HAZOOR BAKHSH Versus STATE

KHAWAJA MUHAMMAD SHARIF, J. ‑‑‑This judgment will dispose of Criminal Appeal No.8 of 1997 filed by Hazoor Bakhsh, appellant, who was convicted and sentenced by learned Judge Special Court for the Suppression of Terrorist Activities, Dera Ghazi Khan, Division, vide his judgment dated 30‑11‑1996 to death under section 302, P.P.C. with the further direction to pay Rs.20,000 as compensation to the legal heirs of Nazar Muhammad deceased constable as required under section 544‑A, Cr.P.C. He was also convicted under section 322, P.P.C. for Qatl‑bis‑Sbab and was .sentenced to pay Rs.2,05,000 as "Diyat". The Diyai if recovered was ordered to pay legal heirs of victim Manzoor Hussain.

2. Occurrence in this case had taken place at 5‑00 p.m. on 14‑12‑1994 at a distance of nine miles away from Police Station Saddar, Alipur, District Muzaffargarh while the matter was reported to the police through complaint Exh.P.A. by Manzoor Ahmad at F‑15 p.m. on the sauce day and the formal F.I.R. Exh.P.A./1 was recorded by Naseem Ahmad H.C.

3. Briefly stated the facts of the case are that Manzoor Ahmad Head Constable the first informant had reached the tanga/wagon stand of Mauza Madwala about 5‑00 p.m. during his routine patrol, he was present near the office of Union Council, where Riaz Hussain and Khan Muhammad were also present, in the meanwhile, Nazar Muhammad constable brought the arrested accused Ghulam Haider to that Adda and on inquiry of the first informant Nazar Muhammad told him that he was deputed to effect the service of warrants of arrest of Ghulam Haider, who was surety of Hazoor Bakhsh, his son and that he was also in possession of warrant of arrest of Hazoor Bakhsh. In the meantime, Hazoor Bakhsh armed with rifle and his brother Manzoor Hussain empty came there. They raised lalkara and assaulted Nazar Muhammad for teaching him the lesson for arresting Ghulam Haider. Thereafter, Manzoor Hussain took Nazar Muhammad into his Japha from the back and Ghulam Haider exhorted both his sons to get him free after finishing Nazar Muhammad. Accordingly, Hazoor Bakhsh fired with his rifle at Nazar Muhammad constable. The bullet hit the chest and after going through and through from his body also injured the chest of Manzoor who had taken Nazar Hussain into his Japha. Nazar Muhammad and Manzoor Hussain fell down the ground. When the complainant attempted to intervene Hazoor Bakhsh threatened him of similar consequences; Hazoor Bakhsh and Ghulam Haider made escape their good and on account of fear they were not chased by the witnesses. When the witnesses came near the deceased, Nazar Muhammad was alleged to have stated that he was about to die while Manzoor Hussain allegedly stated that Hazoor Bakhsh had killed him by a fire shot.

4. After registration of the formal F.I.R. Exh.P.A./1 Barkhurdar, Inspector P.W.5 inspected the spot, prepared injury statement Exh.P.C. and inquest report Exh.P.D. of the dead body of Nazar Muhammad, also prepared injury statement Exh. P. E. , inquest report Exh. P. F. of Manzoor Hussain, took into possession blood‑stained earth vide memo. Exh.P.H.A., blue cap of Nazar Hussain deceased P.2 was recovered vide memo. Exh.P.J., a belt P.3, a shopper bag P.4, warrants P.5 against Hazoor Bakhsh, notice P.6, warrants against Ghulam Haider P.7, warrant of Ghulam Haider P.8, warrant of Farid Bakhsh and summons P.10 in the name of Shafi were taken into possession vide memo. Exh.P.K., blood stained earth from under neath the dead body of Manzoor Hussain was recovered and on 25‑12‑1994 Hazoor Bakhsh in custody got recovered rifle 222 which was taken into possession alongwith bullets vide memo. Exh.P.O. After completion of the remaining formal investigation, accused were challaned to face the trial. At the trial, prosecution in order to prove its case produced 14 witnesses in all, then the learned APP tendered in evidence report of the Serologist Exh.P.W., report of the Forensic Science Laboratory Exh.P.Y. and report of the Chemical Examiner Exh.P.Z. and closed the prosecution case, thereafter, statements of the appellant and his acquitted co‑accused were recorded under section 342, Cr.P.C., in which they pleaded innocence and false implication.

Learned counsel for the appellant submits that the appellant has been falsely implicated in this case, that on the same evidence Ghulam Haider co‑accused has been acquitted, Manzoor Hussain brother of the appellant was also murdered in the same occurrence, in fact Nazar Muhammad was murdered in this case when he was going to fire at Manzoor Hussain then in retaliation Manzoor Hussain also fired and both met their death. Further submits that if both the versions one alleged by the prosecution and the other asserted by the appellant are put in juxta position, the version of the appellant seems to be more plausible and convincing one.

Conversely, learned counsel for the State submits that the appellant is named in the F.I.R., he has murdered two persons, the occurrence had taken place at 5‑00 p.m. before the Maghrab Prayer and the story of the defence is unnatural and improbable. He supports the judgment of learned trial Court.

We have heard learned counsel for' the parties and have also gone through the record with their assistance. In the instant case, occurrence had taken at 50‑00 p.m. on 14‑12‑1994 when the sun was not yet set, the matter was reported to the police at 6‑15 p.m. though the distance between the place of occurrence and the police station is 9 miles and the formal F.I.R. was registered at 7‑00 p.m. in the police station so it is a case of promptly lodged F.I.R.

The motive for the occurrence was that Nazar Muhammad constable deceased of Police Station, Alipur Saddar had already arrested Ghulam Haider, acquitted co -accused, the deceased and the convict appellant alongwith Manzoor Hussain his brother (deceased) fired at Nazar Muhammad in order .to get his father Ghulam Haider released. The fire made by the appellant hit on the chest of Nazar Muhammad F.C. deceased and making exit wound also hit Manzoor Hussain deceased who was holding Nazar Hussain in his Japha. The ocular account in this case is corroborated by medical evidence. It is a case of single accused. The appellant acted in a daredevil manner. The deceased constable had no enmity with the appellant, he had come to the place of occurrence in order to arrest Ghulam Haider and Hazoor Bakhsh present appellant, against whom warrants of arrest were issued by a Court of competent jurisdiction. This fact has also been proved by the prosecution witnesses namely Muhammad Azhar Ahmad A.C. Alipur P.W.10 and Muhammad Bari, copy clerk Sessions Court, Muzaffargarh P.W.11. The recovery was also effected from the appellant, the same was sent to the fire arm expert but as it lacked individual characteristics, hence nothing could be said as to whether or not, the crime empty was fired through the rifle recovered from the appellant or not. Manzoor Ahmad and Riaz Hussain are most independent witnesses. They have no reason to falsely implicate the appellant as there was no previous background of enmity between them. The appellant has murdered two innocent persons. There is no mitigating circumstance in favour of the appellant in this case for awarding the lesser punishment. Resultantly, the appeal filed by the appellant is dismissed. The conviction and sentence by the learned trial Court are maintained.

H.B.T./H‑59/L Appeal dismissed.