ZULFIQAR ALI Versus THE STATE

KHAWAJA MUHAMMAD SHARIF, J. ‑‑‑This judgment will dispose of Murder Reference No.9 of 1999 and Criminal Appeal No.24 of 1999 which was filed by Zulfiqar Ali appellant who was convicted and sentenced as under:‑‑‑

(1) Under section 302(b), P.P.C., death sentence. He be hanged by neck till he be dead. Death sentence awarded to him is subject to confirmation by the Hon'ble High Court in term of section 374, Cr.P.C. The appellant was also ordered to pay sum of Rs. 1,00,000 as compensation under section 544‑A, Cr.P.C., to the legal heirs of deceased according to their shares. In default thereof the accused shall further undergo for six months S.I.

(ii) Under sections 393 read with 397 and 398, P.P.C., 7 years R.I. and a fine of Rs. 20,000 in default thereof he shall further undergo for 1‑1/2 years S. I.

Sentence was awarded to the appellant by Judge Special Court Anti‑Terrorism, Bahawalpur‑1, vide his order, dated 26‑5‑1999. The deceased in this case was Qadir Bakhsh, the real brother of complainant Khuda Bakhsh (P.W.6) and the injured witness in this case. Allah Nawaz P.W.7 is also brother of the complainant. In the instant case, two co‑accused namely Saeed Ullah and Serani were also killed.

2. The occurrence took place on the night between 30/31‑12‑1998 while the matter was reported to the police on 1‑1-1999 by P.W.6 vide F.I.R., Exh.P.J. lodged by the complainant which was recorded by Alamdar Hussain S.I./S.H.O., P.W.9. Occurrence took place Mauza Laran, 19 k.m. from the Police Station Naushehra Jadid, District Bahawalpur.

3. Brief facts as narrated in the F.I.R., by the complainant were that on 1.‑1‑1999 the complainant P.W.6 who was resident of Mauza Laran and was a Zamindar by profession, lodged a report that last night he was sleeping alongwith his other family members when at mid‑night due to, knock on door he opened the door and saw three persons namely Zulfiqar armed with .12 bore gun, Saad Ullah armed with .30 bore pistol and Serani armed with Carbine and they were standing at the door and they putting the arms on him asked him to hand, over Rs.1,00,000 and ornaments which was lying with him. Which he had obtained during the marriage ceremony of his brother Rabnawaz. The accused also threatened him that if he did not comply with their demand he would be killed, on which the complainant raised air alarm 'dacoit', 'dacoit' and his real' brother Qadir Bakhsh and Allah Nawaz, Muhammad Ramzan; Imam Bakhsh and many other persons of the same locality attracted and they all tried to apprehend the accused persons. In the meanwhile they started fighting with each other. Qadir Bakhsh the real brother of the complainant apprehended Saad Ullah accused when at this juncture Serani and Zulfiqar accused tried to rescue their companion and thereafter, Zulfiqar accused fired with .12 bore gun which hit Qadir Bakhsh on his left thigh who after receiving the same fell on the ground. Serani accused fired with his carbine, which hit Allah Nawaz on his left thigh. All the three accused were apprehended by the witnesses. Accused persons had been trying to rescue themselves. Complainant and his witnesses in order to apprehend Saad Ullah and Serani gave soti blows on the heads of both of them who after receiving the same fell on the ground. Zulfiqar accused rescued himself and started running followed in his pursuit by the witnesses who successfully apprehended him at some distance alongwith his gun. When witnesses came to the spot alongwith Zulfiqar accused they witnessed that Qadir Bakhsh had already died. They also saw that Saad Ullah and Serani had also lost their lives. Amir Bakhsh and Wazir Ahmad were left near the dead body and complainant went to the Police Station in order to lodge the report Exh.P.J.

4. Alamdar Hussain Inspector/S.H.O., after recording the F.I.R., Exh.P.J. came at the spot where dead bodies of Qadir Bakhsh, Secant and Saad Ullah were tying. He prepared the injury statements and inquest reports of all the three deceased. He also took into possession the blood‑stained earth from under the dead bodies of the deceased which were sealed into parcels vide memo. Exhs.P.K. P.L. and P.M. respectively. He also took into possession two empty cartridges P.10/1‑2 vide memo. Exh.P.N. At the same time Khuda Bakhsh complainant produced a gun PA3 which was stated to belong to Zulfiqar Ali accused and was also taken into possession vide memo. Exh.P.P. The pistol .30 bore P.11 alongwith 5 live bullets P.12/1‑5 were taken into possession from the place of occurrence, vide recovery memo. Exh.P.O. Carbine P.14 alongwith empty cartridges P.15 were also taken into possession from the place of occurrence. Carbine P.14 allegedly belonged to Serani accused. Carbine and the empty cartridges were sealed into a , parcel vide memo. Exh.P.Q. A rough site plan Exh.P.R. was also prepared. The Investigating Officer, recorded the statements of P.Ws. under section 161, Cr.P.C., and dispatched all the three dead bodies for post‑mortem examination. Zulfiqar accused was apprehended by the P.Ws., and was produced before the Investigating Officer, who interrogated him. Then other formalities were also completed by the Investigating Officer. On the same day the medico‑legal report of Allah Nawaz injured was produced before him by Nasir Ali constable at 11‑00 p.m. He got the site plan prepared from Manzoor Ahmad Patwari. The Investigating Officer, on 3‑1‑1999 recorded the statement of Allah Nawaz injured P.W. After completing the incomplete challan and, thereafter, on the receipt of Report of Chemical Examiner, Serologist and Forensic Science Laboratory the Investigating Officer, prepared the complete challan and submitted before the competent Court on 12‑5‑1999. The Report of Chemical Examiner is Exh.P.V. and that of Bacteriologist is Exh.P.X. and that of fire arm is Exh.P.Y.

5. The prosecution in order to prove its case produced 11 witnesses in all. Amongst those 11 witnesses two were eye‑witnesses namely P.W.6 Khuda Bakhsh complainant and Allah Nawaz P.W.7 injured P.W. Thereafter, statement of the appellant was recorded under section 342, Cr.P.C. He took up the plea that he was falsely implicated in this case and pleaded innocence. The reason given by him is on page 101 of the paper book while answering question No.7 which is reproduced below: ‑‑‑

"I was not apprehended alongwith gun after some chase. The actual fact of that matter is, that Khuda Bakhsh first informant wrongly suspected that I have illicit relations with his wife. Two months before the occurrence Khuda Bakhsh complainant got a Punchayat convened at the Dera of Malik Faiz Ullah Ranjha, Member of District Council. In the presence of Punchayat I took the oath on Holy Quran that I have no illicit relations with his wife. On his demand I gave my uncle Ghulam Jahania, who executed a written agreement in favour of Khuda Bakhsh complainant to the effect that I will not pass near the house or shop which is at Adda Khairpur Dhaha. The agreement was decided to be kept with Malik Luqman Ex‑member/Councillor. Due to this enmity Khuda Bakhsh complainant got involved me falsely in this case with the connivance of the local police. Thereafter, he himself appeared as D.W.1 in his defence and produced 3 D.Ws. namely Malik Faiz Ullah D.W.2 Ex- member Zila Council, D.W.3 Malik Luqman, Ex‑Councillor and D.W.4 Saeed Ahmad lumberdar. "

6. Learned counsel for the appellant has read before us all the evidence recorded by the learned Trial Court and submits that story of prosecution is improbable, unnatural and unbelievable. He submits that although Allah Nawaz was an injured P.W. but there is no criteria to the effect that he was telling the truth and in this regard he relied upon 1996 SCMR 1411. He further submits that the complainant had already completely crushed the head bones of both the deceased namely Saad Ullah and Serani co‑accused of the appellant. Had the appellant been present at the spot he would have also been given beating by the complainant party but he did not receive a single scratch on his body. Learned counsel further submits that no independent witness has been produced from the locality. Adds that motive in this case shrouded in mystery because there is no evidence on the record that the complainant had with himself Rs. 1,00,000 and the golden ornaments which hoe allegedly got during the marriage ceremony of his real brother Rab Nawaz. He submits that it is also not known that how the fight started. He also submits that the persons who tried to commit dacoity they would not come at the spot without muffling their faces. He also submits that place of occurrence from where dead bodies were taken into possession was at a distance of 150 feet from the house of the complainant. He also submits that the complainant according to the prosecution case, had opened the door on the knocking of the appellant and his co‑accused but the appellant and his co‑accused did not apprehend him. He further submits that in the Court the complainant also did not explain the injuries of the two deceased who are co- accused of the appellant. He also submits that the occurrence took place in the midnight but the matter was reported to the police at 6‑00 a.m. He submits that story of the appellant is more plausible than the story put forward by both the eye‑witnesses during their cross examination and also in his statement under section 342, Cr.P.C., while replying question No.7. He further submits that statement of Allah Nawaz P.W. was recorded under section 161, Cr.P.C., 3 days after the occurrence i.e., on 3‑1‑1999 nor there is any evidence on behalf of the Investigating Officer that he applied to the doctor through an application for recording the statement of Allah Nawaz during this intervening period. Lastly he submits that investigation of this case was dishonest and partial one because the investigating Officer did not send the pistol to the Fire‑Arm Expert because according to the statement of the doctor injury allegedly caused by Zulfiqar appellant was not with gun but with a bullet. He submits that no case whatsoever is made out against the appellant and he is entitled to acquittal.

7. On the other hand learned A.A.‑G. assisted by the learned counsel for the appellant submits that appellant is the main accused in this case, that there was no previous background of anmity between the parties, that appellant had caused a fatal shot to the deceased and he was apprehended at the spot and was produced before the police with gun which was recovered from him at the time of occurrence, that prosecution has proved its case against the appellant beyond any shadow of doubt and also request that the conviction and sentence awarded to the appellant be maintained in the circumstances of the case.

8. We have heard the learned counsel for the parties at length and have also gone through the evidence recorded by the learned Trial Court. It may be noted that post‑mortem on the body of Qadir Bakhsh deceased was conducted by P. W.5, Doctor Muhammad Naeem‑ud‑Din, who during the cross examination had admitted that the injury on the person of the deceased was with a bullet and he knew the difference between the bullet and pellet. Statement of Doctor Muhammad Naeem‑ud‑Din regarding the injuries on the person of deceased Qadir Bakhsh is reproduced below: ‑‑‑

Dr. Muhammad Naeem‑ud‑Din Senior Medical Officer Mubarakpur conducted the post‑mortem examination on the dead body of Qadir Bakhsh on I‑1‑1999 and found the following injuries on his person:

Injury No. 1.

(a) There was a lacerated penetrating wound 10 c.m. x 4 c.m. on the inner side of left thigh. Margins were everted. Blackening was present (wound of exit).

(b) There was another wound of 2.5 c.m. in diameter on the outer side of thigh. Margins were inverted blackening present (wound of entry). It is 10 c.m. from left hip joint. On dissection of the wound, wound was through and through. All the muscles and neuro vasular bundles (femoral) were ruptured. Clotted blood was present.

Injury No.2.

There was a lacerated wound 9 c.m. x 1 c.m. present on the top of head. It was 7 c.m. from left eye‑brow. It was bone deep. On dissection bone was normal, but there was clotted blood present. Brain matter was congested.

Scalp already described, skull and vertebra were normal, membranses and brain was congested. Spinal cord was normal. Pericardium and heart were healthy and contained small amount of clotted blood. Blood vessels were healthy except femoral (already described). All the viscera of thorax were healthy. Stomach and its contents were healthy and contained small amount of semi solid food. Bladder was healthy and contained 10 c.c. of urine: All the other viscera of Abdomen were healthy. Muscles of the upper thigh were ruptured. Bones and joints were normal.

Opinion. In the opinion of the doctor the death occurred due to rupture of the major vessels of the left thigh (haemorrhagic shock). Injury No. 1 was sufficient to cause death in ordinary course of life. All the injuries were ante‑mortem and caused by fire arm (Injury No. 1) Injury No.2 by blunt edges weapon. Probable time between injury and death was two hours and between death and post‑mortem was 12 hours.

During cross‑examination in regard to post‑mortem examination conducted on the dead body of Qadir Bakhsh, he admitted that when dead body of Qadir Bakhsh was brought to him no bandage was found on injury No. l(a) and (b). The bullet injury received by Qadir Bakhsh deceased could be caused within six feet of range, as (b) is the result of one bullet, which passed through and through. A normal young alive person contains 5 to 6 litres of blood. It is correct that if one looses 4 to 5 litres of blood actually, then the injured becomes unconscious and travels to death. The duration of injury and death of Qadir Bakhsh deceased cannot be ascertained as it varies according to speed of blood loss. He admitted that he can understand the difference between pellet and bullet injury.

9. A bare perusal of the statement of the Doctor Muhammad Naeem‑ud‑Din would show that there is conflict between the ocular account and the medical evidence. We do not believe that Zulfiqar appellant was present at the spot. Had he been present at the spot he would not have been spared by the complainant party because they have given severe injuries to two co‑accused namely Saad Ullah and Serani and their head bones were crushed. According to the prosecution case it was the appellant who had caused the fatal blow to the deceased. It does not appeal to reason that the person who caused the fatal blows to the real brother of the complainant and Allah Nawaz injured P.W., would be spared by the complainant party. The gun was never produced by the Zulfiqar appellant and was produced by the complainant stating B before the Investigating Officer, that he snatched the same from the appellant. According to the prosecution case the appellant fired only one shot at the place of occurrence. He did not repeat the shot from the gun. If this was the position the empty cartridge taken from the spot would not have been taken from there because it is very well known that when a person wants to fire a second shot then he will have to eject the first empty from the gun. It may also be noted here that there is no community of interest between the appellant and his co‑accused neither they are related with each other. During the cross‑examination the appellant had been suggesting to both the eye‑witnesses that' first informant Khuda Bakhsh suspected wrongly that appellant had illicit relations with his wife two months prior to the present occurrence. Khuda Bakhsh complainant got a Punchayat convened at the Dera of Malik Faiz Ullah Member District Council and in the presence of that Punchayat the appellant had stated on oath that he had no illicit relations with the wife of the complainant. On the demand of the complainant his uncle Ghulam Ahmad Jehanian executed a written agreement in favour of Khuda Bakhsh complainant to the effect that appellant will not pass near the house or shop of the complainant which was stated to be at Adda Khair Pur Dhaha. The agreement was decided to be kept with Malik Luqman Ex-member/Councillor. The version of the appellant was that due to that enmity Khuda Bakhsh complainant got falsely implicated the appellant in this case. In this regard appellant himself appeared as D.W.1 in order to prove its version besides Faiz Ullah Malik Member District Council who appeared as D.W.2, Malik Luqman who appeared as D.W.3, and Saeed Ahmad D.W.4. A written agreement Exh.D.A. was also got exhibited during the dial. Both the stories one put forward by the prosecution and the other put by the appellant if put in juxtaposition then the story put forward by the appellant seems to be more plausible because suggestions put by the learned counsel for the appellant during the trial to the complainant and Allah Nawaz P.W. was contradicted by the three independent D.Ws. who were Ex‑Member District Council and Councillor respectively and who had no ill‑will or enmity towards the complainant party.

10. Keeping in view the circumstances of the case and evidence recorded by the learned Trial Court and the story put forward by the appellant, we are of the view that the prosecution has not been able to prove its case against the appellant beyond any shadow of doubt. While extending the benefit of doubt we accept this appeal of the appellant and set aside the conviction and sentence awarded to the appellant by the Trial Court. Murder Reference is replied in the negative and death sentence is not confirmed. Appellant is behind the bars, he shall be released forthwith, if he is not involved in any other case.

Death sentence awarded to the appellant is not confirmed.

N.H.Q./Z‑4/L

Appeal accepted.