to write it by the local police under duress. They also averred that they had complained to their Senior Officers about the manner in which the said report was obtained from them. Even if their assertions with regard to the police pressure be disbelieved, still it does not help the prosecution. It is common ground between the parties that at the time of the occurrence both these witnesses bad gone away from the scene of occurrence in the search of a permanent point for the purposes of demarcation. It is not disputed that from the place they were present they could not see the occurrence further they ran to the spot on hearing the report of the gun-fire. As regards what they saw when they reached the spot the report states t [Vernacular matter omitted being illegible-Ed.] ' It will be noticed that the presence of Ghulam Rasul (P. W. 14) has not been recorded in this report. It is extremely doubtful that these witnesses would have failed to notice his presence had he been there, particularly when they had recorded the presence of every other person involved in the occurrence. Although Ghulam Rasul was undoubtedly present when the Patwari and the Girdawar first reached the spot but the possibility cannot be precluded that he left the scene of occurrence when the revenue official went to seek a permanent point and before the shooting started. We are, therefore, unable to say with any certainty that Ohulam Rasul had in fact witnessed the occurrence. We shall, therefore, exclude his statement from consideration. 15. As already pointed out Muhammad Aslam was a witness of partisan character. He is a nephew of Ghulam Runt (P. W. 14). He has shown his unreliability by alleging that after the shooting Allah Bakhsh deceased was given Lathi blows by Qadir Bakhsh, Amir Afzal and Allah Bakhsh. It is to be observed that in his statement before the police he did not take up this position. It may also be mentioned that the medico4egal report of Allah Bakhsh deceased does not indicate that he was given sot, or dang blows. Obviously Muhammad Aslam (P. W. 15) had made a false statement at the trial in order to make his version conform to the F. I. R. And the position taken by his uncle Ghulam Rasul (P. W. 14). We therefore, find that he is not a person upon whom implicit reliance can be placed. Consequently his evidence will require corroboration before it can be accepted as substantially true. 19. So far as Ghulam Muhammad appellant concerned no corm borating of any sort is forthcoming on the record. Although after h' arrest he led to the recovery of an unlicensed gun but there is nothing in th evidence to link this gun with the shooting. In the circumstance we do not think that his conviction for offences under sections 3)2 and 34 of the Pakistan Penal Code can be sustained. There is also no question of th applicability of section 34 of the Pakistan Penal Code. It is not th case of the prosecution that the occurrence was premeditated or proplanned. It started all of a sudden during the course of demarcation proceedings. It cannot, therefore, be said that the firing at the
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complainant party was th result of any common intention shared by Ghulam Muhammad appellant as well. Accordingly, we set aside his conviction and sentences and die that he shall be acquitted forthwith if not required in any other case For the same reasons we think that Rab Newer% Amir Afaal, Allah Baths and Qadir Bakhsh were rightly acquitted by the learned Sessions Jud The revision filed by Ghulam Rasul (P. W. 14) challenging their acquit must be rejected. 20. So far as Ghulam Qasim is concerned ample corroboration is available. It is not disputed by the defence that some empty cartridges were recovered from the scene of crime by the Investigating Officer and that these crime empties matched with the gun belonging to Ghulam Qasim appellant. In fact Ghulam Qasim admitted that he was responsible for firing at Allah Bakhsh and Khuda Bakhsh deceased. It is also to be noted that Muhammad Aslam (P. W. 15) was hit by a pellet fired by his gun. Ghulam Quint appellant has however, alleged that Khuda Bakhsh and Allah Bakh.Sh deceased picked up a quarrel with him and trespassed into his lands. Khuda Bakhsh deceased then fired a shot at him but he was not hit. With the object of frightening Khuda Bakhah deceased he fired his gun in the air. However Khuda Bakhsh was hit in the face. Thereafter Allah Bakhsh deceased tried to hit him with a hatchet. He fired at him in self-defence. One of the stray pellets hit Aslam (P. W. 15). 21. It will be observed from the dimensions of the injuries received by KW* Bakhsh deceased that he was not more than 6 to 7 feet from Ghulam Qasim at the relevant time. If he had indeed fired at Ghulam Qasim appellant he could not possibly miss. Yet no injury whatsoever was found on Ghulam Qasim appellant. Again Ghulam Qasim was armed with a single-barrelled gun. It required re-loading before it could be fired again. If Allah Bakhsh deceased was armed with a hatchet it is most unlikely that he would have permitted Ghulam Qasim to reload his gun for firing another shot. In the circumstances it is difficult to accept the version of Ghulam Qasim appellant about the manner in which the occurrence began. However, so far as Aslam (P. W. 15) is concerned we are prepared to accept his story that this witnesses was hit by a stray pellet. 22. For the reasons stated above, we, think that the charges of committing the murders of Khuda Bakhsh and Allah Bakhsh have been brought home to Ghulam Qasim appellant. Since these were unpremeditated and unplanned murders and the occurrence rose suddenly out of a dispute we do not think that it is a fit case in which the capital punishment should imposed. We, therefore, reduce his sentence for the offence under section 302 to imprisonment for life. As Muhammad Aslam was possibly hit by a stray pellet we set aside his conviction under section 307, P. P. C., substitute it with one under section 304 of the same Code and sentence him to six months rigorous imprisonment on this count. All the sentences shall run concurrently. The sentences of death are not confirmed. 23. The appeal, the reference and the revision are disposed of accordingly. . mimpsal 1978 P Cr. L .1 426 [Lahore] Before Muhammad ABDUL HAKIM-Applicant versus BASHIR AHMED-Respondent Criminal Revision No, 881 of 1973. (a) Crintaid Procedure Code (V of MC- - S. 156-Re-investigation-Person found innocent in an earlier enquiry by Police on similar report-A fresh investigation can be launched against such person.-[Investigation]. [p. 429]A Ana Muhammad v. State PLD 1969 Lab. 734 and Muhammad Hayat v. State PLD 1970 Lab. 729 rel. (0) Criminal Procedure Code (V of 18911)- -- Si. 173 & 190 read with S. 403-Double jeopardy, principle of-Magistrate, not discharging accused on merits after recording any evidence but only cancelling case on basis of Police report under S. 173-Order, held, could not operate as a bar to their subsequent prosecution on basis of a private complaint-Mere fact that Magistrate while passing, impugned order took into consideration factors
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like absence of independent witnesses and opinion of Medical Superintendent about nature of injuries-Held further, would not change character of his order.-{Double jeopardy]. [p. 430]B 427 Was& v. State PLD 1962 Leh. 105 and Amir All v. State PLD 1968 Lab. 537 rel. Mst. Tirathbai v. Mst. Sugnibal A I It 1929 Sind 61 ; Cheliomal and others v. Kewal'nal Jeramdas AIR 1939 Sind 38 ; Abdul Hossain Sana v. Suwalal Agarwala and another PLD 1962 SC 242 and Sta'e v. Syed Masood Ahmad 1971 P Cr. L .1 1216 distinguished. ORDBR OF REFERENCE ' There was a dispute between the parties over possession and partition of a house, as a result whereof a scuffle took place between them and a case F. I. R. No, 408, dated 17-8.71 was registered under sections 324, 148/149, P. P. C. Against the respondent. As a counterblast the respondent got a ease F. 1. R. No, 410, dated 17-8-1971 registered at P. S. City Sargodha under section 324/148/149, P. P. C. Simple injuries were found on the persons of Basbir and Munir Ahmed whereas the injuries of Rashid Bibi and Allah Rakhi were kept under observation. Subsequently District Headquarters Hospital. Sargodha on re-examination declared the injuries as simple and further opined that the injuries appeared to have been caused by friendly hands. Primarily the local police vide Zimni No, 9 dated 23-10-71 reported for the cancellation of case F. I. R. No, 410 dated 7-8-1971 but the P. D. S. P. Did not agree and ordered that the appellants (accused) should be challaned. Consequently, the appellants were summoned by the Court through non-bailable warrants of arest. They were granted bail by the Court and continued attending the Court till 31-8-72. Meanwhile the appellants applied to the Superintendent of Police, Sargodha for re-investigation of the case. As a result thereof the S. H. 0. City Sargodha reported again on 15-4-72 for cancellation of the case to which the P. D. S. P. Agreed. In his order dated 31-8-72 Mr. Muhammad Anwar Khan Kiani M. I. C. Sargodha has stated that he had examined the police file and no independent witness except the relatives of the complainant have corroborated the F. I. R. During investigation. Moreover the M. S. On re- examination of the injured P. Ws. Found that the injuries which were caused by sharp-edged weapon were of friendly hands. Accordingly he discharged the accused (appellants) who were on bail from Court. 2. On 13-3-1973 the respondent Bashir Ahmed son of Abdul Hakim filed a complaint in the Court of Ch. Muhammad Sarwar M. I. C, Sargodha against nine persons while three of them were not challaned by the police previously. In the said complaint the respondent Basbir Ahmed son of Abdul Hakim narrated his ignorance about the fate of challan case F. I. R No, 410 dated 17-8-1971. He also concealed the fact regarding re-examination of the injured P. Ws. The Magistrate recorded the statement of the complainant on the same day, ie. 13-3-13 and adjourned the case for 21-3-73. The last evidence of bth witness Lady Doctor Mrs. Mumtaz Bhatti was recorded on 25.5-73 and on the same day the Magistrate ordered that prima facie a case is made out against the accused under sections 325, 324/149, 148, P. P. C. And that they should be summoned for 6-6-75. Accordingly all the accused persons including three ladies were summoned through an ordinary Robkar wherein intimation was given to the accused to appear in the Court on 6.6-1973. The Robkar was served on five out of 9 persons mentioned therein. On 6-6-1973 a revision petition was filed by the accused (appellants) on which parawise comments and record was summoned from the Court concerned for 13-6-1973. In his interim order dated 6-6-1973 Ch. Muhammad Sarwar, M. I. C. Has recorded that rime of the accused on whom service was effected appeared in his Court and the remaining accused who have also been reported to refuse the service should be summoned through non- bailable warrants of arrest for 3-7-73. On 74-1973 the appellants applied to this Court through their counsel that the execution of non-bailable warrants of arrest issued by City Magistrate may be suspended as they were present in the Court of District Magistrate, Sargodha on 6-6-1973. The
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request was acceded to and the execution of warrants was suspended till further orders. GROUNDS FOR REFERENCE (1) That the impugned order of Ch. Muhammad Samar, M. I. C., Sargodha dated 25-5-1973 is against law and he was not competent to revise the order of discharge dated 31-8-1972 passed by his predecessor Mr. Muhammad Anwar Khan Kiani and that order of discharge still holds good as it has not been set aside by any superior Court. (II) That Ch. Muhammad Sarwar M. 1. C. Did not apply his mind to the facts of the case properly. He did not examine the finding of the Investigating Officer and opinion of Medical Superintendent. The order is therefore improper. (III) That Ch. Muhammad Sarwar M. I. C. Even did not care to see that the number of accused was nine in the complaint while in the previous challan the number was six. (I a) The learned Magistrate did not appreciate the fact that the order of discharge was passed on merits and that the accused had been appearing before Mr. Muhammad Anwar Khan Kiani M. I. C. Prior to order of discharge. Submitted. ODDER OP THE COURT ' MUNIR FARUKEE, J.-After having perused the record I am unable to accept the recommendation for quasbment of the proceedings made by the learned District Magistrate in his reference under section 488, Cr. P. C. As the contention that the order dated 31st August 1972 of…
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