MUHAMMAD ASHRAF Versus THE STATE

This judgment will dispose of Criminal Appeal No.113 of1993 filed by Muhammad Ashraf, Qasam and Riaz Hussain against the judgment of learned Additional Sessions Judge, Chiniot, dated 5‑1‑1993 whereby he convicted the appellants to undergo life imprisonment under section 302/148/149, P.P.C. plus a fine of Rs.20,000 each, in default two years R.I. each. Half of the fine if recovered was ordered to be paid to the legal heirs of the deceased Mst. Allah Jawai. Appellants were also convicted under sections 148, 149, P.P.C. to undergo one year R.I. each. It may also be noted here that in this case in all ten accused were tried by the learned trial Court. Three accused namely Shamman, Gulzar Ahmad and Ahmad Ali were acquitted by giving them. benefit of doubt by the learned trial Court. As far as other accused namely Ghulam Abbas son of Shamman, Ghulam Abbas son of Ahmad Ali and Atta son of Falak Sher are concerned, they were convicted and sentenced by the learned trial Court under section 337‑F(i), P.P.C. for causing simple injuries to the injured P. Ws: namely Kazim Hussain and Azhar Abbas to undergo one year R.I. with the further direction to pay Rs. 1,000 each as fine to the injured P.Wsr. They were also convicted and sentenced under section 148/149, P.P.C. to undergo one year R.I. each. Sabir Hussain accused was also convicted and sentenced under section 337‑F(v), P.P.C. for causing grievous injuries to the injured P.Ws. to undergo five years R.I. plus a fine of Rs.3,000 to be paid to the injured P.Ws. as "Damman". He was also convicted and sentenced under section 148/ 149, P. P. C. to undergo one year R.I. All the sentences were ordered to run concurrently. All the accused namely Ghulam Abbas son of Ahmad Ali, Ghulam Abbas son of Shamma, Atta son of Falak Sher and Sabir Hussain son of Shamma were granted the benefit of section 382‑B, Cr. P. C.

2. The occurrence in this case took place on 24‑10‑1990 at 12‑00 noon within the area of Chak No. 130/JB, seven miles away from Police Station, Saddar, Chiniot. Complaint Exh. P.A. was lodged by Said Ahmad, P.W.1 on 28‑10‑1990 at 10‑30 a.m. at Jhok Morh, Faisalabad Road while the formal 17.1,11. Exh. P.A/1 was recorded on the same day at 11‑05 a.m.

3. This unfortunate occurrence resulted the death of Mst. Allah Jawai, deceased and for causing injuries to Kazim Hussain and Azhar Abbas, injured P.Ws. took place on 24‑10‑1990 at about noon time in the area of Chak No. 130/JB situated at a distance of about seven miles away from Police Station, Saddar Chiniot. The incident was reported by Said Ahmad complainant vide Exh. P.A. with Mukhtar Ahmad, A.S.I./I.O. (P. W.15) at Jhok Morh Faisalabad Road, on 28‑1a‑1990 at 10‑30 a.m. upon which F.I.R. Exh. P.A/1 was recorded.

4. The prosecution case as‑narrated by Said Ahmad, complainant was that about 11 months back from 2‑10‑1990, when his statement was recorded in trial Court, he alongwith his brother Kazim Hussain, his nephew Azhar Abbas and Mst. Allah Jawai, was coming back to his house after, casting their votes in Chak No. 130/JB at about noon time. When they reached near the deserted haveli of Barkha Baluch, all of a sudden, Sabir, Ghulam Abbas sons of Shamma, Ahmad Ali, Ghulam Abbas son of Ahmad Ali, Qasim, Atta sons of Falak Sher, Muhammad Ashraf and Riaz accused armed with 12 bore guns, Shamma and Gulzar accused empty handed, emerged raising Lalkara to the complainant party that none of them will go alive today. Sabir accused fired two shots, hitting Kazim Hussain in his abdomen, who fell down. Thereafter, Ghulam Abbas son of Shamma accused fired which hit Kazim Hussain on his thigh. Then Ashraf accused fired two shots, hitting Mst. Allah Jawai on her left hip and thigh. Ahmad Ali accused also fired which hit Mst. Allah Jawai on her back. Thereafter, Qasim accused fired hitting Mst. Allah Jawai on her abdomen. On receipt of the injuries, Mst. Allah Jawai fell down. Then Riaz accused fired at her hitting on her left hand. Thereafter, Ghulam Abbas son of Ahmad Ali accused fired which hit Azhar Abbas on his right shoulder and then Atta accused fired hitting Azhar Abbas on his right hand. During that period, the complainant raised hue and cries attracting Riaz and War Abbas, P.Ws., who also witnessed the occurrence. After the occurrence, the accused fled away firing in the air.

5. The Investigating Officer after reaching at the spot took into possession blood‑stained earth from the murder place of Mst. Allah Jawai vide memo. Exh. P.S. He also took into possession blood‑stained earth from the place of injured P. Ws. namely Azhar Abbas and Kazim Hussain on the same day vide memo. Exh. P.T. and Exh. P.U. Muhammad Ashraf appellant was arrested in this case on 20‑12‑1990. He led to the recovery of gun P.17, and two cartridges P.18/1‑2, which were taken into possession vide memo. Exh. P.Q. Qasim appellant was arrested in this case on 20‑12‑1990. He led to the recovery of gun 12 bore P. 1.1 and two cartridges P.12/1‑2, which were taken into possession vide memo. Exh. P.G. Riaz appellant was arrested in this case on 21‑12‑1990. He led to the recovery of gun 12 bore P.7 and two cartridges P.8/1‑2, which were taken into possession vide memo. Exh. P. E.

6. Prosecution in order to prove its case produced 18 witnesses in all, thereafter, statements of the appellants were recorded under section 342, Cr.P.C. by the learned trial Court. Appellants had also produced Rana Muhammad Aslam Khan, D.S.P. as D.W.1 in their defence before the learned trial Court. Amongst 18 witnesses P. W.1, Said Ahmad, P.W.3 Kazim Hussain (injured P.W.), P.W.4, Azhar Abbas (injured P.W.) were eye‑witnesses. Medico‑legal examination on the body of Kazim Hussain and Mst. Allah Jawai was conducted by Dr. Faiz Ahmed Faiz P.W.5 while Medico‑legal examination on the body of Azhar Abbas was got conducted by Dr. Altaf Pervaiz C.M.O. P.W.7. Dr. Altaf Pervaiz C.M.O. also conducted post‑mortem examination of the body of Mst. Allah Jawai. The report of Chemical Examiner is Exh. P.CC and that of Serologist is Exh. PDD.

8. The statements of both the above said doctors namely Dr. Faiz Ahmad Faiz P.W.5 and Dr. Altaf Pervaiz C.M.O. are reproduced below:‑‑‑

Dr. Faiz Ahmad Faiz, M.O. P.W.5 on 24‑10‑1990 conducted Medico‑legal examination of Kazim Hussain and found the following injuries on his person.

(1) Lacerated wound 1 c.m. x 1 c.m. with inverted margins, blackening present, 6 c.m. above umbilicus slightly to right of. mid‑line on abdomen, corresponding hole present on qamiz and vest.

(2) Lacerated wound 1 c.m. x 1 c.m. with inverted margins, blackening present 8 c.m. to the left of umbilicus on abdomen and corresponding hole present on shirt and vest.

(3) Lacerated wound 1 c.m. x 1 c.m. in front of middle part of left thigh with inverted margins, blackening present.

B.P. 80/60 M.M.H.G., Pulse 120 per minute and feable. Cold sweating. All the injuries were kept under observation. The injuries were caused by fire‑arm within a duration of 1‑1/2 hours. Exh. P.1 is the correct carbon copy of MLC which is in my hand and bears my signatures. Exh. P.1/1 is the sketch of the injuries, it is also in my hand and bears my signatures.

On the same day, the said Doctor medically examined Hajan Allah Jawai and found the following injuries on her person.

(1) A lacerated wound 1 c.m. x 1 c.m. on outer part, upper part of left thigh with corresponding hole on chader present.

(2) Lacerated wound 1‑1/2 c.m. x 1 c.m. on upper part of left buttock, intervening distance between injuries Nos. l and 2 was 15 c. m.

(3) Lacerated wound 2 c.m. x 1 c.m. lumber region 8 c.m. medial to injury No.2.

(4) ??????? Lacerated wound 3/4 c.m. x 3/4 c.m. in left hypochundraiyum, left and upper quardrent in front of abdomen, with corresponding hole on shirt present.

(5) Lacerated wound 2 c.m. x 2 c.m. on proximal phalyn of left ring fingure (left hand).

B.P. 130/70 M.M.H.C., pulse 100 per minute. All the injuries were kept under observation, caused by fire‑arm within duration of 2‑4 hours. Exh. P.J. is the attested photo stat copy of MLC. The said photo copy is in accordance with the original, it bears my signatures. Exh. P.J./1 is the sketch of the injuries, the same is in my hand and bears my signatures.

After receipt of X‑ray with regard to injuries on the person of Kazim Hussain, I declared injuries Nos. 1 and 2 as grievous and No.3 as simple. Exh. P.K. is my report to this effect.

By defence counsel.

I did not inform the local police about the arrival of Kazim Hussain .and Hajan Allah Jawai in the Hospital. Anyhow I directed the party concerned to immediately report the matter to the police. I handed over Exh. P.1 and copy of Exh. P.J. to Said Ahmad immediately after the examination. I have not brought the original register regarding MLC No. 748/F‑190. I had also handed over the clothes of Kazim Hussain and Hajan Allah Jawai which had holes after marking and signing the same to Said Ahmad, when I handed over the result to him. The blood pressure of Hajan Allah Jawai was normal and the pulse was also good, but slightly rapid. I had not mentioned as to whether the condition of Kazim Hussain or Hajan Allah Jawai was dangerous to life in Exh. P.1 and Exh. P.J. Both of them were referred to Allied Hospital, (P.M.C) Faisalabad, because of their condition. I had written on MLC that both the injured were referred to Allied Hospital for treatment and medico‑legal, X‑rays. According to medical jurisprudence, the blackening occurs, when the fire is shot from the distance of within two yards. Volunteered, it depends upon the kind of weapon. I am not in a position to tell what kind of fire-arm weapon was used in this case. The fire which was shot at Allah Jawai might have been fired from a distance of more than two yards. Lady W.M.O might have been present on, duty on 24-10-1999, but I examined Hajan Allah Jawai because I had already examined Kazim Hussain and was on emergency duty. My duty on that day was from 2-00 p.m.' to 8.00 p.m. in routine, but on that specific day, I was--on full day duty since morning. The injuries on the person of Allah Jawai might have been the result of one fire or more than one fire. The X-ray of Kazim Hussain was done by Technician (Radiogrpaher) of the Hospital. I had not seen any pallet in the wounds of Kazim Hussain. They were not palpable on examination. Report Exhs. P.K/1 is in the hand of M.S. THQ, Hospital Chiniot. I identify his signatures and writing. It is correct that photo star attested copies Exh. D.A., D.B, D.C, D.D. and D.E. of Riaz Bibi, Sabir Hussain, Haji Muhammad Ali, Murid Hussain and Shehnaz Begum respectively are in my hand. The examination of these persons were conducted by me' on 24-10-1990 from 1.00 p.m. till 4.30 p.m. It is correct that there were two, three, one, three, and two fire arms injuries on the persons of Riaz Bibi, Sabir Hussain, Haji Muhammad Ali, Murid Hussain and Shehnaz Begum respectively.

??????????? On 24-10-1990 Dr. Altaf Pervaiz Qasim, C.M.O. conducted medico-legal examination on the body of Azhar Abbas son of Haq Nawaz and found the following injuries on his person.

(1) Lacerated wound 1-1 /2 c. m. x 1 c.m. DNP with iqverted margins on the back of right chest, 14-1/2 c.m. away from the posterior vertebral lines.

(2) Lacerated wound 1 c.m. x 1/2 c.m. x DNP on the back of right chest 4 1/2 c. m. medial to injury Nos. l and 10 c.m. away from the midline. Margins of the wound were inverted.

(3) Lacerated wound 1 c.m. x 3/4 c.m. x DNP on the back of right wrist about 6-1/2 c.m. above the right wrist.

(4) Lacerated wound 1/2 c. m. x 1/2 c.m. x DNP on the outside of lower 1 /3 rd of right forearm about 5-1/2 c.m. above the right wrist joint, and three c.m. away from injury No.5. Margins of the wound were inverted.

Note . -----According to bed ticket/indoor record there were through and through penetrating injuries on the right forearm lower part and on the back of right chest and shoulder. Moreover, no bony legion was seen. All the injuries were caused by fire-arm weapon, were fresh on arrival and were declared as simple. The probable duration between the injuries and examination was within about two hours.

As the patient was examined by me at 4.15 p.m., and there was fresh bleeding from the injuries, so the exact duration between injuries and examination could not be ascertained. However, probable duration is 2/3 hours. The carbon copy of MLR No.1775 of 1990 was received by Said Ahmad on 30-10-1990 Exh. P.L. is the correct carbon copy of MLC written and sighed by me.

On 4-11-1990 the said doctor conducted the post-mortem examination on the dead body of Mst. Allah Jawai and found the following injuries on her person:

(1) ??????? A fire‑arm wound of inlet 1 c.m. x 1 c.m. on the outer‑side of left thigh upper part. The foreign body after entering the muscles of thigh caused fracture of the neck of left feamour through and through and then ruptured the femoural vessels. A matalic foreign body was found near the fractured ends of left feamour. No exit wound was present.

(2) ??????? A fire‑arm wound of inlet 1 c.m. x 1‑1/4 c.m. on the back of left lower chest (left lumber area), at a distance of 6 c.m. from mid‑line. The wound was only muscle deep and the margins were inverted.

(3) ??????? A fire‑arm wound of exit 1 c.m. x 1?1/2 c.m. on the upper part of left buttock, at a distance of 15 c.m. above the injury No.1. The wound communicates with injury No.2 on probing. It is also a muscle deep.

(4) ??????? A lacerated wound 3/4 c.m. x 3/4 c.m. on the back of proximal phalyax of ring finger of left hand. Margins of the wound were inverted. The foreign body entered the skin of hand on back side, caused the fracture of proximal phalynx of left ring finger through and through and passed out‑side b5 rupturing the skin of hand on the front side. The wound was through and through.

(5) ??????? An incised wound 24 c.m. long wit united margins on the front c abdominal wall along the mid line having 17 stitches of black silk o the wound (wound of surgical operation laprotomy done in the surgical ward).

(6) ??????? A fire‑arm wound of inlet 3/4 x 3/4 c.m. on front of left abdomen (left hyprochonorium), at a distance of 10 c.m. from mid‑line and 18 c.m. below the level of left nipple. Margins of the wound were inverted having the slight burning on the edges. The foreign body entered the abdominal cavity, rupturing the peritoneum, the intestines on different sites and traveled obliquely down‑wards and towards right side, and the foreign body passed away through the right lower abdomen about 4 c.m. from the mid‑line.

(7) ??????? A fire‑arm wound of exit 1‑1/2 c.m. x 1 c.m. on front of right lower abdomen, 4 c.m. from mid line, the margins of the wound were everted (It was the exit wound of injury No.6).

As no injury was found on the scalp, so scalp was not opened. On opening the chest cavity, right and left lungs were congested and left femoural vessel were ruptured, other all organs were found healthy. Right side of the heart was full of dark coloured blood.

On opening the abdominal cavity, abdominal wall, peritoneum, stomach, small intestine, were found ruptured. All the other organs. were: found healthy. Urinary bladder contained 2/3 c.m. of urine. Uterous was found non‑gravid.

In my opinion, cause of death in this case was haemorrhage, shock, peritonitis and septicaemia resulting from injury Nos. l and 6, caused by fire‑arm weapons, which was anti‑mortem and sufficient to cause death collectively as well as individually. Injuries Nos., 1, 2, 3, 4, 6 and 7 were caused by fire?arm weapon, while injury No.5 was the wound of surgical operation. All the above injuries were anti‑mortem, out of which injuries Nos. l, 4 and 6 were grievous and other all were simple.

Note: ?? Two matalic foreign bodies (deshaped pallets) recovered from the dead body and handed over to the police in a sealed bottle. The probable duration between injuries and death was about eleven days and same between death and post‑mortem was about 9 and 10 hours. After conducting the post‑mortem examination, I handed over the last worn clothes, police papers, post?-mortem report, a sealed bottle containing the foreign body alongwith the well stiched and cleaned dead body to Rashid Ahmad F.C. 1089 Police Station, Saddar, Chiniot.

The post‑mortem report is Exh. P.B/B which is the correct carbon copy of PMR No. 69 of 1990, which is in my hand and bear my signatures. The sketch of injuries Exh. P.B.B/1 which is also in my hand and bear my signatures. I also attested the injury statement Exh. P.I. and inquest report Exh.P.Z.

By defence counsel.

The order of the Magistrate regarding post-mortem in Allied Hospital, was produced by the police officer and I returned the same after signing the same. The said order of the Magistrate is not attached with the file. It is incorrect that no such order of the Magistrate was ever produced before me, or that I conducted the post‑mortem on the verbal request of the relatives of the deceased. The original MLR of Mst. Allah Jawai was before me at the time of post‑mortem examination. I had seen the MLR of Mst. Allah Jawai Exh. P.J. in the Court today. There is no mention of any exit or entry wound in the said report. Injury No.6 was shot from a distance of within 10 feet. The remaining injuries are from a distance of more than 10 feet. The witness clarified that the post‑mortem examination upon the dead body of Mst. Allah Jawai was conducted after 11 days of the occurrence, and there is possibility of the shape of the wound, to be changed during the heeling process or by washing with the certain chemicals for the surgical operation. It is incorrect that injury No.6 could be caused from a distance of 66 feet. Injuries Nos. 1, 2 and 4 on the dead body of Mst. Allah Jawai could be the result of one fire. Injury No.6 is entry and injury No.7 is its exit wound. Injuries Nos. 1, 2 and 3 were from the slight left side and not from the front.

Similarly, the MLR of Azhar Abbas was conducted under the order of M.I.C. Chiniot. The injuries on the person of Azhar Abbas had been caused from a distance of more than 10 feet. I had not drawn any sketch regarding the injuries on the person of Azhar Abbas. The possibility of the injuries on the person of Azhar Abbas with fire‑arm with one shot cannot be ruled out. It could be by more than two shots.

9. Learned counsel for the appellants has read before me, the prosecution evidence. Statements of the appellants recorded under section'342, Cr.P.C. and makes the following submissions. He submits that there is an inordinate delay of four days in lodging the F.I.R. which has not been explained properly. He also submits that it has been admitted by the eye‑witnesses that there was long‑standing enmity between the parties and even there are cases pending between the parties. He also submits that Muhammad Ashraf appellant was complainant in a triple murder case against the present P. Ws. He further submits that no empty cartridge was recovered from the spot. He submits that the alleged recovery of gun from the appellants is of no consequence to the prosecution. He submits that in fact, there was cross‑firing at the time of occurrence between the complainant party and other persons namely Sabir Hussain etc. He submits that this fact .is been proved by Rana Muhammad Aslam Khan, D.S.P., D.W.1. He submits that in pct for about four long days complainant arty had been thinking over in order to falsely implicate the appellants and later on in connivance with the local police falsely implicated the appellants. He submits that no case whatsoever is made against the appellants and they are entitled to acquittal.

10. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submit that delay in lodging the F.I.R. has been fully explained by the complainant in the F.I.R. as they remained busy in getting the medico‑legal examination of the injured P.Ws. They further submit that both the parties are closely related to each other, that the appellants were present at the spot and there was no reason to disbelieve the injured P.Ws. They further submit that defence version was brought on record 10 months after the registration of case. They submit that as far as D.W.1 Rana Muhammad Aslam D.S.P. is concerned he did not examine the injured P. Ws. and even did not observe their injuries and there was no medico‑legal certificate before him. They submit that prosecution has proved its case against the appellants beyond any shadow of doubt.

11. I have heard the learned counsel the parties and have also gone through the prosecution evidence with their assistance. In the instant case, it has not been denied by either of the parties that the occurrence in this case took place on 24‑10‑1990 while the matter was reported to the police on 28‑10‑1990, that delay of four days in lodging the F.I.R. has not been fully explained by the prosecution and cannot be accepted with a pinch of salt. This delay in registration of the case against the appellant shows that the F.I.R. was lodged after due deliberation and consultation. It has not been denied by the prosecution witnesses that there was long‑standing enmity between the parties and they were involved in cases under section 307, P.P.C. and also murder cases. Complainant party was also involved in triple murder case with the present appellants, in which Muhammad Ashraf appellant was complainant and that case is still pending. Dr. Faiz Ahmad Faiz, who has examined Allah Jawai when she was alive and Kazim Hussain injured P.W. had admitted during the cross?-examination that he had examined Riaz Bibi, Sabir Hussain, Haji Muhammad Ali and two other persons namely Shehnaz Begum and Munir Hussain and their medico‑legal certificates are from Exh. D.A. to Exh. D.E. respectively. According to their medico‑legal reports they were examined on the same day and time, that there are fire‑arm injuries on their persons which proved the version of the appellant that they have also received injuries from the hands of complainant party in cross-?firing. The same fact is substantiated by D.W.1 Rana Muhammad Aslam, D.S.P., who had investigated this case and stated in his examination in chief that he had directed the S.H.O., Police Station, Saddar, Chiniot to register a case against the complainant party but his order was not complied with. No empty cartridge was taken into possession from the spot by the poime during the course of investigation. So, the alleged recovery of gun from the appellants is of no consequence to the prosecution. The false implication of the appellants in this case cannot be ruled out.

12. In this view of the matter, I accept this appeal. Conviction and sentence awarded to the appellants by the learned trial Court is set aside. Both the appellants are on bail and they are discharged from their bail bonds. As far as other co‑accused of the appellants are concerned, they were convicted and sentenced by the learned trial Court as mentioned above, they had not filed any appeal because they had already served out their sentence. With these observations, this appeal stands disposed of.

N.H.Q./M‑1128/L ?????

Appeal accepted.