Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ABDUL SATTAR ETC. VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Khalil-Ur-Rehman Khan, Aftab Farrukh Title: ABDUL SATTAR ETC. vs THE STATE Case No.: Criminal Appeal No. 1057 and Murder Reference No. 279 of 1976 Date of Judgment:1979-08-04 Reported As: 1979 P Cr. L J 80 Result: Order accordingly
JUDGMENT
JUDGMENT AFTAB FARRUKH, J.-This judgment disposes of Criminal Appeal No. 1057 and Murder Reference No. 279 of 1976. Abdul Sattar appellant aged 30, his brother Fazal Qadir appellant alias Babu aged 48, another brother Haidar aged 38, appellant, their first cousins Talib appellant aged 50, Arif, aged 30 and Nur Ahmad aged 33 along with Sharif, Akbar and Muhammad Din alias Manna were tried in the Court of Ch. Muhammad Naseem, Additional Sessions Judge, Kasur. Trial Court vide its judgment, dated 16-6-1976, found all the four appellants guilty of the offence of murder of Muhammad Ibrahim and convicted them under section 302/34, P. P. C. And sentenced Abdul Sattar and Fazal Qadir to death as well as a fine of Rs. 3,000 each. In default of payment whereof, the defaulter has been directed to further undergo two years' R. I. Haidar and Talib appellant for the said offence have been convicted to imprisonment for life and also to a fine of Rs. 2,000 each with a direction to undergo one year's R. I. In case of default in payment of fine. It has been directed under section 544-A, Cr. P. C., that the amount of fine if realised be paid to heirs of the deceased. The four appellants have also been convicted under section 307/34, P. P. C. For murderous assault on Ghulam Ahmad (P. W. 10) and sentenced to three years' R. I: and a fine of Rs. 500. In default of payment of which directed to undergo further six months' R. I. They have also been convicted under section 324/34, P. P. C. To three months' R. I. For causing simple injuries on the person of Muhammad Anwar (P. W. 11). The rest of the accused have been acquitted of all the charges. 2. The occurrence took place on 24-9-1973 at peshiwala outside the baithak of the complainant in Village Bhamba Kalan, four miles from Police Station, Raiwind. Ghulam Ahmad (P. W. 10) made statement Exh. P. B., same day at 8 p.m., in Mayo Hospital, Lahore, to P. W. 14 Mahmood Riaz S. I. On
---
## Page 2
which formal F. I. R. Exh. P. B/1 was recorded by Hamid Ahmad Muharrir Head Constable (P. W. 7) at 11 p.m. On the fateful day, a Panchayat was convened at about 9 a.m., at the dera of Fateh Muhammad Lambardar in which the complainant and his elder brother Ibrahim deceased attended on the side of Ghul?m Ahmad while Abdul Sattar alias. Babu appellant attended on the side of Akbar Kalal. An argument developed between Ibrahim and Abdul Sattar resulting into the exchange of abuses. Ibrahim deceased gave two slaps to Abdul Sattar. The Panchayat intervened and separated the two. Abdul Sattar left the premises holding a threat that he would teach a lesson that very day for slapping him in Panchayat. The Panchayat fizzled out. Same day at about peshiwela the complainant and his brother namely, Ibrahim deceased, Muhammad Anwar (P. W. 11), were present at their house. On hearing lalkaras in front of their baithak, Muhammad Anwar (P. W. 11) and Ibrahim went out and saw all the accused present there. Abdul Sattar alias Babu, Haidar, Talib, Arif and Noor Ahmad were armed with barchis (spears); Qadir was having a datar in his hand and Sharif, Akbar and Muhaminad Din alias Mannan accused were armed with dangs. Abdul Sattar alias Babu accused gave barchi blows on the right side of the chest near the abdomen on the person of Ibrahim, and Fazal Qadir accused struck the datar on his head with its blunt side, Ibrahim fell on the ground when Akbar and Sharif accused gave him dang blows. Haidar accused gave a barchi blows on the right side of the neck of the complainant (P. W. 10), then Talib accused gave a barchi blow on his left ear. Arif accused gave him a barchi blow on his left shoulder Haidar accused gave him a barchi blow on his right aim. Talib accused gave the second blow of barchi on the right shoulder of the complainant near the chest. Noor Ahmad gave barchi blow on his left shoulder, Sharif; Akbar and Muhammad Din alias Mannan accused gave the dang blows on his person. Then Anwar P. W. 11 was given a barchi blow by Haidar accused. Sharif, Mannan and Akbar accused gave the dang blows on the person of Anwar P. W. 11. The injured were taken to Civil Dispensary, Raiwind where Dr. Abdul Razaq (P. W. 2) medically examined them the same day. Examination started at 4 p.m. He found the following injuries on the person of Ibrahim :- (1) One lacerated wound at right side of front of head 3----- above ear size 2" x ----- x scalp deep, right ear was bleeding. (2) On stabbed wound at right side of the abdomen just below right margin size, 2--- x ----- X 1 -- ---, it went into abdominal cavity. (3) One abrasion at back of left shoulder size, 1" x -----. (4) One bruise at back of. Left chest size, 5" X 1". He referred the patient to Mayo Hospital, Lahore. According to him injury No. 2 was caused with sharp-edged weapon and injuries Nos. 1, 3 and 4 were with blunt weapon. Later on, he declared injury No. 2 as grievous and the rest were declared as simple. Exh. P. L. Is the carbon copy of Medico-legal Report. Following injuries were noticed on the person of Ghulam Ahmad P.W.10: (1) One lacerated wound at right side of head size 2" x -----, scalp deep. It was 3" above ear. (2) One abrasion at the front of nose size, ----- x -----. (3) One stabbed wound at right side of neck size, ----- x ----- x -----. (4) One incised wound at left ear size, ----- x ----- x skin deep. (5) One incised wound at front of right shoulder size, ----- x ----- skin deep. (6) One incised wound below injury No. 5 on front of right shoulder size, ----- x ----- skin deep. (7) One incised wound at back of right fore-arm size, ----- x 1/8--- x skin deep. (8) One superficial scratch at left scapula size 3-----. (9) One abrasion at right scapula size, ----- x -----. (10) One bruise at sacrum size, 2--- x 4".
---
## Page 3
(11) One abrasion at front of right knee joint size 1----- x -----. The doctor referred the patient to Mayo Hospital, Lahore for treatment. According to him injuries Nos. 3 to 8 were caused with sharp-edged weapon and the rest were with blunt weapon, which were simple in nature. Exh. P. M. Is the carbon copy of the medico-legal report. Muhammad Anwar P. W. 11 was found to have sustained the following injuries :- (1) One swelling at outer aspect of right upper arm size, 2" X 2". (2) One bruise at front of right thigh size, 2--- x 2". (3) One stabbed wound at outer aspect of left knee joint size, ----- x 3/5" x skin deep. (4) One stabbed wound at outer aspect of left knee joint size, ----- x ----- x skin deep, on the other side it was incontinuous to injury No. 3. The doctor declared all the injuries as simple. According to him injuries Nos. 3 and 4 were caused with sharp-edged weapon. Exh. P. N. Is the carbon copy of medico-legal report. According to Dr. Abdul Razaq (P. W. 2). The duration or .Injuries at the time of examination of the said three injured was between one to three hours. He sent the medico-legal reports to the S. H. O. Police Station Raiwind (P. W. 14). On receiving the medico-legal report Mahmood Riaz S. I. S. H. O. Police Station, Raiwind (P. W. 14) went to Civil Dispensary Raiwind where he was informed that the injured had been removed to Mayo Hospital, Lahore. On this, the S. H. O. Reached Mayo Hospital, Lahore and recorded statement Exh. P. B. Of Ghulam Ahmad complainant (P. W. 10). On the basis of which Hameed Ahmad Khan H. C. (P. W. 7) prepared the formal F. I. R. Exh. P. B/1 under section 307/48, P. P. C. At mid-night Ibrahim died in Mayo Hospital, Lahore and section 302, P. P. C. Was then added in the F. I. R. Dr. Sabir Ali (P. W. 1) who conducted the post-mortem examination on 26th of September 1973, found the following injuries on the person of the deceased:- "(1) Stitched stabbed wound, 2--- long with three stitches placed transversly oblique, 6-----above the umbilicus at 11 O'clock. (2) Abrasion, 1" x ----- top back left shoulder. (3) Abraded contusion, 4----- x 1" on the back of left chest on the scapular rigion. (4) Lacerated wound, 2-----with 3" stiches on the right side of head placed vertically oblique 5" above the ear at 12 O'clock." The doctor expressed his opinion that injury No. I had been caused by some sharp-edged pointed weapon and injury No. 2 inflicted with blunt object, were individually sufficient to cause death in the ordinary course of nature. 3. On 25-9-1973, Mahmood Riaz S. H. O. (P. W. 14) went to the place of occurrence and took into possession the blood-stained earth vide memo. Exh. P. E. And sealed the same into a parcel. Anwar (P. W. 11) produced before him blood-stained kurta (P. 2) of Ibrahim deceased with a cut on the front which was given to him by Dr. Abdul Razaq (P. W. 2) The S. H. O. Took into possession that kurta vide Memo. P. D. He handed over parcel containing the blood-stained earth to Muhammad Fazal Moharrir A. S. I. 4. All the accused other than Noor Ahmad were apprehended on 24-9-1973, Noor Ahmad was apprehended on 3-10-1973. The accused led to the following recoveries: -Abdul Sattar alias Babu appellant produced blood-stained Barchi (P. 3) before Muzaffar Hussain A. S. I. (who had died pending trial) on 27-9-1973, which was taken into possession vide memo. Exh. P. F. On the same day, before the said A. S. I, blood-stained barchi P. 4; blood-stained bat-chi P. 5, blood-stained datar P. 6, dang P. 7, dang P. 8, sota P. 9 and blood-stained harchi P. I were produced by Talib, Arif, Fazal Qadir. Sharif, Akbar, Muhammad Din alias Mannan and Haidar respectively. These were taken into possession under respective memos. 5. The accused-appellant pleaded denial simpliciter and their case as stated by Fazal Qadir appellant is, "Arif Zamindar of the village got us falsely involved in this case as his father was
---
## Page 4
murdered by the father of Akbar Lambardar P. W. In which Akbar Kalal the men of Babu and Abdul Haq and many other persons attacked when in general melee the deceased and the P. Ws. Got the injuries. Anwar P. W. Reported the matter to the police but later on at the instance of Arif the story was changed". 6. The learned defence counsel has tried to make capital of the dimensions of the injuries found on the persons of Ghulam Ahmad and Muhammad Anwar P. Ws., as well as that on the deceased to raise an argument that these injuries are inconsistent with the nature of weapons attributed to the appellants. According to him, the spears recovered at the instance of the appellants would have caused graver harm, this renders the entire prosecution case as doubtful. 7. We do not agree with the learned counsel, as the dimensions of the injuries and the harm suffered, depends on the force, the angle of the weapon, that of the body etc., at the time of the impact. Injury No. 2 on the person of the deceased was 2--- x ----- x 1----- it had damaged the peritoneum as well as the liver. Similarly, injury on the head of the deceased had resulted in the fracture of right temporal bone and right middle cranial fosa. Learned counsel for the defence has in particular referred to the dimensions of injuries Nos. 3, 4 and 5 found on the person of P. W. 10 Ghulam Ahmad, ----- x ----- x -----, ----- x ----- x skin deep and ----- x ----- x skin deep. A graver damage has been prevented presumably by the efforts in the warding off of the blows. Sometimes when a blow is attempted, people with courage catch hold of the weapon itself and succeed in considerably reducing the force of the blow, We cannot, therefore, accept that, as injuries suffered by the P. Ws., are not commensurate with type of weapons allegedly used in the assault, this renders the entire prosecution case as doubtful. In any event in this particular case, it will not be out of place to mention that the learned trial Court hag disbelieved the recoveries of weapons. 8. Learned counsel for the appellants has contended that the investi--gation has preceded the recording of F. I. R. It was much belated and as such is of no value. F. I. R. By itself is, anyhow, not a substantive piece of evidence, unless used as a dying-declaration. This alone in the absence of other substantive evidence is never made the basis of conviction. At best, its value is corroborative, it helps in appreciating the substantive evidence led at the trial in regard to its consistency or otherwise reference to it being made as depicting the earliest recorded version of the prosecution. The effect of the variation depends on the significance of the variation and one tries to evaluate the motive or reasons behind the variations, which is reflected in the conclusions. 9. Learned counsel in order to substantiate his argument on this point referred us to the evidence of P. W. 2 Dr. Abdul Razzaq at page 15 line 26, where the doctor has stated that many women, children and adult males had come to the hospital with the injured persons and that the hospital was 3/4th of a mile from Police Station, Raiwind, the inference being that none was sent to lodge the report, and then, to page 16, lines 19/20 of the same witness where the doctor had stated that when all the injured were examined by him, he informed the Raiwind Police and in this regard he also referred us to line 23 of the same page, where the doctor had stated that Chanan Masih or Muhammad Ali went to inform the police (reference is to his sending the information). What the learned counsel wishes us to believe is not improbable. At the same time in such a situation, where three persons of a family are seriously injured, in the hospital they are accompanied by women and children, in that predicament, we feet the entire attention, at that time, would be towards getting medical aid to save the lives. It may be noticed that the condition of Ibrahim necessitated his shifting to Lahore; the near relatives, if there must have been concerned more about making arrangements for removing the injured to Mayo Hospital, Lahore, rather than lodging the F. I. R. How does an individual act on such occasions, varies from person to person. On this aspect, P. W. 2 Dr. Abdul Razzaq himself has stated at page 16 line 21 and then at line 25 that he did not remember that S. H. O. Along with his subordinates came to dispensary or not on
---
## Page 5
his same information . . . . He did not remember when the S. H. O. Came to investigate the case in the dispensary. This is in no manner, in conflict with the position stated by P. W. 14 Mahmood Riaz S. H. O. That Medical Officer, Raiwind Hospital, sent him the medical reports about Ibrahim, Ghulam Ahmad and Anwar and learnt on reaching there that the injured had been shifted to Mayo Hospital, Lahore. He, therefore, left for Lahore. Further, at page 60, line 8, he has stated that one person from office of the Medical Officer, Raiwind Hospital, had informed him of the fact and he made an entry about it in the daily diary and went to Raiwind Hospital with his subordinates. This position, we find, is quite consistent with the statement of Hamid Ahmad Khan M. H. C. (P. W. 7) at page 44, lines 16 to 22, to which the learned counsel for defence had referred, of course, with a view to point out contradiction. We, however, do not agree with him. The submission of the learned counsel however, that P. W. 11, Muhammad Anwar went to the Police Station from the hospital and made a statement before P. W. 14 Mahmood Riaz merits consideration. He has referred us to the testimony of P. W. 11 Muhammad Anwar at page 52, line 10, where he was confronted with his admission before the Committing Magistrate to the effect that from the hospital he went to the Police Station, he met the thanedar there, informed him about the occurrence, which he wrote down and thereafter he came back to the hospital. In this regard we have also been referred to lines 19 and 25 on the same page. It appears to be more natural and consistent that after the medical examina--tion, Muhammad Anwar (P. W. 11) whose injuries were simple in nature, might have gone to Police Station, met P. W. 14 Mahmood Riaz S. H. O. And informed him of the incident but the contradictions pointed out are not of a conclusive tendency and susceptive to an explanation. The Police Officer did make an entry in the daily diary before proceeding to Raiwind Hospital the witness might be referring to this entry. If for the sake of argument, we were to accept the submissions of the learned counsel in this regard and hold that after the medical examinations P. W. 11 Muhammad Anwar went to Police Station and informed P. W. 14 Mahmood Riaz S. H. O. Then it cuts right through the argument of the defence that the F. I. R. Is belated and recorded after preliminary investi--gation. As far as aggrieved party is concerned, they have lodged the report promptly. At its best, for the defence, we could say that S. H. O. In order to show his own efficiency has shown the same to have been recorded at Mayo Hospital, Lahore, which we highly depreciate and can by no means approve. But on this basis alone, neither the complainant party can be made to suffer nor its case thrown aside. The case has to be decided and judged in the context of the totality of the evidence; the host of surrounding circumstances and the overall picture that emerges to is a judicial mind. Learned counsel fore the appellants referred us to Gulzar and 2 others v. The State (1970 P Cr. L J 1145), Ghulam Qadir v. The State (PLD 1967 Pesh. 269). The position has been clarified by the Supreme Court once again in a recent case reported in Zar Bahadar v. The State (1978 SCMR 136), and it was held that delay is relevant only in cases of enmity and in this case there is no background of enmity. 10. Mr. Q. M. Saleem attacking the motive has submitted that there was no dispute between the deceased party and the appellants. Dispute over possession of land was between Ghulam Ahmad son of Hassan Muhammad on one side and Akbar Kalal on the other. Abdul Rehman son of Hassan Muhammad had executed sale-deed in favour of each one of them and the appellants had nothing to do with the transaction. He further submitted that neither Ghulam Ahmad son of Hassan Muhammad nor Akbar Kalal nor revenue record has been produced in support of the alleged motive and, therefore, the same has been fabricated. Motive in this case is not the dispute over the possession of land between the parties, but the incident in the Panchayat which had been convened to settle dispute between Ghulam Ahmad son of Hassan Muhammad and Akbar Kalal. Ibrahim deceased and his brother on the side of Ahmad and Abdul Sattar on the side of Akbar Kalal attended the Panchayat. In the course of the proceedings, as noticed earlier, the deceased gave two slaps to Abdul Sattar. Others separated them. Abdul Sattar left the premises saying that he would teach them a lesson for the slaps. This
---
## Page 6
was the real motive. Abdul Sattar then collected his own men and as noticed above, raided the house of the complainant party. Fateh Muhammad is a Lambardar and an independent person. Nothing has been brought on record to discredit his testimony or to show him as a partisan. He has fully supported the version of P. W. 10 Ghulam Ahmad. Prosecution has been able to establish motive, set up by it. 11. We are convinced that the occurence was as a result of the incident of slapping to Abdul Sattar by the deceased. The testimony of Ghulam Ahmad son of Hassan Muhammad or that of Akbar Kalal or any revenue record, in this view of the matter, was neither needed nor has been produced. One looks to the quality of evidence and not to its quantity. 12. P. W. 10 Ghulam Ahmad complainant, a real brother of the deceased, P. W. 11 Muhammad Anwar, a nephew of the deceased and P. W. 12 Muhammad Yusuf, step-brother of Akbar acquitted accused have appeared as eye-witnesses. Muhammad Younus son of Khushi Muhammad though mentioned in the F. I. R. Has not been produced. It is admitted that P. W. 12 Muhammad Yusuf had a dispute over some landed property with his step-brother Akbar acquitted accused. The house of Muhammad Yusuf is nearby and the case of the prosecution is that he reached the place of occurrence on hearing the alarm. This appears to be quite natural. However, Ghulam Ahmad P. W. 10 at page 50, line 7, has stated, "we were encircled by the accused and afterwards on our alarm Yusuf and Younis P. Ws., arrived there. Both the said P. Ws., arrived at the spot when my brother had already fallen on the ground." For all these reasons, by way of abundant caution, we would prefer not to take his testimony into consideration. 12. As far as Ghulam Ahmad P. W. 10 and Muhammad Anwar P. W. 11 are concerned; no doubt one is brother and the other nephew of the deceased, but their presence at the spot at the time of occurrence can neither be denied nor challenged, in view of the presence of large number of injuries on their person. There is no previous enmity between the appellants and the deceased or his brother. No motive whatsoever has been suggested as to why the complainant or his nephew should falsely implicate the appellants or their co-accused in place of the real culprits who actually murdered Ibrahim and caused them injuries. The presence of these two injured witnesses is accepted even in the defence suggested to Ghulam Ahmad P. W. 10 at page 51, lines 13 to 16. Moreover, it is not even hinted to either of the two injured eye-witnesses or the doctors that the injuries on their persons were self-suffered. Therefore, there is no doubt in our mind about the presence of .The injured P. Ws., at the place of occurrence. 13. Learned counsel has further criticised the story of the prosecution, that if all the appellants had gone variously armed and shouted Lalkaras outside the baithak of the deceased, it was unnatural that all the brothers would have come out, but only to receive beating. It was contended that the natural course would have been to seek protection by closing the doors and remaining inside the baithak. We do not find force in this contention. As to bow the complainant side, in fact reacted, and how they should have reacted are two different matters. Human behaviour in a particular situation may vary from person to person. May be they came out of the baithak on hearing the lalkaras expecting to be able to plead reason with the accused appellants, or may be they thought that it was merely a show of force to cow them down and seeing them come out, the accused might retreat. It was also contended that when the attack was opened on the receipt of the first injury, the complainant party being empty-handed would have run away. We find a very plausible explanation to this, in the testimony of Ghulam Ahmad. At page 53, line 33, "actually we did not get the time to retreat to our "haveli". Even otherwise when Ibrahim was attacked, his brother and nephew would have attempted to intervene for rescuing him instead of running away, it could be by way of begging mercy or by way of pleading reason, or even by way of resistence despite being empty-handed. We note that the fact that the deceased and the P. Ws., were empty-handed, was not challenged at the trial neither before us nor it can be, because there is not even a scratch on
---
## Page 7
any of the accused. Learned counsel has further argued that the version of the prosecution that the blood was taken from a point at a distance of five karams from the baithak shows that the complainant party did not come out, as claimed, for merely finding out as to what the matter was, on hearing the Lalkaras. He, therefore, concluded there was something more than that, appearing on the surface. He has not suggested anything really plausible that could fit in the particular situation and the advantage the prosecution can take by suppressing the same. The parties were not expected to behave like statutes nor were the accused expected to raise lalkaras standing at one particular point. So also the deceased or his brother were not to remain affixed to a particular point. After the attack had been launched, it can well be appreciated, the victims would have attempted to run for their lives and the assailants, similarly, would have attempted to hold them and in the process a few feet this way or that way would not make any material difference. It is not the case of the defence that the spot from where the blood is taken is near the house of the appellants and that the complainant party had come there to attack. 14. Learned counsel has further contended that though three persons have received injuries, blood has been taken from only one spot. We do not attach any importance to this argument as in this case nothing turns on it. It appears that blood has been taken into possession from…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.