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Petitioner: ALLAH DAD and others VS Respondent: MUHAMMAD N.AWAZ and others
Court Name: Supreme Court of Pakistan Judge(s): Nazim Hussain Siddiqui, Hamid Ali Mirza Title: ALLAH DAD and others vs MUHAMMAD N.AWAZ and others Case No.: Criminal Appeals Nos.153 and 154 of 1998, Date of Judgment:2001-03-15 Reported As: 2001 SCMR 1111 Result: Order accordingly
JUDGMENT
JUDGMENT ' NAZIM HUSSAIN SIDDIQUI, J---The Criminal Appeals Nos.153/98 and 154/98 by leave of this Court are directed against judgment dated 13-8-1997, of a learned Division Bench, Lahore High Court, Rawalpindi Bench, whereby judgment dated 29-10-1992 of learned Sessions Judge, Chakwal, with modifications to the extent indicated in the impugned judgment, was maintained. 2. The occurrence took place on 8-11-1990 at about "Deegarwela" in land of one Sarfraz Khan, situated in Dhoke Galial Dakhli Mogala, District Chakwal. The scene of offence was at a distance of seven miles from Police Station Talagang. Looking to the distance involved, the report seemed to have been lodged promptly. Allah Dad, reported the matter and his statement was recorded by Sikandar Baig S.-I. And later on it was incorporated in section 154, Cr.P.C. Book. Formal F.I.R. No,293, under sections 148/149/ 324/302/337-A/337-D, P.P.C., (Exh.P/1) was registered by Muhammad Asghar, S.-I. At said Police Station on the same day at 10-00 p.m. 3. The incident was witnessed by Allah Dad, complainant, Mst. Shafia Begum, Taj Muhammad, Mansab Khan, and Mst. Kalsum Bibi, P.Ws. All above-named were injured and were examined as P.Ws., except Mst. Kalsum Bibi, who was given up. 4. According to prosecution, the alleged crime was committed by Muhammad Iqbal, Muhammad Sartaj, both sons of Muhammad Nawaz, Shoukat Hayyat son of Khaaki Jan; Muhammad Nawaz and Gulbaz, both sons of Ghulam Abbas. 5. In Criminal Appeal No,153 of 1998, Allah Dad is appellant, hereinafter referred to as "the complainant" and the persons named in para. 4 have been shown as respondents, who are appellants in Criminal Appeal No,154 of 1998 hereinafter referred to as "appellants". The Criminal
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Appeal No,153 of 1998 is for enhancement of sentences of the appellants and Criminal Appeal No,154 of 1998 has been filed for their acquittal. 6. The motive, as set up by the prosecution, was that there was a dispute over land between the parties. Gulbaz and Shoukat Hayat, appellants allegedly demolished the "Bunna" a day before the occurrence over which complainant's brother Ghulam Abbas deceased had protested. It is alleged that the deceased restored "Bunna" over which Gulbaz and Shoukat Hayat felt annoyed. 7. Learned Sessions Judge convicted Muhammad Sartaj, Muhamamd lqbal and Shoukat Hayat, appellants and sentenced them to death and a fine of Rs,60,000 each or three years' R.I. In default thereof on two counts, under sections 302/109, P.P.C. Muhammad Nawaz and Gulbaz, appelants were convicted and sentenced to imprisonment for life and a fine of Rs,60,000 each or in default thereof to suffer R.I. For three years on two counts, under sections 302/149, P.P.C. All above-named appellants were also sentenced to 5 years' R.I. And a fine of Rs,5,000 each or one-year R.I. In default thereof on five counts, under sections 324/149, P.P.C., all sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. Was denied to Muhammad Nawaz and Gulbaz, appellants. The fine for offence under sections 302/149, P.P.C. If recovered, half of it was to go to the heirs of Ghulam Abbas deceased and the remaining half to the heirs of Atta Shabbir deceased, as compensation under section 544-A, Cr.P.C. Similarly the fine, if recovered, for offence under sections 324/149, P.P.C. Was to be equally distributed among Allah Dad, Mansab Khan, Taj Muhammad, Shafia Begum P.Ws., and Kalsum Bibi, as compensation. 8. Learned High Court in appeal maintained death sentences of Shoukat Hayyat and Muhammad Sartaj appellants on one count. Death sentence of Muhammad Iqbal, appellant on two counts was converted into life imprisonment on one count. For injuries to the witnesses, all the appellants, except Muhammad Sartaj, were convicted under section 337-F(ii), P.P.C. And each of them was ordered to pay Rs,5,000 as "Daman" to the injured persons to whom they inflicted injuries and were also to suffer two and a half years' R.I. As "Tazeer". Muhammad Sartaj, appellant, was also convicted under sub-clause (iii) of section 337-F of the P.P.C. And was directed to pay Rs,5,000 as "Daman" to Mst. Shafia Begum and also to undergo two and a half years' R.I. As "Tazeer". The sentences of imprisonment would run concurrently. The sentences and convictions of Shoukat Hayyat, Muhammad Sartaj and Muhammad Iqbal, appellants, regarding fine were also maintained. Convictions and sentences of life imprisonment of Muhammad Nawaz and Gulbaz appellants, under sections 302/149, P.P.C. Were set aside. Murder Reference relating to Muhammad Iqbal was dismissed. 9. The prosecution case, in brief, is that on the aforesaid date, time and place Muhammad Iqbal and Muhammad Sartaj duly armed with .12 bore guns, Shoukat Hayyat, with a Carbine, Muhammad Nawaz, appellant with a Soti and Gulbaz, appellant with a hatchet formed an unlawful assembly at scene of offence and in prosecution of their common object of unlawful assembly committed rioting and in consequence of the attack committed murders of two real brothers of Allah Dad complainant, namely Ghulam Abbas and Atta Shabbir, the deceased of this case, and attempted upon the lives of Allah Dad, Mst. Shafia Begum, Taj Muhammad, Mansab Khan and Mst. Kalsum Bibi, P. Ws. 10. Main investigation was conducted by Sikandar Baig, S.-I. On 8-11-1990, he noted down injuries of Taj Muhammad, Mansab Khan, Kalsum Bibi and Shafia Begum and referred them to the Civil Hospital Talagang for their examination, treatment and report. He visited the scene of offence and found the dead bodies of Ghulam Abbas and Atta Shabbir there and sent them through Constable Sarfraz Khan, for post-mortem examination. He secured blood-stained earth from there in the presence of witnesses. He examined P. Ws. Muhammad Nawaz, Gulbaz and Muhammad Iqbal appellants were arrested on 10-11-1990 Shoukat Hayyat, appellant on 18-11-1990 and Muhammad Sartaj on 1-12-1990. Blood-stained earth was secured from the place, where the dead bodies were
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lying and an empty cartridge Exh. P-9 was also recovered from scene of offence. From possession of Gulbaz a hatchet, Muhammad Nawaz, a Soti, Muhamamd Iqbal .12 bore gun, Shoukat Hayyat, 12 bore pistol and Muhammad Sartaj, a gun were recovered on 16-11-1990, 8-111 990, 23-11-1990 and 4- 12-1990 respectively. Gun secured from possession of Muhammad Iqbal matched with the fire-arm secured in the investigation. On completion of investigation charge-sheet was submitted against the appellants before the Court having jurisdiction. 11. At trial, the prosecution examined 17 witnesses namely, Muhammad Iqbal S/o Fazal Khan, Mohsin Raza Shah, Patwari, Lady Dr. Hameeda Khatoon, Rub Nawaz, Head Constable, Khadim Hussain Constable, Sarfraz Khan Constable, Dr. Muhammad Yaqoob Awan, Medical Officer, Muhammad Aslam Constable, Muhammad Asghar A.S.-I., Allah Dad complainant, Mansab Khan son of Allah Dad P.W,, Taj Muhammad S/o Allah Dad P.W., Dr. Muhammad Iqbal Siddiqui, Medical Officer, Ghulam Haider Constable, Farooq Ahmed recovery witness, Mst. Shafia Begum d/o Ghulam Abbas P.W. And Sikandar Beg, S.I., Investigating Officer. 12. All the appellants in their statements recorded under section 342, Cr.P.C. Had denied the prosecution's allegations and claimed to be innocent. Muhammad Nawaz, aged about 76 years stated that neither he was present on the spot nor participated in the commission of offence. According to him, being head of the family, he was roped in due to close relationship with other appellants. Muhammad Sartaj, who was Sepoy in Pakistan Army, denied all the allegations and stated that Investigating Officer had arrested him from Pannu Aqil Cantonment on 1-12-1990. He claimed that he handed over his licensed gun to the Investigating Officer. He stated that he was falsely implicated due to relationship with other appellants. Shoukat Hayyat stated that he was innocent and had voluntarily appeared before the police on the next day of occurrence having come to know that he was named as one of the accused in the case. According to him, neither he led the police for recovery of Carbine nor it belonged to him. He alleged that Ghulam Abbas deceased had developed illicit relations with his sister-in-law Sadiq Sultana and latter's cousin Ghulam Rabbani took exception to it and reprimanded the deceased. According to him, he supported Ghulam Rabbani and for this reason his relation with above-named deceased and his relatives were strained. Besides, he also stated as follows: ' "...A day prior to the occurrence, Muhammad lqbal accused and I were going to the former's Dhoke on his tractor. The children of Allah Dad P.W. Were playing on the way. Their ball struck the tractor of Muhammad Iqbal accused who was taken by surprise and nearly lost control of the tractor. He and I abused the Children and Muhammad Iqbal accused also beat them up. On this, Ghulam Abbas, Atta Shabbir deceased and Allah Dad, Mansab Khan and Taj Muhammad P.Ws. Went to the house of Muhammad Iqbal accused in the evening to attack him but he was not there. The women-folk entreated them on which they came back leaving the threat that they would deal with Muhammad Iqbal accused. This was also a reason for my false involvement...."- 13. Gulbaz, aged 71 years, like others, proclaimed his innocence and admitted his presence at the scene of offence and stated as follows:-- ' On the evening preceding the day of occurrence, Ghulam Abbas, Atta Shabbir deceased and Allah Dad, Mansab Khan and Taj Muhammad P.Ws. Came to our house in order to attack Muhammad Iqbal accused for his having beaten up the children of Allah Dad P.W. But he was not there, I and my women-folk entreated them on which they went away issuing threats that Muhammed Iqbal accused would not be spared. ' On the day of occurrence, at about "Kuftanwela', while in the house with the women-folk, I heard Muhammad Iqbal accused raising hue and cry near the well of one Muhammad Nawaz. On this, I rushed there with Mst. Sarwar, Qamer Sultana, Mst. Sadiq, Raffat and Mst. Kausar and saw Ghulam Abbas and Atta Shabir deceased armed with hatchet and Soti respectively injuring Muhammad Iqbal accused, who was on the ground. Mansab Khan, Taj Muhammad P.Ws. Armed with .12 bore
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guns, Allah Dad P.W. Carrying Soti and Shafia Begum and Kalsum P.Ws. Also reached there from the complainant side, Mansab Khan and Taj Muhammad P.Ws. Started firing indiscriminately as a result of which the two deceased and Shafia Begum and Allah Dad P.Ws. Got injured. Allah Dad P.W. Gave Soti blow to me. Muhammad Iqbal accused picked up the hatchet of Ghulam Abbas deceased and injured the hand of Taj Muhammad P.W. With the same as he was about to fire at him. Women from either side hurdled stones at each other resulting into injuries to Mansab Khan, Taj Muhammad, Allah Dad, Shafia Begum and Kalsum P.Ws. From the complainant side and Mst. Sarwar, Qammer Sultana, Mst. Sadiq, Riffat and Mst. Kausar from our side. I and the other injured appeared before the police on the same night at about 10-00 p.m. At Police Station Talagang and apprised them of the true facts. Police promised to take action against the complainant party but then backed out. Muhammad Nawaz, Muhammad Sirtaj and Shaukat Hayyat accused were neither present at the spot nor did they participate in the occurrence. 14. Muhammad Iqbal also admitted his presence at the scene of offence and stated that these were the complainant and P.Ws. Who were responsible for the occurrence, and that Ghulam Abbas and Atta Shabbir deceased were killed due to indiscriminate firing resorted by Mansab Khan and Taj Muhammad P.Ws. He also stated that ladies from both sides had pelted stones at the opposite party. According to him, he had apprised the police about actual facts and the latter, in spite of promise of taking action against the complainant party, let it off and involved him and other appellants as accused of this case. 15. The appellants did not examine themselves on oath nor produced any witness in defence. 16. The following injuries were found on the persons of deceased:- (I) Injuries of Ghulam Abbas deceased (1) A fire-arm wound of entry 1/2" x 1/2" on the right side of forehead, 1-3/4" above the right eye- brow and 1/2" right to the, mid-line, directed inward and backward. (2) A fire-arm wound of entry 1/2" x 1/2" on the left side of forehead, 1-3/4" above the left eye-brow and 1/2" left to the mid-line, directed inward and backward. (3) A contusion 1/2" x 1/2" on the right side of forehead, 1/2" above the right eye-brow and 1/4" below injury No, 1 . (4) A contusion 1" x 1/2" on the right side of forehead, 1" above the outer border of right eyebrow. (5) A fire-arm wound of entry 1/2" x 1/2" on the inner angle of left eye-ball, just left to the bridge of nose, directed inward and to the right. (6) A fire-arm wound 1/2" x 1/2" on the mid-region of right ear. Skin was denuded over the wound. ' The doctor opined that death occurred due to shock and haemorrhage and due to injuries Nos.1, 2 and 5, which were grievous, ante-mortem and were caused by fire-arm. (II) Injuries of Atta Shabbir deceased (1) Gunshot wounds, each measuring 1/8" x 1/8", over an area 19" x 15", starting from both clavicles and extending to both illiac bones on the anterior aspect of the chest and abdomen. The wounds were 90 in number. (2) 16 gunshot wounds, each measuring 1/8" x 1/8", on the anterior aspect of right arm and forearm in an area 10" x 4", starting from the middle of the arm and extending to the right wrist joint about 3" above to it. (3) Two gunshot wounds, each 1/8" x 1/8", on the anterior aspect of the right shoulder joint. (4) Three gunshot wounds 1/8" x 1/8" each over an area measuring 2" x 1-1/2" on the left side of the base of neck, 2" lateral to the sternal fossa. ' The doctor opined that the death resulted on account of above injuries. Injury No,1 was grievous and was sufficient to cause death. It was a fire-arm injury. 16. Mst. Shafia Begum d/o .Ghulam Abbas sustained following injuries, which were simple in nature.
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(1) A multiple gunshot wound on the back of right hand over an area measuring 3" x 6" with swelling all around the wound. X-Ray of the injury was advised. (2) A multiple gunshot wound of entrance on the right forearm 3" x 4" on the back of right arm. X- Ray was advised. (3) A lacerated wound on the right upper thigh 1/2" x 1/2". Its X-Ray was advised. (4) A fire-arm wound on the Index finger of left-hand 1/8" x 1/8" X-Ray was advised. (5) A fire-aim wound on the middle finger of left-hand 1/8" x 1/8". Its X-Ray was advised. 17. Mst. Kalsum Begum daughter of Allah Dad sustained following injury, which was kept under observation. (1) A lacerated wound on the right side of head 1-1/2" x 1/2" X bone deep. Its X-Ray was advised. 18. Allah Dad complainant sustained following injuries:--- (1) A multiple gunshot wound of entrance on the back of distal 1/3rd of left arm and the elbow joint (about 18 in number), each measuring 1/8" x 1/8" superficially. Corresponding holes were on the shirt of the examinee which was blood-stained. Wounds had bled on touching. (2) A multiple gunshot wound of entrance over an area measuring about 10-1/2" x 9" on the back and upper 1/4th of both buttocks, comprising of about 30 wounds, each measuring 1/8" x 1/8" x superficial. Corresponding holes were present on the shirt, jacket and Chadder of the injured, which were blood-stained. The wounds bled on touching. (3) An abrasion with swelling 2" x 1/4" on the back of middle of left forearm. (4) An abrasion 3/4" x 1/4" on the top of left shoulder. (5) An abrasion 1/4" x 1/4" on the back of distal 1/3rd of proximal phalynx of right ring finger. ' The injuries Nos.1 and 2 were caused by fire-arm and rest by blunt weapon. After X-Ray report, injuries Nos.1 to 5 were declared simple. 19. Mansab Khan had sustained following injuries: (1) A lacerated wound 1-1/2" x 1/8" x skin deep on the top of scalp, in mid-line, 6" from the root of nose. (2) An abrasion 1-1/4" x 1/4" with swelling 2-1/2 x 2-f/2" round the wound, on the back and outer side of the distal 1/3rd of right forearm. ' Above injuries were caused by blunt weapon and were simple in nature. 20. Taj Muhammad sustained following injuries (1) A lacerated wound 1/2" x 1/8" x skin deep on the left side of scalp, 4" above left ear. (2) An incised wound 1-1/2" x 1/2" x bone deep, on the back of distal half of middle phalynx and distal phalynx of left ring finger. Bone underneath and nail were cut, and distal inter-phalyngeal joint dislocated. (3) An abrasion 1/4" x 1/4" on the back of distal phalynx of right little finger. ' Injury No,2 was declared grievous and 1 and 3 were simple. 21. Following injuries were found on the person of Muhammad Iqbal, appellant:-- (1) A superficial lacerated wound with pus-formation 1/2" x 1/4" on the back of middle of first phalynx of right index finger. (2) A superficial lacerated wound 1/2" x 1/8" with pus formation on the back of middle of first phalynx of the middle finger of right hand. (3) A superficial lacerated wound 1/4" x 1/4" with pus formation on the back of middle of first phalynx of the right index finger. (4) A superficial lacerated wound with pus formation 1/2" x 1/4" on the outer side of base of right thumb. ' All above injuries were simple in nature. 22. The following 'injuries were found on the person of Gulbaz, appellant:
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(1) A superficial lacerated wound 1" x 1/8" x skin deep across the top of scalp. The wound was full of clotted blood. (2) A bruise 1" x 1/4" on the back of middle of scalp, 2-1/2" behind injury No,1 . (3) A bluish contusion 6" x 2" across the back of left shoulder. (4) A bluish contusion 11" x 1" across the back of right chest. It was in oblique direction from the shoulder to mid-line. (5) An abrasion 1/2" x 1/8" on the front of middle of right leg. All above injuries were simple. 23. Ocular account has been furnished by Allah Dad, complainant, Mansab Khan, Taj Muhammad and Mst. Shafia Begum, P.Ws. 24. The complainant deposed that Muhammad Nawaz and Gulbaz appellants are his paternal uncles. According to him on the day of occurrence he and his brother Atta Shabbir deceased were working at their threshing floor, for the peanut crop. Mansab Khan, Taj Muhammad, Shafia Begum, Kalsum Bibi were also there and were bringing the heaps of peanut crop to the threshing floor from the nearby fields. He stated Muhammad Nawaz, armed with a Soti, Gulbaz, with a hatchet, Muhammad Sartaj and Muhammad Iqbal, with guns and Shoukat Hayyat with a carbine were sitting in ambush near a deserted well and when Ghulam Abbas deceased passed from there with a heap of peanut crop, they got up and raised Lalkara challenging him to get alert, as they had come. He further deposed that Ghulam Abbas threw away the bundle of peanut crop and started running towards his residence. He also stated that Shoukat Hayyat, fired twice hitting his left eye and forehead. Thereafter, he (complainant) and Atta Shabbir deceased rushed towards the spot. Muhammad Sartaj fired which hit at the chest of Atta Shabbir. Muhammad Iqbal, also fired which hit his (Atta Shabbir) right arm and neck. Both Ghulam Abbas and Atta Shabbir died on the spot. Mst. Shafia Begum, who was running towards her father was fired at by Muhanmmad Sartaj, and she sustained injuries on her right hand and thigh. While the complainant was attending Atta Shabbir and trying to make him get up Muhammad Sartaj fired at him (complainant) causing injuries on his right hand and buttocks. Muhammad Nawaz and Gulbaz, gave a blow each with their respective weapons to Taj Muhammad on head and left hand respectively. Muhammad Sartaj, also gave a butt blow to Taj Muhammad, and then Muhammad Nawaz, gave a soti blow on the head of Mansab Khan, Gulbaz gave a hatchet blow from its backside on his right arm. Muhammad Nawaz, also gave Soti blow on the head of Mst. Kalsum Bibi. Gulbaz then struck at the left arm and left shoulder of the complainant with backside of hatchet. Muhammad Nawaz had also gave a soti blow on the complainant's head followed by a blow by Muhammad Sartaj, with the butt of his gun. The witness also deposed that during incident Taj Muhammad, pelted 2/3 stones hitting Gulbaz and Muhammad Iqbal. Mansab Khan, P.W. Who was carrying a fork (Trangle) gave a few blows to the aforesaid two appellants in defence. Mansab Khan, Taj Muhammad and Mst. Shafia Begum, P.Ws. Also deposed on the same lines. 25. Vide order, dated 11-6-1998 leave to appeal was granted in these appeals to consider the following:-- (i) Whether impugned judgment of the High Court wherein evidence on record has neither been discussed nor analyzed on the basis of contentions raised by either side would be sustainable. (ii) Whether prosecution witnesses, who were admittedly injured and have fully implicated the convicts could be discredited or deemed interested, on the ground of their relationship with deceased. (iii) Whether prosecution evidence is materially discrepant and contained improbabilities casting doubts about actual incident thereby making it untrustworthy, by virtue of reasoning offered on behalf of the convicts. (iv) What is effect of injuries caused to the accused and whether under law it would be responsibility of prosecution or that of defence to logically explain its existence on their bodies.
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(v) Whether motive was duly established or remains shrouded in mystery. What is the impact of motive upon ocular evidence, adduced by the prosecution especially in the light of stand taken by some of the petitioners in their respective statements. (vi) Whether evidence brought on record which includes ocular testimony, medical evidence, recoveries and reports of experts coupled with motive was sufficient to establish collective responsibility of all accused persons, and sentence awarded to them needs enhancement. 26. Mr. Sardar Muhammad Ishaq Khan, learned counsel for the appellants (In Criminal Appeal No,154 of 1998) assailed the judgment of High Court and submitted that the evidence brought on record was neither appreciated by trial Court nor by High Court, in its true perspective. He argued that High Court particularly failed to discuss and analyze the points raised before it on behalf of the appellants. 27. In the narrative part of the judgment, all relevant facts have been stated by the High Court. The details of medical evidence have also been provided. Pleas, taken by the appellants in their statements recorded under section 342, Cr.P.C. Are eminently reflected in the impugned judgment. Learned High Court, in para. 19 of its judgment has noted, as many as 9 contentions, which were raised by learned counsel for the appellants and answered them in the light of evidence brought on record. It was urged before it that defence pleas were more plausible and more nearer to the truth, as Rich, benefit of doubt should have been extended to the convicts/appellants. Further, it was argued that Muhammad Nawaz and Gulbaz, being aged about 76 and 71 years respectively at the relevant time were not expected to participate in the commission of the offence and being sufficiently old must have tried their level best to avoid the occurrence. Also, it was argued that only Muhammad Iqbal and Gulbaz, appellants were present on the spot when the incident took place. 28. About the recoveries, it was contended that these recoveries were of no consequence, as they were effected in violation of section 103, Cr.P.C. The testimony of eye-witnesses was challenged on the score that they were interested and inimical towards the appellants and no independent corroboration was available. Also, it was urged that initially prosecution alleged that dispute over land between the parties was the motive of the crime but later on introduced a new motive relating to "Bunna". It was also contended that Muhammad Iqbal and Gulbaz acted in self-defence. 29. In para. 20 of the judgment learned High Court had also taken into consideration the arguments advanced on behalf of the State that the presence of injured eye-witnesses on the spot was proved beyond any shadow of doubt and Gulbaz and Muhammad Iqbal admittedly were present on the spot at the time of occurrence. 30. Having examined the evidence brought on record, High Court reached the conclusion that both the parties had not disclosed the true motive behind the incident and that original motive remained shrouded in mystery. Under the circumstances, High Court took the view that "it was sudden fight without premeditation. Rather it being a free fight each of…
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