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Petitioner: MAHMOOD Alias SULTAN MAHMOOD VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Raja Afrasiab Khan, Muhammad Rafique Tarar, Akhtar Hassan Title: MAHMOOD Alias SULTAN MAHMOOD vs THE STATE Case No.: Criminal Appeals Nos.163 and 164 of 1983 Date of Judgment:1989-05-10 Reported As: 1989 MLD 4827 Result: Order accordingly
JUDGMENT
JUDGMENT MUHAMMAD RAFIQ TARAR, J--The F.I.R. Version of the occurrence is that on 16th July, 1979 at 3.15 p.m. Two guests of acquitted accused Nur Hussain Shah came to Basti Langriyal. Allah Diwaya deceased and Ahmad Bakhsh PW slapped them and asked them why they had visited the Basti for 'badmashi'. Both of them complained to Nur Hussain Shah that his co-villagers had insulted them. On 18th July, 1979 at about evening time accused persons Mahmud, Jan Muhammad, Ata Muhammad (murdered during the trial), and Qutab Din came in the Chowk of the Basti where Muhammad Amin, Faiz Bakhsh and Muhammad Rafiq, P.Ws were already present. Aforesaid Ata Muhammad and Jan Muhammad accused held Allah Diwaya deceased by his arms while Mahmud took out a knife and plunged it into his chest. On receiving the injury, Allah Diwaya fell down. At that time Qutab Din accused and Ahmad Bakhsh PW were grappling with each other. After causing injury to Allah Diwaya deceased, Mahmud accused gave a knife blow to Ahmad Bakhsh hitting his abdomen and he too fell down. Muhammad Amin PW, Faiz Bakhsh and Muhammad Rafiq saw the occurrence. Allah Diwaya and Ahmad Bakhsh injured were being taken to Nishtar Hospital in a richkshaw by Nur Muhammad complainant and Faiz Bakhsh PW (not produced), but Allah Diwaya expired on the way. His dead body was brought back while Ahmad Bakhsh was taken to the hospital by Faiz Bakhsh PW. Thereafter, Nur Muhammad complainant went to police station Mumtazabad and reported the occurrence to Muhammad Yusuaf Sub-Inspector at 11.05 p.m. Vide F.I.R. Ex.PF. In the F.I.R. It was also stated that the occurrence had taken place at the instance of Nur Hussain Shah accused. 2. After recording the F.I.R, Muhammad Yusuaf Sub-Inspector reached the spot. He prepared injury statement (Ex. PL) and inquest report (Ex.PM) of the dead body and despatched it to the mortuary
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for post-mortem examination. On 19th July, 1979 he secured some blood-stained earth from the spot and made it into a sealed parcel vide memo Ex.PG. On the same day Mahmud accused appeared before him wearing blood-stained shirt (Ex.Pl). The Sub-Inspector removed the shirt from his person and took it into his possession vide memo Ex.PH. He also produced blood-stained knife (Ex.P2) before the Sub-Inspector which was taken into possession vide memo. Ex.PJ. The shirt and the knife were made into separate sealed parcels. The Sub-Inspector arrested Ata Muhammad and Qutab Dm accused on the same day, i.e.19th July, 1979, and Jan Muhammad accused on 20th July, 1979. On 20th July, 1979 he made an application (Ex.PB) for getting Mahmud accused medically examined. After the investigation, the accused persons were challaned. 3. On 19th July. 1979 Dr. Munawar Tahir Hussain conducted the autopsy on the dead body of Allah Diwaya-deceased and found a stabbed wound 2 cm x 1 cm x chest cavity deep on the left side of front of chest, 4 cm medial to the left nipple and 5 cm outer to mid sternal line. The injury had penetrated the left ventricle on the left side of apex of the heart and through the left ventricle it had reached to the right side of the apex. The branches of anterior and posterior coronary arteries had been injured. In the opinion of the doctor, death was due to shock and haemorrhage resulting from the above injury which was sufficient to cause death in the ordinary course of nature. On 18th July, 1979 Dr. Abdul Aziz Shah, CMO, Nishtar Hospital, Multan examined Ahmad Bakhsh PW and found an incised wound 1" x 1/2" in left lumber region, two inches above the iliac bone of hip with 1-1/2" omentum outside. The injury was grievous, caused by a sharp-edged weapon. On 20th July, 1979 Dr. Allah Nawaz examined Muhammad accused and found a septic incised wound between right thumb and index finger. The injury was simple, caused by a sharp-edged weapon. Ex.PB/1 is the medico-legal report on application Ex. PB. 4. Mahamud, Qutab Din and Jan Muhammad accused were tried by the learned Additional Sessions Judge, Multan, under sections 302 and 307/34 PPC and their co-accused Nur Hussain was tried under sections 302 and 307/109, PPC. Vide judgment dated 30th June, 1983. He acquitted Qutab Din, Jan Muhammad and Nur Hussain, but convicted Mahmud accused under sections 302 and 307, PPC. Under section 302, PPC he sentenced him to death subject to confirmation by this Court and a fine of Rs. 5,000 or in default in the payment thereof to suffer rigorous imprisonment for three years. Under section 307, PPC he sentenced him to rigorous imprisonment for three years and a fine of Rs. 1,000 or in default in the payment of fine to suffer further R.I. For six months. Out of the fine, if recovered, a sum of Rs. 3,000 was ordered to be paid to the heirs of the deceased as compensation. 5. The convict challenged his conviction and sentence through this appeal and the learned Additional Sessions Judge submitted a reference under section 374, Cr.P.C. To this Court for confirmation of his death sentence. Both the matters were heard by a learned Division Bench consisting of my brothers Akhtar Hassan and Raja Afrasiab Khan, JJ. Mr. Justice Akhtar Hassan took the view that the motive alleged by the prosecution stood proved and the "desperado character of the deceased though remains considerably proved inasmuch as he was involved in a number of cases of violence, yet keeping in view the time and venue of occurrence there was little reason to doubt the prosecution case. "The learned Judge was of the view that there was no merit in the appeal nor any reason to alter the sentence because the injury caused on the chest destroyed almost all the vital organs of the deceased. Mr. Justice Raja Afrasiab Khan observed that the presence of the appellant at the spot was established by ocular account, the appellant gave only one blow to the deceased and one to Ahmad Bakhsh PW and did not act in a cruel manner, therefore, he was guilty under section 304 (Part I) of the Pakistan Penal Code. He, therefore, altered his conviction from section 302, PPC to section 304 (Part I), PPC and sentenced him to rigorous imprisonment for ten years and a line of Rs. 5,000 or in default in the payment thereof to undergo further R.I. For two years.
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6. In view of the difference of opinion between the learned Judges, the case was referred to me. 7. In support of its case the prosecution examined three eye-witnesses, namely, Nur Muhammad complainant, Muhammad Amin and Ahmad Bakhsh. It also relied on the evidence relating to motive and recovery. 8. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. When asked why this case against him, he made the following statement:-- "Few days before the occurrence, Allah Dewaya deceased, Ahmed Bakhsh P.W. And myself were present near the shop of Sufi Noor Muhammad. Two unknown scooter riders came there. My cycle was with me. The scooter struck with my cycle and damaged it. Hot words followed and Allah Dewaya, Ahmad Bakhsh and myself gave slaps to scooter riders. One day prior to the occurrence, Allah Dewaya deceased, Ahmad Bakhsh PW and myself arranged for the distribution of food as charity. We collected funds from the locality and cooked two Daigs of Pullaow, and distributed the same to seek the mercy of Allah, as conditions of drought were prevailing during those days, in the Ilaqa. Allah Dewaya deceased and Ahmad Bakhsh P.W. Were desperate persons of the locality. Many criminal cases stood registered against them. Allah Dewaya deceased always remained armed with a `Lore'. By temperament he was law breaker. The night of occurrence was dark. The village was enveloped in darkness due to the breakdown of the electricity. Ata Muhammad co- accused since murdered, passed by Allah Dewaya and Ahmad Bakhsh, unfortunately Ata Muhammad gave out a loud cough (Khangoora), which infuriated them and they attacked Ata Muhammad. Allah Dewaya was armed with a `Lore' and he tightened his grip. Fearing death, Ata Muhammad snatched `Lore' from Allah Dewaya and gave injury each to Allah Dewaya and Ahmad Bakhsh, with that Lore. Nobody witnessed. The occurrence. Allah Dewaya died at the spot and Ahmad Bakhsh P.W. Remained unconscious till 21st July, 1979 when Investigating Officer recorded his statement. Main feature of the occurrence remained shrouded in mystery as there was nobody to narrate the story. According to the evidence of the I.O., I.O. Went to the hospital, only on 19th July, 1979 to record the statement of Ahmad Bakhsh but he was unconscious. The I.O. Did not visit the hospital on 20th July, 1979 and even on 21st July, 1979 I.O. Did not obtain the opinion of the doctor, as to whether Ahmad Bakhsh was fit to make the statement. After the occurrence, Ata Muhammad came to his house and narrated the occurrence. Persons belonging to the Jhabail castes assembled and gave the occurrence a sharp-twist and made it a case question, against (Awan) of the locality by voicing, that Awans had killed Allah Dewaya and injured Ahmad Bakhsh. I belonging to Awan case and due to that reason, I was falsely roped into the present case by the leaders of the Jhabail case. They colluded with the noble family and after preliminary investigation and deliberation, fabricated the present story which is contained in the F.I.R. Due to tribal sentiment and insistence of the people belonging to Jhabail case, Ahmad Bakhsh, P.W. Was persuaded to support the F.I.R. He brutally ignored his friendship with me simply to support the version concocted with the leaders of the Jhabail community. Ata Muhammad co-accused was released on bail in the instant case and he was murdered by Ahmad Bakhsh P.W. And others, after 2-3 days of the release. A case under sections 302, 148, 149, P.P.C. Was registered against Ahmad Bakhsh P.W. And others. They are facing trial in the Court of Malik Shahbaz, Additional Sessions Judge, Multan(sic)." He examined Iqbal Hussain, Muharrir Head Constable, as his defence witness. This witness appeared with the F.I.R. Register pertaining to the year 1980 and stated that F.I.R Ex.DG prepared by him was the correct copy of the original. 9. Learned counsel for the appellant contended that the occurrence took place in the dark hours of night when identification of the assailant was not possible, therefore, the appellant is entitled to acquittal. In the alternative, he submitted that the facts and circumstances were consistent with the assumption that there was no premeditation and the occurrence took place in the heat of the moment, in which the appellant gave only one blow each to the deceased and Ahmad Bakhsh PW,
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therefore, Exception 4 of Section 300, Pakistan Penal Code is attracted. The learned State counsel, however, supported the judgment of the learned trial Court. 10. At the trial Nur Muhammad complainant (PW.9), Muhammad Amin (PW.10) and Ahmad Bakhsh (PW.11) supported the prosecution version as detailed in the earlier portion. Of this judgment. Nur Muhammad complainant is the brother of the deceased. Muhammad Amin is the father-in-law of Ramzan PW (not produced) a cousin of the deceased. Ahmad Bakhsh PW is the brother of the husband of the sister of the deceased. Faiz Bakhsh and Muhammad Rafiq, who were also named as eye-witnesses in the F.I.R., were given up as unnecessary. Ahmad Bakhsh PW had the stamp of injury on his person and his presence at the spot is not open to any doubt. Nur Muhammad complainant and Muhammad Amin PW claimed to have seen the occurrence when they were present at the shop of Sufi Nur Muhammad. In examination-in-chief Nur Muhammad complainant stated that he was present at the shop of Nur Muhammad when Mahmud (appellant) armed with a knife came there alongwith his co-accused Ata Muhammad (since dead), Jan Muhammad and Qutab Din. Ata Muhammad and Jan Muhammad caught hold of the arms of Allah Dewaya deceased while Mahmud appellant gave him a knife blow in the chest and thereafter another blow in the abdomen of Ahmad Bakhsh. He asserted having stated in the F.I.R. That at the relevant time he was present at the shop of Nur Muhammad. He was confronted with the F.I.R. Wherein it was not so recorded. In examination-in-chief Muhammad Amin PW also stated that Nur Muhammad complainant was present at the shop of Sufi Nur Muhammad. He was also confronted with his statement, EX. DD, wherein it was not so recorded. When further cross-examined, he stated that he was sitting at the shop of Sufi Nur Muhammad alongwith Faiz Bakhsh and Muhammad Rafiq while Allah Diwaya deceased was at his own Tharra and Ahmad Bakhsh PW was standing in front of the shop of a barbar. In this statement he did not name Nur Muhammad complainant as one of the person sitting at the shop of Sufi Nur Muhammad. Ahmad Bakhsh PW claimed to have stated before the police that the occurrence was also witnessed by Muhammad Amin, Rafiq, Nur Muhammad complainant and Faiz Bakhsh as they were present at the spot. He was confronted with his statement before the police (copy EX.DF) wherein it was riot so recorded. The conduct of Nur complainant was also highly unnatural. He stated that they neither raised any hue and cry nor tried to follow and catch hold of the accused persons. The appellant was armed only with a knife white his co-accused were empty-handed. If this witness had been present at the spot, he must have raised alarm and tried to catch hold of the accused. In doing so, there was no risk involved because none of the accused was armed with any firearm. While giving the details of actual occurrence he stated that two injuries were inflicted or. Ahmad Bakhsh PW. He was confronted with the FIR wherein it was not so recorded. According to the medical evidence, there was only one injury on the person of Ahmad Bakhsh PW. The delay in lodging the F.I.R. Also suggests that he might have been imported as a complainant at a belated stage. The occurrence took place at about evening time and the F.I.R. Was lodged at 11.05 p.m. The complainant tried to explain the delay saying that the cycle on which he was going to the police station, had gone out of order and, therefore, he proceeded to the police station on foot as he had no money to hire a rickshaw although rickshaws were available at that time. The explanation is unconvincing and finds no mention in the F.I.R. The facts and circumstances, detailed above, create a doubt about his presence at the spot and I do not feel inclined to place any reliance on his evidence. 11. Muhammad Amin PW claims to have remained at the spot with the dead body till the arrival of the police and then stayed there for the whole night. He stated that the investigating officer reached the spot at mid-night when he was sitting near the dead body and after its despatch to the mortuary he remained there throughout the night. He further stated that his statement was recorded on the following morning. He expressed ignorance why the investigating officer did not
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record his statement on the same night. Had he been an eye-witness to the occurrence and available at the spot on the arrival of the police, there was no reason for the investigating officer to postpone the recording of his statement to the following morning. This witness stated that he and Nur Muhammad PW put Allah Dewaya in 'he richshaw and made him to lay on the seat while Ahmad Bakhsh PW got seated beside the richshaw driver; rickshaw had hardly travelled a few paces when Allah Dewaya expired; when Allah Dewaya and Ahmad Bakhsh were being. Taken to the hospital, Faiz Bakhsh was holding Allah Dewaya by standing in the richshaw. The description given by his counterpart Nur Muhammad complainant is entirely different. He stated that both Allah Diwaya and Ahmad Bakhsh were made to sit on the seat while Faiz Bakhsh PW sat in the feet of two injured behind the back of the driver. In view of the above infirmities, his statement too does not inspire confidence. 12. Now I proceed to examine the evidence of Ahmad Bakhsh PW. As already stated above, he had a severe injury on a very vital part of the body and his presence at the spot is fully established. He had no enmity with the appellant and had rather friendly relations with him. The prosecution version is that few days prior to the occurrence two guests of acquitted accused Nur Hussain Shah came to Basti Langriyal on a scooter who were beaten up by Allah Dewaya deceased and Ahmad Bakhsh PW. They complained to acquitted accused Nur Hussain Shah and the accused party had attacked the complainant party to take revenge of that incident. However, this version remains unsubstantiated. In cross---examination Ahmad Bakhsh PW admitted that a day before the occurrence the arranged for the distribution of food as charity. Two 'dogs' of 'pullaow' were cooked and distributed by them to the poor to seek the mercy and blessings of Almighty Allah because "it was drought---------.." He further admitted that they collected the amount for the preparation of food from the people of the locality and this collection was made by him, Allah Dewaya and Mahmud alias Sultan Mahmud accused (appellant herein). Had there been any truth in the prosecution version regarding motive there was absolutely no occasion for the appellant to have joined the deceased and Ahmad Bakhsh PW for collection of funds and distribution of food as charity. The appellant's version about the earlier incident is more reasonable. He stated that two unknown persons visited the Basti on a scooter. The scooter hit his cycle and damaged it, upon which he, Allah Dewaya deceased and Ahmad Bakhsh PW slapped them. All the three were together for collecting the funds a day prior to the occurrence and their participation in the earlier incident is quite plausible. Ahmad Bakhsh PW had absolutely no motive to attribute his injury and that of the deceased to the appellant. There is evidence that due to some defect in the electric pole which was being repaired there was no light and on the basis of this statement it was contended that the occurrence had taken place during the dark hours, therefore, identification of the real assailants was not possible. There is no substance in the contention because the occurrence had taken place at about evening time when it was not very dark and furthermore the blow was given with a knife which could be effectively used by the assailant on coming very close to the victim. The evidence of Ahmad Baksh PW, therefore, can safely be accepted. I am, therefore, satisfied that it leas the appellant who injured Allah Dewaya deceased and Ahmad Bakhsh PW. 13. The only question that now remains to be considered is as to what offence was committed by the appellant. According to the prosecution, the occurrence took place in the evening. In cross- examination Ahmad Bakhsh PW stated that on the day of occurrence at evening time he and Allah Diwaya deceased were present m the Chowk where an electric pole was being repaired in order to remove some 'electric defect'. Other people also assembled there. He complained to acquitted accused Jan Muhammad that they were responsible for their insult and disgrace at the hands of Nur Hussain Shah. This resulted in an exchange of hot words between them but the people intervened and the matter was hushed up. There is abundance of evidence on the record indicating that prior to the occurrence there was grappling and exchange of hot words. Even in the
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F.I.R. It was stated that acquitted accused Qutab Din and Ahmad Baksh PW were grappling with each other. From the evidence it appears that the deceased was a desperado. He remained involved in one murder case, two cases under section 307, P.P.C. And one case under section 324, P.P.C. It appears that something happened all of a sudden resulting in a quarrel during which the appellant gave one blow to the deceased and one to Ahmad Bakhsh PW in the heat of the moment. He did not repeat the blow on either of them. Therefore, Exception 4 of Section 300 of the Pakistan Penal Code is attracted in this case and he is guilty under section 304 (Part 1), Pakistan Penal Code. His conviction is, therefore, altered from section 302, P.P.C. To Section 304 (Part 1) P.P.C. And he is sentenced to rigorous imprisonment for ten years and a fine of Rs.10,000 or in default in the payment thereof to undergo further R.I. For two years. The fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. His conviction under section 307, P.P.C. Is altered to section 308, P.P.C. But sentence of rigorous imprisonment for three years and a fine of Rs.1,000 is maintained. Both the substantive sentences shall run concurrently. These sentences have been passed after considering the provision of section 382-B, Cr.P.C. The appeal stands disposed of accordingly. The death sentence of Mahmood alias Sultan Mahmood convicted is not confirmed. AKHTAR HASSAN, J--This judgment shall simultaneously dispose of Murder Reference No.191/84 and Criminal Appeal Nos. 163 and 164 of 1983 as all these arise from the conviction of the appellant Mahmood alias Sultan Mahmood (26/27) recorded by the learned Additional Sessions Judge, Multan, in his judgment dated 30th of June, 1983, awarding him (i) under section 302, P.P.C., the capital sentence of death and a fine of Rs.5,000 or in default R.I. For three years for having killed Allah Dewaya deceased (27); (ii) under section 307 P.P.C., R.I. For three years and a fine of Rs.1,000 or in default further R.I. For six months for having murderously assaulted Ahmad Bakhsh P.W. (30); and (iii) under section 13 of the Arms Ordinance, 1965, R.I. For six months for having kept in his possession a prescribed 'Chaqoo' P.2. Out of the fine, a sum of Rs.3,000 was to be paid to the heirs of the deceased Allah Dewaya. Of the remaining four accused, Ata Muhammad was killed soon after he was released on bail while the other three were acquitted. 2. The occurrence took place at `Shamwela' on the 18th of July, 1979, when the appellant with his three companions, namely Jan Muhammad, Ata Mohammad and Qutab Din suddenly appeared at a Chowk of village Langerial, Thana Mumtazabad, District Multan, where among others were already present Mohammad Amin, Faiz Bakhsh and Mohammad Rafiq. Allegedly the co-accused Ata Mohammad and Jan Mohammad held Allah Dewaya deceased from his arms while the appellant Mahmood stabbed knife in his chest. The other co-accused Qutab Din started grappling with Ahmad Bakhsh P.W. Whom the appellant gave knife blow in his abdomen. Both the injured fell down. The occurrence was seen by the aforementioned Mohammad Amin, Faiz Bakhsh and Mohammad Rafq. The assailants ran away while the informant Noor Mohammad being a real brother of the deceased Allah Dewaya took both the injured in a rickshaw to the Nishtar Hospital. On the way, however, Allah Dewaya succumbed to the injury. His dead body was taken back to the place of occurrence. The injured P.W. Ahmad Bakhsh was brought in the hospital for treatment. Noor Mohammad lodged the report (Exh. PF) at 11.05 p.m. Disclosing that the assault was committed at the instance of Noor Hussain Shah, the fifth accused. He explained further that two days earlier at 3.15 p.m. Two guests of the said accused came in the village on a scooter. They were slapped by the deceased Allah Dewaya and the injured P.W. Ahmad Bakhsh on the ground that they had come there for debauchery. On having been so manhandled they went to their host Noor Hussain Shah in order to complain that they had been gravely insulted and beaten by the deceased. 3. Muhammad Yousaf S.I. (P.W.12) recorded the F.I.R. Exh.PF, went to the spot and sent the dead body for post-mortem examination after preparing the injury statement and inquest report, arrested the
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appellant took into possession the blood-stained knife P.2 as produced by him and also his blood- stained shirt P.1 which he was wearing. He got the appellant medically examined by making an application Ex.PO. 4. The autopsy of the deceased as conducted on 19th July, 1979 at 12.45 p.m. By the Doctor (P.W.7) showed that he sustained a stab wound on the left side of the front of chest of the duration of within 24 hours by a sharp-edged pointed weapon having the fifth rib costal cartilage, pleaura, upper lobe of the left lung, pericardium and the left ventricle of the heart penetrating deep into it. This injury was held sufficient to cause immediate death in the ordinary course, of nature. The time between death and post-mortem was within 24 hours. Ahmad Bakhsh P.W. Was medically examined by Dr. Abdul Aziz Shah (P.W.5) on…
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