1992 P Cr (PLP)

JUSTICE ABDUL MAJEED TIWANA, MEMBER.

Ghulam Jaffar and his four co-appellants, namely, Arif Hussain, Sadiq alias Safdar, Karamat Ali alias Manni and Bashir Ahmad alias Dannu alongwith two acquitted co-accused, namely, Kherait Ali and Ramzan alias Jehana were tried by the learned Judge, Special Court for Speedy Trials No.1, Lahore on the charge of committing murder by intentionally causing the death of their four co-villagers, namely, Inayat Ali. Abdul Rehman. Mushtaq Ahmad and Bir Din, punishable under section 302/149, P.P.C. and attempting at the life of Nazir Ahmad complainant and his seven relations, namely, Ali Muhammad, Mst. Nasim Akhtar and Mst. Razia P.Ws. besides Rehmat Ullah, Muhammad Munshi, Mst. Jamila and Mst. Hajra, indictable under section 324/149, P.P.C. after forming themselves into an unlawful assembly, the common object whereof was to commit rioting, actionable under section 148, P.P.C. They were also tried for committing trespass into the house of complainant party punishable under section 451/149, P.P.C. and damaging their property and household articles indictable under section 427/149, P.P.C. after committing the murder and attempted murder -of the aforesaid persons. Muhammad Shafi and Abdul Ghafoor acquitted co-accused were tried for abetting the commission of offence of murder and attempted murder by their seven abovenamed co-accused .punishable under sections 302/109 and 307/109, P.P.C. On the conclusion: of the trial the learned Judge, vide his judgment, dated 22-2-1992, acquitted Muhammad Shafi and Abdul Ghafoor of the charge of abetment on account of want of proof and Khariat Ali and Muhammad Ramzan alias Jehana, co-accused on benefit of doubt. He, however, convicted Ghulam Jaffar, Tariq Hassan, Sadiq alias Safdar, Bashir Ahmad alias Dannu and Karamat Ali appellants under section 302/34, P.P.C, and sentenced each of them to death as Qisas, each on four counts. He also convicted them under section 324, P.P.C. (as recently substituted)/34, P.P.C. and sentenced each of them on each of the eight counts to three years' R.I. and a fine of Rs.1,000 or in default to undergo four, months' R.I. each on each count. He also convicted them under section 551/34; P.P.C. and sentenced each of them to two years' R.I. and a fine of Rs.500 or in default to further undergo four years' R.I. He, however, acquitted them of the charge under section 427/34, P.P.C. He recorded no findings on the charge under section 148, P.P.C. and perhaps for that reason he held the appellants guilty for vicarious liability under section 34, P.P.C. instead of under section 149, P.P.C.

2. The brief facts of the case, as reflected in the prosecution evidence, are these:-- Parties in this case were not only co-villagers being residents of village Purani Bheni situated in the area of Police Station Sharqpur Sharif, District Sheikhupura, but most of them were immediate neighbours as well, having no differences of serious nature inter se. On 20-1-1991 at about 11 a.m., the four deceased persons namely, Inayat Ali, his brother Bir Din, their cousin Abdul Rehman and their relation Mushtaq Ahmad alongwith Nazir Ahmad complainant and Ali Muhammad P.W. besides Munir Ahmad and Rehmatullah (given up P.Ws.) were raising a wall in front of their house. It was a piece of Shamlat land in their possession. While they were so doing, Ramzan alias Jehana acquitted accused armed with a Dang, his three sons Ghulam Jaffar, Sadiq alias Safdar and Arif Hussain, the appellants, armed with .7 mm rifles, Karamat Ali alias Mani appellant carrying a .12 bore-gun, while Bashir Ahmad alias Dannu appellant wielding a mauser and Khariat Ali acquitted accused carrying a Kassi, suddenly appeared on the scene raising Lalkaras. Ramzan alias Jehana acquitted accused exhorted his companions to teach a lesson to the refugees (complainant party) for raising the wall. Opening the attack, Karamat Ali alias Mani appellant fired a shot from his gun, hitting Ali Muhammad ` P.W. on his buttocks. His second shot hit Nazir Ahmad complainant on his left hand. Then Ghulam Jaffar appellant fired a shot from his 7 mm rifle, hitting Inayat Ali (deceased) on the chest, followed by Sadiq alias Safdar appellant, hitting Mushtaq (deceased) on the chest. The shot fired by Bashir Ahmad alias Dano appellant hit Abdul Rehman (deceased) on his ribs. Beer Din (deceased) was hit on his back with a shot fired by Arif Hussain appellant. Karamat Ali appellant repeated his shot hitting Rehmatullah P.W. (not produced) on the .thigh. The victims, some of whom fell down as a result of the fire-arm injuries, were also given beating by the assailants carrying Kassi and Dang. They were also given butt blows by some of the appellants wielding fire-arms. Seeing this halocaust, the womenfolk of the complainant party, particularly Mst. Jamila, Mst. Razia, Mst. Nasim Bibi and Mst. Hajran Bibi, reached the spot, raising hue and cry but they too were attacked by the accused party with the butts of guns, the bang and Kassi as a result of which they received a number of injuries on different parts of their bodies. Then the appellants and their two acquitted co-accused, namely, Kharait Ali and Ramzan alias Jehana trespassed into the houses of the complainant party and raising Lalkaras, damaged the doors and windows and household articles, whereafter they went towards the Jungle raising Lalkaras and firing in the air. Inayat Ali, Abdul Rehman, Musthaq Ahmad and Beer Din, who had sustained fire-arm injuries in the manner aforesaid, expired on the spot, while other injured were taken to the hospital by their relations. Abdul- Ghafoor and Muhammad Shafi acquitted co-accused had allegedly abetted the commission of murder and attempted murder of the aforesaid persons by their co-accused.

3. Nazir Ahmad complainant left for Police Station Sharqpur Sharif, which was at a distance of about three miles from the place of occurrence, and reaching there at about mid-day, lodged the F.I.R. with Inspector/S.H.O. Muhammad Afzal P.W., giving the aforesaid details therein. On his statement, case F.I.R. No.21 was registered under sections 302, 324, 452, 448, 440, 148 and 149, P.P.C. Its investigation was taken up by the Inspector/S.H.O. himself. Reaching the spot, he prepared the injury statements and inquest reports of the dead bodies of Inayat Ali, Abdul Rehman, Mushtaq and Bir Din and sent them to the mortuary for post-mortem examination under the escort of police constables. He collected blood-stained earth and secured it in different packets. Since the injured had already been taken to the Sharqpur Hospital, he followed them. Reaching there, he recorded the statements of Rehmatullah, Ali Muhammad, Nazir Ahmad, Mst. Hajran, Mst. Jamila, Mst. Razia and Mst. Nasim Akhtar as they all were injured. He also recorded the supplementary statement of Ali Muhammad in Mayo Hospital, where he had been shifted after ascertaining his fitness from the doctor, to make statement. He searched for the accused but could not arrest them and initiated proceedings against them in the Court of Illaqa Magistrate under section 87/88, Cr.P.C. Eventually he arrested Muhammad Ramzan alias Jehana, Muhammad Shafi and Khariat Ali acquitted co-accused on 6-2-1991, Ghulam Jaffar, Arif Hussain and Karamat Ali appellants on 13-2-1991. The latter on 24-2-1991 led to the recovery of fire-arms, two 7 mm rifles by the first two and a .12 bore gun by the third one. Abdul Ghafoor acquitted accused was formally arrested on 23-2-1991 as he had obtained bail before arrest. Sadiq alias Safdar and Bashir Ahmad alias Dano appellants were arrested by him on 24-2-1991 and on 2-3-1991 the former led to the recovery of .7 mm rifle and latter to the recovery of mauser. The four dead bodies carried to the mortuary under the escort of the police were subjected to post-mortem examination, while the injured were medically examined. The Investigating Officer collected the last worn clothes and the post-mortem reports of the deceased?s from the constables escorting the dead bodies and the medical reports of the injured from the doctors carrying out their medico-legal examination. In this way, he completed the investigation and submitted the challan to the Court concerned.

4. On the commencement of the, trial the appellants and their acquitted co-accused were charged for various offences in the manner stated above and, on their pleading not guilty, the prosecution led evidence against them by producing as many as 18 witnesses.

5. Dr. Bashir Ahmad (P.W.1), Dr. Iftikhar Ahmad (P.W.2) and Dr. Shaukat Hayat (P.W.3) were the medical experts. Muhammad Ali (P.W.4) Mushtaq Ahmad (P.W.5), Irshad Ahmad (P.W.6), Muhammad Zafar (P.W.7), Shahbaz Khan (P.W.8), Nausher Ali (P.W.9) and Muhammad Hayat (P.W.10) were all police officials and they all, including Rab Nawaz Draftsman (P.W.11), were formal witnesses. Nazir Ahmad complainant (P.W.12), Ali Muhammad (P.W.13), Mst. Nasim Akhtar (P.W.14) and Mst. Razia (P.W.15) were the eye?witnesses. Muhammad Sarwar (P.W.16) and Muhammad Ali (P.W.17) were the witnesses of various recoveries. The last witness was Inspector/S.H.O Muhammad Afzal (P.W.18).

6. To be a little more precise, Dr. Bashir Ahmad (P.W.1) deposed that on 20-1-1991 when he was posted as Medical Officer, Rural Health Centre, Sharqpur Sharif, one Zulfiqar Ali brought to him Ali Muhammad, Rehmatullah, Muhammad Munshi, Mst. Razia Bibi, Mst. Nasim Akhtar and Mst. Jamila Bibi all residents of village Purani Bheni. According to him, all these persons were injured and he medically examined them turn by turn. Giving the details of the injuries of Rehmatullah P.W. (not produced) he stated that he suffered two lacerated wounds 1/2 x 1/2 c.m. about 4 c.m. apart on the back of left thigh; a swelling 6 c.m. x 6 c.m. on the left ankle joint, skin contusion 3 c.m. x 3 c.m. on the left leg, and a lacerated wound 3 c.m. x 1 c.m. on the left leg above injury No.3. In his opinion, injuries Nos.2, 3 and 4 were caused by a blunt object, while injury No.1 (two lacerated wounds on the back left thigh) were caused by fire-arm as per X-Ray report. All these injuries were declared simple. He proved medico-legal report (Exh.P.A.).

7. Regarding Ali Muhammad P.W. he testified that on his right buttock he observed a lacerated wound 1 c.m. x 1 c.m. caused by a fire-arm and bleeding profusely. His abdomen was tender and urine being blood-stained. He referred him to the Mayo Hospital and, on the receipt of report from there, declared his injury as grievous. He proved medico-legal report (Exh.P.B.).

8. He then medically examined Mst. Razia Bibi aged about 18 years and found skin contusion with swelling 6 c.m. x 6 c.m. on the right temporal region, multiple skin contusions on the right skin, skin contusion 3 c.m. x 3 c.m. with swelling on left foot and multiple skin contusion all over the body. In his opinion, all the injuries were caused by a blunt weapon and all, including injury No.1, per X-ray report of D.H.Q. Hospital, Sheikhupura, were ultimately declared simple. He proved medico-legal report (Exh.P.C.) regarding her.

9. He then examined Nazir Ahmad complainant aged about 24 years According to him, he was brought by Constable Khizar Hayat and on his medical examination he found lacerated wound 1/4 c.m. x 1/4 c.m. on the dorsom of the left hand, which was swollen and painful. According to him, he referred him to D.H.Q. Hospital, Sheikhupura for the determination of the nature of the injury and the kind of the weapon used and, on the receipt of report from the hospital, he declared the injury as grievous caused by a fire?arm. He proved his medico-legal report (Exh.P.D.).

10. He then took up the medical examination of Mst. Nasim Akhtar P.W. aged about, 30 years and found four injuries on her person. Injury No.1 was a swollen area of 15 c.m. x 15 c.m. on the right thigh, painful and tender; injury No.2 was a lacerated wound 3 c.m, x 1 c.m. outer side of the right ankle, injury No.3 was a skin contusion on the right leg with a swelling 4 c.m. x 3 c.m., injury No.4 was skin contusion 6.c .m. x 2 c.m. on the left leg, the area was swollen and tender. All these injuries according to him, were simple, caused by blunt weapon as per medico-legal report (Exh.P.E.).

11. On the same day at 2-25 p.m. he medically examined Mst. Jamila Bibi and found three injuries on her person. Injury No.1 was a lacerated wound 6 c.m. x 2 c.m. on the mid parietal region bone deep and bleeding profusely-while injury No.2 was lacerated wound 1 c.m. x 1 c.m. on the left finger and injury No.3 was a lacerated wound 3 c.m. x 1 c.m. All these injuries, according to him, were caused by blunt weapon and were ultimately declared simple vide medico-legal report (Exh.P.F.).

12. The last injured having been medically examined by him was Munshi P.W. (not produced) aged about 60 years. He found his both eyes swollen and discoloured, a lacerated wound 1 c.m. 1 c.m. on occipital region of the scalp and a lacerated wound 3 c.m. x 1 c.m. on the right ear. All these injuries, according to him, were caused by a blunt object. Injuries No.1 and 3 were declared simple while injury No.2 was kept under observation and on a report received from the D.H.Q. Hospital, Sheikhupura, where he was referred for examination, it was declared simple. He proved his medico-legal report (Exh.P.G.).

13. Dr. Iftikhar Ahmad, Medical Officer, D.H.Q. Hospital, Sheikhupura (P.W.2) had conducted the post-mortem examination on the dead bodies of Inayat Ali and Beer Din. He deposed that on 21-1-1991 at 1-55 p.m. he had carried out autopsy on the dead body of Inayat Ali, aged about 55 years and on external examination he had detected 11 injuries, out of which 4 were fire-arm lacerated wounds, 3 were fire-arm punctured wounds, 3 were abrasions and. one lacerated wound. According to him, on disection he found right side of 4th rib fractured and chest cavity full of blood. He noticed right plurea, right lung, diaphragm and lever lacerated. In his opinion, injuries Nos.1, 4 and 11 located on right eye-brow, left supra clavicular, mid left leg and upper part of left thigh, respectively; were caused by a blunt object while injury No.3 (forehead), 5 (lower half of left arm), 6 (lower half of left arm, exit wound), 7 (front mid of chest, entry wound with inverted and burnt margin and 8 (lower part of right chest with everted margin, exit wound) and 9 (mid right thigh) were caused by a fire-arm. According to -him, injuries Nos.7 and 8 being grievous and fatal, were sufficient to cause death in the ordinary Course of nature while the rest were simple. Death, in his opinion occurred immediately due to shock and haemorrhage as a result of injury to vital organs like lungs and liver. He proved the post-mortem report (Exh.P.H.) and the diagram of injuries (Exhs.P.1 and 2).

14. He testified that on the same day at 2-20 p.m. he conducted post-mortem examination on the dead body of Beer Din, aged about 60 years and found 12 injuries on different parts of it. On external examination he found 12 injuries, out of which 3 were fire-arm injuries and the rest were abrasions caused by a blunt weapon. According to him injury No.3, which was located on the back of abdomen just above iliac crest with inverted and burnt margin (entry wound) and injury No.4 on the left thigh were grievous and fatal causing shock and haemorrhage and were sufficient in the ordinary course of nature to cause death. He proved post-mortem report (Exh.P.J.) and diagram of injuries (Exhs.P.J./1 and 2).

15. The next witness was Dr. Shaukat Ali, Medical Officer, D.H.Q., Hospital, Sheikhupura. He deposed that on 21-1-1991 at 12-30 p.m. he conducted post-mortem examination on the dead body of Abdul Rehman aged 25 years and found 12 injuries on it, out of which two were fire-arm injuries, one was a lacerated wound and the rest were abrasions, caused by a blunt weapon. According to him, on internal examination he found big vessels, lever, small and large intestines, diaphragm wall, ribs and cartilages damaged under injury No.3 located on the front of chest lower part 0.7 c.m. x 0.7 c.m. with tattooing (entry wound) and injury No. 10 located on the back of abdomen (exit wound). All caused by a fire-arm resulting in death on account of shock, haemorrhage an cardio-respiratory failure. In his opinion, all the injuries were collectively and injury No.3 was individually sufficient to cause death in the ordinary course of nature. He proved post-mortem report (Exh.P.K.) and diagram of injury (Exh.P.K./1).

16. On the same day he conducted autopsy on the dead body of Mushtaq Ahmad and in all found four injuries on it. Out of which two were fire-arm wounds, one entry wound with tatooing 1.5 c.m. x 1.5 c.m. on the front of left chest l5 c.m. below the left nipple and the other crushed lacerated wound with tattooing 5 c.m. x 1.5 c.m. bone deep on the right front of head. Other two injuries were abrasions, one on the front of left side of head and the other on the lower part of the left knee joint, both caused by a blunt weapon. On external examination he found 5th and 11th ribs, intercostal space between 5th and 6th ribs, diaphragm, lever, cartilages and pleura damaged and a bullet recovery from 11th rib. Abdominal cavity was full of blood. Scalp stood damaged under injury No.2 located on the right of front head. Injury No.1 was fatal and was sufficient to cause death due to shock and haemorrhage and cardio respiratory failure. He proved the post-mortem report (Exh.P.L.) and the diagram of injury (EXh.P.L. /1).

17. As already indicated, P.W.4 to P.W.11 were formal and their testimony does not need detailed discussion

18. Nazir Ahmad complainant (P.W.12), Ali Muhammad (P.W.13), Mst. Nasim Akhtar (P.W.14)? Mst. Raffia (P.W.15) gave the eye-witness account. They all were injured witnesses. Their testimony finds reflection in the above narration of the prosecution case and shall be subjected to the detailed appraisal in due course, where necessary. ???????

19. Muhammad Sarwar (P.W.16) and Muhammad Ali (P.W.17) were the witnesses of recovery of certain fire-arms at the instance of the convicts but their evidence is not of much assistance as no empty was picked up from the spot for matching with them. The role played by Inspector Muhammad Aslam (P.W.18) as Investigating Officer has already been outlined.

20. The learned prosecution gave up Rehmatullah, Munir Ahmad, Muhammad Munshi and Mst. Jamila P.Ws. as unnecessary and closed the prosecution after tendering into evidence the reports of Chemical Examiner, Serologist and Forensic Science Laboratory.

21. The appellants and their acquitted co-accused, while examined under section 342, Cr.P.C., denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implications, professed innocence. They did not choose to depose under section 340(2), Cr.P.C. nor did they produce any evidence. Ghulam Jaffar appellant, explaining the allegation of causing Inayat Ali's death by fixing a rifle shot on his chest, stated that his right hand had been damaged as a result of fire shot in an earlier occurrence and it was incapacitated and his right arm became very weak. He pleaded that he was unable to hold a rifle nor he could fire any weapon.

22. On the conclusion of the trial, five appellants were convicted and sentenced in the manner aforesaid while their four co-accused were acquitted. Aggrieved by the findings of the trial Court, the convicts have come up in appeal to this Court.

23. Mr. Muhammad Munir Khan, Advocate, the learned counsel for the appellants, has at the outset frankly conceded that he has nothing to say with regard to the conviction and sentence of Arif Hussain, Sadiq alias Safdar and Karamat All appellants and he would only plead the case of Ghulam Jaffar and Bashir Ahmad appellants. With regard to the statement of Ghulam Jaffar appellant made under section 342, Cr.P.C. claiming his inability to handle a fire-arm on account of physical infirmity of his right hand and arm, he submits that even the learned trial Judge noticed a serious deformity of the appellant's right hand and infirmity of his fore-aim on account of an injury suffered by him at some previous occasion and the observations so made go a long way to prove the fact that the appellant was unable to wield a 7 mm rifle or any other fire-arm for firing a fatal shot at Inayat Ali (deceased) and he was falsely attributed this role in the prosecution case.

24. Similarly, with regard to Bashir Ahmad alias Danu appellant he contends that in the F.I.R. (Exh.P.T.) he was attributed the role of tiring a fatal shot on Abdul Rehman with his mauser but Nazir Ahmad complainant, while appearing as (P.W.12), told a different story before the trial Court Icy deposing in the examination-in-chief' that when the assailants came, Bashir Ahmad appellant was empty-handed and was raising Lalkara besides other but when Karamat Ali appellant opened the attack by firing a mauser shot on the buttock of Ali Muhammad P.W., his mauser was taken over by Bashir Ahmad appellant and Karamat Ali appellant fired the second shot with his gun at his (complainants) left hand and that he was slinging it on his shoulder and was holding the mauser in his hand. According to the learned counsel, this witness was duly confronted with his statement in the F.I.R. and had asserted that he had not stated therein that Karamat Ali appellants was holding mauser in his hand and was slinging a .12 bore gun on his shoulder nor did he state therein that Bashir Ahmad appellant was empty-handed and during occurrence he had taken over the mauser from Karamat Ali with which he fired a fatal shot at Abdul Rehman (deceased). These variations, according to the learned counsel, were material and created a sufficient doubt in the veracity of prosecution case about the participation of Bashir Ahmad appellant in the occurrence.

25. The learned counsel also tried to argue that the complainant party did not spare even Muhammad Ramzan alias Jehana, the acquitted co-accused, who was father of Ghulam Jaffar, Arif Hussain and Sadiq alias Safdar appellants and -was about 90 years old and attributing a false role of wielding a Dang and causing injuries to a number of persons, falsely implicated him. According to him, his acquittal alongwith three other co-accused by the trial Court amply signified that even innocent persons had been roped in and this fact recoiled on the entire prosecution story. After commenting on this aspect of the matter, the learned counsel then chose not to further argue the case of Arif Hussain, Sadiq alias Safdar and Karamat Ali appellant and felt contented on pleading the case of only Ghulam Jaffar and Bashir Ahmad appellants, who, in his opinion, deserved acquittal and in any case reduction in sentence.

26. On the other hand, it is argued on behalf of the State that neither Ghulam Jaffar deserves any concession on account of his so-called deformity of the right hand and infirmity of his forearm, nor Bashir Ahmad appellant was entitled to any leniency for the reason of a minor variation pointed out by the learned counsel for the appellants in the statement of Nazir Ahmad complainant in the F.I.R. and his statement before the trial Court. According to the learned State counsel Ghulam Jaffar appellant, despite his minor deformity of hand and slight weakness of his right hand and right forearm, could easily wield the rifle with his left hand, which was perfectly alright, by placing and pressing it against the front of his right shoulder and pressing the trigger with the finger of the right hand, which did not suffer from any infirmity. According to him, as per observations of the learned trial Judge, the appellant could easily move the arm from his shoulder and it had only some stifness at the elbow joint and with this minor infirmity he could easily use it for wielding and using any kind of fire-arm.

27. There seems to be some deformity of the right hand and infirmity of the right forearm of Ghulam Jaffar appellant, as per observations of the learned trial Judge, but, as per explanation furnished by the learned State counsel, we arc convinced that, despite these minor infirmities he could, with the help of left arm and hand which were perfectly alright, wield a fire-arm and use it against his adversaries and he did fire a fatal shot with a .7 mm rifle, at Abdul Rehman, causing his instantaneous death. However, we are inclined to give some concession in the matter of sentence to Bashir Ahmad appellant.

28. In view of the above, whereas the conviction and sentence of Ghulam Jaffar, Arif Hussain, Sadiq alias Safdar and Karamat Ali appellants is maintained under section 302, P.P.C. read with 149, P.P.C. (section 34, P.P.C. having been wrongly mentioned by the learned trial Judge), on all the four counts and their appeal dismissed in toto, we alter the death sentence of Bashir S Ahmad appellant to imprisonment for life on each of the four counts, after maintaining his conviction under section 302/149, P.P.C. alongwith his co-appellants. Only to this extent the appeal is accepted. N.H.Q./38/SAC ??????????? Order accordingly.