' RIAZ KAYANI, Ahmad son of Muhammad Malik and Muhammad Azam son of Muhammad Rashid through Criminal Appeal No,643 of 1994, Jaffar Hussain son of Talib Hussain through Criminal Appeal No,644 of 1994 and Ilyas son of Ghulam Hassan through Criminal Appeal No,645 of 1994 have assailed the judgment dated 2-11-1994 passed by the learned Additional Sessions Judge, Sheikhupura whereby Jaffar Hussain son of Talib Hussain and Ali Ahmad son of Muhammad Malik were convicted under sections 302/34, P.P.C. And both of them were sentenced to death for the murder of Nawaz, ljaz and Iftikhar. Ashiq (now dead), Azam and Ilyas were convicted for causing murder of Ijaz and each one of them was sentenced to life imprisonment. All the appellants were also ordered to pay Rs,20,000 failing which they had to undergo imprisonment for two years' R.I.
Once again appellants were convicted under sections 307/149, P.P.C. For committing murderous assault on Sajwar Ahmad P.W. And each one of them was sentenced to three years' R.I. And fine of Rs,2,000 failing which each one of them had to undergo imprisonment for six months. A number of other accused were acquitted as there was no active participation on their behalf in the occurrence which led to three murders and murderous assault on the witnesses. Shabir one of the accused was murdered after the occurrence whereas Naseer Ahmad son of Malik is still a proclaimed offender against whom perpetual warrants of arrest stand issued. Death sentence imposed upon Ali Ahmad and Jaffar Hussain was subject to confirmation by this Court.
2. Ishtiaq Ahmad First Informant has also filed Criminal Revision No,128 of 1995 for enhancement of sentence awarded to the appellants. He has filed another Criminal Revision No,134 of 1995 against acquittal of 22 accused.
3. All these matters shall be decided through this single judgment.
4, The occurrence which resulted in the unfortunate death of Muhammad Nawaz, ljaz and Iftikhar and murderous assault on Sajwar Ahmad P.W. Took place on 8-3-1990 at 11 a.m. Within the vicinity of Mauza Jatrike at a distance of 11 miles from Police Station Narang, District Sheikhupura.
5. Complaint was lodged by Ishtiaq Ahmad related to the deceased through a statement recorded by Bahadur Khan, S.-I. At Mauza Jatrike on 8-3-1990 at 12-30 p.m. Formal F.I.R. Was registered at 1- 30 p.m.
6. Prosecution version described by its author Ishtiaq Ahmad in the complaint Exh.P.L. Is that he is resident of Mauza Jatrike and about ten years back Shabbir Ahmad (since dead) and Ali Ahmad (convicted appellant) sons of Muhammad Malik and others are in constant dispute with him and his relatives regarding an official watercourse which was demolished by Shabbir Ahmad and others and they were deprived to irrigate their lands through canal water and in this regard a litigation which has created bad blood is pending in the Courts. Due to this grudge on 18-1-1990 Shabbir and others injured the real brother of the first informant by the name of Zulfiqar and Shaukat sons of Barkat as a result of criminal case under sections 307/148/149, P.P.C.
Stands/registered with Police Station Narang which is under investigation. S.H.O. Police Station Muridke is now incharge of the investigation and on 8-3-1990 he had called both the parties for further investigation and accordingly he along with respectables of the Deh at 11 a.m. In the company of Muhammad Ijaz son of Muhammad Sarwar, Khalid son of Ashraf,. Zahoor-ul-Hassan son of Ghulam Rasool, Muhammad Nawaz son of. Nazir Ahmad, Ijaz Ahmad son of Arshad Ali were going towards the Police Station Muridke and when they reached Masjid Loharanwali near Deh all of sudden Shabbir Ahmad armed with a Kalashnikov, Jaffar Hussain also armed with Kalashnikov, Naseer Ahmad armed with rifle, Ali Ahmad armed with `Bugda', Nasir Mahmood armed with rifle, Shahbaz armed with rifle, Naseer Ahmad armed with rifle in the company of 18 other persons also armed with deadly weapons suddenly emerged and upon seeing them Maulvi Rashid raised a Lalkara that no one should be spared and simultaneously fired but luckily no one was injured.
Shabbir Ahmad thereafter commenced the onslaught with his Kalashnikov by firing at Muhammad Nawaz which hit him on his neck towards left side followed by a fire from Jaffar Hussain with his Kalashnikov rifle which hit Nawaz on his back towards right side as a result of which Nawaz fell to the ground and succumbed to his injuries there and then. Ijaz and his companions took to his heels but was fired upon by Muhammad Azam with his Kalashnikov which hit him on his right hand followed by fire from Ilyas which hit Ijaz on his abdomen towards left flank who also fell to the ground and in that position Muhammad Ashiq fired with his .12 bore gun which hit him on his left buttock who also succumbed to his injuries. The occurrence was witnessed by him and others. The accused while raising Lalkaras and resorting to firing proceeded to the well of Ghulam Rasool son of Allah Rakha which was situated towards north-east of the Deh and crossed Shaftal crop of Ghulam Rasool where he alongwith his son Iftikhar Ahmad and Allah Ditta son of Rehmat Ali alongwith Sajwar Ahmad were cutting Shaftal crop, who were encircled by the accused, Naseer Ahmad son of Muhammad Malik fired with his rifle which hit Sajwar on his abdomen, Jaffar Hussain fired with Kalashnikov which hit Istikhar on his head who got injured and started running away but as soon as he reached the room of the tubewell he fell to the ground upon which Ali Ahmad wielded his Bughda hitting him on his neck severing it from the torso of his body. Immediately thereafter Jaffar Hussain caused Chhuri blow on the abdomen of Istikhar. The accused removed the head of Istikhar Ahmad alongwith his body and threw it in the BRB Canal. All the accused while brandishing their rifles decamped from the spot. With the help of the witnesses and the police guards posted in the village the dead body of Istikhar was retrieved from the bushes growing adjacent to the BRB Canal but the head, despite best efforts, could not be found. Bashir Ahmad and others committed gruesome murders upon the instigation of Ashfaq Ahmad son of Ghulam Hassan, Muhammad Sharif son of Ghulam Hassan and Allah Ditta son of Chiragh Din.
7. An no empty was recovered from the spot recovery of fire-arms and its evidentiary value was of no significance and was rightly disbelieved by the trial Judge. Similarly recovery of Bughda from Ali Ahmad was disbelieved. Muhammad Nasim Khan, Inspector/S.H.O. Police Station Narang Mandi divulged in his cross-examination that Muhammad Ilyas and Muhammad Azam from the very beginning took up the plea that they were not present at the place of occurrence and produced witnesses in support of their plea which was believed by the Investigating Officer and consequently they were declared innocent.
8. Dr. Mobashir Ahmad, Medical Officer, District Headquarters Hospital, Sheikhupura appeared and stated that Dr. Sikandar Manzoor who was posted in the same hospital and worked with him, therefore, he was conversant with his handwriting and the post-mortem report Exh.P.N. Relating to ljaz Ahmad alongwith its pictorial sketch of injuries was in the hand of Dr. Sikandar Manzoor.
Likewise the post-mortem report relating to Istikhar Ahmad deceased Exh.P.N./3 was also in the hand of the same doctor. Post-mortem report of Muhammad Nawaz Exh.P.N./6 was also in the hand of Dr. Sikandar Manzoor as well as the pictorial sketch of injuries Exh.P.N./7.
9. Dr. Ajmal Farooq P.W.22 appeared and stated that Dr. Tahir Jamshed who was earlier posted as Medical Officer, Mayo Hospital, Lahore was known to him and he is conversant with the handwriting of Dr. Tahir Jamshed and verified that the medico-legal report of Sajwar Hussain was signed by said Dr. Tahir Jamshed.
10. Post-mortem Report of Ijaz Ahmad contained two injuries:--
(1) A fire-arm wound of entry 0.7 x 0.7 c.m. On the outer side of left hip joint making exit wound 2 c.m. x 1.5 c.m. On right iliac fossa.
(2) A fire-arm would of entry 3 c.m. x 1.5 c.m. On palm of right hand making exit wound 3 c.m. x 3 c.m. On back of right hand and fracture of 3rd milacarpal and proximal paralynx joint.
(3) Blackening of edges of entry wound No,1 was present.
' In the opinion of the doctor death occurred due to cardi pulmonary arrest due to haemorrhage and shock. All the injuries collectively and 'injury No,1 individually were sufficient to cause death of a person in the ordinary course of nature. Injuries were ante-mortem and caused by fire-arm.
11. Post-mortem report of Istikhar Ahmad whose dead body was identified by Muhammad Afzal and Allah Dina contained the following injuries:--
(1) An incised wound 15 c.m. x 15 c.m. From side to side up to anterior and posterior on the upper part of neck at the level of 3rd clavical vertebra cutting the neck through and through from circumstance of neck measuring 40 c.m. And head missing.
' On internal dissection subcutaneous tissues, echynosed and trachea, esophagus and major neck vessles cut in line of the wound. Vertebra column and spinal cord cut in line of wound.
(2) Three incised wounds each measuring 2 c.m. x 5 c.m. Muscle deep in area 4 c.m. x 4 c.m. On top of left shoulder-joint.
(3) A stab wound 17 c.m. x 5 c.m. Vixsera deep on front of left side of abdomen from the umbilicus.
(4) An abrasion 35 c.m. x 16 c.m. On back of right chest and right lumbar region. All the injuries were caused by sharp weapons. Injuries Nos.1 and 2 were ante-mortem and injury No,3 post-mortem.
Injury No,4 was with blunt weapon. P1. In the opinion of the doctor death occurred due to cardio pulmonary arrest due to haemorrhage and shock. Injuries Nos.1 and 2 collectively and injury No,1 individually were sufficient to cause death of a person in the ordinary course of nature. Probable time that elapsed between injuries and between death was half an hour and death and postmortem 24 to 36 hours.
12. Post-mortem conducted on the body of Muhammad Nawaz indicated:--
(1) A fire-arm wound of entry 0.7 c.m. x 0.7 c.m. On left clavical region 0.5 c.m. Below clavical making exit wound 1.5 c.m. x 1.5 c.m. On back of right chest mid part.
' Injury No,1 is ante-mortem and is caused by fire-arm.
' In the opinion of the doctor death occurred due to cardio pulmonary arrest and due to haemorrhage and shock. Injury No,1 was sufficient to cause death of a person in ordinary course of nature.
13. Medico-legal report of Sajwar Hussain revealed that two injuries, one lacerated wound of entry with inverted margins 1 c.m. x 1 c.m. Outer qudrant of right buttock and second injury was of exit wound 9 c.m. x. 3-1/2 c.m. On right side of abdomen with everted margins. Both the injuries were caused by fire-arm and were of fresh duration.
14. After the completion of the investigation the trial commenced, appellants were indicated, they denied the charge, pleaded not guilty and claimed a trial. Prosecution examined 23 witnesses in support of its case. Ocular testimony account was supplied by Ishtiaq Ahmad P.W.13, Khalid Hussain P.W.14, Ghulam Rasool P.W.18 and the injured witness Sajwar Ahmad P.W.19.
15. Appellants were examined under section 342, Cr.P.C. They denied their participation in the occurrence and stated that they have been falsely involved on account of party fiction.
16. Learned counsel for Ali Ahmad appellant contended that he was involved in the second occurrence, witnesses of first occurrence could not follow the accused to the second occurrence as they were not aware of the plans of the appellant. As regards Ishtiaq P.W.17 it was stated that he got himself busy looking after the deceased Nawaz and Ijaz and observed all formalities for their removal to the hospital for post-mortem examination, therefore, he could not even present to witness the second occurrence. As far as Khalid Hussain was concerned he was dubbed as a chance witness and as regards Ghulam Rasool P.W.18 and Sajwar P.W.19 it was stated that since they laid themselves in Khal during the attack by the appellants they could not view the occurrence in presence of standing crops. Lastly it was stated that the fatal injury could not be identified as to who caused it.
17. Learned counsel for Ilyas contended that the injury attributed to Ilyas was an exit wound caused by fire-arm injury ascribed to Shabbir. Similarly the counsel for Azam and Jaffar maintained that the case of the prosecution regarding the appellant was not free from doubt.
18. No one appeared for the complainant either on 2-7-2001 when the case was heard at length or on 3-7-2001 when the appeals were specifically adjourned to enable him to address arguments and despite his name having been reflected in the cause list he did not put in appearance.
19. Learned counsel for the State, however, supported the conviction and sentence recorded by the trial Judge.
20. We have carefully gone through the record and listed to the arguments of the respective counsel.
21. Ishtiaq Ahmad complainant appearing as P.W.13 has supported the prosecuting version narrated in the F.I.R. He alongwith Khalid Hussain witnessed the occurrence in which Nawaz and Ijaz were murdered. Both these witnesses were cross-examined in detail. It is true that Nawaz had only one fire-arm injury which entered the left clavical region making its exit on the back of right chest middle part. The exit wound injury has been attributed to Jaffar who is, therefore, responsible for causing any injury on the person of Nawaz deceased. Nawaz died as a result of fire-arm injury caused by Shabbir was murdered during the trial. As far as injuries on Ijaz are concerned no injury was found to have been suffered by the deceased on his buttock. This injury was ascribed to Ashiq.
Ashiq has since died. The other two injuries have been scribed to Muhammad Azam on the left hand of Ijaz and Ilyas on the abdomen which proved fatal. Ishtiaq has been cross-examined at length and no such concession has been made by him which could make his narration tainted. He was a natural witness of the occurrence having accompanied his party to Police Station Muridke in connection with the investigation of murder case of his brother Zulfiqar and others. Argument of the learned counsel that if Ishtiaq was at the spot he would not have been spared is devoid of force as it is only known to the criminal why he spares one person and attacks the others, although all of the persons accompanying the deceased were one party who were locked in horns with the other party regarding the dispute pertaining to the watercourse as a result of which Shabbir and others caused injuries to Zulfiqar brother of first informant and others. We agree with the learned counsel for Ali Ahmad that Ishtiaq could not have seen the second occurrence in which Iftikhar lost his life and murderous assault was made on Sajwar P.W.19. However, as regards the testimony of this witness regarding the first occurrence in which Nawaz and Ijaz were killed inspires confidence and credibility has to be given to it.
22. Khalid Hussain owns land in village Jatrike and is a cultivator by profession and he stated that Ijaz and Nawaz were witnesses of a case under sections 307/148/149, P.P.C. In which Shabbir and others were indicated as accused for causing hurt to Zulfiqar and Shaukat. The occasion was visit of the parties of Police Station Muridke, where they were called by the S.H.O. In connection with the investigation of the referred to case. It is not surprising that the two witnesses Ijaz and Nawaz were the prime target of the accused. May be it is for this reason why Ishtiaq was not attacked as grouse of the appellants was to remove Ijaz and Nawaz from their way so that case for attempt of Zulfiqar and I Shaukat gets mellowed down. In any case this witness has a house at a short distance from the place of occurrence and is also an agriculturist by profession, therefore, his presence at the time of occurrence cannot be ruled out. No specific relationship of this witness has been established with the complainant party. This witness, however, stated that since he apprehended that the accused may proceed towards fields of Ghulam Rasool he followed them as there was likelihood that they would cause further damage to human life. Testimony of this witness shows that his presence. As stated, cannot be doubted, is trustworthy and reliance can be placed on the same.
'23. Ghulam Rasool father of Istikhar deceased and Sajwar injured witness were the eye-witnesses of the second occurrence wherein the appellants let loose hell by firstly firing at Sajwar and thereafter removing the head from neck of Istikhar as a result of a diabolical assault made with `Bugda' at the hands of Ali Ahmad. Not only his dead body was dragged by the appellants participating in the second occurrence and threw it in the canal which, however, was recovered but the head was carried away by the current. Injury No,4 indicating bruises and marks of dragging bore testimony to the effect that Istikhar was dragged after his head was severed from his body.
Ghulam Rasool was natural witness present in his lands lending a helping hand to his son Istikhar and others for cutting Shaftal crop alongwith Sajwar injured witness. Although Jaffar fired on the head of Istikhar deceased but since the head was removed and thrown in the canal it could not be ascertained whether the injury caused by him was sufficient to cause death in the ordinary course of nature. This fact leads to two consequences, first that the removal of the heads by cutting it from the neck is a result of the injury caused by Ali Ahmad and was the cause of death as deposed to by the doctor in his post-mortem report and secondly it is not known as to what was the nature of the injury caused by Jaffar. However, subsequent to the firing Jaffar also wielded a knife and caused blows on the shoulder of deceased Iftikhar, though bone deep, Sajwar P.W. Was fired at by Naseer who is a proclaimed offender. Presence of Sajwar P.W., therefore, cannot be doubted by any stretch of imagination and the mere fact that he deposed three days after as he was admitted in the hospital does not condusively show, as pleaded, that immediately after the receipt of the injury he became unconscious and could not witness the butchering of Istikhar. Injury being fresh it takes some time for the blood to flow out and the injured to loose consciousness. Testimony of Sajwar therefore, has stamp of authenticity and lends credence to the prosecution case.
24. As far as Azam is concerned he caused injury on the left hand of Ijaz deceased by firing with his rifle although the injury was not cause of death yet vicarious liability with the co-accused cannot be more clearer in perception.
25. Prosecution, therefore, has successfully proved its case against Ali Ahmad, Muhammad Azam, Ilyas and Jafar Hussain beyond any shadow of doubt. Ali Ahmad is responsible for causing death of Iftikhar in a brutal and callous manner. His appeal is dismissed and conviction and sentence recorded by the trial Judge is maintained. Sentence of death imposed on Ali Ahmad by the trial Judge is confirmed. Murder Reference is answered in the affirmative. Jaffar Hussain was not found to have caused any injury to Nawaz. However, the injuries with a knife on the shoulder of Istikhar deceased have been proved but since they are not the cause of death he stands liable for sharing the intention of Ali Ahmad in causing the death of the deceased. His conviction is maintained but sentence of death is reduced to life imprisonment without extending him benefit of section 382-B, Cr.P.C. As recently held by the apex Court in the case Ehsan Ullah and others v. Muhammad Arif and others reported in 2001 SCM R 416. Appeal of Jaffar Hussain is also dismissed. Murder Reference to his extent is answered in the negative. Appeals of Muhammad Azam and Ilyas are also dismissed maintaining their convictions and sentences recorded by the trial Judge vide his judgment dated 2-11-1994. Sentence of all appellants, punished to imprisonment shall run concurrently. Benefits of section 382-B, Cr.P.C. Shall not be extended to Ilyas, however, Muhammad Azam shall be entitled to it.
26. Muhammad Azam was allowed bail by suspending his sentence on 8-4-1999. Similarly sentence of Ilyas was suspended on 14-4-1997 by this Court. Both Azam and Ilyas shall be caused to be taken in custody by the District Magistrate, Sheikhupura who shall commit them to prison to suffer the remaining portion of their sentence.
27. Criminal Revisions Nos.128 and 134 of 1995 are dismissed for non-prosecution as well as no case for interference is made out.