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Petitioner: LIAQAT ALI and another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Islam Bhatti Title: LIAQAT ALI and another vs THE STATE Case No.: Criminal Appeal No,360 of 1994 Date of Judgment:1998-04-22 Reported As: PLD 1999 Lahore 56 Result: Appeal accepted
JUDGMENT
JUDGMENT ' On 17-5-1990 at 5-30 p.m. Case F.I.R. No,127 of 1990 was registered at Police Station Saddar Gojra District Toba Tek Singh on the statement of one Ali Ahmad son of Jalal Din resident of Chak No,360/J.B., District Toba Tek Singh in which he claimed that Killa No,11 of Square No,32 belonged to his brother Muhammad Rafiq while Killa No,20 belonged to Amanat Ali and Liaqat Ali sons of Sardar Muhammad and in-between the two, there ran a watercourse. On that date, Muhammad Rafiq had his turn of water at 8-35 p.m. He was, therefore, cleaning silt from the watercourse when at about 4-00 p.m. Amanat Ali aforesaid came there and started demolishing the intervening Watt. He was forbidden from doing so by Muhammad Rafiq and (the latter) also abused him. Amanat Ali also abused him in exchange feeling insulted and added that he would soon teach him a lesson for scolding him. Amanat Ali then left for his Dera. Sometime thereafter, Amanat Ali came there duly armed with a Kassi with his brother Liaqat Ali who was carrying a .12 bore gun. On reaching there, Liaqat Ali asked his brother Amanat Ali to go ahead and demolish the Watt. Liaqat Ali also raised a Lalkara telling Muhammad Rafiq that they had come to teach him a lesson for hurling abuses. Amanat Ali then inflicted a Kassi blow on Muhammad Rafiq hitting him in his left temple. Muhammad Rafiq then inflicted Kassi blows on Amanat Ali hitting his head and right arm. It was then that Liaqat Ali came near Muhammad Rafiq and fired at him hitting the right side of his chest. Muhammad Rafiq fell on the ground and succumbed to his injuries. The complainant added that on the alarm raised by him, Allah Rakha son of Ghulam Rasool and Muhammad Suleman son of Abdul Ghani residents of the village also reached there and witnessed the occurrence. The accused left away raising Lalkaras.
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' The motive for the commission of the offence was (the same as stated above i,e,) that Amanat Ali wanted to demolish the intervening Watt and on his being forbidden by Muhammad Rafiq and exchange of hot words between them, both the accused in furtherance of their common intention came there and did away with Muhammad Rafiq. 2. One Muhammad Siddique son of Ghulam Rasool, resident of Chak No,315/J.B. Also lodged an F.I.R. No,129 of 1990 in respect of the same occurrence at Police Station Saddar, Gojra on 18-5-1990 at 9- 15 a.m. With a different version according to which the watercourse was being cleaned by Muhammad Nawaz and Ghulam Mustafa sons of Muhammad Rafiq and in doing so they were demolishing the intervening Watt of Killas No,11 and 20 and on being checked by Amanat Ali, they both attacked him with Kassis and seriously injured him. A case under section 307/34, P.P.C. Was, therefore, registered against both of them on the basis of this report. 3. After the completion of investigation in both these cases, challans were submitted against the respective accused. The case under section 302/34, P.P.C. Ended in conviction of both Liaqat Ali and Amanat Ali under section 304/34, P.P.C. While the cross case of attempt to murder ended in acquittal of the accused therein from the Court of Magistrate Section 30, Gojra. The acquittal of Muhammad Nawaz and Ghulam Mustafa was challenged in Sessions Court and on the rejection of their revision petition, Muhammad Siddique filed Criminal Miscellaneous No,25-Q of 1993 for the quashment of the judgments of the two Courts below. Liaqat Ali and Amanat Ali challenged their conviction and sentences by bringing an appeal (Cr.A. No,927 of 1991) while Ali Ahmad complainant also came up to the High Court in Criminal Revision No,204 of 1992 for the enhancement of their sentences. All these matters were taken up together by this Court. It was observed that neither the Additional Sessions Judge who tried the murder case nor the Magistrate Section 30 who tried the case of attempt to murder nor the counsel for the parties made any effort to move to get the two cases tried by one and the same Court and the result was that there were some contradictory or conflicting findings/observations. The appeal of Liaqat Ali and Amanat Ali was, therefore, accepted, their conviction and sentences set aside and it was directed that they be retried for the murder of Muhammad Rafiq. Likewise, the quashment petition was also accepted and retrial of Muhammad Nawaz and Ghulam Mustafa was ordered. It was directed further that both the cases would be tried as cross-cases. 4. Accordingly Liaqat Ali and Amanat Ali faced trial under section 302/34, P.P.C. In Sessions Case No,12/7 of 1990 while Muhammad Nawaz and Ghulam Mustafa faced trial in Case No,13/7 of 1994 in the Court of Mr. Muhammad Khalil Chaudhry, Sessions Judge, Toba Tek Singh. Consequently, Muhammad Nawaz and Ghulam Mustafa were both acquitted having been given the benefit of doubt while Liaqat Ali and Amanat Ali were found guilty and were both convicted under section 302/34, P.P.C. And sentenced to suffer imprisonment for life and also to pay a f ne of Rs,20,000 each and in case of non-payment of fine, to undergo further R.I. For two years each. Both of them were also directed to pay compensation of Rs,20,000 each under section 544-A, Cr.P.C. To the legal heirs of Muhammad Rafiq deceased and in case of non-payment of compensation, to further undergo 6 months' S.I. Each. Both the accused were held entitled to the benefit of section 382-B, Cr.P.C. Judgments in both these cases were delivered simultaneously on 31-5-1994. 5. Liaqat Ali and Amanat Ali have come up in appeal against their conviction and sentences. Muhammad Siddique also filed Criminal Revision No,541 of 1994 against the acquittal of Muhammad Nawaz and Ghulam Mustafa. This criminal revision was, however, dismissed as withdrawn by this Court on 5-11-1997. 6. In order to establish the guilt of Liaqat Ali and his brother Amanat Ali accused-appellants, the prosecution produced as many as nine witnesses, namely, Muhammad Hussain Patwari, P.W.1., Ikram-ul-Haq No,550/C, P.W.2, Muhammad Ashraf P.W.3, Latif Ahmad Head Constable No,318 P.W.4, Dr. Saeed Ahmad, Medical Officer P.W.5, Ali Ahmad complainant P.W.6, Muhammad Suleman
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P.W.7,lam Rasool P.W.8 and Saadullah Khan Inspector/Investigating Officer P.W.9. Muhammad Hussain Patwari had prepared the site plans Exh.P.A. And Exh.PA/1 on 19-6-1990. In his cross- examination he deposed that the demarcation of the disputed piece of land had taken place on the spot in his presence on 25-7-1990 and according to this demarcation one Karam of disputed land was proved as the ownership of the accused. Ikram-ul-Haq P.W.2 had on 5-6-1990 while posted at Police Station Saddar Gojra received a sealed parcel of blood-stained earth from Latif Ahmad Moharrir-Head constable P.W.4 which he had delivered at the office of Chemical Examiner, Lahore intact. Earlier on 18-5-1990 it was he who had escorted the dead body of the deceased from the spot to the mortuary and had brought back a plastic phial P-1 containing pellets and last worn clothes of the deceased shirt P-3 and Chadder P-4 which the doctor had handed over to him and produced before Saadullah Khan, S.H.O. Who took them into possession vide memo. Exh.PB. Muhammad Ashraf P.W.3 had on 18-5-1990 identified the dead body of Muhammad Rafique deceased in the hospital. It was with Latif Ahmad P.W.4 that Saadullah Khan Inspector deposited the sealed parcels pertaining to this case for safe custody, out of which the sealed parcel containing blood-stained earth was handed over by him to Ikram-ul-Haq P.W.2 on 5-6-1990. Ghulam Rasool P.W.8 had joined the police investigation and it was in his presence that Liaqat Ali accused produced his licensed gun P.4, four cartridges P.5/1-4 and licence P-6 before the Police which were taken into possession vide memo. Exh.PH. Saadullah Khan P.W.9 had on 17-5-1990 while posted at Police Station Saddar Gojra recorded the statement of Ali Ahmad complainant Exh.PF. He then proceeded to the spot and prepared the injury statement Exh.PE and inquest report Exh.PD. He handed over the dead body to Ikram ul Haq P.W.2 for carrying the same to the mortuary and after inspecting the spot took into his possession blood-stained earth which was made into a sealed parcel vide memo. Exh.PG. He prepared rough site plan Exh.PJ and then recorded the statements of P.Ws. Under section 161, Cr.P.C. On coming to know that Amanat Ali accused was also injured and admitted in Civil Hospital, Gojra, he reached there and moved an application Exh.PK before the doctor in order to enquire whether he was fit to make a statement or not. He arrested Liaqat Ali accused on 1-6-1990 and took into his possession his licensed gun P-4, licence P-6 and cartridges P-5/1 to 4 vide memo. Exh.PH which were produced before him by the said accused. He, arrested Amanat Ali accused on 7-7-1990 and after the completion of the investigation he challaned the accused. 7. It was Dr. Saeed Ahmad, Medical Officer P.W.5 who on 18-5-1990 while posted as Medical Officer, Civil Hospital, Gojra conducted the post-mortem examination on the dead body of Muhammad Rafiq deceased brought by Ikram ul Haq, identified by Muhammad Ashraf and found the following injuries on his person:-- (1) An incised wound of 8 c.m. x 1-1/2 c.m. x cutting up to the bone of left temple longitudinally while cutting the left temporal and zygomatic bones. (2) A fire-arm wound of entry 2.5 c.m. x 2 c.m. x cavity deep having blackening around the wound with corresponding hole and blackening on the Qameez on right side and front of the chest in 3rd I/C space (shown on the papers, diagramatically). (3) A fire-arm wound of exit 1 x 1.25 c.m. Leading to the chest cavity on left side and back of the chest which was 11 c.m. From mid-line in 9th I/C space. (4) A bruise 7 x 2 c.m. On right illiac crest. ' On dissection he found that injury No,1 had cut the zygomatic as well as temporal bones on left side. This injury was, therefore, declared grievous and anti-mortem. Injury No,1 had got its continuation with injury No,3. Card wad and four pellets were recovered from the chest and upper abdomen. The direction of infliction seemed to be right to left and downwards. Liver, small intestines, right lung were punctured and damaged. In his opinion the cause of death was shock and haemorrhage due to injury No,1 and 2 collectively and injury No,2 individually as well. Both
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these injuries were declared grievous and ante-mortem. Injury No,2 itself was sufficient to cause death in ordinary course of business. It was inflicted by a fire-arm weapon while injury No,1 had been caused by a sharp heavy cutting weapon and injury No,4 by a blunt weapon. Injury No,3 was the exit wound. The time that elapsed between injuries and death was immediate while the time between death and post-mortem examination was 12 to 18 hours. He signed the cut lines of the diagrams Exh.PC/1, Exh.PC/2, police inquest report Exh.PD and injury statement Exh.PE and then handed over the post-mortem report Exh.PC along with dead body and last worn clothes of the deceased and all the relevant papers with a seald vial to Ikram ul Haq, F.C. 8. On 17-5-1990 he also medically examined Amanat Ali brought to the hospital by Abdul Sattar and found the following injuries on his person:-- (1) An incised wound of (heavy cutting) 11 c.m. x 2 c.m. Into bone deep on the top of the head slightly to the left and longitudinally situated. ' The bones underneath the injury were cut with a gap of 1/2 c.m. On frontal half and brain matter was visible through the wound. (2) An incised wound of 4 c.m. x 1/2 c.m. On right posterior corner of top of the head. This wound was also bone deep. (3) An incised wound 8 c.m. x 2 c.m. x muscle deep on upper 1/3 of right fore-arm on the outerside. (4) An incised wound of 10 c.m. x 2 c.m. Peeling the skin off and cutting the underneath bone while cutting the muscles of thumb and adjacent part of right hand on the dorsal side. ' He then gave a note that the patient was serious in clinical stage. Information was, therefore, immediately sent to the police. Injury No,3 was simple while injury No,4 was grievous. According to him injuries No,1 and 2 might have been proved dangerous to life. He examined Amanat Ali within six to 12 hours after the infliction of the injuries. Exh.D.A. Is the attested photo stat copy of his original medico-legal certificate. In cross-examination he added further that Rafique deceased could not keep standing after injury No,1 and would not make an assault after this injury. 9. Ali Ahmad P.W.6 and Muhammad Suleman P.W.7 appeared as the eye-witnesses of the occurrence. According to Ali Ahmad, Muhammad Rafique deceased was his younger brother. He also knew both the accused/appellants who are real brother. About four years back his brother Muhammad Rafique was cleaning silt from the watercourse at 4-00 p.m. In Killa No,11 of Square No,32 because he had to take his turn of water at 8-35 p.m. On that day. Rafique was the owner of killa No,11. Amanat Ali accused came there with a Kassi in his hand and started demolishing the intervening Watt of Killa Nos.11 and 20. Rafique deceased asked him not to demolish the Watt and also abused Amanat Ali which annoyed Amanat Ali who threatened Rafique to teach him a lesson and then left for his Dera. A short while thereafter Amanat Ali armed with Kassi and Liaqat Ali armed with a .12 bore gun came there. Liaqat Ali raised a Lalkara that they had come to teach Rafique a lesson because he had abused Amanat Ali. Amanat All then inflicted a Kassi blow on the left side of head of Rafique deceased. Rafique deceased also caused Kassi blows on the person of Amanat Ali accused which landed on the right side of his head as well as on the thumb of right hand and right arm. Liaqat Ali accused then fired with his gun hitting the right side of chest of Rafique deceased. The deceased fell down and expired. The accused decamped with their weapons raising Lalkaras towards the village side. The occurrence was witnessed by Suleman and Allah Rakha P.Ws. Besides him. He left him (did not explain if he left Suleman or Allah Rakha or both) to guard the dead body and himself started for the police station in order to report the matter. He made statement Exh.PF before the police which was read over to him and in token of its correctness he signed the same. He added that he did not know as to why his brother Rafique was done to death by the accused. 10. His version was corroborated by Muhammad Suleman P.W.7. According to Muhammad Suleman his father also owned land in Square No,32 and, as such, he was present in the said square at about 4-00/4-30 p.m. At that time Muhammad Rafiq deceased was cleaning silt from watercourse
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in Killa No,11 of Square No,32. At that moment Amanat Ali started demolishing the Watt between Killa No,11 and Killa No,20 with a Kassi. Rafique deceased forbade Amanat Ali from doing so. Amanat Ali did not stop whereupon Rafique abused him. Amanat Ali left for his Dera threatening Rafique of the consequences of the abuses. Soon Amanat Ali armed with a Kassi along with his brother Liaqat Ali armed with .12 bore gun returned to the scene of occurrence. Liaqat Ali asked his brother Amanat Ali to teach a lesson to Rafique deceased and to demolish the Watt. On this Amanat Ali stepped forward and gave a Kassi blow to Muhammad Rafique which landed on the left side of his head. Rafique also gave a Kassi blow to Amanat Ali hitting on his right thumb, right side of head and right arm. Upon this Liaqat Ali came forward and shot at Muhammad Rafique deceased which hit him on the right side of his chest. Rafique deceased fell down and expired. Besides him the occurrence was witnessed by Ali Ahmad and Allah Rakha P.Ws. The accused left the site along with their weapons raising Lalkaras. Ali Ahmad left this witness and Allah Rakha P.W. To keep guard over the dead body while he left for the police station to get a case registered. 11. The learned A.D.A. Who conducted the case on behalf of the prosecution gave up Allah Rakha and Azam Ali P.Ws. As unnecessary and after tendering the report of the Chemical Examiner Exh. PL and that of the Serologist Exh.PM closed the prosecution case. It was thereafter that both the accused were examined under section 342, Cr.P.C. Both of them turned down all the suggestions arising out of the prosecution evidence with regard to the main occurrence. In reply to the question that on 1-6-1990 he had produced gun P-4, cartridges P-5/1 to 4 along with its before the Investigating Officer Liaqat Ali stated that he had appeared before the Investigating Officer on 18- 5-1990 and it was on that date that he produced the abovementioned articles which belonged to him. In reply to another question that the occurrence was witnessed y P.Ws. Ali Ahmad, Suleman and Allah Rakha he stated that he was not present at the time of occurrence but had come to know subsequently that Ali Ahmad, Suleman and Allah Rakha were not present at the spot at the time of the occurrence; rather Ghulam Mustafa and Muhammad Nawaz sons of Muhammad Rafique deceased were present at the spot at the time of occurrence. He aintained that he had been maliciously and falsely implicated in this case due to dispute over the land and being a brother of Amanat Ali accused. He, however, did not like to produce any defence evidence or to appear as his own itness. Amanat Ali accused also maintained that none of the P.Ws. Namely Ali Ahmad, Suleman and Allah Rakha were present at the scene of occurrence and rather it were Ghulam Mustafa and Muhammad Nawaz who were present at the spot at the time of occurrence. In reply to the question as to why this case against him and why the P.Ws. Deposed against him he claimed as under:-- "Killa No,11 of Square No,32 is owned by Muhammad Rafique and adjoining Killa No,20 belongs to my father. Muhammad Rafiq had encroached upon one Karam of land of Killa No,20 into his Killa No,11. Ultimately by demarcation my contention was proved correct. On the day of occurrence I was correcting the intervening Watt with Kassi and at that time Muhammad Rafiq deceased with Kassi and his sons Mustafa and Nawaz armed with Carbine and Takwa came to the spot and restrained me from correcting the Watt. On my refusal they attacked me with their respective weapons. During grappling son of deceased Muhammad Rafiq fired a carbine shot which accidentally hit Muhammad Rafiq. The accused gave me four fatal blows on my person with Kassi. I became unconscious and fell down. As Muhammad Rafiq had died therefore, I and my brother Liaqat my co-accused were falsely implicated. During the investigation our version was found correct and sons of Muhammad Rafiq deceased Ghulam Mustafa and Muhammad Nawaz were challaned under section 307 read with 34, P.P.C. Liaqat Ali co-accused was not present at the spot and the P.Ws. Have falsely deposed being doge relatives of the deceased." ' In reply to the question as to whether he wanted to say anything else, he maintained that he was innocent and that in fact Muhammad Nawaz and Ghulam Mustafa -'ere guilty. He also did only like
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to produce any evidence in defence or to appear as his own witness. 12. After considering this evidence and hearing the learned A.D.A. And the learned counsel for the accused, the learned Sessions Judge found the eyewitnesses' account convincing. He also held that the F.I.R. Was lodged promptly without any consultation and deliberation and although it was not a substantive piece of evidence yet could be considered as corroborative piece of evidence under the facts and circumstances of the case. He held further that the motive, if any, set up by the prosecution stood fully proved on record. He observed that the prosecution evidence and the defence version placed in juxtaposition led him to conclude that the defence version was not at all believable. He turned down the arguments advanced on behalf of the accused that Rafiq while injured was not at all believable. He turned down the arguments advanced on behalf of the accused that Rafiq while injured was not in a position to inflict injuries on Amanat Ali accused/convict, by observing that it was usually seen that an injured person would feel seriousness of the injuries and the severe pain after some time of receiving the injuries and not at that very moment when he received the injuries and that, as such, no adverse inference could be drawn from the opinion of the doctor that the deceased was not in a position to make assault on Amanat Ali accused after receipt of injury No,1 on his head. Similarly he did not believe that after receiving serious injuries two of which were grievous and two declared dangerous to life, Amanat Ali was not in a position to decamp from the scene of occurrence. 13. I have heard the learned counsel for the appellants and the learned State Counsel at a considerable length and have also very carefully gone through the record with their assistance. It is the claim of both the eye-witnesses Ali Ahmad and Muhammad Suleman who were respectively a real elder brother and a real nephew of Muhammad Rafiq deceased that Muhammad Rafiq deceased was cleaning the silt from the watercourse in Killa No,11 of Square No,32, when Amanat Ali accused came there and started demolishing the Watt in-between Killa No,11 and Killa No,20 with a Kassi on which Rafiq deceased asked him not to demolish the Watt and also abused him for doing so which annoyed Amanat Ali and the latter threatened Rafiq to teach him a lesson and then left for his Dera. Exh.PH is the site plan prepared by the Investigating Officer on 17-5-1990 showing the points (1) where the occurrence had taken place; (2) where Ali Ahmad was present at the time of occurrence; (3) where Muhammad Suleman was then present and (4) where Allah Rakha was present and had seen the occurrence. The very assertion that Ali Ahmad and Suleman had seen Amanat Ali demolishing the Watt and had heard Rafiq deceased admonishing him and abusing him which annoyed Amanat Ali who after hurling a threat left for his Dera, clearly indicates that all the three of them were allegedly available nearby. According to this site inspection note Exh.PH and also according to the site plans Exh.PA and Exh.PA/1 prepared by the Patwari on the pointation of the P.Ws. Ali Ahmad was at a distance of 5 Karams while Muhammad Suleman was only 12 Karmas away from the scene of occurrence. If this be believed and if they had heard Amanat Ali threatening Muhammad Rafiq an aged person of 60 years it would have been just but natural for a real elder brother and a nephew to come to the rescue of Muhammad Rafiq is not to repel prospective attack. They, however, neither claimed to have thought of it nor did they in fact come to his rescue. In fact both of them have not been able to justify their presence near the scene of occurrence. On being cross-examined Ali Ahmad deposed that the land situated in Square No,32 was jointly owned by him, the deceased and their other brothers' land had not even been partitioned but was exclusively cultivated by Muhammad Rafiq deceased and he did not cultivate any land due to old age. He was 64 years of age on 9-5-1994 as per his own showing, while the age of Rafiq in his post-mortem report Exh.PC, which was conducted by the Doctor on 18-5-1990, was 60 years. It follows that at the time of occurrence Rafiq was also a fairly old person and there is, as such, no force in the claim of Ali Ahmad that he did not cultivate the land personally due to old age. Be that as it may, the conduct displayed by him and his nephew who was hardly 26 years at the
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time of occurrence (because he was 30 years on 9-5-1995, on which date, he was examined) was most unnatural. It is also pertinent to note that the prosecution. Did not consider it worthwhile to produce the only independent witness namely Allah Rakha, who had also allegedly seen the occurrence and I find considerable force in the contention of the learned counsel for the appellants that had he been produced, he would not have supported the prosecution version and would have come out with the truth. It has nowhere been claimed by the prosecution that he was won over; on the other hand he was given up as unnecessary. I fail to understand as to how the prosecution considered the only witness who could be termed as independent and disinterested reliable witness as unnecessary. The only inference which can be drawn is that the prosecution from the very beginning intended to suppress the truth and come out with their own perjured version of the occurrence and I doubt that All Ahmad…
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