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Petitioner: KHAN MUHAMMAD and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Mazhar-ul-Haq, Qurban Sadiq Ikram Title: KHAN MUHAMMAD and others vs THE STATE Case No.:Criminal Appeal No, 194, Murder Reference No, 119 and Criminal Revision No,457
JUDGMENT
Reported As: 1985 P Cr. L J 2238 Result: Appeal partly accepted Judgment JUDGMENT ' QURBAN SADIQ IKRAM, J.-- This is an appeal by Khan Muhammad (50), Ghulam Rasool (18), Akhtar Nawaz son of Alam Sher (24) and Muhammad ljaz (20) against their conviction under section 302/34, P.P.C. For the murders of Muhammad Shafi, Allah Bakhsh and their father Sikandar Khan and under section 307/34, P.P.C. For making murderous assault on Qamar Abbas P.W. By learned Additional Sessions Judge, Sargodha vide judgment, dated 27-3-1982. All the four appellants were sentenced to death and a fine of Rs,5,000 or in default six months' R.I. Each under section 302/34, P.P.C. They were ordered to pay Rs,5,000 each and in default six months' R.I. As compensation equally to the heirs of the deceased. They were sentenced to suffer seven years' R.I. And a fine of Rs,2,000 or in default three months' R.I. Under section 307/34, P.P.C. ' Their co-accused Ata Muhammad (65/7), Allah Bakhsh (40), Mazhar Hayat (18), Ghulam Jilani (43), Said Rasool (50), Ahmad Sher (30), Ata Rasool (52), Mansab (43), Akhtar Nawaz son of Muhammad Yaqoob (30) and Altaf Hussain (18) were acquitted by the same judgment. ' Falak Sher, another accused in this case, died before the commencement of trial. ' The four appellants having been sentenced to death, the proceedings are also before us for confirmation of their sentences. Alam Sher P.W. Filed Criminal Revision against the acquitted accused which was ordered to be heard alongwith this appeal. All these matters will be disposed of together by this judgment. 2. The occurrence in this case took place at 8-30 a.m. On 19-2-1980, in Bus No, LEH-5111 by the road side in the area of Chak No, 81/Janoobi, about three miles from Police Station Bhagtanwala, District Sargodha. The F.I.R. Exh.PCC. Was recorded at the police station at 9-05 a.m. On the same day by S.I. Ghulam Qasim P.W.14 on the statement of Alam Sher P.W.11. It was stated by Alam Sher P.W. In his First Information Report that his brother Muhammad Sher had two squares of land in Chak No, 23/Janoobi and, therefore, lived there. He went to see his brother two days before the occurrence. On 19-2-1980, at about 8-00 a.m., he boarded a bus from
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Adda Chak No, 23/J for going back to his village Botala. Muhammad Shafi deceased, Allah Bakhsh deceased and their father Sikandar Khan deceased who had to attend hearing of a case at Sargodha also boarded the bus alongwith Qamar Abbas P.W.12, Ghulam Hussain and Mst. Sabhrai (both given up P.Ws.). Javaid Akhtar P.W.13 was already present in the bus. When the bus reached the Morr of Chak No, 23/Alif Janoobi, Ata Muhammad, Akhtar Nawaz son of Alam Sher, Ghulam Rasool, Mazhar, Altaf and Khan Muhammad accused boarded the bus from there. They had wrapped Chaddars on their bodies. The bus reached Adda Chak No, 80/J, in the area of Chak No, 81/J, at about 8-30 a.m. Ata Muhammad accused who was sitting near the driver, asked him to stop the bus. The moment bus stopped, Ata Muhammad, Akhtar Nawaz, Ghulam Rasool and Mazhar accused took out their carbines and Khan Muhammad' accused took out his .12-bore gun from under their Chaddars. They shouted a Lalkara saying that excepting Muhammad Shafi, Allah Bakhsh and Sikandar Khan (the three deceased), all the passengers should get down from the bus. Accordingly, the passengers came out of the bus. In the meantime, Ghulam Jilani armed with .12-bore gun, Said Rasool armed with a hatchet, Ahmad Sher armed with .12-bore gun, Ata Rasool empty handed, Mansab armed with .12-bore gun, Allah Bakhsh armed with .12-bore gun, Akhtar son of Yaqoob empty handed, ljaz armed with hatchet and Falak Sher armed with rifle came from the Southern side of the bus shouting Lalkaras. They all entered the bus. Ata Muhammad accused fired with his carbine at Muhammad Shafi hitting him at the chest. Muhammad Shafi fell down in the bus whereafter Allah Bakhsh and Ghulam Rasool accused fired at Muhammad Shafi deceased hitting him on head. Ijaz accused gave hatchet blow to Allah Bakhsh deceased. He tried to ward off the blow and got his hand injured. Ghulam Jilani fired on the chest of Allah Bakhsh who also fell down in the bus. Thereafter, Said Rasool gave two hatchet blows on the calf of Allah Bakhsh deceased. Alta and Ata Rasool accused caught Sikandar Khan deceased from his hair. They dragged him out of the bus. Akhtar Nawaz son of Yaqoob accused shouted a Lalkara whereafter Ahmad Sher fired at Sikandar Khan hitting him on the calf. He fell down. Thereafter, Mansab and Mazhar Hayat accused fired on the head of Sikandar Khan deceased. Qamar Abbas P.W. Started running towards the South of the bus. Khan Muhammad and Falak Sher accused fired at Qamar Abbas resulting in injuries on his foot and thigh. All the accused remained firing at the spot. It was further stated by Alam Sher complainant that Muhammad Shafi, Allah Bakhsh and Sikandar Khan died at the spot as a result of the injuries. The accused ran away towards the North. The motive was stated to be the murder enmities between Sikandar Khan deceased and the accused. ' Leaving the three dead bodies and Qamar Abbas P.W. At the spot, Alam Sher went to police station and lodged the F.I.R. As stated above. 3. S.I. Ghulam Qasim P .W.14 after registration of the case, proceeded to the spot. He sent the three dead bodies for post-mortem examination after necessary formalities which was conducted by Dr. Muhammad Abaid Ullah P.W.3 on 19-2-1980, at about 4-30 p.m. ' On external and internal examination of Muhmmad Shafi deceased, the Medical Officer noted the following injuries:- (i) A gunshot wound 2" x 11/2" x chest cavity deep on the front of chest in about the middle. His right lung was lacerated. The wound edges were blackened. (ii) Six wounds of exit on the back of upper most part of right side of chest and right shoulder joint. Size of each wound was about 1/3" x 1/4". Two metallic pieces were removed from the back of right side of chest, which were handed over to police in a sealed cover. (iii) A gunshot wound 4" x 3" on the left side of head. The skull bones i,e, occipital parietal and temporal bones were fractured into pieces. The wound edges were blackened. (iv) A gunshot wound of exit 4" x 4" on the right side of head. The brain matter was coming out of the wound. The left parietal, temporal and occipital bones were fractured. ' He also found 3rd right rib fractured, The pleura and the right lung had been pierced through and through. In his opinion, the death was due to shock and haemorrhage and injuries to the vital organs i,e, brain and right lung. In his opinion, injuires Nos. 1 to 4 were sufficient in the ordinary course of nature to cause death
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individually and collectively. All the injuries had been caused by fire-arm. The probable duration between injuries and death was immediate and between death and post-mortem was 6 to 10 hours. ' On external and internal examination of Sikandar Khan deceased, the Medical Officer noted the following injuries:- (i) A gunshot wound 4" x 3" on the right side of head. The parietal, temporal and the frontal bone were fractured. The wound edges blackened. Corresponding marks on the turban found. (ii) A gunshot wound of exit 4" x 4" on the left side of head. The skull bone was fractured and the brain was coming out of the wound. (iii) Three gunshot wounds 1/2 x 1/2 deep on the inner side of left leg. The lower part, the tibia and fabula bones were fractured. Two metallic pieces and one card-board removed from the left leg and handed over to police in a sealed cover. (iv) An abrasion 1/4" on the right middle finger which was blackened. (v) An abrasion 1/6" on the left upper arm. (vi) Three abrasion marks 1/6" each on the right upper arm. The margins were blackened. ' In his opinion, the death was due to shock and haemorrahage and injuries to vital organs i,e, brain caused by injuries Nos. 1 and 2 which were sufficient in the ordinary course of nature to cause death. Injury No,3 was also grievous in nature. The injuries Nos. 1 to 3 had been caused by fire-arm. Injuries Nos. 4 to 6 were of simple nature. The duration between injuires and death was immediate and between death and post-mortem was 6 to 10 hours. ' On external and internal examination of Allah Bakhsh deceased, the Medical Officer found the following injuries:- (i) A gunshot wound 2k" x 2k" on the front side of chest in the lower part in about the middle. The wound edges were blackened. The shirt, Bunyan and Jacket had corresponding marks. The sternum was fractured. (ii) Six gunshot wounds 1/4" each on the back of right side of chest. (iii) An incised wound 3" x 1" on the front of left wrist. The muscles and tendons were cut and the wrist joints were dislocated. (iv) An incised wound 1" x 1/3" on the outer side of left knee joint. (v) Two incised wounds 1" x 1/3" and 3/4" x 1/3" on the left leg in the lower part. (vi) An incised wound I" x 1/3" on the left buttock. ' He also noted that the sternum and 10th rib on the right side was fractured. Both the pleurae were injured. The right lung was perforated at many places. Heart was also perforated. Three metallic pieces were removed from the back of right side of chest and handed over to the police. In his opinion, the death was due to shock, haemorrhage and injuries to vital organs i,e, heart and right lung which had resulted on account of injuries Nos. 1 and 2. These injuries were sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 and 2 had been caused by fire-arm while injuries Nos. 3 to 6 had been caused by sharp-edged weapon. Injury No, 3 was grievous in nature while injuries Nos. 4 to 6 of simple nature. The duration between injuries and death was immediate and between death and postmortem about 6 to 10 hours. ' Dr. Shah Qutab Hamdani P.W.2 on 19-2-1980 at 11-25 a.m., medically examined Qamar Abbas P.W. And found five injuries on his person. Injuries Nos. 1, 2 and 3 were lacerated wounds on the back upper part and lower part of left thigh. Injuries Nos. 4 and 5 were on the surface of right foot and on the back of right heel. All the injuries had been caused by fire-arm. Injuries Nos. 1 to 3 were simple and injuries Nos. 4 and 5 were kept under observation. These were X-rayed by Dr. Abdul Manan P.W.1 whereafter both these injuries were declared grievous in nature. 4. S.I. Ghulam Qasim, during spot inspection on 19-2-1980, collected six crime empties P.19/1-6 from inside the bus vide memo. Exh.P.L. He also collected four crime empties P.20/1-4 from near the bus vide memo. Exh.P.M. Bus No, LEH-5111 was taken in possession vide memo. Exh.P.S. Blood-stained earth where Sikandar Khan deceased had died was taken in possession from near the bus vide "memo. Exh.P.N. The blood-stained earth where Allah Bakhsh and Muhammad Shafi deceased had fallen inside the bus was taken in possession
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respectively vide memos. Exh.P.O. And Exh.P.Q. The Investigating Officer on the same day took 14 pellets P.22/1-14, 13 carb-board pieces P.21/1-13 and 19 pieces of glass and plastic P.23/1-19 vide memo. Exh.P.R. The pair of Chappal of Qamar Abbas P.W. P.24/1-2 was taken in possession vide memo. Exh.P.T. All the above memos. Were prepared by S.I. Ghulam Qasim P.W.14 and attested by Allah Bakhsh P.W. 8 and Sher Ali given up P.W. 5. Khan Muhammad, Muhammad Ijaz appellants and their co-accused Ghulam Jilani, Ahmad Sher and Falak Sher (since dead) were arrested on 25-2-1980. ' Muhammad Ijaz accused while in custody, led the police to the Dera of his co-accused Said Rasool and got recovered blood-stained hatchet P.25 from under the cotton wood lying inside the cattleshed vide memo. Exh.P.U. Khan Muhammad accused while in custody led to the recovery of gun P.34 alongwith four live cartridges P.35/1-4 from beneath a heap of Sarkandah lying in front of his residential Kotha vide memo. Exh.P.Z. Ahmad Sher accused at the time of his arrest was seen lying on a cot at the Dera of Muhammad Ishaq Manda. He was arrested and gun P.26 alongwith three live cartridges P.27/1-3 was found lying under his pillow and taken in possession vide memo. Exh.P.V. Ghulam Jilani accused at the time of his arrest produced his licenced gun P.28 alongwith two live cartridges P.29/1-2 and licence book P.30 vide memo. Exh.P.X. Falak Sher accused at the time of his arrest produced his licensed rifle P.31 alongwith five cartridges P.32/1-5 and licence book P.33 vide memo. Exh.P.Y. All the above memos. Were prepared by S.I. Ghulam Qasim P.W. 14 and attested by Muhammad Sher P.W.9 and Mureed Hussain given up P.W. On 25-2-1980. ' Akhtar Nawaz accused son of Alam Sher was arrested on 26-2-1980. On his personal search at that time, carbine P.38 and 2 cartridges P.39/1-2 were recovered from the Dabb of his loin-cloth vide memo. Exh.P.AA. Ghulam Rasool accused was arrested on 26-2-1980. On his personal search at that time, carbine P.36 and 3 cartridges P.37/1-3 were recovered from the Dabb of his loin-cloth vide memo. Exh.P.ZZ. Both these memos. Were prepared by S.I. Ghulam Qasim P.W.14 and attested by Gul Muhammad P.W.10 and Muhammad Iqbal given up P.W. ' Mansab accused was arrested on 27-2-1980. At that time he was found in possession of gun P.40 and 4 cartridges P.41/1-4 which were taken in possession vide memo. Exh.P.BB. By S.I. Ghulam Qasim P.W.14 in the presence of Gul Muhammad P.W.10 and Muhammad lqbal given up P.W. ' The crime empties, blood-stained earth etc. Collected from the place of occurrence were deposited in the Malkhana of Police Station by the Investigating Officer with H.C. Muhammad Yousaf P.W.S. These parcels were given by the M.H.C. To F.C. Muhammad Inayat P.W.4 on 21-2-1980. He took these parcels to the police office for getting a docket but could not get the same and, therefore, on that very day, deposited the five parcels back in the Malkhana of Police Station. F.C. Muhammad Inayat again received those parcels from the M.H.C. On 23- 2-1980. He delivered the three parcels containing blood-stained in the office of the Chemical Examiner, Lahore and two parcels containing crime empties in the office of Director, Forensic Science Laboratory. An objection was raised that the two parcels had only three seals. The P.C. Was directed to take back the parcels for affixation of three more deals by the Investigating Officer. He took them back to the Investigating officer. The objection was removed by affixing three additional seals on the two parcels whereafter F.C. Muhammad Inayat delivered them in the Forensic Science Laboratory intact on 24-2-1980. The hatchet and he fire-arms recovered from or at the instance of the accused were also deposited in the Malkhana immediately after their recoveries from the respective accused. These were taken by F.C. Muhammad Inayat P. W.4 to Lahore. He delivered one parcel containing blood-stained hatchet in the office of Chemical Examiner, Lahore and the six parcels containing fire-arms in the Office of Director, Forensic Science Laboratory on 3-3-1980. The hatchet P.25 (Ijaz accused) was found to be stained with human blood vide report of Chemical Examiner Exh.P.00. And that of Serologist Exh.P.RR. The blood-stained earth collected from three places was also found to be stained with human blood vide report the Chemical Examiner Exh.P.NN and that of Serologist Exh.P.SS. ' The Director, Forensic Science Laboratory, Lahore vide report Exh.P.MM., opined that two crime empties P.19/3, 6 and two crime empties P.20/3, 4 had been fired from gun P.34 (Khan Muhammad accused); that one crime empty P.19/1, and two crime empties P.20/1, 2 had been fired from .12-bore pistol P.36 (Ghulam Rasool
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accused); and that two crime empties P.19/4, 5 had been fired from .12-bore pistol P.38 (Akhtar Nawaz son of Alam Sher accused). He could not express any opinion about crime empty P.19/2 because the points of identification on its base had been intermingled. 6. The case was investigated by S.I. Ghulam Qasim P.W.14. The investigation was verified by A.S.P. Shaukat Javaid P.W.15. They came to the conclusion that Khan Muhammad, Ghulam Rasool, Akhtar Nawaz son of Alam Sher, Muhammad ljaz appellants and Altaf Hussain acquitted accused were guilty. These accused were placed in column No,3 of the challan. The remaining ten accused were found innocent during investigation and, therefore, placed in column No,2. ' The accused were challaned after completion of the investigation. 7. The prosecution during the trial examined 15 witnesses in all. Alam Sher P.W.11, Qamar Abbas P.W. 12 and Muhammad Javaid Akhtar P.W.13 were examined as eye-witnesses in this case. Ghulam Hussain and Mst. Sabhrai, the two eye-witnesses named in the F.I.R., were given up as unnecessary. The medical evidence was furnished by Dr. Abdul Manan P.W.1, Dr. Shah Qutab Hamdani P.W.2 and Dr. Muhammad Abaid Ullah P.W.3. The recoveries from the spot were witnessed by Allah Bakhsh P.W.8 and the recoveries from the accused or at the instance of the accused were witnessed by Muhammad Sher P.W.9 and gul Muhammad P.W.10. The investigation was conducted by S.I. Ghulam Qasim P.W.14 and it was verified by A.S.P. Shaukat Javaid P.W.15. ' The accused when examined under section 342, Cr.P.C. Denied the charge and pleaded innocence. Excepting Ghulam Jilani, the other accused denied the recoveries of crime weapons at their instance. They stated that all the accused are not inten related and did not have a common motive in the instant case. The accused, however, did not examine any witness in their defence. However, they tendered a copy of the challan pertaining to F.I.R. No, 4, dated 17-3-1970, P.S. Mitha Tiwana, under section 302, P.P.C. Exh.D.C.; a copy of the challan in case F.I.R. No, 140, dated 17-10-1947, P.S. Sadar Sargodha, under section 302, P.P.C. Exh.D.D.; a copy of Secondary School Certificate of Mazhar Hayat accused Exh.D.E.; a copy of F.I.R. No, 56, dated 18-3-1981, P.S. Bhagtanwala, under section 440/379, P.P.C. At the instance of Mst. Sahib Khatoon widow of Sikandar Khan deceased Exh.D.F.; a copy of F.I.R. No,254, dated 6-8-1976, P.S. Bhagtanwala, under section 411, P.P.C. At the instance of Sher Muhammad Exh.D.G.; a copy of F.I.R. No, 217, dated 9-7-1976, P.S. Bhagtanwala, under section 379, P.P.C. On the statement of Asmat Ullah Exh.D.H.; a copy of special power-of-attorney by Muhammad Zaban in favour of Malik Ghulam Abbas, dated 23-5-1972 Exh.D.J.; a copy of school leaving certificate of Altaf Hussain accused Exh.D.K.; and a copy of Secondary School Certificate of Ghulam Rasool accused-appellant Exh.D.L. ' The learned trial Judge held that the F.I.R. Had been lodged promptly by Alam Sher P.W. He placed reliance on the evidence of motive, recoveries of crime empties from the spot, recoveries of crime weapons from and at the instance of the accused, eye-witnesses and the report of Fire-arms Expert and convicted the four appellants as stated above. 8. We have gone through the record of this case minutely and have also heard the learned counsel for the appellants, the learned counsel for the complainant and also the learned counsel appearing on behalf of the State at great length. ' It was contended by the learned counsel for the appellants that the prosecution has failed to prove motive against the appellants; that the evidence regarding recoveries of crime weapons from the accused is interested and not reliable; and that the three eye-witnesses were not present at the spot at the time of occurrence. It was further contended by him that the evidence of the three eye-witnesses was not divisible. He pointed out that on the same evidence ten accused were found innocent by the police and acquitted by the learned trial Judge. It was, therefore, argued that the appellants also deserve acquittal. ' The learned counsel appearing on behalf of the complainant controverted the above contentions. He argued that the prosecution has proved motive against the accused; that there was chain of murder enmities between the parties; and that the accused had a common motive to murder the three deceased and attack the complainant party. It was contended by him that the eye-witnesses though related have been fully corroborated by the evidence of recoveries of crime empties from the spot and the crime weapons at their instance. He,
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therefore, argued that the prosecution has proved its case against the appellants beyond any reasonable doubt. The learned counsel for the State adopted the arguments of the learned counsel appearing on behalf of the complainant. 9. Before commencement of the arguments in this case we pointed out to the learned counsel appearing on behalf of both sides that the learned trial Judge in the concluding part of para. 43 of his judgment, came to the conclusion that "the case is fully proved against Khan Muhammad, Ghulam Rasool, Akhtar Nawaz son of Sher and Muhammad Ijaz having committed the murders of Sikandar Khan, Allah Bakhsh and Muhammad Shafi and for having made murderous assault on P.W. Qamar Abbas in the same occurrence. Since all the three murders were committed in the same sequence, only one charge under section 302/34, P.P.C. Will be deemed to have been proved against the said four accused." ' The point involved was that all the accused had been charged under four heads. They were charged separately for the three murders under section 302/149, P.P.C. And fourthly for the murderous assault on Qamar Abbas P.W. Under section 307/149, P.P.C. However, it appeared from the judgment as reproduced above, that in the opinion of the learned trial Judge only one charge under section 302/34, P.P.C. Will be deemed to have been proved against the said four accused. The question was as to whether the death sentence to all the four accused will be considered on one count or on all the three counts each. Mr. Ljaz Hussain Batalvi, the learned counsel for the appellants, Mr. Ehsan Qadir Shah, the learned counsel for the complainant and the learned counsel for the State stated at the Bar that the sentences to the four appellants would be considered on three counts each in spite of the above observation of the learned trial Judge. They drew our attention to para. 44 of the judgment wherein the learned trial Judge recorded as follows:- "I, therefore, hold them guilty of charges under section 302/34, P.P.C. And also under section 307/34, P.P.C." ' The learned counsel appearing on behalf of both the parties, therefore, submitted that the four appellants will be deemed to have been sentenced under section 302/34, P.P.C. To death on three counts each. We need not say anything more on this subject. We agree with the learned counsel for the parties on this point and, therefore, need not advert further in this matter. 10. We have considered the contentions of learned counsel for the appellants as well as the learned counsel appearing on behalf of the complainant. ' Alam Sher complainant in his First Information Report stated that the accused committed the murders on account of their murder enmities with Sikandar Khan deceased. He, in his statement during the trial, gave details of the murder enmities. It was stated by him that: (i) one Gaman was murdered long time ago. A grandfather of the said Gaman was a first cousin of the gradfather of Ghulam Jilani accused. In that case, Muhammad Nawaz, father of Alam Sher complainant and Sultan were challaned; (ii) after the above murder, Ghulam Muhammad was murdered. Sardar Khan father of the said Ghulam Muhammad was maternal-cousin of Lunger Khan father of Sikandar Khan deceased of this case. Ata Muhammad accused, Sher Muhammad father of Allah Bakhsh accused alongwith Sher Ali, a first cousin of Said Rasool accused were challaned for the said murder; (iii) after the above murder, Fateh Ali, a brother of Sher Ali above-mentioned was murdered. Sikandar deceased of the present case and Sultan above-mentioned were challaned for the murder of Fateh Ali; and (iv) Muhammad Khan was murdered three years before the present occurrence. This Muhammad Khan was a brother of Said Rasool and Ata Rasool accused. In that case, Nadir son of Sultan who was challaned for the murder of Gaman aforementioned was challaned alongwith others. Sikandar deceased of the present case had helped Nadir in this murder case. Ghulam Jilani, Ata Muhammad, Allah Bakhsh, Ahmad Sher and Akhtar Nawaz son of Yaqoob accused were witnesses in the case pertaining to the murder of Muhammad Khan. ' It was contended by the learned counsel for the appellants that the details of murder enmities were not given by the complainant in the F.I.R.; that there were three sets of accused in this case and their inter se relationship is…
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