Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: HAKIM ALI AND Another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema, Muhammad Afzal Zullah Title: HAKIM ALI AND Another vs THE STATE Case No.: Criminal Appeal No. 690 and Murder Reference No. 240 of 1968 Date of Judgment:1970-01-16 Reported As: 1971 P Cr. L J 666 Result: Appeal allowed
Judgment ORDER MUHAMMAD AFZAL ZULLAH, J.-Hakim Ali, aged 30 years, and his cousin Ahmad Khan, aged 20 years, have been convicted under section 302/34, P.. P. C. And sentenced to death; for having committed the murder of Shah Muhammad aged 60 years, their co-villager, in the area of village Shah Sarmast, District Gujrat, on 5th December 1966, by the learned Additional Sessions Judge, Gujrat, vide his judgment dated 4th July 1968. Two accused persons namely, Khan Muhammad aged 23 years, a brother of Hakim Ali convict, and Bahadur, aged 23 years, a brother of Ahmad Khan convict, who were jointly tried with them have, however, been acquitted. The convicts have appealed and the reference under section 374, Cr. P. C. For the confirma--tion of the sentences of death is also before us. Both the matters are being disposed of by this judgment. 2. Briefly, stated the facts, as disclosed in the statement of Muhammad Sadiq (P. W. 12) who is the son of Shah Muhammad deceased and is also the first informant, are as follows: On the day of occurrence i.e. 5th December 1966, at about chhahwela, one Khawaja (not produced) came to the house of the deceased and asked him to accompany him to the office of Union Council at Kotla Qasim where the divorce proceedings of Mst. Hayat Begum, the wife of one Rehmat who is nephew of said Khawaja, had to take place. On this, the deceased, Muhammad Sadiq P. W. And Muhammad Hussain (P. W. 13), who is related to the deceased, went to Kotla Qasim with aforesaid Khawaja. After the proceedings before the Chairman of the Union Council, in which the marriage of Mst. Hayat Begum was dissolved, the deceased accompanied by Sadiq and Muhammad Hussain proceeded towards their village. At about digerwela when they were near Chah Chavrianwala, the four accused persons, namely, Hakim Ali and Ahmad Khan (appellants) and Khan Muhammad and Bahadur (acquitted) emerged from a auger-cane field of one Walayat.
---
## Page 2
Hakim Ali and Ahmad Khan were carrying hatchets while Khan Muhammad and Bahadur were carrying dangs. They gave a lalkara. The complainant-party was unarmed. There Gold ornaments365.59 gms. (gross weight)221.1 gms. (gross weight)3.Silver Silver ornaments Silver coins39.055 kg. 24.105 kg. 2.655 kg.4.65.855 Kgs.65.855 kgs.5. Fixed deposits Rs. 1,500 Nil 6.Debtors------------------------- ------------------- lalkara they started running towards their village on the same path which they were already following. The deceased being an old man was overtaken. The to P. Ws. Were running ahead of the deceased. All the four accused persons attacked the deceased. Bahadur and Khan Muhammad gave him dang blows on the head on which the deceased fell down on the ground. Hakim Ali and Abmad Khan caught hold of the deceased from his arms and dragged him. Then Bahadur and Khan Muhammad caught hold of his legs, and in dangling position all four of them carried the deceased away to a nearby field of the accused. The witnesses followed and saw that after the deceased was taken to that field, Hakim Ali and Ahmad, Khan appellants gave one hatchet blow each on the neck of the deceased, as a result of which the head was severed from his body. Hakim Ali appellant then put the head in the 1oi (Exh. P. 1) of the deceased and then all the four accused went away to their dera, which is also near the place of occurrence; along with the bead (which was wrapped. In the loi). Bahawal Bakhsh (P. W. 14) a nephew of the deceased, and Rahmat (not produced) also saw this occurrence. With regard to motive it may be straightaway stated that there is a long standing enmity between the parties. Hakim Ali and Khan Muhammad are real brothers, Ahmad Khan and Bahadur who are also brothers inter se are the sons of paternal aunt of Hakim Ali. Thus all the four are closely related to each other. About 10/12, year:, before the occurrence, one Muhammad Khan, a paternal uncle of Hakim Ali and Khan Muhammad (and also a maternal uncle of Bahadur and Ahmad Khan) abducted a daughter of Shah Muhammad deceased who was subsequently handed over to Abdullah Kashmiri and was never returned to her father. After some years, i.e. About 2 years, before the occurrence, Muhammad Khan, a son of the deceased, abducted the daughter of aforesaid, Muhammad Khan the uncle of the accused persons. This abductee was living with the son of the deceased when this occurrence took place. These abductions estranged the relations between the parties and, it appears, as a result thereof, a year before the present occurrence Shah Muhammad deceased, was given a beating for which all the four accused persons, in this case were being prosecuted under section 324/34, P. P. C. It is also clear that due to the enmity and the entire background, the Police got both the parties bound down, under section 107/151, Cr. P. C. In fact, the security proceedings were pending at the the of the occurrence, (statement of Investigating Officer P. W. 15). The complainant-party, in these proceedings, included Shah Muhammad deceased, his brother Muhammad Ali, his sons Muhammad Sadiq and Bahadur Khan (P. W. 3). The party of the accused, among others, included, all the four accused persons. It also appears probable that the deceased due to his being an elderly man in the complainant-party was conducting himself as the head of that party. It can be gathered from the trend of cross-examination and admissions made by Sadiq P. W. That the deceased was a litigious type villager. He along with his relations was involved in a criminal case for giving beating to one Ghulam Nabi Kashmiri. It was suggested that one Dhalla and eight others was challaned for firing at the deceased and that subsequently the deceased was prosecuted under section 182, P. P. C. For having brought a false firing case against those persons. A suggestion, which was denied, was also made to Sadiq P. W. That his father made
---
## Page 3
presumably a false report to the Police that he and Bhalu had been injured at the hands of the "accused, etc". All this shows that both the parties were inimically disposed towards each other and further that the accused persons in this case were pretty annoyed due to the conduct of the deceased. 3. Sadiq P. W. Lodged report (Exh. P. A.) at Police Station, Lalamusa which is at a distance of four miles. It was recorded by Ch. Khurshid Ahmad, S. I. (P. W. 15) at 6 p. m. On the same day, i.e. 5th December 1966. The Sub-Inspector, reached the place of occurrence the same day. After the preliminaries of the investigation, he despatched the dead body without bead to the mortuary. On the following day, blood-stained earth was collected from the spot vide memo. (Exh. P. F.). All the four accused were arrested on 8th December 1966. They were produced before the Police by one Rehmat Khan. They are said to have carried their respective weapons which they produced before the Police. Hakim Ali and Ahmad Khan appellants produced hatchets (Exhs. P: 6 and P. 7) which were taken into possession vide memos. (Exhs. P. G. And P. H. Respectively). They were sent to the Chemical Examiner but no blood was detected on them. The dangs, said to have been produced by the acquitted accused were not sent to the Chemical Examiner because the Police had not found any blood-stains on them. A chadar (Exh. P. 10) was removed from the person of Hakim Ali which was taken into possession vide memo. (Exh. P. L.). On Chemical examination it has been found to have been stained with human blood. On the same day, i.e., 8th December 1966, Hakim Ali appellant led the Police to a sugar-cane field belonging to one Fateh Khan and brought out the head of the deceased which was found wrapped in loi (Exh. P. 1). It was taken into possession vide memo. (Exh. P. C.). After preparing the injury statement (Exh. P. Q.) and a separate inquest report (Exh. P. R.) of the head, the same was despatched to the mortuary. Dr. Bashir Ahmad Medical Officer (P. W. 1) performed the autopsy on the dead body (within head) of Shah Muhammad at 1 p. m. On 6th December 1966. The following garments were found on the dead body :- (1) a blood-stained turban ; (2) a blood-stained shirt with cuts at the back ; (3) a blood-stained chadar ; and (4) a brown shoes in the feet. (The shoes when taken into possession by the S. 1. Vide memo. Exh. P. D. Are described as The following injuries were found on the dead body :- (1) "An incised wound 5` x 4" at the level of lower most part of neck cutting away the whole head and neck. The seventh cervical vertebra was present with the body which had been partially cut away on the right side. The wound was about 1--" from the medial ends of clavicles. The whole surface of wound and adjoining parts of skin were blood--stained. (2) A contused wound 1" x --" on the medial side of middle of right lower leg. (3) A contused wound --' x --" on the front of lower part of right lower leg. (4) An abrasion mark 3" x 1" on the back of right scapular region." As is obvious the neck had been completely cut. Therefore, the death was due to injury No. 1. Which had caused shock and haemorrhage. This injury was caused by sharp-edged weapon and was sufficient in the ordinary course of nature to cause death. The other three injuries were caused by blunt weapon. Accord--ing to the Doctor, they could be caused by dragging on the rough ground. The death was instantaneous but about 21 hours elapsed between the death and the post-mortem which would fix the the of occurrence at about 4 p. m. On 5th December 1966. The doctor examined the head and the neck of the deceased on 8th December 1956, at 4 p. m. This part of the body which was wrapped in a loi was cut at the lower level of the neck. The sixth cervical
---
## Page 4
vertebra was present with the neck with a small part of seventh cervical vertebra on the right side. The following injuries were found :- (1) An incised wound 5" x 4" at the level of lower most part of neck cutting away the head and neck from the remain--ing body. The sixth cervical vertebra was fully present with the neck and a small part of seventh cervical vertebra was present with the sixth vertebra on the right side. The whole surface of wound and adjoining part of skin were blood--stained. (2) A contused wound 1" x --" x pinna deep on the middle of left ear. (3) A contusion mark 3" x 2" on the left temple region the injury was oblique in direction about 1" from the left ear. At the upper end of this injury a small wound -- x --" x skin deep was present. Left temporal, parietal, occipital and frontal bones were fractured due to injury No. 3. The brain was contused and lacerated on the left side due to injury No. 3, within an area of 4' x 3'. Spinal cord and other vital organs of the neck were cut due to injury No. 1. In the opinion of the Doctor, the head and the neck examined by him on 8th December 1966, were of the same person whose dead body he had examined on 6th December 1966. According to him, injuries, Nos. 1 and 3 were sufficient in the ordinary course of nature to have caused death. Injury No. 2 simple. The the that elapsed between death and examination of the head was about three days which would also fix the the of the occurrence at about 4 p. m. On 5th December 1966. The Doctor, gave another very significant opinion, that injuries Nos., 2 and 3, which could not be caused by a fall on a hard surface, were caused by to separate blows, prior in the to the injury caused on the neck of the deceased. The reason given by him is that "both the head injuries were ante-mortem and the death of the deceased was instantaneous due to neck injury therefore it was natural that both the above-- mentioned injuries were caused first". According to him, injuries on legs and back of the deceased were also caused before decapitation. He also opined that head injuries of the deceased were caused prior to the injuries on the legs and back. Two to four blows of hatchet could cause decapitation and, according to him, more than one blow with heavy sharp-edged weapon effected the decapitation in this case. He ruled out the possibility that the neck injury may have been caused after the death but admitted that some the a dead person is decapitated, in order to make his identification impossible. 4. At the trial, Muhammad Sadiq (P. W. 12), Muhammad Hussain (P. W. 13) and Bahawal Bakhsh (P. W. 14) gave ocular account of the occurrence and fully supported the prosecution case. Exh. P. V. a certified copy of a document purporting to be the deed of divorce executed by Rehmat Khan, husband of Mst. Hayat Begum, on 5th December 1966, was produced in support of the assertion of the prosecution that on the day of the occurrence the deceased had gone to Kotla Qasim to attend the divorce proceedings. The copy shows that the original was thumb---marked by Shah Muhammad deceased as a witness. Muhammad Sadiq P. W. Also gave the facts about the motive. Exh. P. M. And Exh. P. X, the F. I. R. And the judgment respectively, in respect of the previous case under section 324/34, P. P. C. Instituted at the instance of Shah Muhammad deceased against the four accused person, were produced in support of the motive part of the prosecution case. The recoveries were sought to be proved by the statements of Muhammad Latif (P. W. 8) Muhammad Fazil (P. W. 9) and the Investigating Officer (P. W. 15). The defence plea was that of denial. It was, however, admitted that the accused persons are related inter se. The prosecution in the previous case was admitted, but it was asserted that it was a false case and they had been involved due to enmity and that they were ultimately acquitted. The recoveries were denied. The abduction of the daughter of the deceased was admitted, but it was asserted that one Bahadur Kashmiri and not the uncle of the accused persons was responsible for it. Aforesaid Bahadur was sentenced to death and thereafter the abductee was handed over to Abdullah Kashmiri, an uncle of that condemed man. The abduction of the daughter of the uncle of the accused (Muhammad Khan) by another son of the deceased was specifically
---
## Page 5
denied. Ignorance was shown' about the security proceedings. In answer to the question as to why the witnesses deposed against them, the appellants explained that the complainant-party had suspected that Bahadur Ali Kashmiri had abducted the daughter of the deceased with their help and with the help of the acquitted accused ; therefore, they had been falsely implicated by the P. Ws. Who were all related inter se. They, however, stated that they had no enmity with the complain- -at-party. Exh. D. A. a pedigree-table showing the relation--ship of some of the P. Ws. And Rehmat, an alleged eye-witness who had not been produced, was produced in defence, Exh. D. B. Which is the copy of the proceedings before the Union Council, Kotla Qasim, in respect of the divorce of Mst. Hayat Begum, was also produced in defence. It starts with the same document, of which the copy (Exh. P. V. P. Has been produced by the prosecution, except for the difference between the to that the heading of Exh. P. V. Is while that in Exh. D. B. It is. It appears that the heading is not the part of the original and the persons who issued the copies to to different parties gave different headings to .The same document. Otherwise, the contents of both the copies are absolutely the same. The original of Exh. D. B. Also, is shown to have been thumb-marked by Shah Muhammad, deceased on 5th December 1966, as a witness, It is a deed of divorce purported to have been signed by one Rehmat, the husband of Mst. Hayat Begum, Abdullah Khan, the Chairman of the Union Council, adjourned the matter to 25th December 1966 on 25th December 1966 none of the parties was present ; therefore, the matter was adjourned to 16th January 1967. The parties were again absent and the matter was adjourned to 27th January 1967. The parties, were also absent on 27th January, 28th February and 9th March 1967. On the last mentioned date however, the Chairman, pronounced the divorce proceedings, as complete, in absence of the parties on a finding that they did not want the conciliation to take place. No other evidence in defence was produced. 5. The learned trial Judge believed the eye-witnesses. He held that the manner in which the recoveries of the weapons of all the accused persons and: the chadar of the Hakim Ali appellant were taken into possession, did not inspire confidence, therefore, he held them to be doubtful and did not rely on, them. The recovery of the head along with loi' (Exh. P. 1) at the instance of Hakim Ali appellant was relied upon and used as a strong corroborative piece of evidence against him. The evidence of motive was used as a confirmatory items against Hakim Ali and Ahmad Khan appellants. They have, therefore, been convicted and sentenced as stated in the earlier part of the judgment. About Khan Muhammad and Bahadur accused, the learned Judge, remarked that there was nothing in the medical evidence "to indicate that, there were any lacerated wounds on the head of the deceased which could have been caused by Khan and Bahadur accused with lathis. The medical evidence does not support the prosecution case so far as the role of Khan and Bahadur accused is concerned. In view of the medical evidence, the role played by Khan and Bahadur accused in allegedly murder--ing the deceased becomes highly doubtful." Therefore giving the benefit of doubt, he acquitted them. 6. Mr. M. Saleem, the learned counsel for the appellants read and analysed the evidence to show: (i) That the occurrence was not witnessed by the eye--witnesses ; and (ii) that the head of the deceased was not proved to have been recovered at the instance of Hakim Ali appellant,, and that the assessm ent of the evidence by the learned trial Judge, in respect of other recoveries from or at the instance of the accused persons was not reliable. According to him it was not correct that the deceased had gone to Kotla Qasim on the day of the occurrence and further that he was murdered by somebody, may be on chance encounter; and because a criminal case was already pending at the instance of the deceased' against all the four accused persons, therefore, they had been implicated without anybody having seen them committing the offence. About the head, hi: argument was that it was found by somebody during the inves--tigation and in order to support the prosecution case the discovery was planted on Hakim Ali appellant.
---
## Page 6
7. Learned counsel urged that except for the assertion of the witnesses, there was no reliable evidence that the deceased went to Kotla Qasim, and that, -this fact could be established by producing some independent witness connected with the divorce proceedings. It was further contended that there was no reason why the deceased should have stayed on at Kotla Qasim for such a long the so as to return to his village at about digerwela. Above all, it was argued that there was no reason for the deceased and the to eye-witnesses to have gone to Kotla Qasim in the divorce proceedings, of Mst. Hayat Begum with whore none of them had been proved to have any connection. It is true that Khawaja, who is uncle of the husband of aforesaid Mst. Hayat Begum, and at whose instance the deceased and the witnesses went to Kotla Qasim, has not been produced. But to say that an independent witness has been withheld is not correct because aforesaid Khawaja, according to the prosecution, must have. Had good relations with the deceased ; that is why the latter went with him. Therefore, the latter's appearance as a witness would not have added to the strength of the prosecu--tion case. The Chairman of the Union Council could make some relevant statement in this behalf but it cannot be held that he was an absolutely essential witness in so far as the material aspects of the prosecution case are concerned. In--stead the prosecutor might well have thought that the copy (Exh. P. V.) about divorce proceedings, the original of which is shown to have been thumb-marked by the deceased and signed by the Chairman of the Union Council, Kotla Qasim, on 5th December 1966, was enough. Learned counsel himself stated that he did not want to raise the technical objection about the admissibility and proof of Exh. P. V. As noted earlier in paragraph No. 4 above, a part of the copy (Exh. D. 8) of the proceedings is the same as Exh: P. V. Exh. D. B. Has been produced by the defence and has been relied upon to show that the divorce proceedings, in fact, culminated in March 1967. It bias already been shown earlier that the proceed--ings, started on the document (divorce deed) (Exh. P. V.) which is also a part of Exh. D- B. It was written on 5th December 1966, i.e., the day of the occurrence and was witnessed thumb--- marked by the deceased. 'This documentary evidence, is, in our view, a very strong corroboratory circumstance. Therefore, the eye-witnesses, are telling the truth in that the deceased had gone to Kotla Qasim and had participated in the divorce proceedings of Mst. Hayat. Begum. It is of some significance that it was elicited in the cross-examination of Muhammad Hussain P. W. That Shah Muhammad deceased had "affixed the thumb-impression to the document prepared by the Chairman within my seeing," A minor discrepancy was pointed out in respect of the reason as to why aforesaid Khawaja did not accompany the party of the deceased back to village Shah Sarmast. The reason as to why Khawaja did not return with them is an insignificant detail of minor importance and that to about a matter which took place before the occurrence. Therefore, we attach no importance to it. Sadiq and Muhammad Hussain were cross-examined at some length to show that there was no reason for them to accompany the deceased. According to Muhammad Hussain, he was sitting in the drawing room 'of the deceased and was listening to the radio when Khawaja made request to the deceased ; and when the deceased waned to go with Khawaja he asked Muhammad Hussain and Sadiq to accompany him. Thus it appears that, according to the prosecution, he needed the help of Shah Muhammad who, as noted earlier, must have been considered as one who was experienced and had knowledge about ordinary legal matters. He himself had been through many litigations and was also, as the proceedings show, intended to be and did at as a witness. There does not appear to be any apparent reason for Muhammad Hussain and Sadiq to have participated in the divorce proceedings, But the village life in our country is very peculiar. Litigation and legal proceedings is a pastime for so many villagers.' Sometimes they come in numbers without any direct interest in the parties involved, and behave as spectators at a show. At other occasions, the parties involved, their witnesses, and helpers take along their relations so as to give
---
## Page 7
a visible support at least moral, to the party they side with. In this case, Muhammad Hussain explained that the deceased had asked him and Sadiq P. W. To accompany him; therefore, they went with him. This at first sight does not make out a strong reason for these to witnesses, to have accompanied the deceased ; but in the background of the village life, as explained above, it is neither unusual nor unnatural. We have particularly taken note of the fact that the occurrence took place in the month of December 1966, and during those days the villagers have not much work to do and a lot of the is spent by them in gossip and other pastimes. We are, therefore, of the view that Sadiq, who is the son, and Muhammad Hussain who, as will be presently shown is also a close relation, of the deceased, accompanied and remained with him during the divorce proceedings. We also find nothing unusual in the proceedings before the Chairman having taken sometime and the deceased accompanied by the to eye-witnesses having come back at digerwela the. It was not necessary that the divorce -proceedings should have been started and concluded according to some scheduled the. They are in the nature of proceedings by a village Panchayat and are conducted with ease and leisure. There is nothing in evidence to show that the deceased left Kotla Qasim at any earlier the than suggested by the prosecution. In any case we have failed to find any reason for the prosecution to have coined a false story that the party of the deceased was coming from Koda Qasim at the the of occurrence. Their presence, other-wise, in the suburbs of their own village, could not have been unusual ; particularly in view of the fact that the the and place of occurrence has not been…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.