1976 P Cr (PLP)

MUHAMMAD RAFIQ TARAR, J.‑Nur Ahmad (30) son of Allah Dad, Ramzan (29) son of Walia, caste Machhi, Falak Sher (25) son of Hamayun, Nausher (26) son of Pehlwan. Nura (50) son of Ramzan, caste Madhar, Anwar (40) son of Mahani, caste Machhi, and Nawaza (25) son of Nura, caste Madhar, residents of Dad Baluch, were tried by the learned Sessions Judge, Sahiwal, under sections 302/149, 323/149 on two counts, 342/149 on two counts and 148 of the Pakistan Penal Code for having formed themselves into au unlawful assembly with the common object of committing the murder of Mazhar Abbas deceased and for causing injuries to Allah Ditta and Mansha P. Ws. and wrongfully confining them and in the prosecution of that common object of the said unlawful assembly to have on 26th October 1972 committed the murder of Mazhar Abbas deceased, caused injuries to Allah Ditta and Mansha P. Ws. and wrongfully confined them, in the area of village Tootwala. By judgment dated 28th January 1975, Falak Sher, Nawaza, Anwar and Nausher were acquitted of the charges on the benefit of doubt while Nur Ahmad. Ramzan and Nura were convicted under sections 302, 323 on two counts and 342 on two counts read with section 34 of the Pakistan Penal Code. Under section 302/34, P. P. C. they were sentenced to death subject to confirmation by this Court and a fine of Rs. 1,000 each or in default in the payment thereof to R. I. for six months each. The fine, if realised, was ordered to be paid to the heirs of Mazhar Abbas deceased as compensation. Under section 323/34, P. P. C. they were sentenced to R. 1. for six months each on each count and under section 342/34, P. P. C. to R.1. for six months each on each count. The sentences of imprisonment awarded to them were ordered to run concurrently in case their death sentences were commuted. The convicts have appealed and the case is also before us on reference for confirmation of the death sentence awarded to them. Falak Sher complainant filed Revision Petition No. 842 of 1975 with the prayer that the acquittal of Falak Sher, Nausher, Anwar and Nawaza be set aside and they may be ordered to be retried by a Court of competent jurisdiction. It may be mentioned in the very outset that the learned counsel for the complainant did not press this petition during the arguments. The appeal, the reference and the revision petition shall be disposed of by this judgment. 2: Mazhar Abbas deceased was son of Yahya Khan, a landlord of village Khai, Police Station Tandlianwala. Syed Alamdar Husain Shah who is a Pir and a landlord, is the maternal uncle of Mazhar Abbas deceased. Allah Ditta and Manaba P. Ws. are the private servants of the deceased. Falak Sher complainant is a resident of Chak No. 739/GB, Police Station Kamalia. The sister of Alamdar Husain Shah is married to the Gaddi Nashin of the Darbar Nadir Shah. Falak Sher complainant is a Mureed of Pir Nadir Shah.

3. The brief facts of the prosecution case are that Mazhar Abbas deceased bad employed one Muhammad Aslam to look after his quails and partridges. About two or three days before the occurrence, Muhammad Aslam left his job and went to his maternal grandfather Jalla at Dhari Allah Dad situate in the area of village Tootwala, Police Station Nurpur. On 26th October 1972 Mazhar Abbas deceased asked his servants Allah Ditta, Mansha, P. Ws. Nasir and Ghulam Husain to accompany him for hunting. He told them that he would also bring back Aslam as the birds were not being looked after properly in his absence. At about degarwela they reached Dhari Allah Dad where Aslam was present. Mazhar Abbas deceased asked Aslam to accompany him but he refused to do so where upon Mazhar Abbas deceased abused him. Jalla, the maternal grand father of Aslam, abused Mazhar Abbas deceased in return. On bearing the alarm Nur Ahmad and Ramzan appellants also came there. They abused Mazhar Abbas deceased and snatched his gun. During the scuffle the gun went off. The fire hit Jails who died then and there. Mazhar Abbas deceased, Allah Ditta and Mansha P. Ws. started running towards the River Ravi. Nasir and Ghulam Husain also ran away. Nur Ahmad and Ramzan appellants chased Mazhar Abbas deceased, Mansha and Allah Ditta P. Ws Nur Ahmad was holding the gun which he had already snatched from Mazhar Abbas deceased while Ramzan was empty handed. They overtook the deceased and his companions in the river. They gave beating to Mazhar Abbas deceased, Mansha and Allah Ditta P. Ws. and brought them to the dhari of Allah Dad where Nura appellant and acquitted accused persons Falak Sher, Nawaza, Nausher and Anwar were present. By that time darkness had prevailed. Falak Sher complainant and Amir P. W. who were present at the river, also followed them. They entreated the accused persons to spare Mazhar Abbas deceased and his companions but they did not pay any heed, The appellants and the acquitted accused except Falak Skier, caused injuries to Mazhar Abbas deceased with sticks and killed him at the spot. Falak Sher was holding a lantern to facilitate the crime and had raised a lalkara The appellants and the acquitted accused also gave beating to Mansha and Allah Ditta P. Ws. and confined them in a room. After the occurrence, Nur Ahmad appellant went to Police Station Nur Shah and reported the murder of Jalia deceased at 6‑34 p.m. vide F. I. R. (copy Exh. P.BB), recorded by Sarfraz Khan, S. H. O. After recording this F. I. R. the said S. H. O. reached the spot where Falak Sher reported this occurrence to him at 8‑U5 p.m. vide his statement Exh. P. C., on the basis of which formal F. I. R. (Exh. PC/1) was recorded at the police station at 8‑45 p.m.

4. The Station House Officer prepared the injury statement (Exh. PV) and the inquest report (Exh. PU) of the dead body of Mazhar Abbas deceased and sent it to the mortuary for post‑mortem examination. He recorded the statements of Amir, Mansha and Allah Ditta P. We under section 161 of the Code of Criminal Procedure. He prepared the injury- statements Exh. PZ/1 and Exh. PAAJI of Allah Ditta and Mansha P. Ws., respectively, and got them medically examined. He took some blood stained earth from underneath the dead body of Mazhar Abbas deceased and made it into a sealed parcel vide memo. Exh. PD. On 29th October 1972 Rustam Khan M. P. A. produced all the accused persons except Nura appellant before the S. H. O. who arrested them. He removed blood‑stained shirt (Exh. P. 11) and chaddar (Exh. P. 12) from the person of Nausher accused and made them into a sealed parcel vide memo Exh. PQ. He also removed shirt (Exh. P. 17) and chaddar (Exh. P. 18), both blood stained, from the person of Nawaza accused and made them into a sealed parcel vide memo Exh. PT. He removed shirt (Exh. P. 2) and chaddar (Exh. P. 3), both blood‑stained, from the person of Nura appellant and made them into a sealed parcel vide memo. Exh. PF. He also removed blood‑stained shirt (Exh. P. 4) and chaddar (Exh. P. 5) from the person of Ramzan appellant and made them into a sealed parcel vide memo. Exh. P.J. He also removed blood‑stained shirt (Exh. P. 16) from the person of Anwar accused and made it into a sealed parcel vide memo. Exh. PS. On the same day Falak Sher accused produced lantern (Exh. P. 9) before the S. H. O. vide memo Exh. PN. On 5th November 1972 Nur Ahmad appellant got recovered blood‑stained sota (Exh. P. 1) which was made into a sealed Parcel vide memo Exh. PLC. Ramzan appellant got recovered blood‑stained khunda (Exh. P. 6) which was made into a sealed parcel vide memo Exh. PK. Nawaza accused got recovered wooden pestle (Exh. P. 7) which was made into a sealed parcel vide memo. Exh. PL. Anwar accused got recovered danda (Exh. P. 8) which was made into a sealed parcel vide memo Exh. PM and Nausher accused got recovered Sairu (Exh. P. 10) from his kotha which was made into a sealed parcel vide memo Exh. PO. After the occurrence, Nura appellant absconded and was declared a proclaimed offender. He was arrested on 26th November 1973. After the investigation, the appellants and the acquitted accused were challaned.

5. On 27th October 1972 at 3 p.m. Dr. M. A. Saleemi conducted the autopsy on the dead body of Mazhar Abbas deceased and found the following injuries on it :‑‑ (1) A lacerated wound 3 x X scalp deep on the left side of head 3' above the left ear add 3 ' above the left eyebrow. (2) A lacerated wound 1 ' x x scalp deep on the left side of head 1' from injury No. 1. (3) A lacerated wound 2 x ' and bone deep on the top of head at raid area, (4) A lacerated wound 3 ' x 'x bone deep on the right side of head 2f above the right ear. (5) A lacerated wound 1 ' x '' bone deep on the front of head at mid area. (6) A lacerated wound 1 '' x 1/3 x bone deep on the mid area on the forehead 2' above the root of nose. (7) Successive 3 overlaping lacerated wound 5 ' x 2' x bone fracture on the back of head on left side extending to the back of left ear. The wounds were separated only on margin. (8) Bruise 4' x 3 '' on the back of left shoulder joint. (9) Transverse bruise 3 ' x 1' on the back of the left shoulder blade at upper area. (10) Transverse bruise 3' x 1" on the back of left shoulder blade 1' below the injury No. 9. (11) Transverse bruise 13 ' x 2 '' across the back of chest of mid area extending to the right shoulder blade. (12) Oblique bruise 12 ' x 2' on the back of both sides of chest below the injury No. 11. (13) A bruise 1 " x '' on the back of left chest at mid area. (14) An abrasion 2 ' x 1' on the upper part of right chest. (15) An abrasion 2' x ' on the back of right chest 1' below the injury No. 14. (16) Transverse bruise 7' x 1' on the back of right shoulder blade at mid area. (17) Lacerated wound ' x 1/3 x ' on the back of left upper arm 1' above the left elbow joint. (18) Bruise 3 '' x 1' on the back of left elbow joint. (19) Bruise '' x 1/3' on the middle part of forehead J' above the root of nose. (20) Bruise 2 '' x 1' on the bridge of nose (nasal bones fractured underneath). (21) An abrasion 1 " x '' on the right cheek '' below the right eye. (22) Lacerated wound 1 ' x " x bone fractures (left mandible) on the left side of chin. (23) A bruise 4' x '' on the left side of neck on front. In the opinion of the doctor, death was due to shock and haemorrhage and injury to the vital organs (brain and lungs). Injuries Nos. 4, 7, 11 and 12 were sufficient to cause death in the ordinary course of nature. All the injuries were ante‑mortem caused by a blunt weapon. The probable time between injuries and death was immediate and between death and post‑mortem from 12 to 24 hours. On the same day the same doctor conducted the autopsy on the dead body of Jalla deceased and found the following injuries on it :‑ (1)‑Five charred firearm wound of entry within the area of 2 ' x 1 ' on the outer side of right upper arm on the back aspect 6 '' below the left shoulder joint passed through the left upper arm entered in the left side of chest on upper and front side below the left shoulder and 5" from ‑the mid sternalline within the area of 3' x 2 '' and entered into the left chest cavity passed through the right chest cavity and 5 pellets were removed from the outer` side of right chest under the skin. (2) An abrasion " x ' on the front of chest at mid area on the sternal may be due to the grasing of the pellet. According to the post‑mortem report (Exh. PY), the death was due to shock and haemorrhage and injury to the vital organs (heart and lungs). Injury No. 1 was sufficient to cause death in the ordinary course of nature. On 28th October 1972, the same doctor examined Allah Ditta P. W. and found an abrasion 1' x ' on the top of shoulder and a swelling 2' x 1 '' on the outer side of left elbow-joint. Both the injuries were simple caused by a blunt weapon. . On the same day, the same doctor examined Mansha P. W. and found the following injuries on his person :‑ (1) Lacerated wound 2 x 1/3" x scalp deep on the back of head on right side 2 " from the left ear. (2) An abrasion (scold) 1' x ' on the outer side of left leg at lower part above the ankle joint. (3) Swelling 6' x 5 '' on the back of left forearm extending to the joint. Injury No. 1 was kept under observation and the rest were simple. All the injuries had been caused by a blunt weapon.

6. To support its case the prosecution examined four eye‑witnesses. namely, Falak Sher (P. W. 6), Amir (P. W. 7), Mansha (P. W. 9) and Allah Ditta (P. W. 10). It also relied on the evidence relating to the recovery of blood‑stained clothes and blood‑stained weapons from the appellants.

7. The appellants pleaded not guilty to the charge. Nur Ahmad appellant admitted that Aslam was a private servant of Mazhar Abbas but stated that he had come to his village (Dhari Allah had) 8 or 10 days before the occurrence. He stated that Mazhar Abbas along with his companions came to Dhari Allah Dad to forcibly take away Aslant but he refused to accompany them whereupon Mazhar Abbas slapped and abused him. He further stated that Jalla intervened but he was also abused by Mazhar Abbas deceased and Jalla abused him in return. tie denied that the gun of Mazhar Abbas went off' accidentally when he and Ramzan appellant tried to snatch it from Mazhar Abbas and stated that Mazhar Abbas deceased, Mansha, Allah, Ditta and others had run away after killing Jalla deceased. Similar statements were made by Falak Sher, Nausher, Nura, Anwar and Nawaza accused. They added that they were not present at the spot. Nur Ahmad appellant further admitted that he snatched the gun of Mazhar Abbas and while armed with it he and Ramzan appellant chased Mazhar Abbas deceased, Allah Ditta and Mansha and overtook them in the river Ravi and apprehended them there. When asked whether he had lodged the F. I. R. (Exh. PBB) regarding the murder of Jalla, he stated that the facts of the said F. I. R. were fabricated by the Sub‑Inspector at the instance of Rustam Khan, Alamdar Husain Shah and Yahya Shah in order to help the complainant party. When asked to explain as to why lie was implicated he made the following statement :‑ "Muhammad Aslam who was a servant of Mazhar Abbas deceased had come to Dhari Allah Dad about 7 or 8 days prior to this occurrence which annoyed Mazhar Abbas. On the day of this incident Mazhar Abbas alongwith his companions came to take forcibly Muhammad Aslam and when he refused to accompany them, Mazhar Abbas slapped and abused him. Jalla deceased intervened who was killed at the spot by Mazhar Abbas. I snatched the gun of Mazhar Abbas and accompanied by Ramzan my co‑accused chased them to apprehend them. Both of us over‑powered Mazhar Abbas deceased, Mansha and Allah Ditta P Ws, on river Ravi and brought them to the Dhari Allah Dad. I handed over Mazhar Abbas deceased, Allah Ditta and Mansha to Ramzan co‑accused, Allah Dad and other persons of the vicinity who had already arrived there. I myself went to lodge r3 report at P. S. Nut Shah about the murder of Jalla deceased. I had also produced the gun of the deceased at Police Station Nur Shah at that very time and when I returned alongwith the police at the spot, I learnt that a crowd of persons who had assembled at the said dhari, had murdered Mazhar Abbas in my absence. Rustam Khan M. P. A. of the Ilaqa is very thick with Yahya Shah father of Mazhar Abbas Shah deceased and Alamdar maternal uncle of the deceased. They are big Zamindars of the vicinity. They have falsely implicated us in this case lax collaboration with the local police. I remained present at the spot with the police." Appellant adopted the statement of Nur Ahmad and added :‑ ". . . I and Nur Ahmad over‑powered Mazhar Abbas, Allah Ditta and Mancha at river Ravi and brought them back to dhari Allah Dad. Nur Ahmad after handing over Mazhar Abbas deceased, Allah Ditta and Marsha to me, Allah Dad and other persons of the vicinity had gone to report about the murder of Jalla deceased. In his absence a crowd of persons from the neighbouring dharis, assembled at the spot. They gave beating to Mazhar Abbas, Allah Ditta, 1tJansha as a result of which Mazhar Abbas died. I had been forbidding the mob not to give beating to Mazhar Abbas. The other cc‑accused Here not present at the spot." No evidence was led in defence.

8. The learned trial Judge disbelieved the recoveries of blood‑stained clothes and blood‑stained weapons from accused persons. He also disbelieved the evidence of Amir (P. W. 7). He accepted the ocular account furnished by Falak Sher, Marsha and Allah Ditta P. Ws. against the appellants and con victed them as mentioned above. He, however, acquitted Falak Sher, Nawaza, Anwar and Nausher on the benefit of doubt.

9. The learned counsel for Nut Ahmad and Ramzan appellants contended that Mansha and Allah Ditta P. W's are the servants of Mazhar Abbas deceased and Falak Sher complainant is a Mureed of a relative of the deceased, therefore, they are interested witnesses and it will be unsafe to place implicit reliance on their testimony. He further argued that according to the doctor, injury No. 2 on the person of Mazhar Abbas was caused by the grazing of a pellet which leaves a lacuna in the prosecution story. In the alternative, he argued that it was a case of grave and. sudden provocation because the deceased had earlier killed Jalla, a close relative of the appellants, therefore, Exception I to section 300 of the Pakistan Penal Code was attracted. The learned counsel for Nura appellant contended that his case was distinguishable because lie was not present at the time of earlier incident in which Jalla was killed nor he had chased the deceased and in all probability he was not present at the spot. Relying on the statements of Nut Ahmad and Ramzan appellants and an admission made by Bahadur Khan (P. W. 5) who was a formal witness of the identification of the dead body, it was contended that Mazhar Abbas deceased was killed by a crowd of persons to avenge the murder of Jalla deceased.

10. The presence of Mansha and Allah Ditta P. Ws. at the spot is admitted by Nur Ahmad and Ramzan appellants. In the circumstances of the case, the presence of Falak Sher at the spot also cannot re doubted. T he occurrence took place at about evening time on 26th October 1972. He reported the occurrence to the Sub‑Inspector at the spot at 8‑OS p.m. on the basis of which formal F. I. R. was recorded at the police station at 8‑45 p.m. Falak Sher P. W. is a resident of Jakhar situate at a distance of 35/40 miles from the place of occurrence. The F. I. R. was lodged within about two hours of the occurrence which makes his presence at the spot probable because he could not be imported from his village within that period. Amir P. W., however, could not give any satisfactory explanation for his presence at the spot. He is a servant of the family of the deceased since his ancestors. He was, therefore, rightly disbelieved by the learned trial Judge. The admitted facts are that Muhammad Aslam, maternal grandson of Jalla, who was a servant of Mazhar Abbas deceased had come to Dhari Allah Dad before the occurrence. According to the prosecution, be had come there three days before the occurrence while the appellants in their statements under section

342. Cr. P. C. stated that he had come there eight or ten days prior to the occurrence. However, in the F. I. R. (Exh. PBB) lodged by Nur Ahmad about the murder of Jalla it is stated that Mazhar Abbas had told Jalla that Aslam had left his place three days earlier. It is also admitted by the appellants that Mazhar Abbas deceased, Allah Ditta, Marsha P. Ws., Ghulam Husain and Nasir went to Dhari Allah Dad to take Aslam along with them but he refused to accompany them and Mazhar Abbas deceased abused him whereupon Jalla intervened and there was an exchange of abuses between him and Mazhar Abbas deceased. They, however, denied that the gun of Mazhar Abbas went off accidently when Nur Ahmad and Ramzan appellants attempted to snatch it and their case is that Mazhar Abbas, deceased intentionally caused the death of Jalla. They also admitted that after the death of Jalla, Mazhar Abbas deceased, Marsha and Allah Ditta had run away. It is also admitted that Nur Ahmad appellant snatched the gun of Mazhar Abbas and while armed with that gun he and Ramzan chased Mazhar Abbas, Allah Ditta and Mansha and overtook them in the River Ravi. apprehended them and brought them back to the Dhari Allah Dad. More or less these facts are also contained in the F. I. R. (Exh. PBB) made by Nut Ahmad appellant regarding the murder of Jalla. The presence of Allah Ditta and Marsha P. Ws and that of Nur Ahmad and Ramzan appellants at the spot is thus an admitted fact. Nur Ahmad appellant stated that after bringing Mazhar Abbas deceased, Allah Ditta to disbelieve them.

11. Relying on certain admissions made by Bahadur Khan Baluch, Advocate, Sahiwal (P. W. 5) who was a formal witness of the identification of the dead body, the learned counsel for the appellants contended that the defence version that the deceased was killed by a mob, was probable. In cross -examination this witness stated that he came to know about the incident at 9‑00 or 10‑00 p. m. and about 250 persons had assembled at the spot. He further stated' "The people had said at the spot that a crowd of persons had killed Mazhar, Abbas Shah." On going through his statement we find that he made a deliberate attempt to damage the prosecution case the F. I. R. (Exh. PBB) regarding the murder of Jalla was lodged at the police station at 6‑30 p. m. The Sub‑Inspector stated that after recording this F. I. R. he started for the spot at 6‑40 p. m. in a tonga. The distance between the spot and the police station is four or five miles. The investi gating officer might not have taken more than an hour to reach the spot. After registering a case under section 302 of the Pakistan Penal Code he was not supposed to delay his departure to the spot and his statement that he started for the spot within ten minutes, rings true. The statement of Bahadur Khan P. W. that the police reached the spot 30/45 minutes after 9 or 10 p. m. cannot be accepted. His statement that the people at the spot were saying that a crowd of persons had killed Mazhar Abbas deceased also appears to be an obliging concession and we do not attach any importance to it.

12. It was next contended that according to the doctor injury No. 2 on the person of the deceased was caused by the grazing of the pellet and this leaves a lacuna in the prosecution version because it is not the case of the prosecution that a gun was used in the occurrence in which Mazhar Abbas was killed. In his statement before the Committing Magistrate the doctor had clearly stated that the injuries were caused with blunt weapon, but when examined in the Sessions Court he gave out that injury No. 2 of the deceased was caused by the grazing of the pellet. He did not give any reason for his above opinion. This opinion is not supported by any reason and no importance can be attached to it.

13. In this case one person was killed and two were injured. The deceased received as many as 23 injuries out of which 12 were on the head, face and neck and 5 on the chest. On the appraisal of the evidence we feel no hesitation in holding that all the appellants participated in the assault. T heir number is not out of proportion to the result which they produced. The more fact that Nura appellant was not present at the time of earlier incident in which Jalla was killed and that he had not chased the deceased and his companion, is not sufficient to absolve him of the charges because there is direct evidence of a reliable character connecting him with the com mission of crime. An additional circumstance against him is that after the occurrence he had absconded and was arrested on the 26th of November 1973.

14. Lastly, the learned counsel for the appellants contended that Mazhar Abbas deceased had killed Jail&, a close relative of the appellants, just before the present occurrence, therefore the case is covered by Excep tion 1 to section 300 of the Pakistan Penal Code. The contention is without any substance. Firstly, this plea was not raised at any earlier stage. secondly, except the bald statement of Nur Ahmad in the F. I. R. (Exh. PBB) that Jalla was his uncle, there is no evidence on the record to show that aforesaid Jalla was related to the appellants and, thirdly, after the death of Jalla, Mazhar Abbas deceased and his companions who had run up to a distance of four squares were chased and brought back to the Dhari Allah Dad where the dead body of Jalla was lying. While chasing the deceased, Nur Ahmad appellant was armed with a gun which he had snatched from the deceased. If the appellants had been deprived of the power of self control they would have killed the deceased in the rives where they had overpowered him. It appears that they wanted to cause his death by merciless beating and to carry out their design, where the dead body of Jalla was lying, pinioned him there and then gave him a merciless beating and caused his death by inflicting as many as 23 injuries on his person out of which 12 were on the head region and 5 on the chest.

15. For all the foregoing reasons we feel inclined to the view that the appellants were rightly convicted. There are no extenuating circum stances on the file to withhold the normal penalty of death provided for the offence of murder. We, therefore, dismiss the appeal and confirm their death sentences.

16. The petition for revision against the acquittal of Falak Sher, Nausher, Anwar and Nawaza was not pressed by the learned counsel for the complainant and the same is dismissed as not pressed. Appeal dismissed.