FATEH MUHAMMAD Versus ABDUL SATTAR
1. RASHID AZIZ KHAN, J .‑‑ Muhammad Iqbal (19), Muhammad Amir, (22/23), Gulbaz (22), Umar Draz Khan (25) Sarfraz (90) Muhammad Mumtaz (65), Muhammad Nawaz (72), Ahmad Sher (35), Shamsher (32) and Dilbaz (165 were sent up for trial for the offences under section 302/307/148/149/109/34, P.P.C. by Police Station Jauharabad, District Khushab for the murders of Noor Muhammad, Muhammad Ali, Fateh Ali and Dhuman Khan, and murderous assault on Muhammad Hazar and Ahmad Sher P.Ws. The case was entrusted to Special Court of Speedy Trials No.8, Sargodha. who, vide its judgment dated 12‑12‑1987 found Muhammad Iqbal, Muhammad Amir and Gulbaz guilty and sentenced each of them to death on four counts under section 302/34, P.P.C. and a fine of Rs.20,000 each on each count, or in default to undergo R.I. for five years each. They were also found guilty under section 307, P.P.C. for murderous assault on Muhammad Hazar P.W. and sentenced to seven years R.I. each and a fine of Rs.10,000 each, or in default one year's R.I. each. They were also sentenced under section 307/34, P.P.C. to five years' R.I. and a fine of Rs.5,000 each, or in default to undergo one year's R.I. each for murderous assault on Ahmad Sher, P.W. Half of the fine, if recovered, was directed to be paid to the heirs of Dhuman Khan, Muhammad Ali, Fateh Ali and Noor Muhammad, deceased. The rest of the accused were given the benefit of doubt and acquitted. The convicts have appealed against their convictions and sentences. State has also filed an appeal challenging the acquittal of the respondents. Complainant has also filed a revision challenging the acquittal of co‑accused of the appellant. All the matters will be disposed of by this judgment.
2. Amir and Iqbal accused are real sons of Nawaz accused, Sarfraz and Muhammad Mumtaz, accused, are real brothers of Muhammad Nawaz accused. Umar Draz accused is the son of the sister of Muhammad Nawaz accused. Gulbaz and Dilbaz accused are the real sons of Sarfraz accused. Ahmad Sher and Shamsher accused are real brothers. Their father's sister is married to Nawaz accused.
3. Fateh Ali deceased was the son of Mst. Sallahan who was daughter of one Hamad who was real brother of one Hatam, grandfather of Muhammad Hazar P.W. Dhuman Khan, deceased was the son of Dost Muhammad who was son of Muhammad Hazar P.W. Similarly, Falak Sher P.W. is son of one Amir who is son of real brother of Muhammad Hazar's grandfather Muhammad Shaft and Muhammad Nawaz P.Ws. are real brothers. Fateh Ali deceased was married to the sister of Dhuman deceased, and a niece of Fateh Ali deceased was married to Wali Muhammad deceased. Three sisters of Muhammad Hazar P.W. were married to Muhammad Sharif, Muhammad Nawaz, P.Ws. and the third to one Ali, brother of Muhammad Ali deceased. Noor Muhammad deceased was a distant uncle of Muhammad Ali deceased. All the deceased as well as the P.Ws. belonged to Lundoo Tribe.
2. The prosecution story in brief as given in F.I.R. Exh. P.D. is that about a year before the occurrence, Muhammad Hazar, first informant, had abducted Mst. Kanizan, daughter of Muhammad Nawaz. He alongwith the abductee and 2 others were challaned. On 19‑7‑1986, he was to appear before the Sessions Judge, Jauharabad in connection with the said abduction case. On the said date, he in the company of Noor Muhammad, Muhammad Ali, Dhuman Khan, Fateh Ali, Ahmad Sher, Muhammad Shafi, Falak Sher, Muhammad Nawaz came to the Lorry Adda of Jauharabad at about 7‑45 a.m. and started for the District Courts. When they were passing through Nuarani Mosque Crossing, Muhammad Nawaz and Muhammad Amir, accused, armed with guns, came out of a shop. Simultaneously, the remaining accused, namely, Muhammad Iqbal, Sarfraz, Gulbaz, Dilbaz, Umar Draz, Ahmad Sher, Shamsher and Muhammad Mumtaz also came out of a sweetmeat shop from the other side of the road. Muhammad Nawaz fired first shot hitting Dhuman Khan on his right flank. It was followed by Muhammad Iqbal accused whose shot hit Muhammad Ali on the front of chest. Then Muhammad Amir fired hitting Fateh Ali on his left flank. Sarfraz accused fired hitting Noor Muhammad in the abdomen. Then Gulbaz fired hitting Dhuman Khan on his back, which was followed by Dilbaz whose fire hit Fateh Ali on left side of his back, Sarfraz accused fired hitting Fateh Ali on the back. Umar Draz fired hitting Muhammad Ali on the right ear. Ahmad Sher's fire hit Noor Muhammad, and Shamsher's fire also hit Noor Muhammad on his chest. Then Muhammad Mumtaz fired hitting Noor Muhammad on the right side of his abdomen. Muhammad Amir's fire hit the first informant on his right forearm. He in the injured condition snatched the gun from Muhammad Amir. Then Gulbaz fired at Ahmad Sher, which hit on his left hand. Said Ahmad Sher also in the injured condition snatched the gun from Gulbaz. Thereafter all the accused ran towards the eastern side while firing. As a result of the said injuries Dhuman Khan, Fateh Ali, Noor Muhammad and Muhammad Ali died at the spot.
4. F.I.R. Exh. P.D. was lodged by Muhammad Hazar P.W.9. It was recorded at the spot at 8‑30 a.m. by Shaukat AX S.I. P.W.12 Formal F.I.R. Exh.P.D./1 was registered the same day at 8‑45 a.m. at Police Station Jauharabad.
5. After the registration of the case, Shaukat Ali, S.I. commenced investigation and took into possession guns P31 and P32, snatched from Gulbaz and Muhammad Amir accused, vide recovery memos. Exh. P.K. and Exh. P.L. respectively. He prepared injuries statements and inquest report in respect of four deceased persons, which are Exh. P.A.A., Exh.P.AA/1, Exh.P.88, Exh.P.88/1, Exh. P.C.C., Exh.P.CC./1, Exh. P.D.D. and Exh.P.DD/1. Thereafter he sent the dead bodies to the hospital for post‑mortem examination. Blood‑stained earth from four different places where the dead bodies were lying was also secured vide memos. Exhs. P.N., P.O., P.O. and P.R. which were sealed into four separate parcels. Fifteen crime‑empties Exh P.33/1‑15 were secured from the place of occurrence vide recovery memo. Exh. P.M. Thereafter recorded the statements of the witnesses. He also prepared the injury statements of Hazar and Ahmad Sher P.Ws. which are Exh. P. E. and Exh. P.F.F., respectively.
6. He arrested all the accused except Sarfraz and Nawaz on 20‑7‑1986. At the time of their arrest Ahmed Sher produced rifle P.22 and its licence P.23 which he took into possession vide memo. Exh. P.E. On 21‑7‑1986 at the time of his arrest Sarfraz accused produced rifle P.36 anal its licence P.37 which was taken into possession vide memo. Exh. P.H.H. On 27‑7‑1986, Umar Draz accused pot recovered gun P.24 and its licence P.25 from his house which were secured vide memo. Exh P.F. Iqbal accused on 27‑7‑1986 got recovered gun P.26 and its licence P.27 from his house which were taken into possession vide memo. Exh. P.G. Similarly, Muhammad Amir got recovered licence P.28 from his house which was secured vide memo. Exh. P.H. Shamsher accused on 27‑7‑1986 got recovered gun P.29 and licence P.30 from his house vide memo. Exh. P.J. He arrested Nawaz accused on 21‑7‑1986 from District Jail, Jhang. He got prepared site plan Exh. PA. and Exh.PA./1 from the draftsman anti gave his notes in red ink thereunder. After necessary investigation, he challaned the accused.
3. Dr. Mehmood‑ul‑Hassan, Medical Officer, Civil Hospital, Jauharabad conducted the post‑mortem examination on the dead body of Noor Muhammad on 19‑7‑1981 at 9‑50 a.m. and found 14 injuries on his person. In his opinion death had occurred due to injury No.6, which is:‑‑
7. "(6) Four lacerated wounds of entry measuring 1/2 c.m. x 1/2 c.m. 2‑1/2 c.m. x 1 c.m., 2‑1/2 c.m. x 1 c.m. and 1 c.m. x 1/2 c.m. on the left side of left axilla "
8. This injury was sufficient to cause death in ordinary course of nature. Injuries Nos. 1, 7 and 10 were grievous while the rest of the injuries were declared simple. All the injuries were caused by fire‑arm.
9. On the same day at 11 a.m. he also conducted the post‑mortem examination on the dead body of Dhuman Khan and found six injuries on his person. In his opinion, the death had occurred due to injuries Nos.2, 3 and 6 which are as under:‑
(2) A lacerated wound of entry oval in shape with inverted black margins 1 c.m. x 3/4 c.m. and four c.m. above and lateral to injury No.1.
(3) A lacerated wound ovel entry wound 1‑1/4 c.m. in 3/4 c.m. in mid axillary line, 5 c.m. away and lower to injury No.2. The margins were inverted and black.
(6) A lacerated wound of entry blackened and having inverted margins, 5 c.m. x 4 c.m. and 7 c.m. below injury No. 5.
10. These injuries were sufficient individually in ordinary course of nature to cause death. The rest of the injuries were declared simple. All the injuries had been caused by fire‑arm.
11. On the same day at 12‑05 p.m. he conducted the post‑mortem examination on the dead body of Muhammad Ali and found 11 injuries on his person. In his opinion, death, had occurred due to injuries Nos. 1, 2 and 5 which are as under:‑
(1) A lacerated entry wound 5 c.m. x 4‑1/4 c.m. x bone deep and 7 c.m. above right ear. With inverted black margins and corresponding exit wound 3‑1/2 c.m. x 2 c.m. on the left side of head near to entry wound of injury No.2. Brain matter was coming out.
(2) A group of entry wounds with lacerated black inverted margins, four in number each 3/4 c.m. x 3/4 c.m. in an area of 8 c.m. x 8 c.m. on the left side of upper neck behind the left ear.
(5) A group of lacerated entry wounds, five in number, in a circular area of 9 c.m. x 9 c.m. on front of chest just on the left side of sternum, 8 c.m. from left nipple.
12. All the injuries were caused by a fire‑arm.
13. On the same day he also conducted the post‑mortem examination on the dead body of Fateh Ali and found following injures:‑
(1) Four wounds of entry, which had black inverted margins, 3/4 x 3/4 c.m. on the back of right side of lower chest. 13 c.m. below the inferior angle of right scapula. Area 12 c.m. longitudinal and inverted.
(2) Two lacerated wounds of entry 3/4 c.m. x 3/4 c.m., 8 c.m. below angle of left scapula, margins were black and inverted and were 3‑1/2 c.m. apart on back of middle chest. 10 c.m. from medial plain.
(3) A group of entry wounds five in number, each 3/4 c.m. x 3/4 c.m. with black inverted margins, in an area of 11 c.m. x 6 c.m. on left lumber region, just above left iliac crest.
14. In his opinion, the death had occurred due to injuries Nos. 1, 2 and '3 which were sufficient to cause death in the ordinary course of nature. The injuries were caused by a fire‑arm. He has further opined that injuries in respect of the deceased were ante‑mortem.
15. On the same day at 8‑45 p.m. he also examined Muhammad Hazar and found the following three injuries on his person which were declared simple later on:
(1) A lacerated entry wound 1 c.m. x 1 c.m. on the medial side, of upper right arm with.
(2) Black and inverted margins 5 c.m. from axilla with corresponding exit wound 1‑1/4 c.m. x 1‑1/4 c.m. and 1‑1/2 c.m. from posterial from the entry wound. There were corresponding holes on Qamiz and Bunian.
(3) A grazing mark 1 c.m. x 3/4 c.m. on the tip of left thumb.
16. He also examined Ahmad Sher, P.W. at 9 p.m. and found the following injuries on his person:‑‑
(1) A lacerated entry wound of fire‑arm projectile 3/4 c.m. x 3/4 c.m. on the back of left wrist. Exit wound 2 c.m. x 1 c.m. on medial side of wrist joint, 1 c.m. below the entry.
(2) A lacerated entry wound 1/2 c.m. x 1/4 c.m. on medial side of proximal phalyn of little finger had four longitudinal cuts on its palmer aspect.
17. Both the injuries were declared simple.
4. The prosecution in support of its case produced 12 witnesses in all. Muhammad Slaim, Draftsman, P.W.1, prepared site plan Exh.P.A. and Exh.PA./1 on the pointation of the witnesses. Ghulam Qadir F.C. P.W.2, escorted the dead bodies to the hospital for post‑mortem examination. Muhammad Rafique, A.S.I. P.W.3, recorded formal F.I.R. Exh.D./1 at Police Station Jauharabad. Khan Muhammad S.I., P.W.6, witnessed the recovery of arms licence P.21 on 20‑7‑1986 from Gulbaz appellant which was secured vide memo. Exh.P.C. attested by him. On the same day he also witnessed the recovery of rifle P.22 and its licence P.23 at the instance of Ahmad Sher, accused Ghulam Mustafa, F.C. P.W.7 witnessed the recovery of gun on 27‑7‑1986 at the instance of Umar Draz, accused from his house. On the same day Muhammad Iqbal appellant also got recovered from his house gun P.26 and its licence P.27, which were secured vide memo. Exh.P.G. attested by him. He also witnessed the recovery of arms licence P.28 at the instance of Muhammad Amir appellant, from his house, which was taken into possession vide memo. Exh.P.H. On the same day Shamsher accused also got recovered from his house gun P.29 and licence P.30 which were secured vide memo. Exh.P.J. He attested the above said memos. Mushtaq Ahmad, P.W.8 has stated that about one year and four months before the recording of his statement, he alongwith one Feroze went to the Dera of Muhammad Nawaz accused where lqbal, Amir and Gulbaz appellants were sitting with said Muhammad Nawaz. In his presence Muhammad Nawaz accused said that he would take revenge for the abduction of his daughter from Lundoo family. He has further stated that in his presence said Muhammad Nawaz asked his sons Amir and Iqbal, and his nephew Gulbaz that they should kill every member of Lundoo family on the next date of hearing of the abduction case. The eye‑witness account has been furnished by Muhammad Hazar and Ahmad Sher, P.Ws.9 and 10 respectively. Dr. Mehmood‑ul‑Hassan, P.W.11 medically examined the injured and conducted the post‑mortem examination on the dead bodies of the deceased. Shaukat Ali, S.I. P.W.12, investigated the case and submitted the challan against the accused persons in Courts.
18. At the conclusion of the prosecution evidence, the learned Prosecutor gave up Muhammad Shari, Falak Sher, Muhammad Nawaz son of Sher Baz, Atta Muhammad F.C., Aman Ullah, F.C. Muhammad Yousaf, Muhammad Nawaz son of Ali Muhammad, Muhammad Feroze and Muhammad Naeem, A.S.I. as unnecessary, and Muhammad Nawaz son of Hayat as having died. He tendered in evidence the reports of the Chemical Examiner, Exh.P.J.J. and of the Serologist Exh.P.K.K. The report of the Forensic Science Laboratory Exh.P.L.L. was tendered by him and he closed the case for the prosecution.
19. At the conclusion of the trial the appellants and their co‑accused were examined under section 342, Cr.P.C. They have refuted the entire prosecution evidence and have stated that they have been falsely involved in the case because of their enmity with the P.Ws. Muhammad Nawaz accused also appeared in his defence on oath under section 340, Cr.P.C. He has stated that on the day of incident he was in jail in connection with a case registered against him under Arms Ordinance.
20. He has also stated that the complainant side had a number of enemies in the village. Waqar Abbas, Assistant Superintendent District Jail, Jhang D.W.2, has stated that Muhammad Nawaz son of Noor Khan was admitted in District Jail Jhang on 17‑71986 by the orders of Magistrate 1st Class, Jhang, and then he was taken away from jail on 21‑7‑1986, by Allah Bakhsh, S.I. under the order of a Magistrate of Jhang. According to him, said Muhammad Nawaz remained in jail from 17‑7‑1986 to 21‑7‑1986.
5. It is contended by learned counsel for the appellants that the prosecution has not been able to prove its case at all. He submits that the F.I.R. was registered after preliminary investigation therefore, no reliance on it can be placed. He also submits that the motive, as alleged by the prosecution, is of no help to it because the abduction took place over a year prior to the present occurrence and during this period no unpleasant incident ever took place. The motive, if any, was against Hazar, P.Ws., who had abducted the daughter of Muhammad Nawaz, appellant yet he was caused only a simple injury, contends that both the eye‑witnesses were not present at the spot, that on the same evidence 7 persons have been acquitted, therefore, the present appellants could not be convicted on the same evidence. He informs that the recoveries in the instant case are of no use to the prosecution as the guns allegedly recovered from Amir and Gulbaz did not match with any of empties recovered from the spot. It is argued that Hazar P.W. was not medically examined till the evening on the day of incident. If Hazar P.W. was injured during the incident, which took place in the morning, then he should have been examined immediately after the incident. In these circumstances, inference can be drawn that this witness was not present at the spot and was subsequently imported.
21. The contentions of the learned counsel for the appellants have been controverted by learned counsel for the State and by the learned counsel for the complainant. According to them, the prosecution has been able to prove its case against the appellants as well as the acquitted co‑accused. Contends that the presence of the eye‑witnesses at the spot cannot be doubted. It is argued that it was a day time occurrence, therefore, the chances of mistaken identity or of substitution can safely be ruled out. It is argued that the eye‑witnesses did not have any motive to falsely implicate the appellants.
6. We have heard the learned counsel at length and gone through the file with their assistance. As far as the deaths of Noor Muhammad, Muhammad Ali, Fateh Ali and Dhuman Khan are concerned, it has not been disputed by the defence. It has also not been challenged that they were done to death by means of fire‑arm nor , the place and time of occurrence have been challenged. The prosecution, m order to prove the deaths of the abovesaid deceased, has produced Muhammad Hazar Khan and Ahmad Sher, P.Ws. 9 and 10, respectively, as well as the doctor who conducted the post‑mortem examination. In the absence of any challenge it is proved that the deceased were done to death by means of fire‑arms at about 7‑45 a.m. on 19‑7‑1986.
22. In order to prove the charge of conspiracy, the prosecution has produced one Mushtaq Ahamd, P.W.8. According to his statement, he had gone to the house of Muhammad Nawaz accused where in his presence he had asked the appellants to do away with the family of the complainant side on the next date of hearing of the abduction case. We have carefully examined the statement of this witness and are convinced that no reliance on his statement can be placed. He has stated that he had known Muhammad Nawaz accused only 5/6 months prior to going to his Dera and hearing about the abetment. It is unbelievable that the accused would conspire in the presence of a stranger who was hardly known to them. Therefore, we hold that the statement of Mushtaq Ahmad, P.W. does not inspire confidence and has rightly been ruled out of consideration.
23. The eye‑witness account has been furnished by Muhammad Hazar and Ahmed Sher, P.Ws. 9 and 10, respectively. We have carefully gone through the statements of both the witnesses and hold that they inspire confidence. According to Muhammad Hazar, P.W.9, on 19‑7‑1986 he in the company of the P.Ws. and the deceased was going to the Court of Session to attend the case registered against him for the abduction of the daughter of Muhammad Nawaz, accused. When they reached near Noor Mosque m the Bazar at about 7‑45 a.m., the accused persons while armed with gun, came and committed the murders of his companions and injured him as well. The defence has not challenged the statement of this witness to the effect that 19‑7‑1986 was the date of hearing of his case; therefore, his presence at the spot is natural and is believed. He also I received fire‑arm injuries, that further establishes his presence at the spot. The contention of the learned counsel for the appellants that had this witness been present at the spot he would have been done to death as well is not very convincing. It is in evidence that the accused persons armed with guns came an started firing indiscriminately killing four persons and injuring two of them. In such circumstances, it can never be possible to pick and choose a target for aggression. The defence has not even suggested m cross‑examination that this witness was not present at the spot.
24. The contention of the learned counsel that since Hazar P.W. medically examined in the evening, therefore, he was not present at the spot is equally without force. The injures on the person of this P.W. are simple m nature and Dr. Mehmood‑ul‑Hassan, P.W.11 has stated that initially he was brought by the police for examination at 9 a.m. but was taken away by Atta Muhammad F.C. No. 143 to the police station for recording of his statement. Though this witness was cross‑examined at length, yet the defence has not suggested anything to the doctor with regard to this part of the statement. In these circumstances, his statement that Hazar P.W. was brought at 9 a.m. and, thereafter again at 7 p.m. for medical examination remains unchallenged. Ahmad Sher P.W.10 has corroborated the statement of Hazar Khan, P.W. The defence has not been able to bring anything on record in cross‑examination, which could suggest that he was not present at the spot or is inimical. The explanation given by this witness for being present at the spot is that they used to accompany Hazar to the Court of Session as the accused party was inimical towards him. We find this explanation convincing and therefore, hold that the witnesses were present at the scene of occurrence and witnessed the same.
25. The contention of learned counsel for the appellants that the guns allegedly snatched from Muhammad Amir and Gulbaz appellants cannot be relied upon is without substance. The occurrence took place at 7‑45 a.m. and the statement of the first informant was recorded at 8‑30 a.m. wherein he has mentioned the snatching of guns from Amir and Gulbaz appellants. As a matter of fact, the guns were produced before the investigating officer at the spot whereas the appellants were arrested about a week after the incident. In these circumstances, the snatching of the guns from the appellants can safely be relied upon. The contention of the learned counsel that no empty recovered from the spot matched with the guns of these two appellants, therefore, their involvement becomes doubtful is also without force. Muhammad Hazar Khan P.W., in cross-examination, was asked whether the gun snatched by him contained any empty in its chamber or not, to which he stated that he 'did not check the gun. The Investigating Officer was not put any question with regard to this fact. Even otherwise also, the witnesses could have snatched the guns from Amir and Gulbaz only when they were in the process of re‑loading the guns. Had the guns been already loaded they could not have done so, therefore, in these circumstances, non‑matching of any empty with the guns of these two appellants would not adversely affect the prosecution case. Amir and Gulbaz both the appellants while in custody led to the recovery of licences of their guns which had been snatched by the witnesses at the spot. This fact corroborates the testimony of the eye‑witnesses with regard to the guns of the appellants. Therefore, it is held that the prosecution has been able to prove that the guns P.31 and P.32 were snatched from Amir and Gulbaz appellants at the spot.
26. As far as Muhammad Nawaz accused is concerned, the defence has been able to prove that he was not present at the scene of occurrence at the time of the incident, therefore, he has rightly been given the benefit of doubt. As far as the other accused are concerned, they did lead to the recovery of guns but none of them matched with the empties secured from the spot. Out of 15 empties recovered from the spot, 12 matched with the gun recovered from Muhammad Iqbal appellant, and the remaining three did not match with any of the guns of the accused. Since the eye‑witnesses had categorically stated that Muhammad Nawaz was present at the spot and he fired the first shot but this part of their statement has been disbelieved, therefore, the learned trial Court has rightly relied upon these two witnesses only to the extent of those accused against whom their statement found corroboration from other independent evidence.
27. The evidence of Muhammad Hazar Khan and Ahmad Sher finds corroboration only against Iqbal, Muhammad Amir and Gulbaz appellants. The gun got recovered by Muhammad Iqbal appellant matched with the crime empties secured from the spot is sufficient corroboration of the statements of the eye‑witnesses. Similarly, the statement of the eye‑witnesses are corroborated with regard to the involvement of Amir and Gulbaz appellants, as both the eye witnesses snatched guns from them at the spot which were licensed and the appellants also got recovered the licences of those guns.
28. For what has been discussed above, we feel that the statements of the eye‑witnesses do inspire confidence qua the appellants and can safely be relied upon. The contention of the learned counsel for the appellants is that it was a case of family honour, therefore, lesser sentences be awarded. We have considered this aspect of the matter and do not agree with this submission. It is the defence own case that only Hazar was responsible for the abduction of Muhammad Nawaz's daughter. All the deceased as such had nothing to do with that incident, therefore, murdering them in broad daylight in a busy Bazar cannot be said to be a mitigating circumstance.
29. In view of above discussion, we hold that the prosecution has been able to prove its case beyond doubt against the appellants, therefore, the appeal failse which, is accordingly, dismissed. For the reasons given above, we find no merit in the appeal filed by the State against the acquittal of Muhammad Nawaz, Sarfraz, Muhammad Mumtaz, Ahmad Sher son of Muhammad Nawaz, Shamsher, Dilbaz and Umar Draz, which is also dismissed. For the same reasons the criminal revision filed by Muhammad Hazar, complainant, also fails which is, accordingly dismissed.
30. S.A./M‑1431/L Appeal dismissed.