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Petitioner: MUHAMMAD ARSHAD and others VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Nasir Aslam Zahid, Abdur Rehman Khan, Munawar Ahmed Mirza Title: MUHAMMAD ARSHAD and others vs THE STATE Case No.:Criminal Appeals Nos.87 and 89 of 1995 Criminal Appeal No,175 of 1991 and
JUDGMENT
Reported As: 1998 SCMR 2146 Result: Appeals dismissed Judgment JUDGMENT ' MUNAWAR AHMAD MIRZA, J.---These appeals, by leave of the Court, are directed against judgment, dated 13th February, 1994 in Criminal Appeal No,175 of 1991 and Murder Reference No,307 of 1991. 2. Relevant facts, set out by prosecution are that on 15th June, 1989 at Zoharwella complainant Bahawal alongwith some members of family namely Mst. Fateh Bibi, mother, Mst. Rajan Mai, grand mother, Muhammad Ramzan alias Moujdin, Muhammad Ayub, Abdul Hamid, Thiraj, Allah Yar and Falak Sher were gossiping near Cattle Shed located in Square No,101. Suddenly Arshad son of Shafi, Muhammad Iqbal, Ehsanul Haq, Muhammad Ali, Arshad son of Muhammad Ali, Muhammad Sharif, Ghulam Rasool, Anwar, and Shafi carrying fire-arms and Lathis forming unlawful assembly arrived there and by challenging, attacked them in furtherance of their common intention. Arshad Arain fired with his gun, hitting Abdul Hamid, who fell down on receiving injury, Muhammad Ali fired at Muhammad Ayub, which struck him and was fatal. It is the case of prosecution that noticing violent firing the complainant and other family members started running away. Still, lqbal Jat fired at Muhammad Ramzan and Arshad Jat fired at Theraj, who receiving such injuries fell down on the spot. Besides the assailants had caused Lathi injuries to Mst. Rajan Mai and Mst. Fateh Bibi. The accused thereafter fled away. Injured (i) Abdul Hamid, (ii) Muhammad Ayub, (iii) Muhammad Ramzan and (iv) Theraj expired at the spot on account of fire-arm injuries. 3. Motive suggested was, that accused Muhammad Ali Arain somehow managed allotment of half square of land which actually belonged to complainant part from area covering square No,100.
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Father of complainant obtained stay order, but accused side were aggrieved and provoked, therefore, they unjustifiably attacked resulting in unfortunate incident. 4. On completion of investigation, appellants alongwith four companions (since acquitted) were sent up for trial before Additional Sessions Judge, Khanewal, who recorded the evidence. Eventually trial Court by means of judgment dated 19-6-1991 convicted the appellants under section 302, P.P.C. The operative portion is reproduced below:- "Now it brings me to the quantum of sentence of each accused. Since the accused brutally killed four deceased without showing any mercy on the helpless family and their children, I, therefore, feel inclined to the view that they do not deserve any sort of leniency in awarding the sentence even the motive is not helpful at this stage since they have been assigned specific roles of causing murder of each accused. I, therefore, proceed to convict and sentence Muhammad Arshad son of Muhammad Ali accused for causing murder of Abdul Hamid deceased to death penalty under section 302, P.P.C. With a fine of Rs,10,000 and in default to suffer an imprisonment of one year S.I. He is also ordered to pay Rs,10,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased Abdul Hamid, else to further suffer one year's S.I. I convict and sentence Muhammad Iqbal accused to death penalty under section 302, P.P.C. For causing murder of Muhammad Ramzan deceased with fine of Rs,10,000, else to further suffer one years' S.I. He is also ordered to pay Rs,10,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of Muhammad Ramzan, deceased, else to further suffer one year's S.I. I also proceed to convict and sentence Arshad son of Muhammad Shafi accused to death penalty under section 302, P.P.C. For causing murder of Thiraj deceased with fine of Rs,10,000, else to further suffer one year's S.I. He is also ordered to pay Rs,10,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of Thiraj deceased else to further suffer one year's S.I. They be hanged by neck till dead. I proceed to convict and sentence Muhammad Ali son of Rehmat Ullah accused to imprisonment for life for causing the murder of Muhammad Ayub deceased, the extreme penalty of death is not awarded to him as he is an old and infirm man more than 60 years of age and his son namely Arshad has already been sentenced to death, I also impose fine of Rs,10,000, else to suffer one year's S.L He is also ordered to pay Rs,10,000 as compensation to the legal heirs of deceased Muhammad Ayub. ' I proceed to convict Muhammad Sharif accused to suffer imprisonment for life for causing injuries on the person of Mst. Fateh Bibi under section 307/149, P.P.C, with fine of Rs,5,000 in default to further suffer imprisonment for six months with benefit of section 382, Cr.P.C. ' The death sentences shall be subject to the confirmation of the Hon'ble High Court in which a separate reference under section 374, Cr.P.C. Shall be made. A copy of this judgment also be sent to the District Magistrate under section 373, Cr.P.C. The convicts have also been apprised that they can prefer appeal against this judgment within seven days and copy of this judgment shall be supplied to them free of costs. The case property gun P17 and Sota P18 be confiscated to the State." 5. Appellants challenged their conviction and sentence before Lahore High Court, Multan Bench, through Criminal Appeal No,175 of 1991. Whereas learned Additional Sessions Judge had made murder reference No,307 of 1991 for confirmation of death penalty. Both these matters were ultimately decided by common judgment, dated 13th February, 1994. Operative portions reads:-- "The nutshell of the above discussion is that the complainant party in order to retain the physical possession resisted the demand of appellant to vacate the land and each party raised controversy for the possession of the land. The desire of the appellant party of exclusive possession with no out side interference and the struggle of the complainant party to retain the possession and establish their claim before the Court instigated the appellant to deal with the complainant side and as a result thereof the accused side to achieve this purpose committing open aggression took lives of the four persons of the complainant party. We, therefore, are of the considered opinion that if being
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a premeditated occurrence, the findings of the guilt of the appellants arrived at by the trial Court being unexceptionable do not call for interference. ' Coming to the question of vicarious liability and quantum of sentence, we notice that the trial Court convicted each appellant for his individual liability without application of section 149, P.P.C. The conviction was also not recorded under section 148, P.P.C. The learned trial Court probably having some impression in its mind, that it was a free fight convicted each appellant as per his role played in the occurrence whereas by application of section 149, P.P.C., each appellant was responsible for the three murders. Muhammad Sharif having not been convicted and sentenced under section 302, P.P.C., further clarifies that the trial Court travelled on the basis of individual liability. The State has not preferred any appeal in the case, therefore, at this stage, we do not consider it proper to open this matter suo motu. There is no mitigating circumstances available on record or brought and pleaded by the defence for the lesser punishment. We have also not been able to trace out any circumstance from record in favour of the appellants for lesser penalty. We accordingly dismiss this appeal maintaining the conviction and sentence awarded to the appellants by the trial Court. The death sentence awarded to the three appellants is confirmed and the murder reference is answered in the affirmative." 6. Appellants feeling aggrieved from the above judgment preferred Criminal Petitions 96-L of 1994 and 110-L of 1994 before this Court. However, leave was granted vide order, dated 13th March, 1995, in the following terms:-- "(3) Malik Saeed Hassan, the learned A.S.C. Contended that the case regarding possession was wrongly considered as on record it was with the accused/petitioners but the benefit was given to the complainant. The learned counsel further contended that the petitioners in Petition No,96-L of 1994 namely Muhammad Arshad and Muhammad Iqbal did not have any motive and that the eye-witnesses namely P.W.6 and P.W.7 are related to the deceased and are interested witnesses. The learned counsel vehemently argued that the case of these petitioners has not been considered at all by the learned Judges of the High Court. (4) Mr. Khyzir Hayat, the learned A.S.C. For the petitioners in Petition No,110-L of 1994 contended that the petitioners had exercised the right of self-defence and, therefore, the conviction cannot be justified. He further contended that the evidence of eye-witnesses should not have been believed as they are interested witnesses and there was no corroborative evidence to support it. The evidence of these witnesses against the petitioners is consistent and cogent. It is supported by the medical evidence and, therefore, such plea cannot be entertained. (5) We grant leave in Cr.P.No,96-L of 1994 to consider the contentions raised by the learned counsel for the petitioners mentioned hereinabove. (6) In Cr.P.No,110-L of 1994 leave is granted to consider wether the petitioners were entitled to exercise right of self-defence and if so, was it exercised according to law." ' Malik Saeed Hassan, Sr. A.S.C., appearing for appellants Muhammad Arshad and Muhammad Iqbal sons of Muhammad Shafi, in Criminal Appeal No,87 of 1995 contended that:-- (i) No recovery has been effected from appellants. They are strangers to the parties and have no motive to attack complainant or deceased. (ii) The entire case against appellants Muhammad Arshad and Muhammad Iqbal hinges upon testimony of P.W.8 complainant Bahawal and P.W.7 Mst. Fateh Bibi, who are undisputedly related to deceased, as such deeply interested witnesses. (iii) Both the Courts below unjustifiably discarded defence version and totally ignored category stand taken by co-accused Muhammad Arshad son of Muhammad Ali, who had admitted firing in the peculiar circumstances, which were duly explained. (iv) The conclusions of Courts below suffer from various defects, therefore, could not be sustained.
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(v) Keeping in view conclusions of Courts below whereby appellants were held individually responsible for their respective acts and application of section 149, P.P.C. Was excluded, awarding of death penalty was unwarranted. 8. Mr. Khyzir Hayat, A.S.C., appearing for appellants (i) Muhammad Arshad (ii) Muhammad Ali and (iii) Muhammad Sharif, appellants in Criminal Appeal No,89 of 1995 canvassed that:- (i) There are patent defects and glaring improbabilities in the prosecution evidence, whereby ocular version becomes tainted and does not inspire confidence. Thus, independent corroboration was necessary, which is lacking in the present case. (ii) Medical evidence as regards injured Mst. Fateh Bibi and Mst. Rajan Mai, is contradictory to ocular version whereby their presence at the spot is also doubtful. (iii) Prosecution evidence coupled with defence version and circumstantial evidence brought on record, suggests that complainant side was aggressor, thus, sufficient grounds existed whereby extreme penalty awarded to appellants Muhammad Arshad son of Muhammad Ali was not warranted. (iv) Appellant Muhammad Sharif son of Rehman Ali has been assigned role of inflicting Sota injuries to Mst. Fateh Bibi and Mst. Rajan Mai and, therefore, both the Courts below acted illegally by imposing imprisonment for life specially when each accused was held to be responsible for their respective acts. 9. Mr. Muhammad Zaman Bhatti, A.S.C., appearing for the State, vehemently opposed the appeal and argued that:-- (i) Ocular evidence produced by prosecution is natural, consistent and confidence inspiring. Besides, their testimony is supported by medical evidence and other circumstantial factors. (ii) Muhammad Arshad, Muhammad Ali and Muhammad Sharif Jats have undisputedly strong motive for attacking complainant/party. Whereas defence version introduced on their behalf is highly imaginary, containing distinct improbabilities, therefore, same is apparently unbelievable, (iii) The evidence and background of circumstances clearly discloses that appellants were aggressor, therefore, they cannot claim. Protection of self-defence. Reliance is placed on observations in case 1992 SCM R 2037 (Manzoor v. State). (iv) Appellants Muhammad Arshad and Muhammad Iqbal, Arain, have professed absence of enmity with complainant party. Therefore, considering particular factors normally testimony of eye-witness having no enmity with abovementioned appellants is outrightly reliable. Objection about doubting ocular version has, therefore, no significance. (v) Mere absence of motive by itself does not afford sufficient ground to absolve appellants in Criminal Appeal No,87 of 1995 from the offence alleged against them. (iv) Preponderant evidence on record, as rightly appreciated by the two Courts below, is sufficient for holding the appellants guilty. There is hardly any substantial ground for lawfully challenging the impugned judgments. 10. We have carefully perused the record and considered arguments advanced by learned counsel for the parties. ' P.W.1 Dr. Muhammad Saleem Arshad had conducted autopsy upon dead bodies of deceased (i) Abdul Hamid, (ii) Muhammad Ramzan, (iii) Thiraj and (iv) Muhammad Ayub on 16th June, 1989. He also examined injured Mst. Fateh Bibi and Mst. Raw Mai on 15th June, 1989. ' Details of injuries and opinion recorded by him in respect of each of abovementioned persons are given below:- (i) Deceased Abdul Hamid: (1) Two wounds of entries lying close to each other 1/4 c.m. x 1/4 c.m. Going deep and upward on the centre of the upper lip just below the nose. (2) Wound of entry 1/2 c.m. x 1/2 c.m. Going deep on the right side of the case, mendible area 5 c.m. Below the pinna.
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(3) Wound of entry i/2 c.m..x 1/2 c.m. Going deep 6 c.m. Away from injury No,2 on the medial area. (4) Wound of entry 1/2 c.m. x 1/2 c.m. 8 c.m. Below and medial to injury No,3. (5) Four wounds of entries 1/2 x 1/2 c.m. Each on the right side of the forehead. (6) Wound of entry 1/2 x 1/2 c.m. Going deep on the right side of neck, one c.m. Away from pinna. (7) Wound of entry 1/2 x 1/2 c.m. Going deep on the middle of right side of the neck, 6 c.m. Below injury No,5. (8) A multiple wound of entry 8 in number, 8 c.m. x 2 c.m. In an area on the upper part of the right upper arm, lying close to each other. (9) Multiple wound of entry in an area of 10 c.m. x 4 c.m. On the back of right shoulder. (10) 3 Wounds of entry close to each other 1/2 x 1/2 c.m. Each on the front and right upper chest lateral side. (11) Wound of entry 1/2 x 1/2 c.m. Going deep on the lateral side of the right chest, mid auxiliary line. (12) Wound of entry 1/2 x 1/2 c.m. On the right lateral chest below 4 c.m. Injury No,11. ' In the opinion of doctor the cause of death was due to shock and haemorrhage, fracture of skull bone and injury to the brain matter. Injury No,1 was sufficient to cause death in the ordinary course of nature." (ii) Deceased Muhammad Ramzan: (1) A wound of entry 2 x 1 c.m. Going deep on the middle and front of the right upper arm, margine inverted, lacerated and black. (2) Wound of entry 4 x 1 c.m. On the front of right below, margines inverted and back. (3) Wound of entry 4 x 4-1/2 c.m. Going deep on back of the left side of the chest in its middle margines of the wound inverted. (4) Wound of entry 1-1/2 x 1 c.m. On the central front of the chest. (5) Wound of exist 1 x 1 c.m. On the front of chest 5 c.m. Below injury No .4 . (6) Wound of exit 1 x 1 c.m. Going deep on the right side of chest 7 c.m. Medial to right nipple. (7) Wound of exit 1 x 1 c.m. On the front of chest near the right nipple. (8) Wound of exit 1 x 1 c.m. Just below injury No,7. ' In the opinion of doctor the cause of death was due to shock and haemorrhage and the injury to the vital organs of the chest, lungs and heart. Injury No,3 was sufficient to cause death in the ordinary course of nature. (iii) Deceased Thiraj: (1) Wound of entry 6 x 5 c.m. Oval in shape on the front and upper part of chest at the level of left 4th rib which is found fractured. (2) Wound of exit 1 c.m. x 1 c.m. On the front of chest on the right border of the sterroum margines everted and black. (3) Three wounds of exit lying close to each other on the front part of the right side, of chest just near the nipple. (4) Wound of entry 1 c.m. x 1 c.m. On the medial part of right upper arm, margine inverted and black. (5) Wound of exit 1 c.m. x 1-1/2 c.m. On the outer side of right arm. Wound is continuous with injury No,4. ' All the injuries were ante-mortem and caused with fire-arm. In the opinion of doctor death was caused due to shock and haemorrhage and injury to the vital organ of chest. Injury No,1 was sufficient to cause death in the ordinary course of nature." (iv) Deceased Muhammad Ayub: (1) Lacerated wound 2-1/2 c.m. x 1 c.m. Scalp deep on the top and right side of the head 10 c.m. Above the right ear.
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(2) Wound of entry 1-1/2 c.m. x 1 c.m. Oval in shape on the front and lower part of the neck, margine black and inverted. (3) Three wounds of 5 x 6 c.m. Having the six of 1-1/2 c.m. x 1 c.m. Each going, deep, margines inverted and black. ' In the opinion of the doctor death was caused due to shock and haemorrhage and injury to the vital organs of the chest. Injuries Nos.2 and 3 were sufficient to cause death in the ordinary course of nature." (v) Injured Mst. Fateh Bibi: (1) A lacerated wound 2 x 2-1/2 c.m. Scalp deep on the right side of head. (2) Contusion mark on the back of the left shoulder both simple caused with blunt weapon. (vi) Injured Mst. Rajan Mai: (1) Lacerated wound 1 c.m. x 1/2 c.m. Scap deep on the left side of forehead, margines black and lacerated. (2) Contusion mark 4 c.m. x 1 c.m. On the top of left shoulder." 11. Main prosecution evidence revolves around credibility of ocular testimony given by complainant Bahawal (P.W.6) and injured Mst. Fateh Bibi (P.W.7). Both these witnesses have specifically deposed about appellant Arshad Arain firing at deceased Abdul Hamid, appellant Muhammad Ali causing firearm injury to deceased Muhammad Ayub, appellant Muhammad Iqbal shooting at deceased Muhammad Ramzan, and Muhammad Arshad Jat inflicting fire-arm injury to deceased Thiraj, which according to them proved fatal, resulting in their instantaneous deaths. They have also mentioned about causing sota blows to Mst. Fateh Bibi and Mst. Rajan Mai by appellant Muhammad Sharif. Speaking about motive they have expressed that accused Muhammad Ali had manipulated allotment of half square from lands factually belonging to and possessed by complainant party whereupon status quo order was obtained much before the occurrence. The eye-witnesses, thus, deposed that convicts of appellants alongwith other companions forming unlawful assembly and being armed arrived on the spot and attacked complainant and members of their family which costed them lives of four innocent persons. 12. The scrutiny of entire record discloses a belated effort to introduce second version of the incident by asserting that complainant party was responsible for launching an assault with main object of dispossessing convict/appellant Muhammad Ali. In this behalf some admission on the part of complainant party and statement of Patwari (Muhammad Ibrahim), were highlighted for establishing that appellant Muhammad Ali (concerned in Criminal Appeal No,89/95) had obtained possession of half portion in square No,100 from complainant party on 13-5-1989. The prosecution witnesses have unambiguously maintained that on coming to know about dishonest manipulation by convict Muhammad Ali as regards allotment of land and further mischief the father of complainant had already obtained status quo order on 17th May, 1989. It was, therefore, suggested that attack was preplanned to avenge grievances on account of refusal from complainant side to surrender the possession. Looking deeper to the attending circumstances and reappraisal of entire record including respective stands taken by the parties manifestly reveal that assailants were necessarily armed with larger number of weapon to meet any possible eventuality. The analyzing the ocular evidence coupled with medical reports and background of motive for ascertaining true and probable facts, version of the complainant and supporting evidence appears to be more logical, convincing and reliable. 13. Malik Saeed Hassan, learned counsel for appellants in Criminal Appeal No,87 of 1995, with great vehemence contended that there existed numerous discrepancies and contradictions exist in the prosecution case which tend to prove exculpation of appellants Muhammad Arshad Arain and Muhammad Iqbal Arain. Relying on the observations of Hakim Ali v. State (1977 SCMR 432) it was emphatically urged that in the peculiar circumstances merely because result of fight had gone in
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favour of aggressor, it would not exonerate them from responsibility prescribed under the law. Evidentiary value of eye-wintesses has also been challenged on account of close relationship. There is no doubt that P.W.6 Bahawal and P.W.7 Mst. Fateh Bibi, are close relations of deceased, but law of prudence requires to assess relevant factors, background of circumstances type of accusations, quality of statement and unimpeachable nature of statement given by eye- witnesses, and thereby to ascertain whether the version brought forth is appealing and confidence inspiring and should be relied upon. Eyewitnesses who are related to deceased, were according to appellant hostile against convict Muhammad Arshad, Muhammad Ali and Muhammad Sharif, Arain by caste, in view of dispute over area of land which had been clandestinely got allotted by appellant Muhammad Ali from Square No,100. Both these witnesses have stood the test of searching cross-examiantion. Their testimony on the salient features of incident is consistent and materially corroborates each other. Their version could not be impeached or dislodged despite lengthy cross-examination. There does not exist any improvement in their statement s recorded before the Court. Mere fact of relationship by itself does not affect credibility of abovementioned eye-witnesses. Their statement are independently supported by medical evidence showing fire- arm injuries on the bodies of deceased. The stand of appellant Muhammad Arshad Arain appears in his answer to question No,8 of his statement under section 342, Cr.P.C. Reproduced below:- "This case is false. The fact of the matter is that my father obtained 62 Kanals and one Marla of agricultural land situated in Chak No,111/15- L, on five years Scheme. This land fell within prohibited line as such despite payment of dues the proprietary rights were denied by the District Collector and on an appeal learned Commissioner remanded the case and District Collector Khanewal, after cancelling the lot falling within the prohibited line ordered the allotment of 91 Kanals and 13 Marlas of land situated in Khasra Nos. 100/2-3, 4-5/1, 5/2-6 to 9-12 to 15 lying previously allotted to Suraj grand-father of Bahawal P.W. But the same was cancelled by the A.C. On 23-6-1979. As the requisite conditions were not fulfilled. The physical possession of the land measuring 91 Kanals and 13 Marlas was delivered to my father by the Revenue Officer concerned with the help of Police at the spot on 13-5-1989, and necessary entries were made in the relevant record. ' The complainant party got annoyed over the occupation of the said lot by my father and obtained a status quo from the Civil Court of Khanewal on 17-5-1989, on the basis of misrepresentation and distortion of fact. The complainant party was all out to regain the possession and occupation of the aforesaid land at all cost under the garb of said status quo while we had decided to get a judicial decision from Civil Court, Khanewal, on merits through legal procedure. ' It was on 15-6-1989, that at about noon time when I was present in a room constructed in the aforesaid land while my paternal uncle Muhammad Sharif and his sister Mst. Aisha were working in Killa No,5 of the said land, that Abdul Hamid, Muhammad Ayub, Muhammad Raman and Thiraj alongwith two ladies variously armed arrived there and raised Lalkara that they have come to obtain the possession of the land at all cost and if anybody resisted he would be killed. My uncle Muhammad Shafi and Mst. Aisha got up to…
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