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Petitioner: ASIF JANG AND 2 Other VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Dilawar Mahmood Title: ASIF JANG AND 2 Other vs THE STATE Case No.: Criminal Appeal No. 937 and Murder Reference No. 213 of 1976 Date of Judgment:1978-07-04 Reported As: PLD 1978 Lahore 1285 Result: Appeal dismissed
JUDGMENT
JUDGMENT M. DILAWAR MAHMOOD, J.-Appellants Asif Jang son of Sher Jang, aged 22 years, Muhammad Iqbal son of Muhammad Khan, aged 21/22 years and Muhammad Safdar son of Nawaz Khan, aged 22 years were tried for the murders of Shabnawaz, Lai Khan and Nur Zaman and for murderous assault on Sajawal (P. W. 11). They were convicted under section 302/307/34, P. P. C. By the Sessions Judge; Jhelum, who vide his order dated 17th July 1976 sentenced them to death on three counts for the murders of Shahnawaz, Nur Zaman and Lai Khan deceased as well as a fine of Rs. 2,000 each or in default two years' R. I. Each. The fine if realised was directed to be paid to the heirs of the three deceased in equal portions. They were also convicted for offence under section 307/34, P. P. C. For causing grievous injury to Sajawal Khan (P. W. 11) and sentenced to 14 years' R. I. And a fine of Rs. 1.,000 each or in default thereof one year's R. I. Each. Half of the fine if realised was directed to be paid to Sajawal Khan P. W. As compensation. The learned Sessions Judge has referred this case for the confirmation of death sentences while they have also appealed against their conviction. This judgment will dispose of both the Reference and the Appeal. 2. The report of the incident was recorded by Muhammad Suleman A: S. I. (P. W. 5) on the basis of statement Exh. P. J. Of Ghulam Haider (P. W. 10). The formal F. I. R. Exh. P. J/ 1 was recorded on 28-4- 1976 at 9 a.m. Statement of Ghulam Haider Exh. P. J. Was recorded by P. W. 16 Ch. Abdul Aziz A. S. I. Near village Dullah on 28-4-1976 at 8 a.m. Where Ghulam Haider (P. W. 10) met him. According to the F. 1. R: Ghulam Haider complainant (P. W. 10) and his brother Muzaffar had come to help their nephew Nur Zaman deceased in wheat cutting on the day of occurrence. Besides him, Nur Zaman, Shahnawaz, Lai Khan (deceased) and Sajawal (P. W. 11) were also there. They kept on cutting wheat crop till degarwela. Thereafter Ghulam Haider (P. W.) and his brother Muzaffar Khan went to the
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house of Shahnawaz their brother-in-law. Nur Zaman came there at late degarwela and invited them for the evening meal. Ghulam Haider, Muzaffar Khan, Shahnawaz, Lai Khan, Sajawal accompanied Nur Zaman to his house at about 6-30 p.m. As soon as they reached the house of Asif Jang appellant, he came out from his house. He was armed with 7 mm. Rifle. He was accompanied by Muhammad 1qbal and Muhammad Safdar. The said Muhammad Safdar originally belonged to Tehsil Pind Dadan Khan but was now living in Mohalla Mujahid Abad and was a friend of Asif Jang appellant. He often used to visit the house of Asif Jang appellant and was known to Ghulam Haider P. W. Muhammad Iqbal appellant was armed with a '12 bore gun. Asif Jang appellant raised a lalkara and said that they would avenge their insult from Nur Zaman. Nur Zaman started running to his house but. All the three appellants chased him and overtook him in the evacuee plot near the house of one Haider. Muhammad Iqbal appellant fired two shots at Nur Zaman hitting him near the left knee and left armpit. He fell down. Asif Jang appellant fired at his chest when Nur Zaman was lying on the ground. He was lifted by Asif Jang and Muhammad Safdar and taken to the house of Asif Jang. The P. Ws. Pleaded with the appellants. All the appellants came out of the house again. Asif Jang appellant fired at Shahnawaz which hit him on the right thigh. He fell down. Thereafter Muhammad Iqba1 appellant fired two shots hitting him on the chest and the back and when Lai Khan went ahead to rescue Shannawaz, he was fired at by Muhammad Iqbal and Asif Jang. Lai Khan fell down. Sajawal Khan (P. W. 11) raised an alarm at which Muhammad Iqbal-fired at him. This shot hit him on the left shoulder. All the three appellants lifted Shahnawaz dece4sed and threw him near the outer gate of the house of Asif Jang appellant. Thereafter Asif Jang, Muhammad Iqbal appellants fired in the air. This occurrence was witnessed besides Ghulam Haider (P. W. 10) by Mohammad Ilyas (P. W. 12), Sajawal (P. W. 11), Mst. Riaz Begum wife of Nur Zaman deceased. Nur Zaman, Shahnawaz and Lai Khan died at the spot. It is further stated in the F. I. R. That about three months prior to the occurrence the kacha wall of the village mosque required repairs: Allah Ditta, Sufi Shabnawaz and Karamdad (P. W. 8) were collecting subscription for this purpose and asked the three deceased persons, namely Shahnawaz, Nur Zaman and Lai Khan to help them in building the wall of the mosque. Consequently all the three deceased got bricks and started building the pacca wall of the mosque but Asif Jang appellant 'stopped them. This resulted in a quarrel between Asif Jang and Nur Zaman deceased. Asif Jang appellant was beaten up by Nur Zaman, Lai and Shahnawaz deceased. They carried off Asif Jang appellant to their house but subsequently on the pleading of his father Sher Jaug they released him. Later on, the parties were reconciled through the efforts of Akbar Khan (P. W.), Lambardar of the village. But Asif Jang appellant still nourished a grudge against the deceased. This led to the present occurrence and provided motive for the same. 3. Ch. Abdul Aziz S. I. (P. W. 16) was near village Dullah on 28th of April 1976 when Ghulam Haider complainant (P. W.) met him at 8 a.m. He recorded his statement Exh. P. J. And sent the same to the police station for registration of the case and proceeded to the place of occurrence. 4. All the three appellants were arrested by Ch. Abdul Aziz S. I. (P. W. 16) on 29th of April 1976 from the house of Safdar appellant situate in Mohalla Mujahid Abad, Jhelum. Arrest was effected at about 10-15 p.m. 5. Two '12 bore crime empties P. 4 and P. 5 and one 7 mm. Crime empty P. 6 were recovered vide Memo. Exh. PL dated 28-4-76 from the place where Nur Zaman deceased was lying while three '12 bore crime empties Exhs. P. 7, P. 8 and P. 9 and a base of 7 mm. Cartridge Exh. P. 10 were recovered from the place near the dead body of Shah Nawaz deceased in the street outside the house of Asif Jang appellant vide Memo. Exh. PL/1 dated 28-4-76. These recovery Memos. Were attested by Muhammad Ashraf (P. W. 7), Ghulam Haider (P. W. 10) and Abdul Aziz S. H. O. (P. W. 16). One dagger Exh. P. 3 and a scabbard P. 3/1 were recovered at the instance of Muhammad Safdar appellant vide
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Memo. Exh. PN dated 8-5-76 from a hedge near the house of Sher Jang appellant. Qamar Zaman (P. W. 9) and Abdul Aziz S. H. O. (P. W. 16) attested these recoveries. A 7 mm rifle P. 11 was recovered at the instance of Asif Jang appellant from within his residential house. This had been hidden in a wooden box. The key of the same was provided to the Investigating Officer by the appellant vide Memo. Exh. PN, dated 6th of May 1976. Attesting witnesses of the recovery are Akbar Khan Lambardar (P. W. 13), Abdul Aziz S. H. O. (P. W. 16) and Muhammad Nawaz (not produced). 6. One .12 bore gun Exh. P. 14 was recovered at the instance of Muhammad Iqbal appellant from his house. The said gun was hidden in a trunk which was locked. The key of the lock was provided by the appellant. A lock P. 13 which had been placed on the trunk referred to above was also taken into possession by the Investigating Officer vide Memo. Exh. PR. Earlier key Exh. P. 15 had been recovered from the person . Of Muhammad Iqbal appellant by the Investigating Officer (P. W. 16) at the time of his arrest on 29th of April 1976. It may also be mentioned here that similarly a key P. 12 had been recovered from the person of Asif Jang appellant at the time of his arrest by the Investigating Officer on 29th of April 1976. This was taken into possession vide Memo. Exh. PY. At the time of his arrest the Investigating Officer (P. W. 16) also recovered a shalwar P. 30 and a Kurta (shirt) P. 31 from Asif Jang appellant. These were stained with blood and were taken into possession vide Memo. Exh. PZ. Similarly a shalwar P. 32 and a shirt P. 33 were recovered from Muhammad Iqbal appellant vide Memo. Exh. PAA at the time of his arrest on 29th of April 1976. These were also stained with blood. The Investigating Officer also recovered a shalwar P. 34 and a shirt P. 35 from Muhammad Safdar appellant at the time of his arrest on 29th of April 1976. These were taken into possession vide Memo. Exh. PBB. This recovery was attested by Muhammad Sadiq, Muhammad Shafiq (given up P. Ws.) and Abdul Aziz S. H. O. (P. W. 16). 7. Blood-stained earth was also recovered from the courtyard of the house of Asif Jang appellant from a place where the dead body of Nur Zaman deceased was lying. This memo. Is Exh. P. K/1 dated 26th of April 1976 and is attested by Muhammad Ashraf (P. W. 7), Ghulam Haider (P. W. 10) and Abdul Aziz, S. H. O. (P. W. 16). Bloed-stained earth was also obtained from the street where Shahnawaz deceased was murdered as well as near the outer gate of the house of Asif Jang appellant where the dead body of Shahnawaz deceased was lying. The relevant Memos. Are Exhs. P. K/2 and P. K/3. Blood-stained earth was collected from the street where Lai Khan deceased had been murdered vide Memo. Exh. P. K/4 dated 28th April 1976. The witnesses of recoveries for these Memos. Are the same as in Exh. P. K/1 mentioned above. 8. According to the report of the Serologist Exh. PDD earth which was recovered from the places where Nur Zaman, Shahnawaz and Lai Khan were murdered was found to be stained with human blood. Clothes of Asif Jang, Muhammad Iqbal and Safdar appellants were found to be stained with human blood. Dagger recovered from Safdar appellant was also found to be stained with human blood. 9. Five '12 bore crime empties Exhs. P. 4, P. 5, P. 7, P. 8 and P. 9 along with ' 12 bore gun Exh. 14 were sent to the Fire-arm Expert who found that the said crime empties had been fired from the aforesaid '12 bore gun Exh. P. 14 recovered at the instance of Muhammad Iqbal appellant. Similarly one 7 mm. Crime empty P. 6 and one base of 7 mm. Cartridge P. 10 were found to have been fired from 7 mm. Rifle P. 11 which was recovered at the instance of Asif Jang appellant. Mr. Anwarul Haq Bajwa, Fire-arm Expert, appeared as P. W. 18 and proved his report. 10. The autopsy on the dead bodies of the three deceased was performed by Dr. Asghar Hameed Qureshi (P. W. 1) on 29th April 1976 at 8 a.m. He noticed the following injuries on the person of Shahnawaz deceased: "(1) Fire-arm wound 2--" x --" x chest cavity deep on the front of the chest near the inner end of right clavicle, I' to the right of the middle line of the chest. Margins were inverted (entry wound). No
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blackening or scorching was present. It was downwards, backwards and to the left, towards next injury. The shirt and bunyan bore the holes opposite the injury. (2) Fire-arm wound -- " x 3/8 " x chest cavity deep on the back of left scapular area, lower part. The margins were everted. It was 4' to the left of the middle line to the back: It was exit wound of Injury No. I." On the dead body of deceased Lai Khan, he noticed the following injuries : "(1) Four fire-arm wounds, each -- " x -- " whole thigh thickness deep on front and inner side of left thigh in an area 12' long. These were distributed throughout the length of the thigh and they were going. To the left slightly backwards and downwards, to next injuries. Margins were inverted. No blackening or scorching was present (entry wounds). (2) Four fire-arm wounds each 3/8" x --" x whole thigh thickness deep, each connected with injury of Injury No. 1. They were situated in outer part and back of left thigh, in an area 121" long, this is, throughout the length of the thigh (exit wounds of Injury No. 1). (3) Fire-arm wound 3/8"x 2 1/8" x thigh deep on outer part of front of right thigh at its middle. The margins were inverted. It was going to the left, backwards and slightly downwards. No blackening or scorching was present (entry wound). (4) Fire-arm wound 1/2" x 3/8" connected with Injury No. 3, on inner side of right thigh back-part just below the middle. The margins were everted, it was exit wound of Injury No. 3." On the same day this Doctor performed the post-mortem examination of Nur Zaman deceased and found the following injuries on his person : "(1) Four fire-arm wounds each 2 1/8 " x 2 1/8 " x joint and bone deep in an area 2 --" x 1 --" situated on inner side of left knee going to the left and forward. Margins were inverted. No blackening or scorching was present. The bones were fractured and the main vessels were injured. These were the entry wound. (2) Two fire-arm wounds 3 -- " x 3" and 1" x -- " on front and outer part of left knee in an area of 7" x 3 -- ". Margins were everted. These were exit wounds of Injury No. 2. (3) Stab wound 2 -- " x 1 --"x chest cavity deep on left armpit with bluish colouration of skin around. The axillary vessels were cut. It was going backwards and inwards. (4) Stab wound 2 --" x 1 3/8"x chest cavity deep on front of the chest, half inch to the right of middle lines and at level with the nipple. The sternum bone underneath was cut through and through and was wide open between fourth and fifth ribs on the right side. It was directed backwards. (5) Firearm wound 3/8" x 1/4" x leg deep on right inner malleolus. It was going backwards to the right and slightly upwards. A deformed pellet was found from the lower part of right leg, from the back and outer part. It was sealed into a bottle." Death in his case was due to bleeding and shock from the stabbed heart axillary blood-vessels, lungs and large vessel passing through left knee. Injuries Nos. 1, 3 and 4 were fatal , individually and collectively and was sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 2 and 5 were caused by fire-arm weapon while Injuries No. 3 and 4 were caused by sharp-edged weapon. Injury No. 5 was simple in nature. Death followed immediately after the infliction of injuries. Time between death and postmortem examination was about 36 to 42 hours. Dr. Asghar Hamid Qureshi (P. W. 1) examined Sajawal Khan (P. W. 11) on 28th April 1976, at 8-25 p.m. He found the following injury on his person :- "A fire-arm wound 21/8" x 2 1/8 " X chest cavity deep with surgical emphysema around and swelling 3 -- " x 2 -- " below middle of left clavicle." This injury was grievous and was caused by 'a fire-arm weapon within 24 to 32 hours. This injury was operated upon on 12th May 1978, when a deformed projectile was removed from his left aim. 12. Asif Jang and Muhammad Iqbal appellants denied the. Occurrence and proclaimed their innocence. Muhammad Safdar appellant while denying the prosecution case and proclaiming his
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innocence alleged that he had been falsely implicated in this case by Ch. Abdul Aziz S. H. O., the Investigating Officer (P. W. 16). The appellants Asif Jang and Muhammad Iqbal admitted their relationship inter se. Asif Jang was s, cousin of Muhammad Iqbal appellant. According to the prosecution Asif Jang appellant is maternal aunt's son of Iqbal appellant. They, however, denied their friendship with Safdar accused. The appellants did not lead any evidence in defence. 13. The case of the prosecution rests on the testimony of three eye-witnesses, namely Ghulam Haider (P. W. 10), Sajwal (P. W. 11) the injured witness, Muhammad Ilyas (P. W. 12), recovery evidence, the medical evidence, the motive and the matching of crime empties recovered from the place of occurrence with weapons recovered from the appellants. 14. Sajawal Khan (P. W. 11) the injured witness in this case has narrated the occurrence in the following manner. According to him on the day of occurrence Shahnawaz, Lai Khan (deceased), Muzaffar, Ghulam Haider P. Ws. And he had cut the wheat of Nur Zaman deceased and returned to the village at degarwela. The three deceased along with him went to their respective houses while Muzaffar Khan and Ghulam Haider went to the house of Shahnawaz deceased who was their brother-in-law. A sister of this P. W. Was married to Shahnawaz deceased. Almost half an hour later Nur Zaman came to call them for the meals which was ready to be served to them. They all proceeded to his house. As soon as they reached near the house of Asif Jang appellant he emerged armed with a rifle. Ho was accompanied by Iqbal and Sardar appellants. Iqbal was armed with a '12 bore gun. Asif raised a lalkara shouting to Nur Zaman that his insult would be avenged. Nur Zaman started running towards his house. The three appellants chased him and overtook him near the evacuee plot. He was caught hold of by Safdar and Asif Jang appellants while Iqbal appellant fired two shots at him hitting him on his leg. He fell down backward. Safdar accused took out his dagger which was tied on his right leg and gave one blow in the chest and one in the left armpit of Nur Zaman deceased. Asif Jang also fired one shot. Thereafter Asff and Safdar appellants lifted Nur Zaman and took him to the courtyard of the house of Asif Jang. Shahnawaz deceased was standing nearby and he beseeched the appellants. The appellants again came out after throwing Nur Zaman in the courtyard. Asif fired his rifle at Shahnawaz deceased which hit him on his right thigh. He fell down. While he was falling, lqbal appellant fired a shot which hit him in the chest. He fired again but this time it did not hit Shahnawaz. In the meanwhile, Lai Khan deceased started raising alarm and beseeching the appellants, on which Asif Jang appellant fired one shot at him which hit him. Iqbal appellant also fired two shots at him. He fell down. This witness was nearby and was raising alarm. Muhammad Iqbal appellant fired one shot at him hitting him on his left shoulder. He further stated that when the appellants started lifting the dead body of Shahnawaz he hid behind a wall and from there ran to his house. The dead body of Shahnawaz deceased was removed to the front door of the house of Asif Jhang appellant. This occurrence was witnessed by Ghulam Haider (P. W. 10), Ilyas (P. W. 12), Muzaffar P. W. And Mst. Riaz widow of Nur Zaman deceased. People of the village had hid themselves in their houses because of the terror created by the occurrence. According to him, the occurrence was over when the sun had still not set. According to this witness police reached the village in the morning at 9-30 a.m. And sent him to hospital for medical examination. 15. Muhammad Ilyas (P. W. 12) supported and corroborated the evidence of Sajawal (P. W. 11) in all material particulars. 16. The eye-witnesses and the deceased are closely related to each other. Shahnawaz and Lal deceased were real brothers while Nur Zaman deceased was son of~ Shahnawaz. Muzaffar P. W. (not produced) is the real brother of Ghulam Haider (P. W. 10). Lal Khan and Shahnawaz deceased were first cousins of the father of Sajawal (P. W. 11). Shakir a son of Muhammad Ilyas (P. W. 12) is married to grand-daughter of Lal Khan deceased.
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17. Muhammad Ilyas (P. W. 12) is also related to Asif Jang appellant. His grand-father and that of Asif Jang appellant, were real brothers. 18. It was contended that the eye-witnesses were inimical towards the appellants and therefore unreliable. In this connection it was further submitted that Mst. Gullan a sister of Muhammad Ilyas (P. W. 12) was abducted by one Buta who was murdered. Ilyas P. W. Was challaned in that case along with Shahnawaz Lal and Khan deceased. Shahnawaz was convicted and sentenced to 7 years' R. I. Shahnawaz deceased had helped Muhammad Ilyas P. W. In that murder case. Noor Muhammad a cousin of Asif Jang appellant was married to Mst. Arshan Bibi who was a daughter of the uncle of Muhammad Ilyas. Noor Muhammad had divorced her. Ghulam Shah father-in-law of Nazar Hussain (P. W. 14) was convicted for the murder of father of Iqbal appellant. 19. We have ourselves appraised the evidence in the case in the context of the criticism made by the learned counsel for the appellants and the counsel for the State. 20. The learned counsel for the appellants contended that this is a concocted case and that the appellants have been falsely implicated in the case. According to him Ghulam Haider (P. W. 10) is a false witness and has not seen the occurrence. He does not ascribe any part to Safdar appellant in the F. I. R. And that he has been rightly disbelieved by the learned Sessions Judge. According to him only Sajawal (P. W. 11), the injured witness had seen the occurrence but he did not lodge the F. 1. R. He was injured yet he did not go to hospital. According to the statement of Dr. Asghar Hameed, the Medical Officer, he examined this witness on 28th April 1976, at 8-25 p.m. The learned counsel next contended that the occurrence took place in darkness and was not witnessed by any one. On the basis of these arguments, namely, Sajawal P. W. Was only injured by a stray pellet, he did not lodge the F. I. R., did not get himself medically examined promptly etc., it is contended that either he might have not been able to identify the culprits or did not see the occurrence. He relied upon the statement of Karam Dad (P. W. 8) in this regard and submitted that according to this witness it had gone dark when the occurrence took place. From this evidence the learned counsel wanted us to believe that it was a dark night and that the assailants were not seen by any one. According to the learned counsel the medical evidence also supports this theory specifically when semi-digested food was found in the stomach of the deceased. As regards the recoveries the learned counsel contended that they were all bogus, concocted and should not be believed. Recovery witnesses are not independent. He, therefore, argued that the evidence of recoveries cannot be used for the purposes of corroboration. Muhammad Ashraf (P. W. 7) should not be believed because he is a Chaukidar of the village and that the Investigating Officer was interested and after all a police witness. 21. We have carefully weighed the arguments of the learned counsel and have perused the record of the case. We are inclined to agree with him that Ghulam Haider (P. W. 10), the complainant, had not seen the occurrence. He did not report to the police that Muhammad Safdar appellant had taken out any dagger tied with his leg or given blows with it to Nur Zaman deceased. Besides his version of the occurrence does not tally with the testimony of Sajawal (P. W. 11), the injured witness, and Ilyas (P. W. 12) the other eye-witness. This witness was closely related to the three deceased. It appears that he has lodged the F. I. R. On the basis of hearsay. He had not, in fact, seen the occurrence. 22. But the fact that in the F. I. R., part ascribed to Muhammad Safdar appellant by other witnesses is not mentioned, is no ground for disbelieving the prosecution story or for disbelieving the witnesses whose names are mentioned in the F. 1. R. F. 1. R. Is not an encyclopedia. It is not beginning and ending of every case. It is only a complaint to set the law and order in motion. It is only at the investigating stage that all the details to be gathered and filled up. So to reject the story on the ground of F. I. R. Is to show an Inadequate appreciation of criminal investigation and the weight to be attached to evidence in criminal cases:
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23. Sajawal Khan (P. W. 11) the other eye-witness is injured. He had a fire-arm injury on his person. Admittedly, he was present at the time of occurrence. He had given a very graphic and detailed picture of the occurrence. Only criticism against him is that he was injured yet he did not go to hospital immediately and that he did not lodge the F. I. R. As he had admittedly seen the occurrence. According to the testimony of Ch. Abdul Aziz S. 1. (P. W. 16) the Investigating Officer in the case, he prepared the injury statement of this witness Exh. P. S. On 28th April 1976, and sent him for medical examination through Nazeer Ahmad F. C. He had reached the place of occurrence at 9-30 a.m. On the same day. According to Doctor Asghar Hamid Qureshi (P. W. 1), Sajawal was examined by him on 28th April 1976, at 8-25 p.m. At Civil Hospital Chakwal. Three persons have died in this enterprise at the hands of the appellants. The deceased were his relations. It is also in evidence that after killing the three deceased in cold blood and in a most brutal manner, the appellants kept on raising lalkaras and continued firing in the area. This must have resulted in an atmosphere of terror in the village. Doctor found that the flesh of the right thigh of Shahnawaz deceased was eaters up by animals. In other words P. Ws.…
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