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Petitioner: INAYAT AND 3 Others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema, Muhammad Afzal Zullah Title: INAYAT AND 3 Others vs THE STATE Case No.: Criminal Appeal No. 189 and Murder Reference No. 52 of 1969 Date of Judgment:1969-12-17 Reported As: 1971 P Cr. L J 312 Result: Sentence reduce
JUDGMENT
JUDGMENT MUHAMMAD AFZAL ZULLAH, J.-The learned Sessions Judge, Lyallpur has, by his judgment; dated 26th February 1969, con--victed Inayat, aged 45 years, Muhammad Rafiq, aged 21 years, Muhammad Sarwar, aged 28 years, and Muhammad Anwar, aged 27 years, under sections 302/34 and 324/34 P. P. C., for having caused the death of Ghulam Haider, aged 33 years, and for having caused injuries to Ghulam Rasul P. W. And his brother Sardar Khan, in the area of Chak No. 591, G. B, (Gangapur), Police Station Lundianwala, District Lyallpur, can the morning of 13th February 1968. For the charge under section 302/34, P. P. C., Inayat, Sarwar and Anwar have been sentenced to death while Rafiq has been sentenced to transportation for life and a fine of Rs. 5,000 to default of payment whereof to suffer five years' R. I. For the charge under section 324/34, P. P. C. All four of them have been sentenced to three years' R.I. The sentence of imprisonment has been ordered to ran concurrently with that of transportation for life in the case of Rafiq while in the case of three others, the sentences of imprisonment are to operate only if their sentences of death are not confirmed, by this Court. The convicts have appealed and the reference under section 378 Cr. P. C., for the confirmation of sentences of death is also before us. Both the matters are being disposed of by this judgment. 2. The facts of the case, as disclosed in the F. I. R. (Exh. P. A.) lodged by Fazal Ahmad P. W, are as follows :- One Mst. Noor Begum, widow of Rehman, died issueless about 15 years ago, leaving about 29 acres, of land in Chak No. 591 G. B. After her death, 1/4th of the land i. e. Seven and a quarter acres, went to Barkat Ali and Muhammad Tufail, her brothers. The remaining 4th of the land went to Muhammad Anwar and Muhammad Sarwar appellants who are sons of Jiwan Khan, a' brother of Rehman
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(deceased husband of Mst. Noor Begum and also to Sharif, Sardar and Siddique sons of Sultan Ali, another brother of aforesaid Rehman. None of the nephews of Rehman is resident of Chak No. 591 G. B. A private partition took place between the above-mentioned all the successors/co---sharers through Murad All and Fazal Ahmad P. Ws. And they took possession of their respective pieces of land. Killa No. 25 in Square No. 91, which Fame to the share of Barkat Alo and Muhammad Tufail, was water-lodged. Therefore, an area of about to kanals of Killa No. 18 in Square No. 96 was given to them, in addition to their share, as compensation. Barkat Ali died about 4/5 years before the occurrence, leaving three sons, namely. Ghulam Haider deceased, Ghulam Rasul the injured P. W. And their brother Sardar Khan who was also injured (not examined as P. W.). About 8 or 9 months before the occurrence, Anwar and Sarwar appellants came to the sons of Barkat Ali with the request that the land in Killa No. 18 be given back to them. This request was repeated to or three times sub--sequently, through Murad Ali and Ali Ahmad P. Ws. But the deceased and his brothers refused to oblige them. One day before the occurrence, once more a Panchayat was brought to Ghulam Haider and his brothers for the same purpose. No compromise could be effected. All the four appellants on the one side and the deceased and his brothers oil the other, however, exchanged abuses and quarrelled with each other but the members of the Panchayat intervened and separated them. On the day of occurrence, i. e. 13 February 1968, at about 8 or 9 a. m., all the four appellants were present in Killa No. IS with a plough. Muhammad Anwar appellant, while carrying a dang, was ploughing the land while the remaining three appellants, having armed themselves with kulharis were present there. The deceased, Ghulam Rasul P. W. And Sardar Khan also came there and tried to stop the appellants from ploughing the land. An altercation ensued in which abuses were exchanged. Thereafter, Inayat appellant gave a hatchet blow -on the right side of the head of the deceased while Sarwar appellant gave a kulhari blow on the left side of the head of the deceased. The deceased fell down whereupon Muhammad Anwar appellant gave a dang blow on his back. The blows on the head of the deceased were given from the blunt side of the hatchet. Ghulam Rasul P. W. Was given Kuhari blows by Inayat, Rafiq and Sarwar appellants on his- head, and a sots blow by Anwar on his right arm and shoulder. Sardar Khan was given kulhari blows or his nose and left arm by Rafiq appellant and Anwar appellant gave him soti blows on the right forearm, left elbow and right shoulder. Fazal Ahmad and Mehar Khan P. Ws. Who were present nearby, saw that occurrence, raised an alarm and separated the parties. The in--jured were taken by Fazal Ahmad and Mehar Khan P. Ws. To Gangapura Dispensary, which is at a distance of about to miles from the spot. On the way the deceased had given the names of his assailants as Inayat, Sarwar and Anwar appellants, to these P. Ws. 3. After obtaining the reports of medical examination of the injured, Fazal Ahmad P. W. Left for the Police Station (Lundianwala) which is at a distance of 16 miles from the place of occurrence. On the way, however he learnt that the police was present in Chak No. 561 G. B. (at a distance of 3 miles). Therefore, he went there and made the statement (Exh. P. A.) at 12-30 noon which was recorded by Fazal and Ali, A. S. 1. P.W. Fazal Ahmad also handed over a ruqqa (Exh. P. U.) written by the doctor and addressed to the police, wherein it was stated that Ghulam, Haider was in bad condition and was unconscious due to head injury. The A. S. C. Sent the statement (Exh. P. A.) to the Police Station for registration of the case whereupon the formal F. I. R. (Exh. P. A.,/1) was drawn by Muhammad Inayat, M. H. C. P. W. At 2 p.m. The A. S. I. Himself proceeded to and reached Gangapura at 1 p.m. He asked the doctor, vide note (Exh. P. R.), whether Ghulam Haider was fit to make state--ment ; but was told, vide Exh. P. R./I, that he was unable to make any statement. Ghulam Haider died on the same day, i. e. 13th February. After the usual preliminary investigation, which included the preparation-of the inquest report, the A. S. I. Went to the spot. The blood-stained earth was collected from Killa No. 18 of Square No. 96; vide memo. (Exh. P. F.). The appellants were arrested onth
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15th February 1968. A soti was recovered from Anwar appellant while one Khuhari each was recovered from the other three appellants. The recovery memos do not show that these weapons were blood-stained. There is no evidence on the file, in the form of reports from the Chemical Examiner/ Serologist, to show that these weapons were used in the occurrence. Dr. Saif-ul-Islam examined Ghulam Haider on 13th February 1968 and found the following injuries oil his person :-- "(1) A contused Swelling on the right temporal region on, head measuring in 3" diameter 1" from the right ear and to inches from right eye-brew, (2) An one inch round swelling on head 3" from the left ear and 2" from the left aye. ' (3) An abrasion on the back measuring 2" x --". The patient was unconscious with stertorous breathing, right pupil is dilated and the patient was in a very bad condition.' On the same day at 11 a.m., he examined Ghulam Rasul P. W. And found the following injuries on his person:-- "(1) An incised wound 2' x --' x hone deep oil the right side of skull 3" from right ear and 3' from the right eye-brew. (2) An incised wound 1--' x --" x bone deep (in the left side of the skull 2--" from the left car and 5-- front the left eye-brew. (3) An incised wound --" x. --'' x --" on the top of skull 2--" from injury No. 1 and 2" from injury No. 2. (4) An abrasion 4" x --" on the back of the right arm longitudinally. (5) A contused wound 2--" x 1" on the right. Shoulder." All the injuries were simple and their duration was three hours. Injuries Nos. I to 3 were caused by sharp-edged weapon while the remaining to were caused by blunt weapon. On that xery day at 11-15 a.m., he examined Sardar Khan and found the following injuries on his person :--- (1) An incised wound 1-- x --' x --" on the face extending from the left side of the nose down to the lip, -- from the left eye: (2) An incised wound 1--' x --' x 1/8" on left elbow. (3) An abrasion on the left elbow, 1--" from injury No. 2. (4) A contused swelling 2" x 1" on the back of right forearm, 6" down the right elbow. (5) A contused wound 1--" x 1" on the right scapula (back side of the shoulder)." All these injuries were simple. Injuries Nos.1 and 2 were caused by sharp-edged weapon while the others were paused by blunt weapon. The duration was about three hours. After the death of Ghulam Haider, the autopsy on the dead body was performed by Dr. Abdul Ghafoor P. W. On 14 February 1968 at 2 p.m. He found the same injuries on the dead body as were found by he other doctor. On dissection of the skull, sufficient amount of blood was found in the loose tissues of the scalp. Right and left temporal bones and parietal bones were fractured under injuries Nos. 1 and 2. Fronto parietal suture was opened. Blood clot was present between skull bones and membranes of brain in both the temporal regions and. Blood was also present between the membranes and the brain substance. Injuries Nos. 1 and 2 were grievous and dangerous to life and were individually as well as collectively sufficient to cause death in the ordinary course of nature. Death was caused by the compression of the brain due 'to these injuries. All the injuries were caused by blunt weapon. The rest of the organs were healthy. The stomach - was found to be empty. This circumstance is of no significance in this case be-- cause, admittedly, the deceased remained alive for several hours, after the attack. The probable the between the injury and the death was about six hours and between death and post-- mortem 24 hours. 4. At the `trial, Fazal` Ahmad, Ghulam Rasul and Mehar Khan (P. Ws. 9, 10 sand 11 respectively) were produced as eye witnesses. They supported the prosecution case as disclosed in the F. I. R. Fazalth
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Ahmad and Ghulam Rasul also gave evidence in respect of the possession of and dispute on Killa No. 18 of Square No. 96. In this, they are supported by Murad Ali (P. W. 6) and Ali Ahmad (P. W. 7). In respect of the possession the prosecution also relied on copies of Khasra Girdawaris from 1956 to 1967 .(Exhs. P. N. To P. Q.),'1963-64 Jamabandi (Exh. P. M.) and the Canal Khatuni for Kharif 1967, (Exh. P. B. B/I). On this question, to Court witnesses Imam Din Lambardar (C. W: 1) and Nisar Ahmad (C. W. 2) an official from the office of Saddar Qanungo, and to defence- witnesses Muhammad Siddique, `a Canal 'Official (D. W. 1)-and Abdul Subhan Saddar Qanungo (D. W. 2) were also examined. Muhammad Yar Patwari (P. W: 8) who hag prepared the site plan (Exh. P. L.) on 15th February 1968 'which shows that some land in Killa No. 18 had been ploughed, was recalled as C. V. 3. He then produced the original1963-64 Jamabandi (Exh. C. W. 3/A) and also proved the Khasra Girdawaris produced by the defence (Exhs. D. F., D. G., D. H. And D. J.). : They relate to the years 1958 to 1962. The defence also produced a copy, (Exh. D. E. Of the 1963-64) Jamabandi kept in the office of Saddar Qanungo. The Court witnesses produced Exh. C. W. 1/A the Dhal Batch which contained entry. (Exh. C. W. 1 /B) showing one Nazir Hussain and Ghulam Haider deceased in possession of the disputed land, and the original 1963-64 Jamabandi in the office of Saddar Qanungo (Exh. C. W. 2/A) with relevant entries (Exhs. C. W. 2/B and C. W. 2/C). The evidence of the official witnesses from Canal and Revenue Departments is mainly based on documents. The defence plea is that of denial about the occurrence. It is claimed that though private partition took place between the co-sharers yet the land in dispute was given to Anwar and Sarwar appellants and that they were in possession at the-relevant the. The learned trial Judge has believed the entire prosecution version. He gave the verdict of guilty and convicted and sentenced the appellants as stated in the opening part of this judgment. 5. Mr. S. M. War, the learned counsel for the appellants, has taken us through the evidence including ail the documents. He has vehemently contended that the prosecution has failed to prove that the possession of the disputed land was with the deceased and his brothers: His main argument is that according to the 1963-6; Jamabandi, Barkat Ali, the father of the deceased, was tenant-at-will of Sarwar and Anwar appellants and that after his death (in about 1964/65), tenants other than the deceased and his brothers were in physical possession on behalf of the aforesaid appellants. Therefore, according to him, the appellants should be held to have been in possession of the disputed land at the the of the occurrence and if they caused injures to the complainant party, it was in the exercise of right, of private defence of property. 6. According to the prosecution, after the death of Mst. Nur Begum the parties privately, partitioned the land. Killa No. 25 of Square No. 91 which was thur affected, fell to the share of Barkat Ali and Tufail. "In order to make up that deficiency. Barkat Ali and Tufail were given 2 canals of land in Killa No. 18 of Square No. 96". This partition took place at the baithak of Murad Ali (P. W. 6). Sarwar and Anwar appellants and the other shareholders "took possession of the land according to that private partition, and started cultivating it. While the aforesaid to appellants and their other cousins who lived away from Chak No. 591/G-.B. Leased: out their share, Barkat Ali used to cultivate the land himself. It is significant to note that though Anwar appellant denied the fact um of private partition, Sarwar appellant admitted it in answer to question No. 4 (at the trial) but added that the private partition was not effected through the members of the Panchayat (the P. Ws.). In respect of the details of the private partition, he denied that the land in Killa No. 18 had gone to the share of Barkat Ali and Tufail. Thus the private partition is admitted. However, while the prosecution has produced witnesses about 'the details of the partition, the defence has chosen not to rebut that evidence except by making assertions in their own statements. If the private partition had taken place through some other persons or in any other manner, it was not difficult for the defence to produce witnesses in this behalf.
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This part of the prosecution case is supported by no less than three witnesses in addition to the statement of Ghulam Rasul. It finds support from independent circumstances. They are- (i) The uncontroversial entries in the Jamabandi show that Killa No. 25/1 (3-- kanals) was banjar due to thur up to 1960, when in Rabi of that year it came under cultivation for the first the. The remaining part of killa No. 25, i.e. 25/2 (4-- kanals) is banjur due to thur throughout the relevant period and never came under cultivation, It is obvious that one acre of land out of about seven acres of land which went to the share of Barkat Ali and Tufail, was at the the of private partition absolutely worthless. Therefore, the deficiency needed to be compensated and about 2 kanals of land in Killa No. 18 of Square No. 96 (excluding the land coming under paths. Etc.) may well have been given to Barkat Ali and Tufail. It may he mentioned that the remaining land its Square No. 96, i.e. Killa Nos. 14, 15 and 16, had gone to the share of Barkat Ali and Tufail. Therefore, it is more natural and likely that the land which was to he given to them in compensation (in Killa No. 18) would be in the same square. The learned counsel in this behalf argued that even without the addition of land in Killa No. 18. Tufail and Barkat Ali had obtained 7-- killas, which is about 4 kanals, more than their share of 7-- killas; therefore, there was no reason for adding anther about 2 kanals (of Killa No. IS) to their share. When asked as to what exactly was the total area to be partitioned between the parties, the learned counsel, with the help of in junior, gave us the figure 246 kanals 8 marlas. One-fourth comes to 7 acres 5 kanals and 12 marlas (about 7-- killas). Therefore, the learned Counsel does not appear to be correct in saying that without Killa No. 18 the land with Barkat Ali and Tufail was more than their share. There can be to reasons fur the confusion which may have led the learned counsel to raise this argument. Firstly it is said, that Mst. Nur Begum died leaving 29 acres of land and thus 7-- acres fell to the share of Barkat Ali and Tufail. This may be only a general statement and may be without the exactness; of entries in the document. And secondly, some tunes the land under common usage like path watercourse, the is also included in the entries while on the spot the actual land is less in area due to the exclusion if the above items. In any case even if it be assumed that 4 kanals had gone to Barkat Ali and Tufail in excess of their share, the disputed land in Killa No. 18 about 2 kanals) would make the total excess about 6 kanals. The excess was a compensation in respect of the entire land in Killa No. 25 which is about one Acre and was at the relevant the banjar due to thur. The private partition, even if 6 kanals was considered as in excess, would not be absolutely unreasonable and it cannot be said that it would not have been accepted by the parties. It is to be noted that the area given by the Patwari (P. W. 8) of thur affected Killa No. 25 is 4 kanal. This appears to be with reference to be Killa No. 25; 2 and Killa No. 25/1 appears to have been ignored, because that part, though originally thur affected came under cultivation in about 1960. But at the the of private partition, the entire area in Killa No. 25, i. e. About 8 acres was thur affected and the partition at that the must have taken place on that basis. In fact, the reclamation of about 8 kanals of land in Killa No. 25/1 may have led Anwar and Sarwar appellants to claim that the compensation originally granted was due to the entire area in Killa No. 25 being thur affected; and because a part of it had been reclaimed, therefore the y might have felt entitled to the return of Killa No. 18, which was originally given in compensation. This may be the real cause for their having gone back in the private partition after some years, particularly after the death of Barkat Ali who according to P. W. 6, was, present (from the complainant party) at the the of private partition. (ii) Killas Nos, 14, 15 and 16 of Square No. 96 had, admittedly, gone to the share of Barkat Ali and his brother Tufail. In the Jamabandi of 1963-64, these three killas and Killa No. 18 are mentioned seriatim. Barkat Ali is mentioned in column No. 4 as kashtkar. According to the defence the real entry about Killa No. 18 is and should have been as ghair dakhilkar (tenant-at-will), while according to the prosecution the entry is and should have been as hissadar (co-sharer). Keeping the con-- troversial part of the entry aside, it is to be noted that the entry of ghair dakhilkar would not go with
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Killas Nos. 14, 15 and 16 because they were, it is admitted, under the hissadari kashr of Barkat Ali. If that is so, there being one and the same entry for all the four killa numbers of Square No. 96, it is more in line with the normal and natural circumstances that whatever is the position about Killas Nos. 14, 15 and 16, the same would be about Killa No 18. This being the case, the disputed land was in possession of Barkat Ali as owner and not as a tenant. It is necessary here to deal with another contention of the learned counsel that the entry in Exh. D. E., which is stated to be a copy of the original entry (Exh. C. W. 2/B), should be treated as correct. In copy (Exh. D. E.), Barkat Ali is shown as ghair dakhilkar and in the entry of Jamabandi of 1903-64 (Exh. C. W. 2/B) the word "ghair dakhilkar" is scored out with red ink and initialled. On the other hand, he contends that the copy (Exh. P. M.) and the entry in register (Exh. C. W. 3; A) should be held to he incorrect. In this entry, Barkat Ali is shown in 1963---64 in possession as hissadar. The word "ghair dakhilkar" is scored out in red ink. It has been explained by all the witnesses on this subject, that though the entries in respect of cultivation in the Jamabandi are taken from the previous Khasra Girdawari yet at the the of preparation, if the factual position is found to be contrary to what is entered in the Khasra Girdawari, the correct position is entered in the Jamabandi. Before 1963-64 the Khasra Girdawari does show different persons as tenants of the land in dispute ; but in 1960 and onward Barkat Ali is shown in possession as ghair dakhilkar. It appears that at the the of preparation of Jamabandi, it was found that Barkat Ali was cultivating the land as hissadar. This, as shown above, is more in line with the fact that he was, admittedly, cultivating Killas Nos. 14, 15 and 16 in the same Square as hissadar, and Killa No. 18 has been mentioned along with aforesaid three killas. Therefore. The correct entry should have teen hissadar and not ghair dakhilkar. This also appears to be the reason why the word "ghair dakhilkar" was scored out in both the original copies of the Jamabandi. i.e. Exhs. C. W. 2/A and C. W. 3/A, and instead the word "hissadar" was also written in Exh. C. W. 2/A in pencil or ink but was subsequently rubbed out. This also explains the difference of entries to the to copies (Exhs. P. M. And D. E.). Exh. P. M. Was issued on 15th February i. e. Soon after the occurrence and it tallies with the original entry in register (Exh. C. W. 2/A). The copy (Exh. .D. E.) was prepared long after the occurrence. It represents the original entry (Exh. C. W. 2/B) made in register (Exh. C. W. 2/A) but does not show that the entry of ghair dakhilkar has been scored out and initialled. It is quite possible that the word "hissadar" was rubbed out at the the that this copy (Exh. D. E.) was issued. The Jamabandi Register (Exh. C. W. 2/A) was at Saddar Canungo's office. Therefore, it, probably escaped the notice of the police during the investigation and this must have afforded opportunity for interfering with the entries therein. This supposition is supported by a very important circumstance. In the register (Exh. C. W. 2/A) at' Saddar Qanungo's office, column No. 8 relating to rent has the entry "batai nisfi basharah Khata No: 1". But in the other register which is also the original, i.e. Exh. C. W. 3/A, there is no entry in column No. 8. We have very carefully and minutely examined that column. There is absolutely no indication that any entry originally might have been made in that column and subsequently may have been rubbed out. This leads to the most irresistible conclusion that originally when both the registers were prepared at one and the same the, the entry "batai nisfi". Was not mentioned in column No. 8 in either of the originals ; but subsequently somebody made his entry in Exh. C. W. 2/A but failed to make the same entry in Exh. C. W. 3/A. This shows that when the Jamabandi was prepared, even if Barkat Ali was shown as ghair dakhilkar the column as to rent showed that he was not paying any rent to anybody. This was noticed by the concerned authorities in the process of checking/certification. Therefore, the entry "ghair dakhilkar " was scored at as incorrect and instead the .Entry "hissadar" was made in. Column No. 4. This entry remained intact in register (Exh. C. W. 3,/A) which was noticed by the police soon after the occurrence during the investigation but as rubbed out in the register Exh. C. W. 2/A which was at the Saddar Qanungo's office.
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(i.e) The next Jamabandi prepared after 1963-64 has not been produced by any of the parties. Probably it was prepared after the occurrence which took place in February 1968. In normal course of events, if Barkat Ali, was in possession of Killa No. 18 in 1964 in the capacity of an owner, he is likely to continue as such unless there is any change in the possession. No such change has either been proved nor has been suggested. Therefore, it can be legitimately presumed that till his lifetime Barkat Ali and, after his death his sons, i. e. The deceased and his brothers, would be in possession of this land as owners. And if the names of some tenants are mentioned in Khasra Girdawari, they must be holding on behalf of sons of Barkat Ali. The learned counsel, in…
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