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Petitioner: ABDUR RASHID KHALID AND Another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah, Saleem Mazhar Title: ABDUR RASHID KHALID AND Another vs THE STATE Case No.: Criminal Appeal No. 625 and Murder Reference No. 160 of 1969 Date of Judgment:1971-02-10 Reported As: PLD 1972 Lahore 90 Result: Order accordingly
JUDGMENT
JUDGMENT MUHAMMAD AFZAL ZULLAH, J.-Abdur Rashid Khalid, aged 28 years, and Muhammad Siddiq, aged 30 years, have been convicted under section 302/34, P. P. C. And sentenced to death on two counts for the murder of Abdul Khaliq and Muhammad Shafi deceased by the learned Sessions Judge, Layallpur, vide his judgment dated the 21st of July 1969. Both of them have also been convicted and sentenced to seven years' rigorous imprisonment and a fine of Rs. 1,000.00 each, in default of payment of which to undergo further rigorous imprisonment for one year, under section 307/3 4, P. P. C. For a murderous assault or Khushi Muhammad P. W. Abdur Rashid Khalid was charged o1 an offence under section 404, P. P. C., for having misappropriates the licensed revolver of Abdul Khaliq deceased, but he has bee acquitted of that charge due to technical reasons. The convict have appealed and the case is also before us under section 374 Cr. P. C., for confirmation of the death sentences. Both the matters are being disposed of together. 2. The facts of the case, as disclosed by Azmatullah, P. W. 17, who is the first informant and is also an eye--witness, are as follows:- On the day of occurrence, which took place on the 28th of July 1966 at 7 a.m., Azmatullah, his son Abdul Khaliq deceased, Muhammad Shafi, the second deceased, Khushi Muhammad, P. W. 18, and Muhammad Ali, P. W. 20, left the house of Azmatullah P. W. At about 7 a.m. The two deceased had to go to Toba Tek Singh in connection with some cases pending in Courts and were to take a bus from a place, known as Philor. Both of them were on a bicycle belonging to Muhammad Shafi deceased. Khushi Muhammad and Muhammad Ali P. Ws. Were also going to Toba Tek Singh for purchasing fertiliser. Khushi Muhammad was on a bicycle. Azmatullah P. W. Had to go to another village, named Madepur, to enquire about the health of his maternal uncle. He and Muhammad Ali
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were to take a tonga and were going towards the katcha road of their village at the relevant time. All these persons had to pass in front of the horse of Abdur Rashid Khalid appellant. When the two deceased passed in front of the house of Abdur Rashid Khalid, the two appellants came out of that house. They were armed with guns with which they fired at the two deceased who were hit and fell down from the bicycle, Abdur Rashid Khalid appellant had also a revolver with him. Khushi Muhammad P. W, who was nearer to the deceased than the other P. Ws. Was also fired at by Muhammad Siddiq appellant but he escaped unhurt. The two appellants then having gone near the two deceased fired more shots at them. The occurrence was also witnessed by Ghulam Nabi, P. W. 19, whose house is very near the place of occurrence. Abdul Khaliq deceased had a pistol with him, it was removed by Abdur Rashid Khalid appellant from the holster. The appellants then ran towards the eastern side of the village. While they were running away from the spot, three copies of licences fell from them near the spot. They were picked up by Azmatullah. The fire shots by the appellants on the two deceased had proved effective in killing them. Azmat--ullah took the bicycle of Muhammad Shafi deceased and went to lodge the report at Police Station Rajana which is at a distance of about nine miles from the place of occurrence which falls within the area of Chak No. 252/GB, District Layallpur. At his dictation Muhammad Nawaz, P. W. 22, recorded the first information report (Exh. P. A.) at 9 a.m. The three licences picked up by Azmatullah from the place of occurrence, which are Exhs. P-1, P-2 and P-3 were produced by him before the Assistant Sub- Inspector at the police station. They were taken into possession vide memo. Exh. P. B. The facts about the three copies of licences are mentioned in the first information report, and their recovery from Azmatullah P. W. Soon after the registration of the case is mentioned in the police proceedings (karwai Police), as noted on the F. I. R., Exh. P. A. The memo. Of recovery of these licences, apart from Azmatullah, is also attested by Muhammad Aslam, P. W. 16. 3. The motive for the crime arises out of enmity between the two parties. The two deceased are not related to each other but are friends. Similarly, the two appellants are not related to each other but due to various reasons had a common cause in so far as their enmity with the complainant party is concerned. The enmity appears to have originated out of a land dispute. One Mr. Salah-ud-Din, a Group Captain in the Air Force, was allotted land in the village of the two parties in 1963. Abdur Rashid Khalid appellant was his Mukhtar in respect of this land. He (Abdur Rashid Khalid) offered to purchase the land but did not succeed in prevailing upon the owner to sell the same because in the meanwhile Khair Din a relative of Azmatullah P, W., succeeded in purchasing the same on a price higher than that offered by Abdur Rashid Khalid appellant. Khair Din also purchased two ihatas from Salah-ud-Din Butt. The land was purchased by Khair Din in November 1965. Earlier to that, ft was in possession of Abdur Rashid Khalid appellant as a Mukhtar. According to Azmatullah P. W., he was deriving benefit from this land and was himself getting all produce. After the possession was delivered to Khair Din, Abdur Rashid Khalid, in January 1966, attempted to take back the possession; whereupon Muhammad Ali P. W., the Mukhtar of Khair Din, got a case registered against Abdur Rashid Khalid and Muhammad Siddiq appellants. They were convicted in that case and sentenced to rigorous imprisonment for one and a half years. Abdur Rashid Khalid made another attempt in respect of securing the control over the land by cutting the maize crop of Khair Din on which Khair Din got a case registered against the two appellants. Khair Din had constructed a kotha on the land which was set on fire and destroyed. Abdul Khaliq deceased got a case registered in respect of this occurrence against the two appellants and some others. The two last mentioned cases were pending before the Magistrate at the time of occurrence; and, in fact, according to Azmatullah P. W., Abdul Khaliq deceased was going to appear in one of these cases at Toba Tek Singh on the day of occurrence and it was for this reason that he took a ride from Muhammad Shafi deceased on his bicycle and thus they were to pass in front of the house of Abdur Rashid Khalid appellant. About seven or eight months before the occurrence, the two
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appellants and some others were bound down against Abdul Khaliq deceased and Muhammad Ali P. W. For keeping the peace. Muhammad Shafi deceased also was going to Toba Tek Singh in connection with a case about a dispute relating to an ihata allotted to his brother. The opposite- party in this case were some Christians. Thus, due to the dispute over the land originally belonging to Salah-ud-Din Butt the two parties, one of Abdul Khaliq deceased and the other of Abdur Rashid Khalid appellant, were at loggers head, with the consequence that proceedings with regard to keeping the peace had to be taken by the police. 4. The Assistant Sub-Inspector Muhammad Nawaz, P. W. 22, reached the spot at 11 a.m. During his stay at the spot he performed the preliminaries of the investigation. He took into possession six empty cartridges of .12 bore gun from near the spot vide memo. Exh. P. G. He also took into possession the licence (Exh. P.4) of Abdul Khaliq deceased which was produced before him by Azmatullah P. W. The cycle of Muhammad Shafi deceased was taken into possession vide memo. Exh. P. D. The blood-stained earth was taken from two places in front of the house of Abdur Rashid Khalid appellant from under the dead bodies which were lying about two karams apart from each other and about eight or nine karams from the said house. The investigation was partly conducted by Muhammad Hayat, Sub-Inspector, who had died before he could be examined in the trial Court. The investigation was also conducted at some subsequent stages by the Crime Branch of the Police under orders of the A. 1. G. Muhammad Siddiq appellant was arrested on 3rd August 1966. At his instance, on 15th August 1956, the police recovered gun (Exh. P. 18) from a field near the canal vide memo. Exh. P. N. It appears that Muhammad Siddiq led to the recovery of another unlicensed gun (Exh. P. 15) from his house. Muhammad Rafiq, P. W. 13, is the witness of recovery of Exh. P. 15 while Muhammad Bashir, P. W. 21, has attested the memo. Of recovery of gun, Exh. P. 18. Abdur Rashid Khalid appellant was arrested on the 3rd of September 19(6, by Muhammad Abdullah Inspector, P. W. 23. At the time of arrest, he produced a rifle and a double-barrelled .12 bore gun which were taken into possession by the police vide memo. Exh. P. M. Both of them are licenced. Two of the licences picked up from the pot by Azmatullah P. W. Related to these weapons while the third is the licence of Muhammad Siddiq, a brother of Abdur Rashid Khalid appellant. 5. Doctor Abdul Wahid Khan, P. W. 1, performed the autopsy on the dead body of Muhammad Shafi on the 29th of July 1966 at 7 a.m. And found the following injuries:- "(1) There were multiple (about 72) fire-arm circular wounds of 1/10" diameter each near each other in an area of 10--- x 8---, extending over the outer side on back of right hip, the adjoining part of the right thigh and the right flank. The wounds were going deep into the muscles, up to the bone underneath. Eight pellets were removed from the wounds. There was slight burning adjoining the wounds. There were correspond--ing holes in the shirt and tahband he was wearing, which were blackish. (2) A fire-arm wound 1 -- " x 1 -- " in diameter, circular in shape with slight burning round about, and a burnt (scorched) area, -- ' x -- " x -- ", above the wound. The wound was situated 6' above the iliac crest in the post axillary line in the left flank. There were corresponding holes in the shirt with slight blackish stains at some places. The wound was directed upwards, where it fractured the ribs underneath, then it badly torn the spleen, after which it had injured the stomach, which was having a big tear in it and was empty. Then it perforated the left bone of the diaphragm and has passed through the lower lobe of left lung in its post-part, along with the pleura. Then it crossed over to the right side of the chest cavity and 20 pellets and three circular pieces of card boards (Wads) were removed from the lower lobs of the right lung." The death was due to injury No. 1 which caused severe haemorrhage and shock. It was sufficient in the ordinary course of nature to cause death. The death was immediate after the injury while the time that elapsed between the death and the post-mortem examination was about twenty-four hours.
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6. On the same day at 8-50 a.m. The same doctor performed the post-mortom examination on the dead body of Abdul Khaliq deceased. The following injuries were found:- "(1) Multiple (about 15) circular gun shot wounds, 1/8" in diameter each, on front and outer aspect of right thigh, scattered in an area of 10" x 7 -- " with slight scorching at places. There are corresponding holes in the pantaloon, which were slightly blackish at few places. Some pellets were removed from the wounds. The pellets had gone deep into the muscles. (2) Multiple (about 10) circular gunshot wounds, about 1/8' in diameter each, on the back of right forearm and hand. There was slight scorching at places. There were correspond--ing holes in the bushirt he was wearing. The wounds were going towards depth. Some pellets were removed from the body. (3) Multiple (about 14) circular gunshot wounds, about-- in diameter each, with slight scorching of skin at some places. They were mostly on the front of left forearm and hand with corresponding holes in the bushirt. Some pellets were removed. (4) A firearm wound, 1 -- x 1 -- circular, with scorching of the skin round about on the left side of back 21" from the vertebral line and 3" below the shoulder blade. The wound was directed forward, where it had fractured the rib under--neath, then after injuring the pleura it had reached the left lung and had torn it. Some pellets and the card boards (Wads) were removed. The chest cavity was full of blood. (5) A firearm wound. 1 -- " x 1 -- " circular with scorching on the left side of the back above injury No. 4 and one to the left of vertebral line. The wound was directed forward. The vertebras underneath were badly fractured, also some part of the ribs underneath. It had passed through the pleura and had badly torn the left lung underneath. The chest cavity was full of blood. A few pellets, some cardboard circular places (Wads) were removed from the lungs. (6) A firearm wound 1 -- " x 1 -- " just below the lower end of the right shoulder blade. The wound was directed forward and slightly obliquely to the left. There was fracture of the ribs underneath. After passing through the pleura it had gone to the right lung, the middle of which was badly torn. Some pellets and cardboard pieces (Wads) were removed from the lung." The stomach contained six ounces of partially digested food. The bladder contained one ounce of urine. Injuries Nos. 4, 5 and 6 were individually and collectively responsible for the death. They had led to severe haemorrhage and shock, and were sufficient in the ordinary course of nature to cause death. The death was immediate after the injuries while the time that elapsed between the death and the post-mortem examination was about twenty-four hours. It is pertinent to note that the doctor was not cross-examined. 7. At the trial, the ocular account of the occurrence was given by Azmatullah, P. W. 17, Khushi Muhammad. P. W. 18, Ghulam Nabi, P. W. 19 and Muhammad Ali, P. W. 20. They fully supported the prosecution case. The recovery of the three licences from the spot is also supported by these witnesses. Their production before the Assistant Sub-Inspector at the police station at the time of lodging of the first information report is supported by Muhammad Aslam, P. W. 16, Azmatullah, P. W. 17, and Muhammad Nawaz Assistant Sub-Inspector, P. W. 22. The crime empties were not found to have been fired from any of the weapons recovered from or at the instance of the appellants, therefore, no expert witness was examined in that behalf. When examined under section 342, Cr. P. C., the plea of the appellants was that of total denial. Abdur Rashid Khalid appellant gave the following version in respect of the dispute over the land and the resultant litigation :- "This case too was falsely registered against us due to enmity with the witnesses. I was found innocent and acquitted in this case also. The background of these cases was that on 2nd November 1965, oral mutation of the said land was entered. Faqir Muhammad son of Abdullah of Chak No. 252, who had previously purchased this land came to know of it. We took exception to it. Said Faqir Muhammad instituted a civil suit in December 1965, in the Court of the Senior Civil Judge,
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Layallpur. Khair Din, son of Miran Bux, Salah-ud-Din Butt, myself and Muhammad Sharif tenant were made defendants in that suit. I produce Exh. P. J. (copy of plaint) which was received by me during that suit. (Admissibility is objected on by the learned P. P. On the ground that it was not signed by the plaintiff or his counsel). The civil suit was fixed for 2nd February 1965, for producing the reply. I had executed the agreement of sale in favour of Faqir Muhammad being the Mukhtar of Salah-ud- Din Butt. If I had not supported that case, the suit could have been dismissed. There was no registered sale-deed in favour of Khair Din. If the suit had been decided against Khair Din, he would have lost his money, which he had paid to Salah-ud-Din Butt. Muhammad Ali, Ghulam Nabi, Khushi Muhammad P. Ws , Muhammad Sabir, Chairman and others told me to resile from my position and depose in favour of Khair Din, but I did not accede that request. In order to put pressure on me the said cases were made out falsely against me. The civil suit mentioned above is still pending in the Court of Civil Judge Toba Tek Singh, and probably stands fixed for 24 July 1969. The complainant party had influence over the local police and Circle D. S. P., Rukan Din. We were not summoned and joined in the investigation of the case in case F. I. R. No. 97/65. The other cases 4 and 5 were registered 3/4 days after the alleged occurrence in order to put maximum pressure on me. The said three cases were registered against us as I had to file the written statement on 2nd February 1966. I filed the written statement on 8th February 1966." It appears that some plea of alibi was raised by Abdur Rashid Khalid appellant before Nazir Hussain Shah Inspector, Crime Branch, who collected certain documents in that behalf and after having found it as false he filed a complaint under section 466, P. P. C. Against four persons, namely, Dr. Maula Bakhsh, Ghani Sham Clerk, Miss Nasim L. H. V. And Manzoor Ahmad Dresser, all of rural dispensary, Burli Shah Karim. At the trial, the appellant (Abdur Rashid Khalid) did not examine them in defence. He, however, in answer to question No. 25, namely, whether he wanted to produce any defence evidence, made the following statement:- "I am Ex-Commissioned Officer of Pakistan Air Force. T produce certified copy of the statement of Additional Sessions Judge dated 14th October 1968, Exh. D. L., Copy of judgment of Resident Magistrate, Kamalia dated 17th June 1969 Exh. D. M., copy of judgment of R. M. Kamalia, dated 23rd December 1967, Exh. D. N., copy of the judgment of Taj Muhammad Khan Magistrate, Kamalia dated 1st February 1964, Exh. D. O. I produce the certified copy of statement of Khair Din recorded in case State v. Abdur Rashid under section 440/448, P. P. C. Exhs. D. D. I produce certified copy of bail application of Abdul Khaliq deceased dated 2nd December 1965, along with order dated 4th January 1966 Exh. D. Q. I also produce the site plan Exh. D. R. 1 wanted to produce Dr. Maula Bakhsh in my defence before C. M. My case was pending in the Court of R. M. Kamalia. I made request to R. M. Kamalia that the complaint under section 406/466 etc. P. P. C. Filed at the instance of Crimes Branch be taken up first, but even the accused off that complaint were not summoned. My case was transferred from that Court and was entrusted to R. M., Toba Tek Singh. On the certain hearings, I submitted application Exh. D. E. But no action was taken on that application. The complaint against the doctor and his staff is still pending in the Court of R. M. Kamalia and no action has been taken so far on that complaint. The Dr. Mir Maula Bakhsh was contacted to depose the facts before this Court. The doctor disclosed that in case he appeared, that complaint which was pending against him, would be taken up and he would be prosecuted and in case he did not appear in defence, that complaint would be filed without hearing, because such assurance was given to him. I have no other evidence to lead." With regard to abscondence up to 3rd September 1966, the appellant explained that on the day of occurrence he was in Bulri Shah Karim and was under treatment. He produced the original certificate of Dr. Mir Maula Bakhsh Talpur which is Exh. D. K. He further stated that he himself appeared before the Additional Superintendent of Police.th
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8. Muhammad Siddiq appellant denied that he had absconded and that he was arrested on 3rd August 1966. He attributed his involvement in the case to the enmity which Azmatullah P. W. Had against him because he (the appellant) was responsible for a raid conducted in respect of illegal gratifi--cation against Muhammad Tufail, a cousin of Azmatullah. He also stated that for some time he was a servant of Khushi Muhammad P. W. Who also is related to said Muhammad Tufail. Khushi Muhammad put pressure on him so that he may depose in favour of Muhammad Tufail but he did not agree. On this, he left that employment and he has, therefore, been falsely implicated. About his arrest, he explained that it took place from an Arhat shop where his brother used to work as a labourer. 9. The learned trial Judge did not rely on Azmatullah P. W. And disbelieved Muhammad Ali P. W. He placed full reliance on the statements made by Khushi Muhammad and Ghulam Nabi P. Ws. According to him, these witnesses are corroborated by various circumstances including the abscondence of the appellants, the motive, the medical evidence and the recovery of the two licences of Abdur Rashid Khalid appellant from the place of occurrence which was in front of his house. On these findings, he convicted and sentenced the appellants as noted above. 10. With the help of the learned counsel we have gone through the evidence. It needs to be noticed in the out set that the points raised by the defence at the trial with regard to the alibi of Abdur Rashid Khalid appellant, the place of occurrence and the time of occurrence have not been pressed before us. As to the time of occurrence, it was argued before the learned Sessions Judge that according to the medical evidence it may have been taken place at about noon time on 28th July 1966. Regarding place of occurrence, the defence plea at the trial was that it took place on or near about, a bridge on the outskirts of the village. In respect of plea of alibi, the position adopted by Abdur Rashid Khalid appellant is somewhat vague. He did not raise this plea before the committing Magistrate. At the trial, however, he relied on the certificate, Exh. D. K., issued by Dr. Mir Maula Bakhsh Talpur, but did not produce any further evidence to support his plea. His explanation appears to be that the doctor was being prosecuted for creating false evidence, therefore, he was reluctant to depose in this favour. Be that as it may, we have gone through the reasons advanced by the learned trial Judge for rejecting the points raised by defence in respect of the above matters. They are sound reasons and there is no need to reconsider these questions, particularly in view of the fact that they have not been agitated before us. It may be mentioned, however, that the learned counsel for the appellants while reading the doctor's statement about the post-mortem conducted on Muhammad Shafi's dead body, commented that the occurrence might have taken place earlier than morning time because the stomach of Muhammad Shafi was found to be empty. He, however, did not pursue the point any further after noticing the fact that the stomach of Abdul Khaliq deceased contained semi-digested food. 11. All the eye-witnesses admittedly are related to the deceased. Not only this, they also appear to be partisan witnesses. The prosecution case in respect of motive is that on account of the dispute between Khair Din and Abdur Rashid Khalid appellant over the land originally belonging to Salah- ud--Din Butt there emerged two factions, one of Abdul Khaliq deceased who supported Khair Din and the other of Abdur Rashid Khalid appellant who himself was interested in purchasing the land. Azmatullah is the father of Abdul Khaliq deceased. Ghulam Nabi, Muhammad Ali and Khushi Muhammad, P. Ws., are also closely related to him. The partisan character of the eye-witnesses is further borne out from the fact that they were cited as prosecution witnesses in one or the other case against Abdur Rashid Khalid and Muhammad Siddiq appellants. Thus, these witnesses are, on the one hand, interested on account of their relationship with Abdul Khaliq deceased, and, on the other hand, their previous conduct shows that in the dispute between the two parties they adopted a partisan role in support of the complainant party.
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12. It is an established position of law that the mere fact that a witness is interested or is held to be partisan is not per se sufficient for disbelieving him if otherwise it can be held that he saw the occurrence and his statement inspires confidence. Keeping in view the nature ---of the dispute between the parties, which constitutes motive, ft becomes necessary in some cases to find corroboration of the partisan witnesses. In this case, the learned counsel for the appellants strenuously argued that the statements of Khushi Muhammad and Ghulam Nabi P. Ws. Could be ignored on the same grounds on the basis of which the statements of Azmatullah and Muhammad Ali P. Ws. Were not relied upon by the learned trial Judge. He also contended that the eye-witness account is contradicted by medical evidence.…
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