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Petitioner: GHULAM QADIR AND Another VS Respondent: THE STATE.
Court Name: Lahore High Court Judge(s): Maulvi Mushtaq Hussain, Bashir-ud-Din Ahmad Title: GHULAM QADIR AND Another vs THE STATE. Case No.: Criminal Appeal No. 263 and Murder Reference No. '122 of 1968 Date of Judgment:1970-09-16 Reported As: 1970 P Cr. L J 919 Result: Appeal accepted
JUDGMENT
JUDGMENT MUSHTAQ HUSSAIN MUNIR, J.---Ghulam Qadir (39) and Ghulam Sarwar (36) sons of Fateh Sher, were tried by the learned Sessions Judge, Sahiwal, as ex-officio Addl. Sessions Judge, Mianwali, for Committing the murder of Muhammad Nawaz in furtherance of their common intention, under section 302 read with section 34 of the Pakistan Penal Code and attempted murder of Liaqat Ali P. W. Under section 307 read with section 34 of the Pakistan Penal Code. Both of them were found guilty of murder and convicted under section 302/34, P. P. C. While Ghulam Sarwar accused alone was found guilty under section 307, P. P. C. Ghulam Qadir was sentenced to transportation for life and was also fined Rs. 200 under section 302/34, P. P. C. In default of payment of the fine, he was directed to suffer rigorous imprisonment for three months. Ghulam Sarwar accused was sentenced to death and in addition to that, he was also directed to pay a fine of Rs. 200, or in default of the payment of the same, to suffer rigorous imprisonment for three months under section 302/34, P. P. C. He was also convicted under section 307, P. P. C and was sentenced to suffer rigorous imprisonment for two years. In his case, it was further directed that the sentence awarded to him under section 307, P. P. C. And the sentence in default of the payment of the above-mentioned fine, was to take effect only, if the sentence; of death passed on him was not confirmed by the High Court. 2. The convicts have preferred an appeal against their conviction and sentences and the case of Gliulain Sarwar accused is also before us for the confirmation of the death sentence. This judgment shall dispose of the appeal and the murder reference. 3. The prosecution story briefly is, that Muhammad Nawa2 deceased, his sons Ghulam Abbas (P.W. 16) and Liaqat Ali(P. W.17) his sister Mst. Alam Khatoon, (P. W. 19) and 6hulam Hussain (P. .W. 18)
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were collecting water melons from a field, belonging to the deceased, situated in the area of village Khan Muham---madwala on 5th August 1966, when at about Jhikki digerwela, the two accused armed with guns, arrived there and challenged the deceased saying, that they would not spare him, because he had disgraced their sister. Thereafter, Ghulam Sarwar accused fired at the deceased hitting him on his back. Simultaneously, Ghulam Qadir accused fired at the deceased hitting him at about the same place. Ghulam Qadir accused fired another shot, which hit the deceased on the right ear. The second shot fired by Ghulam Sarwar accused; hit Liaqat Ali P. W on the head. Muhammad Nawab deceased fell down and died at the spot. The accused sari away with their respective weapons towards the village. 4. The motive for the fatal assault upon the deceased by the accused persons, is said to be, that the. Accused suspected him to be carrying on with their sister Mst. Mehtab Bibi and about two years prior to the occurrence, a case under section 376, P. P. C. Was registered against him. He was challaned and was convicted by the trial Court, but was a Quitted fan appeal. It is also said, that during the pendency of the afore--mentioned case, Ghulam Sarwar accused fired at the deceased at Mianwali Railway Station and as a result, was sent up upon section 307, P. P. C. He was, however, acquitted. It is alleged, that because of the afore-mentioned grudge, the accused murdered the deceased. 5. Leaving the dead body at the spot, Ghulam Abbas (P. W. 16) left for Police Station Mochh in the company of his injured brother Liaqat Ali (P. W. 17) and lodged First Information Report (Exh. P. E) at 7-00 p.m. It was recorded by Sub-Inspector Sh. Muhammad Afzal (P. W. 23). The police station is about two miles from the place of occurrence. 6. Sub-Inspector Sh. Muhammad Afzal prepared injury statement (Exh. P. L.) of Liaqat Ali P.W. Sent him for medical examination. He was medically examined by Dr. Muhammad Sharif, Medical Officer, Civil Hospital, Mochh (P. W. 2) on 5th August 1966, at 8-15 p.m. The following injury was found on his person: - A gun shot wound of entry 1/6" x 1/6" Scalp deep on the left side of head 2" above the forehead. The injury was simple and had been caused by fire-arm within two or three hours. Exh. P. J. Is the medico-legal report. 7. Immediately after recording the first information report, the Sub-Inspector, left for the spot. On arrival at the place of occurrence, he prepared injury statement (Exh. P. N) and inquest report (Exh. P. M) of the dead body of the deceased and despatched it to Mianwali for post-mortem examination through Foot Cons--table Mehr Khan (P. W. 3). 8. Dr. Muhammad Aslam (P. W. 1) performed post-mortem examination on the dead body of Muhammad Nawaz deceased on 6th August 1966, at 1-30 a.m. And found the following injuries on his person: - (i) A lacerated gun shot wound of entrance on the pinna of right ear 1/4" x 1/4" directed inwards. (ii) A lacerated gun shot wound of entrance .2" x 2" on the back left buttock. Margins of the wound were ecchymosed and inverted. There was no blackening around it. (iii) Three gun shot wounds of exit on the left side of abdomen 1/4" x 1/4" each. Internal examination revealed fracture of skull bone on the right side and linear fracture of right frontal and the left temporal bones. Brain was lacerated from the left to the right. A lead shot was recovered from the left side of the scalp temporal region. Right side of the- heart was full of blood and the left was empty. Three lead shots were recovered from the left side of the abdominal wall under injury No. 3 peritoneum was ruptured and was full of blood. The bladder was also ruptured. The injuries had beers caused by gun-fire and were sufficient to, cause death in the ordinary course of nature. Death was due to shock and haemorrhage and heart failure. Probable time bet-- ween the injuries and death was instantaneous and between the death and post-mortem examination within 15 to 16 hours. Exh. P. H. Is the post-mortem examination report.
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9. Sub-Inspector Sh. Muhammad Afzal P.W. Inspected the spot on 6th August 1966, and recovered blood-stained earth there from, which he took into possession vide memo. Exh. P. D. He also recovered two empties of '12 bore and after sealing them into a parcel, took them into possession vide memo Exh. P. E. A pallet was recovered by him from the spot, which was taken into possession vide memo. Exh. P. F. 10. The parcels, containing blood-stained earth and the two empties were made over by the Sub- Inspector to Head Constable Alam Sher (P. W. 6) on 7th August 1966. The latte; handed over there parcels to Foot Constable Atta Muhammad (P. W. 5) on 9th August 1966. He sent the aforementioned parcels to the Chemical Examiner and the Director, Forensic Science Laboratory, respectively after obtaining docket from the office of the Superintendant of Police, Mianwali. 11. Ghulam Qadir accused was arrested on 8th August 1966. Ghulam Sarwar accused was arrested from Nowshera on 27th August 1966. He produced licensed gun (Exh. P. 7) along with licence (Exh. P. 4) and bag (Exh. P. 5) containing 12 cartridges (Exh. P.6/1-12). The gun was sealed into a parcel and along with other articles, was taken into possession vide memo. Exh. P. C. 12. Parcel containing the empties, Was received by Mr. Shah Jehan Khan, Fire-Arms Expert (P. W. 22) on 18th August 1966, and the parcel containing-single barrel gun (Exh. P. 7) was received by him on 2nd September 1966. He fired some cartridges from gun (Exh. P. 7) and obtained test empties. He compared them with the crime empties, (Exh. P. W: 22/1 and P .W. 22/2) and came to the conclusion, that both the crime empties had been fired from the aforementioned gun. 13. During the course of investigation, the Sub-Inspector learnt, that Ghulam Sarwar accused had been seen on the fateful day, shortly before the occurrence, going towards his village on a cycle armed with a '12 bore gun. He recovered bicycle (Exh. P. 1) from Ghulam Ahmad (who has not been produced),and took it into possession vide memo. Exh. P. B. 14. When examined after the conclusion of the prosecution case, the accused admitted that a case had been registered against the deceased for outraging the modesty of their sister although they did not admit that she was carrying on with him. Ghulam Qadir accused, while making statement to the Court of committing Magistrate, admitted, that he had fired on Muhammad Nawaz deceased at Mianwali Railway Station and was challaned under section 307, P. P. C. However, before Sessions Judge, he contended that he had not fired at the deceased and had been involved falsely on account of enmity and was acquitted. He further stated, that the deceased was a person of bad character and had many enemies. The contention of both the accused is, that they have been involved on account of enmity. They have denied their guilt. 15. Ghulam Sarwar accused pleaded alibi. He stated that on the day of the alleged occurrence, he was at Nowshera and was not in village Khan Muham-madwala. While admitting, that he had produced his licensed gun before the police on 27th August 1966 along with cartridges, he added: - "My gun sometime is left by me at my home in Chak Khan Muham-madwala and some empties and live cartridges remained there." 16. Ghulam Sarwar accused examined five witnesses in defence to establish his plea of alibi. 17. Ocular evidence has been provided by Ghulam Abbas (P. W. 16), Liaqat Ali (P. W. 17), Ghulam Hussain son of Musa (P.W. 18) and Mst. Alam Khatoon (P. W. 19). Ghulam Abbas and Liaqat Ali P. Ws. Are the sons of the deceased. The latter claims to have been injured during the course of occurrence. Mst. Alam Khatoon is the sister of the deceased. Their evidence has to be considered with good deal of care and caution, not only because they are related to the deceased but also because admittedly, there was acute enmity between the parties. No less a person than Ghulam Abbas, the son of the deceased, deposed: "It is correct, that there was an acute enmity between us and the accused after the murderous assault made by Ghulam Qadir accused on my father about two years ago."
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So far as Ghulam Hussain son of Musa is concerned, the same caution would be necessary in evaluating his testimony because he is proved to be a partisan of the deceased and inimical Vo the accused. It was admitted by Mst. Alam Khatoon, that he was the tenant of the sons of Fateh Khan, real brother of her father. As she is the sister of the deceased, it follows that the aforesaid Ghulam Hussain son of Musa was the tenant of his cousins, Ghulam Hussain himself admitted, that he appeared as defence witness for the deceased, when he was tried under section 376, P. P. C. At the instance of Mst. Mehtab Bibi sister of the accused. The deceased as has been pointed out above was convicted in that case by the trial Court, though he was acquitted in appeal. He also admitted, that he appeared as a witness for the prosecution in the case against Ghulam Qadir accused under section 307, P. P. C., in which Muhammad Nawaz deceased was the complainant. It is abundantly clear, therefore, that Ghulam Hussain son of Musa, like the other witnesses, was deeply interested in the deceased and was inimical to the accused. With the aforesaid observations, we now proceed to examine the plea of alibi of Ghulam Sarwar accused, who without doubt, was employed in M.E.S. At Nowshera. If the aforesaid plea is estab--lished, it will throw doubt on the entire prosecution case and it would then be difficult to maintain the conviction of the appellants. 18. It is prosecution's own version, that Ghulam Sarwar accused arrived from Nowshera in the evening on the day, of occurrence. Evidence in that behalf, has been provided by Police Constable Sultan Khan (P. W. 8) and Atta Muhammad Khan (P. W. 9). The former deposed, that he boarded the train at Daud Khel at about 5-00 p.m. On 5th August 1966 and found Ghulam Sarwar accused sitting in the compartment. He ex--changed greetings with him. He also noticed, that the accused was armed with a .12 bore gun. Both of them alighted at Pai Khel Railway Station and left for their respective places. Booking Clerk Shafi Ullah Khan (P. W. 20) deposed, that the Daily Train Cash Book of Nowshera Railway Station showed, that a third class ticket bearing No. 4369 was sold on 5th August 1966, from Nowshera for Pai Khel. He further deposed, that 48 Down Thal Fast Passenger Train started from Nowshera Railway Station at about 10 or 10-30 a.m. We have it from Atta Muhammad (P. W. 9) that he was in the fields of his daughter at about digerwela on the day of occurrence, near the Civil Rest House of Mochh, when he saw Ghulam Sarwar accused armed with a .12 bore gun and clad in Khaki clothes, going towards his village on a cycle. They exchanged greetings. Besides this witness, we also have the testimony of Ghulam Hussain- son of Saadullah Khan (P. W. 15) a resident of village Khan Muham-madwala, who while going out of the village, at about jhikki digerwela, on the day of occurrence, heard reports of gun-fire and shortly thereafter, found the two accused, armed with guns, going towards the village. On reaching the spot, he saw Muhammad Nawaz deceased lying dead. Ghulam Abbas, Ghulam Hussain son of Musa, Liaqat Ali and Mst. Alum Khatoon were there and told him, that the accused had murdered Muhammad Nawaz deceased and had injured his son Liaqat Ali P. W. 19. Village Mochh falls on the way from Railway Station Pai Khel to village Khan Muhammadwala. It is four miles from Pai Khel and is connected with it by a pacca road: There--after, the path leading to village Khan Muhammadwala, which is about three miles from Mochh, is kacha and sandy. There--fore, Ghulam Sarwar accused, if he had come from Nowshera on the day of occurrence, had to cover a distance of about 7 miles before reaching the place of occurrence, in order to murder the deceased. 20. According to the prosecution version, the occurrence took place at Jhikki digerwela, which would -be roughly between 6-00 p.m. To 6-30 p.m. As the report was recorded by the Sub--- Inspector at the Police Station at about 7-00 p.m., the occur--rence must have taken place before 6-30 p.m., because even if Ghulam Abbas P.W. Left for the police station immediately after the occurrence, which is rather unusual, it would have taken him not less than half an hour to cover a distance of two miles, especially, when he had to travel on foot and the path was kacha and sandy.
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We have, therefore, to see, even if we assume, that the prosecution version about the time of occurrence is correct, whether Ghulam Sarwar accused travelled by 48 Down Thal Fast Passenger and alighted at Pai Khel on the evening of the occurrence. Pakistan Western Railway Time and Fair Table, issued in April 1966, shows that the aforesaid train used to arrive at Pai Kbel at 18-12 hours. Ghulam Sarwar accused has-- examined Abdul Aziz Railway Clerk of the office of the Divisional Superintendent, Railway, who brought with him the Daily Station Report Book of Pai Khel Railway Station, pertaining to 5th August 1966, and deposed therefrom, that the 48 Down Fast Passenger Train reached Pai Khel at 18-12 hours on that day. A reference to the High Court Calendar for the year 1966 shows, that on the day of occurrence, the sun set at Lalture at 6-58 p.m. If we add another five minutes to it, as they probably be its setting time at Khan Muhammadwala, it would come to 7-03 p.m. Thus on that day jhikki digerwela time would be roughly about 6-30 p.m. Under these circumstances, we have to see, whether Ghulam Sarwar, if he travelled by the aforesaid train, could reach the spot at the time of occurrence. In our opinion, he could not have reached there within about 18 minutes, after travelling a distance of about seven miles. It is precisely for this reason, that cycle seems to have been introduced by the investigating officer during the course of investigation. Its introduction appears to be mere padding. Before coming to this question and discussing it in detail, we would like to point out, that Sultan Khan (P. W. 8) who claims to have met Ghulam Sarwar accused in the train on the day of occurrence, is not a truthful person. He has come forward to depose against the accused because he is related to the deceased. He deposed, that Habib Ullah P. W. Was the brother of his wife. He tried to deny, that said Habib Ullah was the nephew of the deceased. He was, however, constrained to admit, that his wife Mst. Izat Khatoon was the daughter of Ghulam Muhammad and the deceased was the real cousin of the said Ghulam Muhammad. Even if he had not admitted his wife's relationship with the deceased, it would have made no difference because Habib Ullah while appearing as P. W. 4, admitted, that the deceased was his uncle. There is another reason, why we decline to accept the testimony of this witness. On his own admission, he accompanied the dead body of Muhammad Nawaz deceased after its post-mortem to village Khan Muhammadwala "and thereafter remained present throughout the rites in connection with the burial of the dead body". He also claimed that he disclosed about his meeting with Ghulam Sarwar accused in the train to all the relatives of the deceased including Ghulam Abbas P. W. In spite of it, he made no such disclosure to the police till 2nd September 1966, when he was examined at Police Station Mochh. When he came to know that Ghulam Sarwar accused was being mentioned as one of the assailants of the deceased there is no reason, why he should not have disclosed to the police forthwith, that he had seen him travelling by 48 Down Fast Passenger and alighting at Railway Station Pai Khel. For the foregoing reasons, we decline to rely upon him. 21. We next come to the statement of Atta Muhammad Khan (P. W. 9) who had seen Ghulam Sarwar accused going towards his village on a cycle near Civil Rest House, Mochh. He is also an interested witness. He is related to the. Deceased. He admitted in cross-examination, that Mst. Miran Khatoon widow of Muhammad Nawaz deceased, was the daughter of Saadullah Khan, brother of his wife Mst. Bakhtawar. The statement made by him at the trial, is in conflict with the state--ment, which he had made before the police. At the trial, he deposed, that he was in the fields of his daughter at about diger--wela, when Ghulam Sarwar accused passed by him. He elabo--rated the statement during cross-examination and deposed, that he had gone there to look after the water melons growing in it so that no damage was done to them. Before the police, he had made a different statement. He was confronted with it. He had stated before the police, that he had gone out of the village to ease himself at digerwela and on his return, saw Ghulam Sarwar accused going on a cycle. He did not abide by this statement and stuck to the statement made by him at the trial, which is to the effect, that he had gone to the field to look after the water melons. In
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view of the conflict in the police statement and the statement made by him at the trial, we hold that he did not see Ghulam Sarwar accused on the day of occurrence. There is yet another reason for which we are not inclined to rely on him. He deposed that after hearing of the murder of Muhammad Nawaz deceased and the arrival of his dead body at the police station, he went there and met Ghulam Abbas complainant and Liaqat Ali, the sons of the deceased. We know, that Ghulam Abbas had gone to the police station to lodge report. In spite of it, he admitted, that he did not disclose to him, nor to the police, at that time, that he had seen the accused going towards his village on a cycle shortly before the time of the occurrence. He claimed, that the police recorded his statement on the second or third day of the occurrence. This is not correct. He was examined by the police on the sixth day of the occurrence i.e. On 11th August 1966. 22. In support of the testimony of Atta Muhammad (P. W. 9), that he had seen Ghulam Sarwar accused going towards his village on a cycle on the day of occurrence, the Police Officer recovered bicycle (Exh. P. 1) from one Ghulam Ahmad on 14th September 1966, and took the same into possession aide memo. Exh. P. B. The recovery was made in the presence of Shahbaz Khan (P. W. 10) and Rab Nawaz Khan (P. W, 11), The recovery appears to us to be fake. Ghulam Ahmad, from whom the bicycle was taken into possession was not examined at the trial and, therefore, we do not know, whether it was his cycle, and was borrowed by Ghulam Sarwar accused, if he did borrow any cycle at all on the day of occurrence. The recovery was made long after the occurrence had taken place, which also indicates, that when the investigating officer found, that Ghulam Sarwar accused, even if, he had detrained at Pai Khel at 6-12 p.m., could not have reached the spot by the time when the occurrence is alleged to have taken place, restored to padding and introduction of the cycle. Be that -as it may, the evidence with regard to the recovery of cycle is of such a nature, that it cannot readily be believed. Shahbaz Khan P. W.. Who is a resident of Wandah Muhammad Yarwala deposed, that he went to the police station in connection with some business, which he could not recollect, about four or five days after the murder of Muhammad Nawaz deceased, when the Sub-Inspector took cycle (Exh. P. 1) from Ghulam Ahmad. It has been pointed out above, that the cycle was taken into possession on 14th September 1966, i.e. About a month and nine days after the occurrence. Thus on the face of it, the statement of Shahbaz Khan P. W. Appears to be totally false. It was suggested to him, that he was related to the deceased. He did not admit this fact. However, he did admit, that he was a Member of the same Union Council, of which Rab Nawaz Khan P. W. Was the Chairman, the latter is a collateral of the deceased. He made a conflicting statement with regard to the relationship. He has stated before the committing Magistrate, with which statement, he was duly confronted, .That the deceased was his collateral in the 4th degree, but at the trial, he deposed, that the deceased was his collateral in the 7th degree. It was suggested to him, that his sister's daughter Mst. Kanizan was the wife of Rab Nawaz Khan P. W., a cousin of the deceased. He denied the suggestion. His denial appears to us to be false. His statement with respect to the matter runs as follows: - "It is incorrect that my sister's daughter is married to one Rab Nawaz, a cousin of the deceased, Mst. Bakhat Bhari is my sister. Mst. Kanizan is her daughter. I do not recollect if the Nikah of Mst. Kanizan has been solemnized with Rab Nawaz P. W., son of Hayat Khan. It is true that Rab Nawaz P. W., is a cousin of the deceased." The manner in which the aforesaid statement was made by him, clearly indicates, that his niece is the wife of a cousin of the deceased. These are the only witnesses, besides the police officer about the recovery of cycle (Exh. P. 1) from Ghulam Ahmad, but for the reasons stated above, we are not inclined to rely on their statements. It is thus clear to us that the version, that Ghulam Sarwar accused was seen going to his village from Pai Khel on a cycle on the day of occurrence, is palpably false.
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23. In support of his plea of alibi, Ghulam Sarwar accused produced Mazhar Ali Toor, Project Engineer, M. E. S., Nowshera Cantt. (D. W. 1), Saliq Hussain Shah M. E. S., Quli Nowshera (D. W. 2), Kishwar Khan M. E. S., Quli Nowshera (D. W. 3), Hassan Gul, Wellman M. E. S., Nowshera (D. W. 4) and Abdul Azizi, Railway Clerk, Office of the Divisional Superintendent, Rawalpindi (D. W. 5). We have already referred the statement of the last mentioned defence witness and need not refer it again. So far the other witnesses are concerned, they have deposed, that Ghulam Sarwar accused was at Nowshera on 5th August 1966. Mazhar Ali Toor deposed, that he was approached by the relative of the aforesaid accused, and after verifying from the necessary documents and entries in the muster roll, he gave them certificate (Exh. D. Q). It runs as under: - "Certified that according to the daily attendance roll main--tained in the office of S. D. O. E./M. (M. E. S.) Nowshera, Mr. Ghulam Sarwar son of Fateh Sher Pipe Fitter was present on duty from Ist August 1966 to 8th August 1966. (Sd). Illegible, XEN, Nowshera. (M. A. Toor) 12-8-66. Sadiq Hussain Shah and Kishwar Khan D. Ws. Deposed, that Ghulam Sarwar accused was on duty on 5th August 1966, from 7-00…
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