NOOR MUHAMMAD AND 5 OTHERS Versus THE STATE
MUHAMMAD MUNIR KHAN, J. ‑‑This Criminal Appeal No, 614 of 1981, Murder Reference No.202 of 1981 and Criminal Revision No. 65 of 1982 against acquittal filed by Muhammad Ashraf complainant, arise from the judgment of learned Additional Sessions Judge, Sahiwal, whereby he on 28‑10‑1981 while acquitting Fazil, Bakhtawar, Shah Muhammad, Sharif, Noor Muhammad and Wali Muhammad co‑accused, convicted Shahmand (35), Ahmad (46), Sabir (23), Noor Muhammad (48), Qadir (23) and Hamand (33) appellants under sections 148 and 302/149, P.P.C. for the tripple murder of Muhammad Anwar (40), Karib Ahmad (12) and Habib Ahmad (8) and sentenced them as under:‑
Under section 148, P.P.C . Two years' R.I. each.
Under section302/149 Shamand, Ahmad, Sabir, Noor Muhammad son of Khan appellants to death and a fine of Rs.3,000 each, in default thereof two years' R.I. each on three counts.
(ii) Qadir and Hamand appellants to imprisonment for life and a fine of
Rs.3,000 in default thereof two years'
R.I. each on each count.
It was directed that the fine if realized be paid as compensation to the legal heirs of the deceased. It may be noted that the appellants were also charged under section 307/149, P.P.C. for murderous assault on Mst. Ghulam Fatima P.W.12 but they were acquitted of the charge mainly on the ground that the medico‑legal report of Mst. Fatima was not proved by the prosecution. The appellants were also charged under section 302/149, P.P.C. for the murder of Qaim (75), father of Muhammad Anwar deceased but were acquitted of that charge. We propose to dispose of the three matters through single judgment.
2. The occurrence took place on 22‑4‑1980 at morning prayer time in the Haveli of Muhammad Anwar deceased situate in Chak No.18‑B/7‑R at a distance of 6 miles from Police Station Harappa. F.I.R. is statement Ex.PK of Muhammad Ashraf P.W.11, brother of Muhammad Anwar deceased recorded by Farooq S.I. , P.W.14 on the same day at 8‑00 a.m. in Chak No.103/7‑R at a distance of 52 miles from Police Station. Formal F.I.R. Ex.PK/1 was drawn up by Muhammad Akbar Khan, Moharrir Head Constable, P.W.10 on the same day at 8‑20 a.m.
3. Karib Ahmad and Habib Ahmad deceased were sons of Muhammad Anwar deceased. Qaim deceased was father of Muhammad Anwar deceased and grandfather of Karib Ahmad and Habib Ahmad deceased. Hamand, Ahmad, Noor Muhammad son of Khan and Shamand appellants are real brothers. Sabir and Qadir appellants are sons of Shamand appellants. Shah Muhammad (acquitted accused) is son of Noor Muhammad appellant, Noor Muhammad son of Sadan and Bakhtawar acquitted accused are brothers inter se and are sons of the first cousin of Shamand appellant. Sharif acquitted accused is son of Bakhtawar acquitted accused, Wali Muhammad and Fazil acquitted accused are brothers inter se and are the sons of the first cousin of Shah Muhammad appellant.
4. The background of the occurrence was that 8/9 months before the present occurrence, Adam Ali son of Ahmad appellant was killed. Nine persons including Sikandar and Humayun, brothers of Muhammad Anwar deceased were prosecuted for his murder. To take the revenge of the murder of Adam Ali, the appellants and their co‑accused have allegedly killed the four deceased.
5. As for the main occurrence, it has been stated that at the eventful time Muhammad Ashraf P. W .11 was feeding fodder to the cattle of his father, while the four deceased and Mst. Ghulam Fatima were sleeping in the Haveli of the house when Ahmad, Noor Muhammad, Shamand and Hamand appellants armed with hatchets, Sabir appellant and Noor Muhammad son of Sadan, acquitted accused and Bakhtawar acquitted accused carrying guns, Fazil armed with Gandasa, Wali Muhammad armed with pistol, Sharif with hatchet and Shah Muhammad with Barchhi came in the Haveli. Bakhtawar fired in the air and the accused raised Lalkara that they had come to avenge murder of Adam Ali from all the members of the family of the deceased. On hearing the noise Sultan and Ghulam Farid (both not produced) came to the spot. Qaim deceased got up from his cot. Bakhtawar fired shot from his gun at Qaim who fell down. Sharif, Hamand, Fazil, Shah Muhammad and Qadir accused attacked Anwar deceased with their weapons and caused injuries on his neck, face and head. Ahmad and Sabir accused caused injuries on the neck, shoulder, etc. of Karib Ahmad with their weapons. Noor Muhammad son of Khan and Shamand caused injuries to Habib Ahmad with their weapons. At this stage Mst. Ghulam Fatima P. W .12 stood up on her cot. Noor Muhammad son of Sadan and Wali Muhammad fired shots hitting on her person. The accused made good their escape. The occurrence was also seen by Mst. Anwar Bibi. The three deceased namely Qaim, Noor Muhammad and Karib Ahmad died on the spot. Habib Ahmad was removed to hospital in injured condition where he died on next day.
6. On 22‑4‑1980 at 3‑50 p.m., Dr. Allah Nawaz Brohi, P.W.2 medically examined Habib Ahmad while he was alive. He found following injuries on his person:
"(1) An incised wound 4 x x bone deep on right anterior part of skull. The anterior end one inch above hairee margion and the injury was four inches above right ear at mid injury.
(2) An incised wound 4 x 1 x cutting bone of skull on its posterior lower part extending down to upper part of neck 1" posterior to left ear.
(3) An incised wound 1 x " x bone deep on posterior upper part of neck."
The patient was in dangerous condition. He died on next day.
On 23‑4‑1980 Dr. Munir‑ud‑Din, P.W.3 conducted post‑mortem examination on the dead body of Muhammad Anwar deceased and found the following injuries on his body:
"(1) Incised wound 2 x 1 c.m. x deep going 2 c.m. below right eye underneath, there is a fracture of the right maxilla.
(2) Multipal incised wound in an area 16 x 8 c.m. x deep going. All are intermingled with each other. Start from the right Temporal region to right cheek and from hair upto lower right side neck forming a big L shape wound underneath bone of right zygomatic bone right maxilla right mendibles, muscles, blood vessels and nerves in the way wee (,pit including right side of trachea near the thyroid cartilege also were partially cut. Right side of 5 th servical vertebra was also partially cut.
(3) Incised wound .12 x 5 c.m. x deep going starting from right cheek crossing the nose by? Cutting it reaching up to the right angle of mouth underneath cut fracture of left maxilla, bridge of nose, and upper jaw just above gums.
(4) Incised wounds 2 x 1 c.m x deep going on bridge of nose underneath cut fracture of bridge of nose is present.
(5) Incised wound 5 x 1 c.m. x deep going on front middle left chest 8 c.m. below left nipple, underneath there is a cut fracture of 6th rib and lower lobe of the left lung also cut
(6) Circular lacerated wound x c.m`. x shin deep with blackish edges on outer upper right leg.
(7) Abrasion 2 x 1 c.m. on front upper right leg.
(8) Incised wound 3 x 1 c.m. x muscle deep on back lower left chest."
In his opinion, the death was due to shock and haemorrhage caused by injuries Nos. 1 to 5 collectively which were sufficient to cause death in the ordinary course of nature. Injury No.7 was caused by blunt weapon, injury No.6 was caused by fire‑arm and the rest by sharp‑edged weapon.
On the same day, the same doctor conducted post‑mortem examination on the dead body of Qaim. He found following injuries on his body:‑
"(1) A circular lacerated wound with edges inverted 2 x 2 c.m. x deep going with blackening of edges all around on front middle left chest 6 c. m. above left nipple.
(2) Circular lacerated wound 2 x 2 c.m. x deep going with inverted edges and blackening all around the edges on back of abdomen (Lumber vertebra on back bone)
(3) Abrasion 4 x 1 c. m. 2 c. m. above injury No.2.
(4) Lacerated wound 2 x 2 c.m. x skin deep on front middle left leg.
In his opinion, the death was due to internal and haemorrhage and shock caused by injuries Nos.1 and 2, which were sufficient to cause death in the ordinary course of nature. Injuries Nos.1 and 2 were caused by fire‑arm and the rest with blunt weapon.
On the same day, the doctor conducted post‑mortem examination of the dead body of Karib Ahmad and found following injuries:‑
(1) Incised wound 9 x 5 c.m. x deep going upto vertebral column start from right back of head up to the right cheek acrossing the right ear by cutting it into 2 underneath all muscles, blood vessel, nerves were cut. Right outer process of foramin magnum.
(2) Incised wound 5 x 2 c. m. x bone deep 3 c. m. below injury No.l. underneath all muscles blood vessels nerves were cut.
(3) Incised wound 1 x 9 c.m. x bone deep underneath all muscles, nerves, and blood vessels was cut. The partosdium of the outer side of the head of the right humerus was also cut.
(4) Rounded lacerated wound 1 x 1 c.m. x skin deep on outer lower right leg.
(5) Abrasion 3 x 1 c.m. in front of right knee.
(6) Lacerated wound 2 x 2 c.m. x skin deep on inner lower left forearm.
(7) Multiple incised wounds on left hand fingers little and ring fingers were amputated and middle finger also obliquely cut.
(8) Incised wound 10 x 5 c. m. x bone deep underneath coraciod process of right scapula was cut.
(9) Incised wound 11 x 5 c.m. x bone deep on the back of neck underneath muscles and 5th cervical vertebra partially cut."
In his opinion, the death was due to haemorrage and shock caused by injuries Nos.1, 2, 8 and 9 which were sufficient to cause death in the ordinary course of nature. Injuries Nos. 3 and 7 were grievous and the rest were simple. Injuries Nos.1, 2, 3, 7, 8 and 9 were by sharp‑edged weapon. Injury No.4 was caused by fire‑arm. Injury No.5 was caused by blunt weapon. The death was immediate.
On 23‑4‑1980, Dr. Capt. Riaz Ahmad, P.W.4 conducted post‑mortem examination on the dead body of Habib Ahmad and found the following injuries on his body:‑
(1) Stitched wound 11 x c.m. starting from back side of heagoing forward and downward to the left side and ending four c.m. behind the left ear.
(2) Stitched wound 5 x c.m. on the back lower part of head starting 5 c. m. behind right ear and ending 8 c. m. behind left ear.
(3) Stitched wound 10 x c.m. on the right side of head ending 9 c.m. above right ear.
(4) Abrasion in an area 4 x 3 c.m. on the back of neck."
In his opinion, the death was due to shock and haemorrhage mainly due to injury No.l. Injuries Nos.1, 2 and 3.were sufficient to cause death in the ordinary course of nature. The time between injuries and death was about 30 to 36 hours and between death and post‑mortem was 7 hours.
7. On 22‑4‑1980, 2 crime empties Exh.P.8/1‑2 were recovered from near the dead body of Qaim deceased by Qazi Farooq Ahmad, S.I. P.W.14 and were taken into possession vide memo. Exh.P.R. attested by Muhammad Ashraf P.W.11, Muhammad Sharif and Muhammad Siddiq (both not produced). He lifted 3 crime empties EXh.P.9/1‑3 from the place of occurrence vide memo. Exh.P.S. attested by the same witnesses. He took into possession lantern Exh.P.23 from the spot vide memo. Exh.P.RR. attested by the same witnesses. On the same day he took into possession lower portion of .12 bore gun of Muhammad Sabir appellant Exh.P.10, vide memo. Exh.P.T. attested by the same witnesses.
8. On 2‑5‑1980, all the appellants and the acquitted accused were arrested by Nasrullah Khan, S.I. P.W.13. On 8‑5‑1980 Sabir, Shamand, Hamand appellants, Shah Muhammad acquitted accused and Noor Muhammad son of Khan appellant led to the recoveries of gun Exh.P.ll, blood‑stained hatchet Exh.P.12, blood‑stained hatchet Exh.P.13, blood‑stained hatchet Exh.P.14 and blood‑stained hatchet Exh.P.15, which were taken into possession vide memo. Exhs.P.U., P.V., P.W., P.X. and P.Y. respectively. The memos. were attested by Muhammad Ashraf P.W.11, Lal (not produced) and Nasrullah, Inspector, P.W.13. On 10‑5‑1980, Ahmad, Qadir, Sharif and Fazil acquitted accused got recovered blood‑stained hatchet Exh.P.16, blood‑stained hatchet Exh.P.17, blood‑stained hatchet Exh.P.18 and Gandasa Exh.P.19 which were taken into possession vide memo. .Exhs.P.Z., P.AA., P.BB., and P.CC., respectively attested by Muhammad Ashraf P.W.11, Manik (not produced) and Nasrullah S.I. P.W.
13. On 12‑5‑1980 Noor Muhammad son of Sadan, Bakhtawar and Wali, acquitted accused‑led to the recoveries of gun Exh.P.21 and two live cartridges Exh.P.21/1‑2, gun Exh.P.22 and two live cartridges Exh.P.22/1‑2 vide memo. Exh.P.FF. and pistol Exh.P.20 vide memo. Exh.P.DD. respectively. The memoranda were attested by Muhammad Ashraf P.W.11, Lai (not produced) and Nasrullah, S.I. P.W.13. Serologist's Report Exh.P.VV. reveals that hatchets Exh.P.16 of Ahmad, hatchet Exh.P.18 of Sharif, Barchhi Exh.P.14 of Shah Muhammad acquitted accused, hatchet Exh.P.15 of Noor Muhammad son of Khan appellant were stained with human blood. Forensic Science Laboratory report Exh.P.X. shows that out of the five crime empties lifted from the spot, one crime empty was fired from gun Exh.P.22 recovered from Bakhtawar acquitted accused, the two crime empties were not fired from the guns sent to Forensic Science Laboratory and no opinions could be given as to whether the remaining two crime empties were fired from guns or not due to lack of sufficient data.
9. To prove its case, prosecution produced 14 witnesses. Muhammad Ashraf P.W.11 and Mst. Ghulam Fatima P.W.12 have given the ocular account of the occurrence. They supported the prosecution version of the occurrence in all material particulars. They claimed to have seen the appellants and the acquitted accused causing the deaths of Muhammad Anwar, Karib Ahmad, Habib Ahmad and Qaim deceased and injuries to Mst. Ghulam Fatima P.W.12, as detailed in the F.I.R. Muhammad Ashraf P.W.11 supported the alleged motive. Muhammad Ashraf P.W.11, Nasrullah Khan, S.I. P.W.13 and Qazi Farooq Ahmad, S.I., P.W.14 supported the recoveries of crime empties from the spot and weapons of offence from the appellants and the acquitted accused. Dr. Allah Nawaz P.W.2 had examined Habib Ahmad deceased while he was alive. He has proved the medico‑legal report of Habib Ahmad deceased. Dr. Capt. Riaz Ahmad has proved the post‑mortem examination report of Habib Ahmad deceased. Dr. Munir‑ud‑Din P.W.3 has proved the post‑mortem examination reports of Qaim, Muhammad Anwar and Karib Ahmad deceased. The rest of the evidence is more or less of formal nature.
10. When examined under section 342, Cr.P.C. the appellants denied all the incriminating circumstances. They raised plea of false implication on account of enmity. They, however, admitted that 8/9 months before the occurrence Adam Ali son of Ahmad appellant was killed and Sikandar and Humayun brothers of Muhammad Ashraf complainant were challaned. No witness was produced in defence.
11. The learned trial Court gave benefit of doubt to the six co‑accused and believing the motive, ocular evidence and the evidence of incriminating recoveries from Ahmad and Noor Muhammad son of Khan appellants, has convicted and sentenced the appellants as stated above.
12. In the course of hearing of appeal statement of lady Dr. Shamim Akhtar, who had examined Mst. Ghulam Fatima P.W. was recorded as an additional evidence, in the presence of the appellants, therefore, notice was issued to the acquittal accused /respondent in connected Criminal Revision No. 65 of 1982.
13. Learned counsel for the appellants contended that the prosecution has failed to prove its case beyond reasonable doubt against the appellants that Muhammad Ashraf and Mst. Ghulam Fatima, the two eye‑witnesses are closely related to the deceased; that their statements are in conflict with the medical evidence; that their statements have not been acted upon to the extent of 6 acquitted accused to whom they had assigned active participation in the occurrence; that presence of Muhammad Ashraf P.W. is highly doubtful. Had he been present there then he would have also been killed; that Mst. Ghulam Fatima was not in a position to see the occurrence although she was present in the house; that Muhammad Ashraf complainant was summoned from his village and then the F.I.R. was lodged after. preliminary investigation; that Qazi Farooq Ahmad S.I. was not authorized to conduct investigation and this cast, doubt on the version of the prosecution; that the occurrence, in fact, took place during the darkness of night and the culprits remained un identified and that in any case, there was no corroboration against appellants other than Ahmad and Noor Muhammad son of Khan. Learned counsel for the State supported the judgment of the trial Court. Learned counsel for the petitioner in the connected revision was of the view that the six co‑accused have been acquitted without legal and factual justification and the reasons given by the trial Court for their acquittal were not satisfactory.
14. We have anxiously attended to the elaborate arguments of the learned counsel for the parties. We have also reviewed the entire evidence that has been produced by the prosecution, the statements of the appellants and the acquitted accused recorded under section 342, Cr.P. C. and the circumstances appearing in case, with care. We do not feel persuaded to agree with the learned counsel for they appellants. The occurrence took place at morning prayer time. The F.I.R. was recorded at 8‑00 a.m. on the same day at a distance of 52' miles from the place of occurrence. There is nothing in evidence to show that the F.I.R. was not recorded at the time and place as it purports or it was recorded after preliminary investigation. The promptitude with which the F.I.R. was lodged, excludes the possibility of Muhammad Ashraf having been procured from his village before the recording of the statement Exh . P. K. Muhammad Ashraf has given plausible cause of his presence in the house of his father at the time of occurrence. He being son of Qaim deceased, his statement that he was feeding fodders to the cattle of his father at morning prayer time, does not run counter to the natural probabilities. It is a matter of common experience that at about morning prayer time, the cattles are normally feeded with fodder. Mst. Ghulam Fatima is the widow of Muhammad Anwar deceased. She used to live in the house where the occurrence took place and her presence at the time of occurrence was very much natural. Her presence is also established by the fact B of injuries found on her person which by now stand proved by the evidence of the lady doctor examined under the order of this Court as an additional witness at appellate stage. The appellants and the acquitted accused were previously known to the eye‑witnesses, so there is no reason to doubt that the 2 eye‑witnesses namely Muhammad Ashraf and Mst. Ghulam Fatima had seen the occurrence and were in a position to identify the offenders. Further, question is as to whether they can be relied upon for convicting the appellants and the acquitted accused without corroboration? In the instant case, four persons have lost lives and one was injured during the occurrence. The four deceased received as many as 24 injuries caused by fire‑arm and sharp‑edged weapons. Mst. Ghulam Fatima P.W. also received 7 injuries caused by fire‑arm. The number of injuries found on the person of the four deceased and injured P.W. commensurates with the number of the assailants named by the eye‑witnesses. In view of the admitted background of the occurrence, the appellants who are closely related to each other, are the persons expected to have joined the attack on the deceased. The statements of the two eye‑witnesses cannot be discarded on account of relationship with the deceased. They have successfully faced the test of cross‑examination. Except for minor and immaterial discrepancies and contradictions here and there, the learned counsel has not been able to show any major contradiction or dishonest improvement in the statements of the eye‑witnesses. The mere fact that the stomach of Muhammad Anwar deceased contained two ounces of indigested food, does not necessarily indicate that the occurrence took place round about mid‑night as suggested by the learned counsel for the appellants. The exact time of his taking meal on the night of occurrence is not known. Furthermore, the contents of stomach are not the conclusive tests for the determination of the time of occurrence. The statements made by the eye‑witnesses are in consonance with probabilities and materially fit in with the rest of the evidence. There is no noticeable conflict between the medical evidence and the ocular testimony. In the instant case, four near, and dear relations of the two eye‑witnesses had been killed. so the question of substitution of the appellants and the co‑accused in place of the real culprits does not arise. The harm done to the four deceased and Mst. Ghulam Fatima P.W. also excludes the possibility of exaggeration of the number of the culprits. The appellants have not been able to lay down any foundation for their substitution in place of real murderers. We are fully convinced that the two eye‑witnesses are absolutely dependable persons and they can be relied upon in convicting, the appellants and the co‑accused without corroboration. We have also been very much impressed by the straightforward manner of the investigation. Had the police been dishonest in this case then result of Chemical Examiner/Serologist and Forensic Science Laboratory would have been somewhat different. The facts that no blood was found on Gandasa Exh.P.19, hatchets Exhs.P.17, P.12 and P.13 of Fail, Qadir, Shamand and Hamand accused and that Forensic Science Laboratory Report with regard to 3 crime empties out of 5 crime empties was not positive show that the police had not tried to favour the prosecution in any manner, The police could easily stain the Aforementioned weapons with human blood and could temper with the crime empties but it did not indulge in padding and fake recoveries. The fact that Qazi Farooq Ahmad. S.I. P.W.14 was not authorised by the S.P. to conduct investigation in the case does not detract his statement from correctness and does not adversely effect the statements of the eye‑witnesses. The arguments of the learned counsel for the appellant are devoid of force and substance. For all these reasons, we are convinced that the trial Court has rightly convicted the appellants.
14. Adverting to the acquittal of the six co‑accused, we find that the learner' trial Court has failed to appreciate the case in accordance with the guidelines given by the superior Courts more particularly in case Niaz v. The State reported as P L D 1960 SC 387. As already observed, the two eye‑witnesses produced by the prosecution are wholly dependable and, in the peculiar circumstances of the case no further corroboration qua the acquitted accused was required for convicting them. The reasons given by the trial Court for acquitting, the 6 co‑accused are wholly unsatisfactory and entirely unwarranted. It seems to us that the learned trial Court has been searching for grounds and reasons to acquit the six accused. The six acquitted accused had accompanied the six appellants to the house of the deceased. They entered in the Haveli of the house. They were carrying arms; they knew that the appellants were also carrying deadly weapon, including fire‑arms and that they actively participated in the, occurrence. In this view of the matter, there can be no two opinions that, in any case, the six acquitted accused were constructively liable for the four murders. Despite aforesaid observations, we doe not feel inclined to order retrial of the acquitted accused. We feel that it is neither desirable nor advisable to retry the six acquitted accused after about 8 years of the occurrence.
15. This brings us to the question of sentences of Shamand, Ahmad, Sabir and Noor Muhammad son of Khan appellants. We have considered this question with utmost care on our part. We have not been able to find out any mitigatin circumstance in their favour for lesser penalty. In the circumstances of the case, they do not deserve any leniency. None of the deceased was the killer of Adam Ali son of Ahmad appellant.
The upshot of the above discussion is that Criminal Appeal No. 614 of 1981 is dismissed in toto and the sentences of death awarded to the appellants namely Shamand, Ahmad, Sabir and Noor Muhammad son of Khan are confirmed. The connected revision fails.
Death sentences are confirmed.
M.Y.H./N‑130/L Appeal dismissed.