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Petitioner: JAGDEV AND 12 Others VS Respondent: THE STATE-
Court Name: Lahore High Court Judge(s): Muhammad Afzal Zullah, Bashir-ud-Din Ahmad Title: JAGDEV AND 12 Others vs THE STATE- Case No.: Criminal Appeal No. 669 and Murder Reference No. III of 1969 Date of Judgment:1971-06-17 Reported As: 1971 P Cr. L J 162 Result: Sentences modified
JUDGMENT
JUDGMENT MUHAMMAD AFZAL ZULLAH, J.-By his judgment, dated 28th May 1969, the learned Sessions Judge, Lyallpur, has convicted (1) Jagdev, aged 60 years, (2) Noor Akbar, aged 22 years, and (3) Mammi, aged 22 years, under section 302/34, P. P. C., for the murders of Sher Muhammad and Malik Khan and sentenced them to death. They together with, the following 12 persons have also been convicted: under sections 148 and 364/149, P. P.'C. For having formed an unlawful assembly and for having abducted the aforesaid to deceased in order to murder them, and sentenced to three years' R. I. Each under the former charge, and transportation for life and a fine of Rs. 1,000 each in default to undergo further R. I. For one year each under the latter charge:- (1) Afzal, aged 20 years; (2) Zulfiqar son of Sohna, aged 32 years; (3) Gulzar, aged 28 years; (4) Shamas, aged 18 years, (5) Riaz, aged 22 years; (6) Ahmad, aged 22 years; (7) Mumtaz, aged 22 years; (8) Sohna, aged 80 years; (9) Sahli, aged 40 years; (10) Maqsood, aged 15 years; (11) Zulfiqar son of Ahmad, aged 29 years; and (12) Muzaffar, aged 21 years. The sentence under sections 148 and 364/149, P. P. C., have been ordered to run concurrently. Though the aforementioned 12 persons were also charged under section 302/109, P. P. C. For the murder of aforesaid Sher Muhammad and Malik Khan but were acquitted of this charge. All the convicts have appealed and the case for the confirmation of sentences of death awarded to Jagdev, Noor Akbar and Mammi is also before us under section 374, Cr. P. C. It may be mentioned here that to of the convicts, namely, Zulfiqar son of Ahmad and Muzaffar, have filed a separate appeal (No. 461 of 1969) while the remaining 13 convicts have filed a joint appeal (No. 669 of 1969). All these matters are being disposed of together.
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2. The facts of the case, which involve several incidents in one continuous transaction, briefly stated are as follows:-- On account of long-standing enmity including blood-feud, the family of Jagdev appellant and that of the to deceased were at loggerheads for about one hundred years. About eight or nine months before the present occurrence, which took place or 31st May 1966 at about kana din the, Anwar son of Jagdev was murdered. Two sons of Sher Muhammad (deceased in the present case), Khan, a cousin of Malik Khan (deceased) and one Lal Khan were challaned it that case. There was a cross- case under section 307, P. P. C., also against the sons of Jagdev. Malik Khan deceased was one of the prosecution witnesses in this cross-case. 21st May 1966 was the date of hearing in these to cases before the Resident Magistrate, Chiniot. Three prosecution witnesses against the present com--plainant party were present, but Jagdev refused to examine them because, as he thought he did not expect justice from the Court and that he would take the revenge himself. The adjourned date in those cases was 31st May 1966 and, as usual, both the parties were to attend; but on that very day the present occurrence took place. It was morning the. A bus No. JG. 724, which was proceeding towards Chiniot, stopped at bus stand Dorehatta. Sher Muhammad and Malik Khan deceased were in that bus. All the 15 appellants, who were variously armed with rifles, guns, ballam and sticks, came out of a garden near the bus stand and encircled the bus. Jagdev, Noor Akbar, Afzal, Muzaffar, Gulzar and Zulfiqar son of Sohna entered the bus, Malik Khan deceased was carrying a gun which was snatched by Gulzar appellant. The to deceased were pulled out of the bus. Mammi and aforesaid Zulfiqar appellants fired shots to threaten the people. The hands of the to deceased were tied down and they were taken to the graveyard of village Dorehatta (hereinafter mentioned as the first graveyard) at a distance of about to acres. This incident was seen by Zulfiqar (P. W. 4), the bus driver Rafi Ullah (P. W. 6) and Muhammad Anwar (P. W. 7): Some other persons also saw the occurrence. They are Dosa, Ghulam, Nazir, Safdar Hussain Shah, Farid and Ismail. They also made some effort to rescue the to deceased but did not succeed. In that effort Isma il was given butt blow by Mammi appellant. None of these persons has been produced as a witness. The explanation is that they have been won over. In the first graveyard, three persons (who have throughout remained unidentified) were present with six mares. The to deceased were made to sit on the mares. Noor Akbar appellant sat behind Sher Muhammad deceased and Jagdev appellant sat behind Malik Khan deceased and the party proceeded towards Adslana. Except Muzaffar son of Sher and Zulfiqar son of Ahmad appellants, the other 13 appellants took the deceased to the graveyard of Thatta Fateh Ali (hereinafter called the second graveyard); at which place Jagdev appellant offered fatiah at the grave of his son Anwar (the deceased in the earlier murder case) and addressing his grave uttered certain words which meant that his murderers had been secured and that they would reach him (Anwar) the same evening. Najabat (P. W. 8) and Sanatta (P. W. 9), who have their dhari near this graveyard, saw this occurrence and pleaded with the culprits not to kill the deceased but they were told to mind their, own business and were directed to go away. According to these witnesses, the thirteen appellants took away the to deceased towards Khandakot. Out of these 13 appellants in ten other than Jagdev, Noor Akbar and Mammi, it appears, dispersed from some, place (after the second graveyard stage); because there is no evidence that after the party left this place, they were seen with the deceased or the aforesaid three appellant. In the meanwhile, Zulfiqar (P. W. 4) who had seen the occurrence at the bus stand, went to Police Station Bhowana which is at a distance of seven miles from Dorehatta and lodged the F. I. R. (Exh, PB) which was recorded by Abdul Qadir, A. S. I. (P. W. 29) at 8 a.m. The occurrence, as it happened at the bus stand, is mentioned in detail in the F. I. R. It contains names of all the appellants and of the witnesses. The name of Rafi Ullah; Bus Driver is not mentioned, but the description of the bus as belonging to New Chiniot Bus Service and the fact that it was coming from Bhowana and going
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towards Chiniot, are mentioned. Apart from the appellants, one more person, namely, Ghulam Muhammad son of Murad, Balooch, resident of Asiwala, is also mentioned as one of the culprits but he not challaned by the police. Abdul Qadir, A. S. I., after recording the F. I. R. Reached the bus stand at 8-30 a.m. He prepared a rough plan of the place of abduction (Exh. PN). Two .12 bore empties and to 303 empties were taken into possession by him from that spot. The Bus No. JG-724 was also taken into possession. Muhammad Masood, S. H. O. (P. W. 30) who was away from the police station received the information about the occurrence at 8-45 a.m. In village Jamima Muhammadi. He reached bus stand Dorehatta at 9-30 a.m. A police party, as noted above, was already present at the bus stand. The Sub-Inspector had a guard of about ten or twelve constables and to A. S. Is. With him. The guard had its own official transport and was in the area in connection with the recovery of illicit arms (cross-examination of P. W. 30), with considerable police force at his disposal, the Sub- Inspector constituted a search party. They first went to Gati Sayedan from where Ghulam Shabir (P. W. 15), Sher (p. W. 16) and Thiraj (P. W. 17) joined this party. It reached Canal Bridge Bookhri at about 1-30 p.m. At bridge Bookhri, Sh. Kabir (P. W. 10) had seen Jagdev, Noor Akbar and Mammi appellants taking away the to deceased on mares. When the police party led by Masood, S. L, reached this place, Kabir P. W. And Sultan (not produced) gave the clue about the culprits and the deceased; whereupon this party proceeded towards another bridge named P.I Bathanwali. In the meanwhile, Muhammad Ali Shah (P. W. 14), Chairman of District Council, Jhang, a friend of the complainant party, having learnt about the occurrence at Rang rushed to the spot on a car and joined the police party. Ghulam Shabir (P. W. 15) is a cousin of Sher deceased. He was on his way to Chiniot in connection with the hearing of the murder ease of son of Jagdev when he learnt about the occurrence. He also rushed towards the spot on a horse-back and having obtained some clue about the deceased and the culprits had joined the search party on the way. When he reached, Sher (P.W.16) and Thiraj (P. W. 17) had already formed a wahr party. This party, as noted earlier, then joined the police party. At P.I Bathanwali, the search party divided itself into three smaller parties in order to scan the surrounding area. Muhammad Ali Shah (P. W. 14) and some police officials constituted one party. Masood, S. I., Thiraj, Sher and Ghulam Shabir P. Ws. And some others constituted the other party and Ghulam Abbas, A. S. I., some police officials and others constituted the third party. Masood, S. I., himself stood at P.I Bathanwali and three parties proceeded in different directions to search the deceased and the culprit. Ghulam Shabir, Sher and Thiraj P.Ws. Saw the three afore--said appellants taking away the deceased near the boundary of Chak Nos. 49 and 50. It is in evidence that Chak No. 49 is also called Bathan. That is why the bridge near it is known as P.I Bathanwali. On seeing Ghulam Shabir and his companions, Sher deceased started crying and having been encouraged by the sight of a near relation, he started grappling with Noor Akbar appellant. Both of them fell down from the mare. Thereupon Noor Akbar having got up fired a shot with his rifle at Sher deceased which hit him on his head and he fell down. Similarly, Malik Khan deceased jumped down from the mare. Jagdev appellant followed him and fired a shot which bit Malik Khan on his head and he fell down. The to mares of Noor Akbar and Jagdev appellants, ran away. Mammi appellant who was still in a riding position bent down and fired a shot at Malik Khan deceased which hit him in the middle. This accused party had only one mare left with them. Mammi rode away. Jagdev and Noor Akbar also ran along. Ghulam Shabir was carrying a licensed gun. He fired three or four shots at the culprits who also fired back. The police party at Bathanwali P.I headed by Masood, S. L, heard these shots. They came towards the murder spot and tried to follow the culprits and fired some shot; at them who fired
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back, when they reached near a clump of trees, the culprits first took shelter behind the trees and there rode away on the one mare then available to them. The police party and the aforesaid three eye-witnesses returned to the spot, which is in the area of Chak No. 50, because as the S. I. Explained he "got apprehensive that the accused might not take away the dead bodies". He prepared the injury statements and the inquest reports of the to deceased. They are Exhs. PR and P. W. 39/B (of Sher deceased) and Exhs. P: S. And P. W. 39/A (of Malik Khan deceased). The dead bodies were sent for post-mortem examination through Manzoor Hussain and Muhammad Sher constables as escorts. Blood--stained earth was taken into possession separately from near the to dead bodies and was sealed into to parcels. The taken from near the dead body of Malik Khan deceased was on chemical examination, found to have been stained with human blood. The blood on the other had disintegrated. Three .303 empties (P. 8 to P. 10) were taken into possession from near the dead bodies, vide memo. (Exh. PG). Three mere .3303 empties (Exh. PG/1-3) were taken into possession from distance of 2 or 2-- Killas from the dead bodies. Ahmad Nawaz son of Sher (deceased) (P, W. 3) was to carry the meals for their party men who were to attend the Court at Chiniot in connection with the pending cases. He left his Chak Pipli Dakhli Thatta Fateh Ali) at about chahwela together with some other persons. One of them (Noor) carried a licensed gun. They were proceeding towards Dorehatta bus stand and were to board a bus for Chiniot. On the way, they learnt about the abduction and also the fact that the deceased had been taken away by the culprits towards Khanda Kot. These persons; went to Khanda Kot where they learnt that the deceased had been taken towards the eastern side. Thereafter, they followed the tracks in Bood (the old river bed). They again got some clue on the way and proceeded towards Gatti Sayedan where they learnt about the direction the culprits had taken. Therefore this party reached Bookhri bridge. At that place they get further clue but that happened to be a false clue and they went astray for about a mile. Having learnt about the mistake, they turned towards Chak No. 49. When they were at about one and a half squares from the canal, they heard the fire shot4. They raced their horses towards, that side, but reached late. Sher Muhammad, the father of the witness (Ahmad Nawari and his maternal uncle Mailk Khan had already been murdered, He was told by Ghulam Shabir, Sher and Thiraj P. Ws. That Jagdev, Noor Akbar and Mammi had committed the murders and further that they had gone towards the western side Ahmad Nawaz took the gun from one of his companions. They went after the culprits. When this party reached the. Bookhri bridge, they saw the three culprits riding on one mare. The parties exchanged fire shots. Ahmad Nawaz explained that although he was within the range of the culprits because --they carried rifles, the latter were not within the range of his gun. Sadiq (P. W. 11) and Khadim Hussain (not produced) advised Ahmad Nawaz to get down from the horse. He, however, continued the chase up to village Chak Mona where he met another search party which. Included Amir (P. W. 12), a maternal uncle of Ahmad Nawaz. On the day of occurrence, Amir P. W. Was at Chiniot Tehsil Office where he had gone to attend the hearing of the pending cases. He learnt about the abduction. Therefore, he, after having gone to Dorehatta bus stand, also like many others went out in search of the culprits. Ahmad Nawaz And Amir P. Ws. Joined together and continued the chase till about to squares away from Chak Mona where the culprits got down from the mare and started firing. The witnesses also fired back. Ultimately finding themselves helpless, to of the culprits Jagdev and Noor Akbar entered a dhari (which later turned out to be 'that of Shaman (P. W. 13), while Mammi rode away. Abdul Qadir, A, S. I. (P. W. 29) who had made some investigation at bus stand Dorehatta, had also gone in search of the culprits and had joined the main police party at Canal --bridge Bookhri. There he got into the car of Muhammad Ali Shah P. W. This party, i. e., of Muhammad Ali Shah, as noted earlier, had separated from the main police party at Bathanwali Put and had gone to the
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next bridge for naka bandi. There they heard some fire shots. When they wanted to take a diversion on katcha road, presumably for encircling the culprits whom, according to Muhammad Ali Shah, they had already seen, the car got stuck in mud. It took them some the to pull it out, but a little after that- they found that a wheel had been punctured. They came back to Bookhri bridge. The wheel was changed. In the meanwhile, Muhammad Yousaf, D. S. P. (P. W. 32) reached thereon a police van. It is in the statement of the D: S. P. That he was going to Police Station, Chiniot in connection with the inspection of the Police Station and also for investigation of some case, when on his way he learnt about this occurrence at Police Station Bhowara. He had a Police van. He want to bus stand Dorehatta and followed the tracks of the culprits. Having found different clues at Adalana, Jaura Bangla, Aminpur, Kot Musa, Asiwala, he went along the canal bank (Jhang Branch) and ultimately reached Bookhri bridge. There he found Muhammad Ali Shah P. W. And the party including Abdul Qadir, A. S. I. P. W. The D. S. P. Sent Gut Akbar, A. S. I., from this place to bring more Police force and he himself, with the party he had earlier joined, proceeded towards the direction in which the culprits bad gone. They went on the car of Muhammad Ali Shah. At some distance they heard the reports of gun fire and then went to the place from where the shots had been fired. It was a roofless dhari of Shamman P. W. According to the statement of the D. S. P. Be challenged Jagdev appellant that either he should face the Police or surrender. The appellant offered to surrender. There--after, Jagdev and Noor Akbar came out of the dhari. They were arrested at that very place. Rifle (Exh. P-15) containing five live cartridges (Exh. P-16/1-5) and a bandolier (Exh. P-17) containing some more cartridges were taken into possession from Jagdev appellant, vide memo. (Exh. P. E). Rifle (Exh. P-11) which contained three live cartridges (Exh. P-13/1-3 and a bandolier (Exh. P-12) with some more cartridges were taken into possession from Noor Akbar appellant, vide memo. (Exh. P. D). Both these appellants were injured. Their injury statements were prepared by the D. S. P. Which are Exhs. P. W. 36/A and P. W. 36/B respectively. Seven empty cartridges were taken into possession from the dhari, vide memo. (Exh. P. C). They are Exh. P-1/1-7. Mammi appellant who, as noted earlier, had escaped was arrested by Masood, S. I. P. W. After about four 'months, on 28th September 1966. He had remained an absconder all this the. Zulfiqar, F. C: (P. W. 27) is the witness with regard. To the warrants of arrest and subsequent search for this appellant, When arrested, he was found in possession of rifle (Exh. P-19) and four live cartridges (Exh. P-20/1-4). They were taken into possession, vide memo. (Exh. P. K). The other appellants were arrested on different dates, but no formal evidence has been recorded with regard to the abscondence. It is in the statement of Malik (P. W. 19 that after the arrest, the Police recovered a gun from Zulfiqar son of Ahmad and a rifle from Muzaffar appellants. Son) more weapons of offence were recovered, but the prosecution has not even attempted to connect them with the remaining appellants. The total number of arms, it is in cross-examina--tion of Shah Jehan Khar3P Ballistic Expert (P. W. 33), .Was seven rifles and four guns. They were available, in Court during the trial and were, shown to the Expert by the learned defence counsel. A reference to them is also found in the judgment of the learned trial Judge. 3. Dr. A. A. Khan (P. W. 2) performed the post-mortem examination on 1st June 1964 at 2-30 p.m. On the dead body of Sher Muhammad aged 45 years, and found the following injury on his person :--- "A bullet entry wound was in left ear. It had punctured the drum and the anterior part of the skull was broken and posterior bones of the eye were broken. The exit wound of this bullet was near the left eye-brew. The inlet wound Was, --" X --" and the exit wound of the bullet was --" x --"." On opening the skull, the left temporal pariestal and occipital and left anterior cranial bones were broken. Other organs were healthy.
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On the same day at 3-30 p.m., the autopsy on the dead body of Malik Khan, aged 40 years, was performed and the following injuries were found:- "(1) A bullet entry wound --" x --" x peritoneum cavity deep on the left side of abdomen just below the last rib. Edges of the wound were inturned and showed blackening of skin all round. A bullet wound of exit --" x --" x peritoneum cavity deep on the right side just below the last ribs, edges gapping and out-turned. (2) A bullet entry wound --" x --" brain deep edges inturned and skin around showing blackening, 2" behind the right ear. There is exit wound of the bullet 1-- x -- x brain cavity deep edges out- turned." On opening the skull, whole of the brain meninges and the brain were blackened, fracturing the right temporal parietal occipital and left occipital bones and the left frontal bone was fractured. The peritoneum was cut at many places. Stomach in both the cases contained only small amount of fluid. Bladers were empty. Death in both the cases was due to excessive shock and internal haemorrhage caused by the injuries noted above which were sufficient in the ordinary course of nature to cause death. The death was instantaneous after the injuries, but the the that elapsed between deaths and the post-mortem examination was about 24 hours. This fits in with the prosecution version. Dr. Fazal Ahmad (P. W. 1) had examined Mammi appellant on 6th October 1966 (the date 10th June 1-966 mentioned in the statement appears to be due to a typing mistake). He found the following injuries on his person :- (1) Oblique scabbed abrasion 1-- " x 1" on the left chest above the mamma. (2) Horizontal abrasion 1--" x --" on the left chest below the mamma. (3) 2 oblique scabbed linear abrasions --" long each, one on the left lower chest and the other on the abdomen. (4) Oblique scabbed abrasion --' x 1/6" x --" outer and below left mamma. (5) 2 oblique scabbed abrasions --" x --" and -- x --" on the back of right elbow. (6) Scabbed and almost healed abrasion --" x 1/6" on the back of right hand. (7) Two scabbed abrasion --" circular and 1/3" x 1/3" on the upper part of left buttock. (8) A scabbed abrasion 1/3" x 1/3" on the left mid back near the mid line. (9) Dark blue contused nail of right middle finger. (10) Almost healed horizontal abrasion --" x 1/10" on the r1ront and distal part of right index finger. (11) Healed scabbed abrasion --" x --" on the outer side of right knee. All the injuries were simple and of about a week's duration. They were caused by blunt weapon. As noted earlier when Jagdev and Noor Akbar appellants were arrested, some injuries were found by the D. S. P. On their persons and their injury statements were prepared. It is noted on the injury statements that they were medically examined by A. M. O., Lalian on 1st June 1966. The medico- legal reports (Nos. 19 and 20) were sent to the police. The doctor has not been examined by the prosecution. Therefore, the medico-legal reports could not be proved. The D. S. P. Gave the following description of the injuries on these to appellants :- --Jagdev. (Exh. P. W. 36/A): (1) An abrasion on the inner side of the left calf, a little above the ankle. (2) An abrasion on the inner side of the left calf above the ankle. (3) An abrasion on the inner side of the right calf. (4) An abrasion on the right calf above the ankle. (5) An abrasion with blood around on the back. (6) An abrasion on the left side of the back. Noor Akbar. (Exh. P. W. 36/B): (1) AR abrasion in front of the right calf above the ankle,
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(2) An abrasion on the inner side of the right calf. 4. At the, trial, all the witnesses of the abduction, the search and the murders, whose names and particulars have been noted in the narrative given above, have fully supported the prosecution case. Some of these witnesses have also made statements with regard to recovery of rifles from Jagdev, Noor Akbar and Mammi appellants and the recovery of crime empties from several spots. But all the recovery memos have not been proved nor, excepting a few, the empty cartridges have been identified as having been recovered from particular spots. Above all, one of the very important witnesses, i. e., Muhammad Baksh, M. H. C., Police Station Chiniot, who kept the parcels in the Malkhana, has not been examined. Therefore, one of the links in so far as the transmission of the weapon, and the crime empties is concerned, is missing. Two Ballistic Experts have appeared. Anwarul Haq Bajwa (P. W. 21) is one of them. He examined the rifle recovered from Mammi appellant and three crime cartridges. The points of identification were inter--mingled. Therefore, he could not give any definite opinion about one of the empties, while the other to, he stated, were not fired from that rifle. Shah Jahan Khan (P. W. 31; examined the to rifles recovered from Jagdev and Noor Akbar and compared them with several crime empties said to have been recovered from various spots. According to him, six of the empties were found to have been fired from the rifle recover--ed from Jagdev appellant. He gave reasons for his opinion. Two of the .12 bore crime empties, according to him, were sired from .12 single-barrelled shot gun; which, it appears from the combined, reading of the statements of the expert and Malik (P. W. 19), was recovered from Zulfiqar son of Ahmad appellant, but there is some confusion about the number of the gun barrel given by these witnesses. As noted earlier, the doctor…
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