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Petitioner: MUHAMMAD ALI and others VS Respondent: THE STATE and others
Court Name: Supreme Court of Pakistan Judge(s): Nasir Aslam Zahid, Abdur Rehman Khan, Munawar Ahmed Mirza Title: MUHAMMAD ALI and others vs THE STATE and others Case No.:Criminal Appeals Nos.251 and 252 of 1993 Criminal Appeal No,134/89,
JUDGMENT
Reported As: 1999 SCMR 1957 Result: Appeals dismissed Judgment JUDGMENT ' MUNAWAR AHMED MIRZA, J.---These appeals, by leave of Court, are directed against judgment of Lahore High Court dated 8-2-1992 passed in Criminal Appeal No,134 of 1989, Murder Reference No,183 of 1989 and Criminal Revision No,100 of 1989. 2. Facts disclosed from F.I.R. Briefly mentioned are that at the request of deceased Munsha in the afternoon of 1.7th December, 1987, the complainant Muhammad Yar alongwith injured Sultan, injured Jan Muhammad and deceased Bagh Ali and Jan Muhammad assembled at his house for discussing the ways and means to procure golden ornaments weighing 20 Tolas from Mst. Anwar Bibi. Around 4-30 p.m. While sitting in the house of deceased Munsha they heard noise and Lalkaras, from the direction of Bazar, and went out towards the Chowk for ascertaining the reason and found that accused Muhammad Ali, Abdur Rehman, Habib and Siddiq armed with guns, Nazar Muhammad armed with 12-Bore pistol, Muhammad Hussain, Ghulam Nabi and Bashir Ahmed armed with sotas arrived there in a tractor. They all alighted there from the tractor; however, seeing deceased Munsha and others the accused Muhammad Ali shouted that they had come to avenge insult caused to them yesterday and started firing. Description showing part ascribed to each accused and manner of injuries inflicted by the assailants while attacking the complainant party has been mentioned in F.I.R. These details are also mentioned in the impugned judgment, therefore, need not be reiterated here. Mansha and Bagh Ali expired on receiving fire-arm injuries whereas P.Ws. Sultan and Jan Muhammad were severely wounded.
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3. It is the case of prosecution that Mst. Anwar Bibi wife of deceased Munsha had developed illicit relations with appellant Muhammad Ali, and at his instance instituted suit for dissolution of marriage which was later decreed. Subsequently appellant Muhammad Ali got married with said Mst. Anwar Bibi. Deceased Munsha demanded return of golden ornaments weighing twenty Tolas from Mst. Anwar Bibi, which was given to her at the time of marriage, but appellant Muhammad Ali has been causing obstruction whereupon deceased Munsha had publicly abused and slapped the appellant Muhammad Ali a day prior to said occurrence. On the statement of Muhammad Yar F.I.R. No, 414 of 1987 was registered at Qabula Sharif Police Station. After completion of investigation appellants Muhammad Ali, Nazar Muhammad and Muhammad Siddique in Criminal Appeal No,251 of 1993 besides Ghulam Nabi, Bashir. Muhammad Hussain, Rao Habib Ahmed and Abdul Rehman (since acquitted) and arrayed as respondents in Criminal Appeal No,252 of 1993 were sent up for trial before learned Additional Sessions Judge, Sahiwal. At the commencement of proceedings on 3nd May, 1989, they were indicted for having formed unlawful assembly and armed with deadly weapons causing murder of Munsha and Bagh Ali besides launching murderous attack upon Sultan and Jan Muhammad. They refuted the charge and pleaded not guilty. 4. Prosecution during trial had adduced thirteen (13) witnesses to substantiate accusations against the appellants, co-accused (since acquitted). Positive reports Exhs. PU, PV and PW from Chemical Examiner, Serologist and Forensic Science Laboratory were also tendered in evidence. Recovery memos, site plan and all connected documents and Articles were provided through witnesses. Post-mortem reports, medical certificates of deceased and injured respectively were also brought on record during deposition of the doctors. 5. .P.W. 2 Dr. Muhammad Aslam on 18-12-1987 had conducted postmortem of deceased Mansha and Bagh Ali. Relevant details are given below:- (i) Deceased Mansha son of Dara (1) Multiple lacerated fire-arm wounds 1 c.m. x 1 c.m. With charring and blackening on the wounds on the front of chest, side of neck, front of shoulder on left side in an area of 24 c.m. x 18 c.m. (ten wounds in number). ' On dissection the wounds on chest had gone into chest cavity, into the left lung and one of the pellets had pierced the left auricle of heart. One of the wounds had broken the second rib on back. There were multiple exit wounds on back of chest, back of neck and shoulder. Multiple pellets were recovered from the chest cavity and muscle of the back of chest. (2) Multiple fire-arm lacerated wounds (seven in number) in an area of 16 c.m. x 9 c.m. On the back of left hand fingers and wrist. There was fracture of carpal and metacarpal bones of left hand. There were multiple exist wound on the same area. ' Right lung was healthy. Chest cavity was 1/4th filled with blood. Left chest cavity was half filled with blood. ' The cause of death in my opinion was injury No,1 which resulted injury to heart, a vital organ and was sufficient to cause death in the ordinary course of nature." (ii) Deceased Bagh Ali son of Mahango (I) Lacerated fire-arm wound 1 c.m. x 1 c.m. On the bridge of nose with fracture of nasal bone. (II) A lacerated fire-arm wound 3/4 c.m. x 3/4 c.m. On the outer side of right upper arm at mid area with an exit wound on the inner side was seen at the same level. ' The cause of death in my opinion was injury No,1 which resulted in injury to brain, vital organ and was sufficient to cause death in the ordinary course of nature. 6. P.W.6 Dr. Muhammad Sabir has given description and location of injuries on the persons of Sultan, Jan Muhammad and accused Ghulam Nabi, which are mentioned hereunder:-- (i) Sultan son of Khan Muhammad examined on 18-12-1987 vide certificate (Exh.PJ):--
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(1) Lacerated wound 6 c.m. x 0,7 c.m. x scalp deep on the left side of head, 8 c.m. Above the left year. (2) Lacerated wound "Y" shape 4.5 c.m. 2.3 c.m. x scalp deep on the top of the head. (3) A circular wound 0.4 c.m. x.04 c.m. x depth not probed on the back left shoulder joint. (4) An abrasion 2.2 c.m. x 1.4 c.m. On the top of left shoulder. (5) A contused swelling 16 c.m. x all around the left fore-arm. (6) An abrasion 3 c.m. x 1 c.m. On the back and medical (sic) side of right fore-arm lower part. ' Injuries Nos.1, 2, 3 and 5 were kept under observation. X-Rays were advised. Rest injures were declared as simple. ' Injury No,3 was caused by fire-arm but initially the weapon used for the same was kept under observation. All the other injures were caused by blunt weapon. Duration between injuries and examination was about 9 to 11 hours. ' According to X-Ray Report injury No,3 was declared as grievous and by fire-arm as no bony injury was seen at the site of injuries Nos.1, 2, and 5 so those were declared as simple. (ii) Jan Muhammad son of Khan Muhammad was examined on 18-12-1987, vide Certificate (Exh.PK):-- (1) A lacerated wound 1.2 c.m. x 0.2 c.m. x skin deep on the left side of the head, 10 c.m. Above the left ear. (2) An abrasion 1.5 c.m. x 1 c.m. On the lateral side of left knee joint. ' Both the injuries were declared as simple and caused by blunt weapon. Duration was about 9 of 11 hours. (iii) Accused Ghulam Nabi was examined on 29-12-1987, vide Certificate (Exh. PL):- (1) A scar mark of stitched wound (healed) 3 c.m. x 0.5 c.m. On the right side of the head, 8 c.m. Above left eye-brow. (2) A healed wound 3 c.m. x 0.5 c.m. (stitched) on the back of head, 13 c.m. Above the left ear. ' Both the injuries were kept under observation. X-Ray of the skull was advised. The kind of weapon used was not mentioned as injures were healed and stitched. Duration of injuries was about 12 days." 7. The ocular evidence comprises of two witnesses - namely, P. W.1 Complainant Muhammad Yar and P.W.8 injured Sultan, whereas Jan Muhammad was given up. Complainant in his deposition has narrated entire incident. He deposed that Mst. Anwar Bibi former wife of deceased Mansha had procured decree for dissolution and subsequently contracted marriage with convict-appellant Muhammad Ali. However, deceased Mansha demanded return of 20 Tolas of gold from Mst. Anwar Bibi, but appellant. Muhammad Ali has been causing hurdles. A day prior to the occurrence, there was altercation when deceased Mansha had abused and slapped appellant Muhammad Ali. During this testimony the witness explained that on the fateful day they had assembled in the house of deceased Mansha for discussing measures to be adopted for arranging return of 20 Tolas of gold from Mst. Anwar Bibi when they were attracted by loud shouting and Lalkaras from the direction of Chowk located close about vicinity measuring about 5/6 Karams from the house of deceased Mansha as reflected from site plan Exh.PM and answer given by complainant during cross-examination. Complainant Yar Muhammad unequivocally stated that on hearing high pitched noise they all moved towards the Chowk and saw accused party coming from southern side on a tractor. They were armed with weapons and sotas, however alighting from the tractor it was held out that they had come for avenging the insult of previous day. The appellant and his companions started firing whereupon the witness alongwith Jan Muhammad took shelter behind the wall to save themselves from onslaught of the accused party. Appellant, Muhammad Ali, fired with his gun at deceased Mansha which struck on left side of his chest and he fell down. Accused
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Nazar Muhammad had fired at deceased Bagh Ali which hit on his nose and upper part of left arm, who also fell down. Muhammad Siddique fired at Sultan P.W. Which hit him on the back of left shoulder. They also ascribed Sota injuries and firing of Rao Habib Ahmed indicating participation of other accused who has since been acquitted. Thereafter the accused persons managed to escape. The complainant left Nawab with dead bodies and went to Police Station where he lodged report (Exh. PA). During cross-examination the witness has admitted that when he went at the Police station, for lodging F.I.R. Salam Khan, Amir Hamza and Riaz Hussain, Advocate, were there but he had not accompanied them. Some of the contradictions have also been brought on record which were proved. P.W. 8 injured Sultan had practically corroborated the statement given by complainant. Since he was not present at that time previous incident, constituting motive for unfortunate incident which took place on 17-12-1987, therefore, he did not mention about the same. The witness had remained in hospital around 15/16 days for his treatment. The assertions with regard to stand taken by defence were specially disputed by this witness during cross- examination. P.W. 12 Irshad Ahmed, Sub-Inspector and P.W.13 Nazir Ahmad, Sub-Inspector have given detailed account of investigation carried out by them and also affirmed the recoveries which were affected in their presence. Strangely enough P.W.13 had made obligating statements in the case of cross-examination. 8. It may be mentioned that P.W.1 Muhammad Yar in the beginning of his deposition before trial Court gave details about relationship of accused inter se, while during cross-examination he had mentioned relationship amongst prosecution witnesses. For convenience said details are reproduced below:-- "I Bashir and Muhammad Ali accused are real brothers while Nazar accused is their sister's husband. Muhammad Hussain accused is, brother of Nazar accused. Wife of Bashir accused is 'Phoophizad' of Ghulam Nabi accused. Siddique accused is paternal-uncle of Ghulam Nabi accused. Abdul Rehman and Rao Habib Ahmed are friends of Muhammad Ali accused." "II Khan Muhammad was my maternal grand-father whereas Mst. Saddan was my maternal grandmother. Nawab P.W. Is nephew of my maternal grandfather. Sharaf P.W. Is son of Sultan P.W. Farid P.W. Is nephew of Bagh Ali deceased Yousaf and Ali Muhammad who identified the dead bodies and Sharif P.W. Are collateral of Jan Muhammad and Sultan P.Ws." 9.. After close of prosecution evidence, statements of all the accused were recorded under section 342, Cr.P.C. Wherein they had categorically denied the prosecution allegations, Accused also did not opt for making statements on oath in disproof of accusations as envisaged under section 340(2), Cr.P.C. Convict appellant Muhammad Ali and accused Ghulam Nabi admitted their presence and pleading self-defence explained circumstance and reason of said occurrence. The Answer to Question No,11 given by appellant Muhammad Ali is relevant which was, however, adopted by Ghulam Babi. The above referred reply/explanation of appellant Muhammad Ali is reproduced below:-- "Q:11. Why this case against you and why the P.Ws. Have deposed against you? ' Ans: I have been falsely involved in this case due to enmity. In fact Mansha deceased had been trying and demanding to get back twenty tolas' of golden ornaments allegedly given by him to Mst. Anwar Bibi at the time of his marriage with her but on each occasion I refused its restoration to Mansha deceased. Mst. Anwar Bibi also instituted civil suits against Mansha deceased for the recovery of dower and ornaments and I was pursuing those cases on behalf of my wife Mst. Anwar Bibi, Mansha deceased had also instituted a suit for the custody of his minor daughter, Mst. Nasreen adjacent my wife Mst. Anwar Bibi but I defended that case as well. Mansha deceased was determined to get back the ornaments from me and as such he alongwith Bagh Ali deceased, Sultan and Jan Muhammad P.Ws. Armed with gun, pistol and dangs' way-laid me when I was coming on my tractor after ploughing my land and was proceeding to my house. They launched a
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murderous assault on me, fired at me in order to snatch my tractor forcibly in lieu of the ornaments and to kill me as well. The fires of the two deceased hit the tyres of my tractor which got burst. Sultan and Jan Muhammad P.Ws. Hit my tractor with their dangs', damaged the same and removed its battery. On my alarm Ghulam Nabi accused was attracted to the spot who tried to save my life and the snatching of my tractor by the deceased party and to desist them from snatching my tractor. He was also dealt 'Sota' blows on his head and he in order to save my life and his own life caused injuries with 'sots' to Sultan and Jan Muhammad P.Ws. In self-defence. I fired with the gun is order to save my life and to save the snatching of my property (tractor) which hit the two deceased persons and Sultan P.W. My co-accused Muhammad Hussain, Bashir, Nazar. Muhammad Siddique, Abdul Rehman and Rao Habib Ahmed were not present at the spot at the time of occurrence. Muhammad Yar P.W. Was also not present at the spot at the time of occurrence. Salam Khan Rath. Amir Hamza and Riaz Hussain Advocate after due deliberation got the present case registered against us on 1812-1987 due to their enmity with us. The police colluded with them and the complainant party out of ulterior motive and falsely challaned us. The P.Ws. Have deposed falsely against us due to enmity and being close relatives of the deceased persons." 10. No defence was led by the accused. Learned Additional Sessions Judge on the appraisement of evidence by means of judgment dated 3-6-1989 found that case was made out against Muhammad Ali, Nazar Muhammad, Muhammad Siddique, Muhammad Hussain, Ghulam Nabi and Bashir beyond any reasonable doubt. Whereas Abdur Rehman and Rao Habib Ahmed were at- quitted. Operative portion of the judgment reads:- "35. For what has been said above I am of the considered opinion that prosecution has succeeded in proving its case against Ghulam Nabi, Muhammad Ali. Bashir, Nazar Muhammad, Muhammad Hussain and Muhammad Siddique accused beyond any shadow of doubt. They are accordingly convicted under sections 148,302/149 and 307/149 of the Pakistan Penal Code. Muhammad Ali accused fired at Muhammad Mansha deceased as a result of which he died at the spot. Nazar Muhammad accused killed Bagh Ali deceased with his pistol. They committed cold-blooded murder, therefore, they deserve extreme penalty provided under the law. Muhammad Ali and Nazar Muhammad accused are accordingly sentenced to death under section 302/149 of the P.P.C. On two counts. They shall be hanged by necks till they be dead. They are also sentenced to pay fine of Rs,10,000 each and in default whereof they shall further suffer rigorous imprisonment for two years each. However, death sentence awarded to them shall be subject to confirmation by the Hon'ble High Court for which a separate reference under section 374, Cr.P.C. Shall be made. They have been informed that they can file appeal against this judgment within seven days from today. They can get copies of judgment free of costs, if so like or apply therefor. 36. However, case of Bashir, Muhammad Hussain, Muhammad Siddique and Ghulam Bibi accused is distinguishable. They did not cause injuries to Bagh Ali and Muhammad Mansha deceased, therefore, they deserve leniency. They are accordingly sentenced to suffer imprisonment for life each under section 302/149 of the P.P.C. On two counts as charged and with fine of Rs,10,000 each and in default whereof they shall suffer further rigorous imprisonment for two years each. All the six convicts are further sentenced to suffer rigorous imprisonment for seven years each under section 307/147 of the P.P.C. And with fine of Rs,1,000 each on two counts as charged and in default of payment of fine they shall further suffer rigorous imprisonment for one year each. All the convicts are further sentenced to suffer rigorous imprisonment for one Year each under section 148 of the P.P.C. All the convicts are directed to pay compensation of Rs,5,000 each to the legal heirs of both the deceased and in default whereof they shall further suffer simple imprisonment for six months each. The case property i.e, guns and pistol shall stand confiscated in favour of State and remaining case property shall be destroyed after the disposal of reference by the Hon'ble High Court. Muhammad Ali, Nazar Muhammad and Muhammad Siddique accused are present in
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custody. They be sent to Jail to undergo the sentences awarded to them today. Bashir, Muhammad Hussain and Ghulam Nabi accused are present on bail. They be taken into custody forthwith and sent to Jail to undergo the sentences awarded to them. The sentences of imprisonment shall run concurrently. Abdul Rehman and Rao Habib Ahmed accused are present on bail and are discharged of their bail bonds." 11. Convict/appellants Muhammad Ali Muhammad Siddique, Nazar Muhammad, Ghulam Nabi, Bashir and Muhammad Hussain aggrieved from above convictions and sentences had filed Criminal Appeal No,134 of 1989 before Lahore High Court. Murder Reference No,163 of 1989 seeking confirmation of the death penalty awarded to appellants Muhammad Ali and Nazar Muhammad by the Trial Court also came up for hearing alongwith said appeal. The High Court on thorough reappraisal of the evidence and considering arguments addressed on behalf of the parties allowed the appeal pertaining to accused (i) Bashir, (ii) Muhammad Hussain and (iii) Ghulam Nabi by setting aside their convictions and sentences under section 302/149 and 307/149/148, P.P.C. Recorded against them. They were, however, convicted under section 323/34, P.P.C. And sentenced to imprisonment for the period already suffered. Whereas the appeal of convict/appellants (i) Muhammad Ali, (ii) Nazar Muhammad and (iii) Muhammad Siddique were dismissed. However, conviction was altered into section 302/34, P.P.C. And 307/34, P.P.C. Relevant observations in the impugned judgment reads:- "33. Having, thus, examined all aspects of the case minutely, we feel no hesitation in observing that there is enough evidence on record to hold that all the appellants had participated in the occurrence. Before coming to such conclusion we had considered the contention of learned counsel for Muhammad Hussain appellant that apart from the fact that he had been involved on account of relationship with Muhammad Ali, the part assigned to him of having inflicted injury to Sultan P.W. On the left wrist, stood contradicted, in view of the medical evidence, and the sota recovered from him was not found stained with blood. ' He was.Not so closely related to Muhammad Ali. He was rather related distantly. Although the doctor who examined Sultan. P.W. Did not state that he had noted any injury on his left wrist, yet he did not injury on his left arm. The diagram of injury prepared by him shows that the injury was near the wrist joint. Obviously there is little bit confusion in description of the injury caused by Muhammad Hussain appellant to Sultan P.W. Such a position cannot be termed as contradiction of the ocular account by the medical evidence. None of the injuries suffered by the witnesses with the sota, appeared to have bled and so the sota could not have found stained with blood. 34. Still another aspect of the case is that none of the two eye-witnesses had any specific personal enmity with Muhammad Hussain. 35. Notwithstanding the fact that we have come to the conclusion that all the appellants had participated in the occurrence, we are not inclined to accept the verdict of the trial Judge that Bashir, Muhammad Hussain and Ghulam Nabi shared common intention with their co-accused to commit the murders of Mansha and Bagh Ali nor in our opinion, they shared common intention with them to launch murderous assault on Sultan or any other P.W. In that, what has impressed us, is that on their own they had no deep rooted enmity with any of the two deceased, as well as the injured P.Ws. The weapons they were wielding also are not so dangerous, and the manner in which they used those weapons also does not show that they had any idea to share the common intention with their co-accused to commit the murders of the two and launch murderous assault on the P.Ws. The injuries caused by them to the P.Ws. Were found simple, which shows that they did not use their weapons with the amount of force which could indicate their intention to commit murders or share common intention of committing murders or the murderous assault. Their appeals are, therefore, allowed, and their convictions under sections 302/149, 307/149 and 148, P.P.C. Are set aside. They are, however, convicted under section 323/34, P.P.C. For having caused simple
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injuries to the P.Ws. As they had already suffered sentences of imprisonment for a period of more than one year which is provided for commission of offence under section 323, P.P.C., they shall be deemed to have undergone the sentences for their convictions under section 323, P.P.C. ' Muhammad Hussain appellant is already on bail. His sureties shall stand discharged. Ghulam Nabi and Bashir appellants shall be released forthwith, if not required in any other case. 36. The appeals filed by Muhammad Ali, Nazar and Siddiq appellants are dismissed. However, their convictions under section 302/149 on two counts for having committed murders of Mansha and Bagh Ali and their convictions under section 307/149, P.P.C. For having launched murderous assault on Sultan and other P.Ws. Are altered to under section 302/34, P.P.C. On two counts and under section 307/34, P.P.C. The sentences of death awarded to Muhammad Ali and Nazar on both the counts are confirmed. Whole of the fine, for conviction under section 302/34, P.P.C., on recovery from all the appellants, shall also be paid as compensation in equal share to the heirs of both the deceased. 37. Since Muhammad Hussain, Ghulam Nabi and Bashir appellants have not been held to be the members of unlawful assembly and their convictions have been set aside, the convictions of Muhammad Ali, Nazar and Siddiq under section 148, P.P.C. Are also set aside. 38. No case for enhancement of sentences of Siddiq appellant (respondent in Crl. Revision) under section 302/34, P.P.C. Is made out nor there seems to be any justification to enhance the sentences of imprisonment of Muhammad Ali, Nazar and Siddiq under section 307/34, P.P.C. As we have already ordered that amount of fine on recovery from the three appellants/convicts for their conviction under section 302/34, P.P.C, on both the counts, shall be paid as compensation to the heirs of the deceased, we do not think, there is any justification to award enhanced amount of compensation. The revision petition, which is still at motion stage, is, therefore, dismissed." 12. Above judgment was assailed by convicts/appellants before this Court through Criminal Petition for Leave to Appeal No,105-L of 1992, whereas complainant Muhammad Yar also filed Criminal Petition for Leave to Appeal No,113-L of 1992 challenging acquittal of Ghulam Nabi, Muhammad Siddique and Bashir besides claiming enhancement of sentence. Leave was granted on 20-3-1993 in the following…
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