MIAN BURHANUDDIN KHAN, J.-Khawaja Azar Hussain and Muhammad Aslam appellants, along- with others, were tried on three counts by the Additional Sessions Judge, Lahore under section 302 read with !49 and under section 452 read with 148, 307/149, P. P. C. For committing the murders of Mst. Nargis alias Niggo, Maqsood and Gulab Din after committing trespass into Niggo's house situate in Shahi Mohallah, Lahore and also for attempting in the lives of Mst. Saeeda, Mist. Yasmin, Muazzam and Hafeez, P. W. By firing at them with sten guns and pistols on 5-1-1972 at about 6-15 p.m. By forming an unlawful assembly and in prosecution of common object thereof.
2. The learned trial Judge, holding Kh. Azhar Hussain guilty of triple murder and also of attempt to murder the P. Ws. Sentenced him to death on each count, subject to confirmation by the High Court under section 302 read with section 34 and a tine of Rs. 30,000 of which Rs. 10,000 to be paid to the heirs of each of three deceased or in default of payment, to under go further three years' R.
1. On each count. Manzur Ashraf and Muhammad Aslam accused were found guilty under sections 302; 34 and 452/34, P. P. C. For committing the murder of three deceased named above, and for committing trespass in the house of Mst. Razia complainant and sentenced them to life imprisonment under section 302/34 and a fine of Rs. 15,000 of which Rs. 5,000 was ordered to be paid to the heirs of each of three deceased, or in default, to undergo three years' R.
1. Khawaja Azhar, Muhammad Aslam, and Manzur Ashraf were also convicted and sentenced under section 307/34 to three years' R.
1. Each on each count, and were sentenced further to one year's R. I. Each under sections 452 and 34. The sentences awarded to Manzur Ashraf and Muhammad Aslam were ordered to run concurrently with the sentence passed under section 302/34, Similarly, if the sentence of death awarded to Khawaja Azhar Hussain was commuted to life imprisonment by the High Court, the sentence awarded to him under sections 307/34 and 452/34, P. P. C, would run concurrently, vide judgment dated the 17th April, 1975. The other accused named for the commission of the aforesaid offence, namely Babar, Allah Bakhsh and Muhammad Amin were given the benefit of doubt and were acquitted of all the charges.
3. Appeal against their conviction and sentence was filed by the accused/appellants and Murder Reference in the case of Khawaja Azhar was also placed before the learned Judges of the High Court for confirmation, who vide judgment dated 23-2-1976 dismissed the appeal and confirmed the death sentence awarded to Khawaja Azhar. Appeal of Muhammad Aslam accused/appellant was also dismissed and .His conviction and sentence were maintained while the appeal of Manzur Ashraf was accepted and he was given the benefit of doubt and was acquitted of all the charges.
4. The appellants then sought leave against the judgment and order of the learned High Court which was granted vide order of this Court dated 4-2-1977 on the ground that Mst. Razia complainant and the other members of her family who had appeared as eye-witnesses against the accused/appellants were enraged and had inimical feelings towards Khawaja Azhar. Thus, their evidence was said to be tainted and that all the eye-witnesses had assigned a positive role to Muhammad Amin alias Neena who was said to be armed with a pistol and had actively participated in the perpetration of the crime. But the testimony of all these witnesses was fully and completely belied by the trial Court in recording the unequivocal finding to the effect that. Amin was at Karachi on the fateful day. Similarly, it was considered that while acquitting Babar and Allah Bakhsh, the testimony of the eye-witnesses stands considerably shaken. Therefore, in these circumstances, relying on the principle for safe administration of justice in criminal cases, the conviction of the two accused/appellants would not be sustainable in the absence of very strong and unimpeachable corroborative or ocular evidence. It was also observed that there was no explanation for the blackening of the injuries found by the doctor on the body of Mahmud accused/deceased and on the person of Muhammad Aslam accused/appellant which would establish that the inmates of the house were also armed with fire-arms and they opened the attack.
5. Briefly stated the prosecution case as given by Ust. Razia in the F. I. R. Exh. PA/1 is that she is living in House No. 2268/A in its middle storey and Mst. Nargis alias Niggo, her daughter used to dance in the films and Khawaja Azhar Hussain resident of MecLeod Road, Lahore was a Film Producer and knew the deceased Niggo. About 7/8 months prior to the occurrence he started visiting her house and tried to establish friendly relations with Niggo and Manzur, the acquitted accused, was instrumental in establishing such relations between them. Since one month Niggo left her house for the house of the accused Khawaja Azhar. On the day of occurrence a boy came and informed her that Niggo had sent for her because she was fed up with Khawaja Azhar who had confined her in a room of his house. She accordingly went to the house of Khawaja Azhar who was not then present there, and brought Niggo at about 2 p.m. To her house. After about an hour Khawaja Azhar along with Mahmud and Meena came on a taxi-car and standing in the street Khawaja Azhar started abusing her and asked Niggo to come down but she refused to do so. Shortly, thereafter, Khawaja Azhar and his companions left but they returned at about 6-15 p.m. When she (complainant) alongwith Niggo, deceased, Mst. Saeeda alias Bholu, Mst. Yasmin her daughters, Hafeez and Maqsood her brothers Gulab Din her father, Azam aged 11 years, Muazzam 9 years and Nadim 5 years of age her sons, was present and viewing the T. V. Programme. Khawaja Azhar armed with a step-gun, Mahmud, accused (who died on the spot) and Muhammad Amin alias Meena were armed with pistols and so was Aslam carrying a pistol in his hand while Allah Bakhsh, Manzur and Babar were empty handed, barged into the room. Khawaja Azhar challenged the inmates saying that Niggo deceased will receive punishment for leaving his house without his permission and he would not spare her life. Simultaneously, he, Amin alias Meena, Mahmud and A31am started firing with their respective fire--arms and the inmates of the room ran for their lives in different directions. They continued firing saying that they will kill all the inmates ; that she, in order to save herself, ran into the store room crying and shouting when a little later the police entered the house from the upper storey and called out to the accused to drop their fire-arms. She heard shots fired and shortly thereafter the firing ceased. She came out and found Allah Ditta and Fayaz. Present with the police in the room and Mst. Nargis alias Niggo, Mst. Saeeda, Mst. Lasmin, Hafeez, Maqsud, Gulab Din, Muazzam and Azam were lying wounded with the shots fired by the accused in the room. Mahmud, accused was lying dead near the eastern door of the room. When she came out, Muhammad Aslam accused/appellant, Allah Bakhsh and Babar were already arrested by the police while Khawaja Azhar, Manzur and Meena made good their escape. Her pot bitch was also lying dead in the room.
6. The prosecution examined Mst. Razia, P. W. 17 at the trial while other eye-witnesses namely Muhammad Hafeez, P. W. 12, Mst. Yasmin, P. W. 1.3, Mst. Saeeda, P. W. 14, Muazzam, P. W. 15 and Azeem, P. W. 16 also gave ocular account of the occurrence. Siddiq Ahmad, P. W. 20 (A. S. I. Then posted at P. S. Tibbi City) investigated the case. According to him, he was present at the Novelty Chowk when he heard the report of firing from the side of Shahi Mohallah. He along-with Ch. Sharif, S.1. And Maulvi Yaqub S. H. O. Reached the scene of occurrence. He climbed the roof of the house of Mst. Razia complainant and challenged the accused to stop firing but as they continued firing, therefore, he, under the instruction of Maulvi Yaqub S H. O. Fired two shots. Mahmud, one of the P.
Ws. Who had accompanied him to the scene of occurrence, also fired with his licensed pistol whereupon firing inside the house ceased. He then entered the room; came down by the staircase where he saw Allah Bakbsh, Babar and Muhammad Aslam appellant, they were arrested. They then entered the room of the complainant where they saw the dead body of Mahmud, accused near the staircase and a revolver was lying near the dead body. Four empties were also recovered along-with two live cartridges. Mst. Razia then made a report which was recorded by Ma Yaqub S. H. O. Various articles were recovered from the room which were taken into possession by the Investigating Officer. Revolver P. 32 of Mahmud, P. W. And two empties P. 90/91 were also taken into possession by the S. H. O. At the instance of Aslam accused/appellant revolver P. 23 was recovered from a water tank neat the staircase which was taken into possession alongwith six empties in its chamber. Sten-gun P. 28 was recovered from a bag of fodder lying on the ground floor.
7. Muhammad Yaqub, S. 1. P. W. 21 corroborated the statement of Sadiq Ahmad, P. W. 20 saying that he was present with Siddiq, P. W, 200 at the Novelty Chowk when the reports of gunshot was heard from the side of Shahi Mohallah. He along-with Siddiq, P. W, 20 reached the spot, entered the house of Mst. Razia Bano from the roof ; recorded her statement ; prepared the inquest report of Mahmud accused ; took blood from the room and Balcony of the house, Revolver Exh. P. 20 was lying near the body of Mahmud Which he took into possession vide Memo. Exh. P. O. He also recovered and prepared Recovery Memos. Of other articles like fire-arm empties. He arrested Muhammad Aslam, Babar and Allah Bakhsh on the spot. From Aslam accused/appellant he got recovered revolver P.
23 which he had put in the water tank and it had six empties in its chambe.r He also recovered sten-gun P. 28 from a fodder bag. He prepared the injury sheets, site plans and completed the investigation.
8. Dr. Burhan Ahmad Khan, P. W. 17 was examined by the Committing Magistrate on 29-6-1975 and his statement was transferred to Sessions file under section 509, Cr. P. C. Dr. Burban had performed the post-mortem examination on the dead body of Mst. Nargis alias Nigge and found large number of fire-arm entry wounds and three abrasions indicated by Injury Na. 4 as detailed below : "(I) Fire-arm wound of entry 1/2' x 1/2' irregular inverted margin with blackening on the left chin.
(2) Fire-arm wound of entry 1/4'x 1/4' with burning of margins going deep on right mammary gland.
(3) Fire-arm wound of entry I/2" x I/3' circular going deep on right inguinal region 1' medial to Anterior.
(4) Three abrasions in an area of 1 --x 1/4" on the antro-medial aspect of middle of left thigh.
(5) Fire-arm wound of entry I' x 1/4' on lower one-third of Medial aspect of right thigh.
(6) Fire-arm wound continuous 1/4--x 1/6"x superficial deep on the base of dorsomedial aspect of left toe.
(7) Fire-arm wound of entry 1/2' x I/3" x bone deep small chip of bones fractured on middle of shin.
(8) Fire-arm wound of entry I/3-- X i/3`x bone deep on the lateral aspect of upper 1/4th of right leg."
Cause of death of Mst. Nargis, according to the doctor, was shock and haemorrhage.
9. The same doctor also performed the post-mortem examination on the dead body of Mahmood Ahmad, accused and found the following injuries "(1) Fire-arm wound of entry 1/4" x 1/4" margins inverted with blackening on lateral aspect of left thigh. Desquamation of skin of dorsel surface of penis.
(2) Fire-arm wound of entry 1/3' circular x going deep on front and inner aspect of fore-arm.
(3) Fire-arm wound of entry 1' x 1/3" - bone underneath fractured on palmar surface of thumb.
(4) Fire-arm wound of entry 3/4' x 1/2" X going deep on the outer side of right knee."
Cause of death of Mahmood, deceased, according to the doctor, was shock, haemorrhage and injury to the left inguinal vessels.
10. Statement of Dr. Muhammad Rafiq Chaudhri was also recorded by the Committing Magistrate and was transferred to the Sessions file. He had examined Allah Bux and Muhammad Babar, accused and found some bruises and abrasions on their persons. The same doctor also examined Muhammad Aslam accused/appellant and found the following injuries on his person: "(1) A lacerated wound 1/2" X 1/2' circular in shape margins were inverted and casted with soot.
(2) A lacerated wound 3/4' x 4/4' with corresponding perforation of his clothes.
(3) A lacerated wound 1/2' x 1/2' circular in shape not probed on lateral side of right tipper arm."
According to the doctor, all these injuries were caused by fire-arm.
11. The accused/appellant Muhammad Aslam, when examined by the trial Judge, denied the charges, professed innocence and claimed that the revolver/attributed to him belonged to Maqsood, deceased who had started firing at him with the same and thus he explained the injuries on his person. He further stated that he used to stitch the clothes of Mst. Nargis and had gone to her house on the day of occurrence, along-with the clothes which he had stitched. While be was present there, Mahmood; accused along-with two other persons came there and exchanged hot words with Hafiz, P. W. And Maqsud, deceased. Thereafter, Maqsud deceased and Hafiz, who were armed with step-gun and. Pistol started firing at the three persons and during this firing he was also injured. He added that the police insisted to produce him as a P. W. And on his refusal to appear as such, he was implicated in the case by the police.
12. Learned counsel for the appellant contended that the prosecution story is full of inherent improbabilities ; that there was credible evidence from the appellant's side to establish that Muhammad Aslam accused/appellant had nothing to do with the other accused ; that his statement is more plausible and convincing than the prosecution story set up by Mst. Razia Bano and other .Eye-witnesses ; that being a tailor he happened to be in the house of the deceased when there was cross-firing by Maqsud and Hafiz, P. W. On the one side, and some intruders on the other side.
13. We have gone through the prosecution evidence with the assistant of the learned counsel for the appellant and find that there is a consistent charge against Muhammad Aslam accused/appellant-- in the shape of the testimony of Mst. Razia Bano, Mst. Yasmin and Mst.
Saeeda and Muhammad Azim, P. Ws. And we found nothing to discredit, the testimony of these witnesses whose presence on the soot is unquestionable they being the inmates of the house and Mst. Razia is mother of Mst. Saeeda and Mst. Yasmin, Moazzam and Azim. They were all present on the spot where the crime was perpetrated. Here, we also find that Dr. Nazar Ahmed, Casualty Medical Officer, Mayo Hospital, Lahore (P. W. 4) who was examined by the Committing Magistrate.
This doctor; on examination, had found a lacerated wound with fracture of skull, a contused wound 8/10" X 3/8' and another contused wound-1/2' x 1/2" on Muazzam aged 8 years ; a contused wound right parianal regions 1/4' x 1/4" x skin deep on Mst. Yasmin aged 7 years ; and a circular contused wound 1/4-- x 1/4' right leg and another contused wound 1/2" x 1/2' with margins irregular and overted on Mst. Saeeda, aged 14 years. All these witnesses were examined by the learned trial Judge before whom Muhammad Hafeez, P. W. 12 stated that Muhammad Aslam accused/appellant, armed with a pistol, along-with other accused, came to the house of Mst. Razia his sister where Mst. Nargis alias Niggo and other witnesses were also present, and they (accused) all opened fire on them. In the same manner Mst. Saeeda, P. W. 14 has stated that the accused/ appellant Muhammad Aslam, armed with 'a pistol, alongwith Khawaja Azhar and other accused, came to their house and started firing at them. We, however, see no reason for these witnesses to implicate Muhammad Aslam accused/appellant falsely in this case. Thus, the admission of the learned counsel that the presence of Muhammad Aslam appellant was innocuous, on the spot at the relevant time is totally dispelled by the evidence of the above-mentioned injured witnesses who have armed him and also assigned him effective role of firing, along-with Khawaja Azhar and his other companions.
14. The learned counsel for the appellant further contended that injuries on the person of Muhammad Aslam appellant caused by fire-arm and also on the body of Mahmood (deceased/accused) would establish that the accused were fired at first by the inmates of the house and then, in order to defend themselves, they fired at the complainant party, does not, appeal to reason nor fit in with the other evidence on the record: Firstly, the accused Khawaja Azhar and his companions entered the house, armed with fire-arms like sten guns and revolvers, etc. Would show that they had no come there on any innocent mission, but with the only aim of teaching a leason to Mst. Niggo and her family for bringing her (Mst. Niggo) from hi house without his permission, and in that content, even if someone out of the inmates of the house, fired at the accused party, they were well within their right to do so. Moreover, there is evidence on record that the police while entering the house, shouted at the accused to stop firing but when the did not, the police also fired.
15. Lastly, it was contended by the learned. Counsel that the same evidence has been discarded against Muhammad Amin alias Meena who had produced defence witness showing his presence at Karachi on the relevant date i.e. 5-1-1972. We have examined this point also and find that the learned trial Judge has given Muhammad Amin the benefit of doubt, and it would not make any difference on the case of Muhammad Aslam accused/appellant, against whom as already stated above, there is direct evidence of injured witnesses and other inmates of the house: Muhammad Amin alias Meena's case was considered by the trial Court on the face value of the defence produced by him which has, unfortunately not been challenged in appeal against his acquittal, or sale, decision would have been different in his case as well. Thus, we find no merit in Criminal Appeal No. 242 of 1977 of Muhammad Aslam accused/appellant so far as his conviction is concerned, which is, accordingly dismissed. As to the occurrence took place on 5-1-1972 he was liable to transportation for life and not life imprisonment. We order accordingly.
16. Appellant Khawaja Azhar Hussain was under treatment at the Mental Hospital, Lahore, wherefrom he managed to escape before the hear in of his appeal which was fixed in this Court on 7-10-1980. As he is a , fugitive from law ever since, his Criminal Appeal No. 175 of 1977 is, therefore also dismissed (under rule 8, Order XXIII read with Order XXII of the Supreme Court Rules, 1980) videdecision of this Court in Hayat Bakhsh v. State (1981 SCMR 1209