ZULFIQAR ALI Versus THE STATE

KHALILUR REHMAN RAMDAY, J.‑‑ ‑Khawaj Din, his three sons, namely, Zulfiqar, Asghai and Ghazanfar, his daughter's sons, namely, Azhar and Jawad, his son's father‑in‑law, namely, Rehmat Khan and Walayat, a son of Rehmat Khan, were tried by a learned A.S.J. at Gujrat for the murder of one Muhammad Ashraf and for having murderously assaulted Mushtaq and Fazal Dad, after forming an unlawful assembly armed with deadly weapons.

2.. Azhar accused could never be arrested. He was declared a proclaimed offender and is still an absconder. He was, therefore, not tried at the present trial.

3. Khawaj Din accused died before the completion of the trial and the trial to his extent therefore abated.

4. Out of the remaining six accused persons, Walayat and Jawad were acquitted through a judgment, dated 18‑3‑1991 of the learned trial Court while Zulfiqar, Asghar, Ghazanfar and Rehmat were found guilty and on their conviction under section 148, P.P.C. each one of them was sentenced to three years' R.I. On the charge under section 307/149, P.P.C. only Rehmat Khan was convicted and was punished with seven years' R.I. Zulfiqar, Asghar and Ghazanfar were convicted under section 302/149, P.P.C. Zulfiqar was awarded sentence of death with a fine of Rs.30,000 or three years' R.I. in default while Asghar and Ghazanfar were sentenced to imprisonment for life and a fine of Rs.20,000 or two years' R.I. in default. Half of the amount of fine was directed to be paid to the heirs of Ashraf deceased.

5. Murder Reference No.147/91 seeks confirmation of the sentence of death imposed on Zulfiqar convict who together with Asghar, Ghazanfar and Rehmat, challenges the above‑mentioned conviction and sentences recorded against them through Crl. A. No.234/91.

6. Both these matters are being disposed of together through this single judgment.

7. The occurrence in question which had taken place at Chhahwela on 16‑3‑1989 had been reported by Muhammad Khan, who is the paternal‑grand father of Ashraf deceased and the father of Mushtaq, the injured P.W. to Ahmad Ali S.I. (P.W.11) while the latter was present at Bokkan More at about 2‑00 p.m.

8. Muhammad Khan complainant had stated that he was cutting fodder in his fields at the time of occurrence while his grandson Ashraf deceased was going towards the village after cutting his fodder and which he was carrying on his head. He had alleged that his son Mushtaq (P.W.5) and his brother Fazal Dad (given up) were also going towards the village at the same time but were at a short distance behind Ashraf deceased.

9. Muhammad Khan complainant further claimed that just as Ashraf deceased reached near the field of Khawaj Din accused (since dead), all the assailants abovenamed out of whom Zulfiqar appellant and Azhar absconder were allegedly armed with hatchets and the others were armed with Sotas , emerged from the said field and on a Lalkara raised by Khawaj Din accused, the assailants attacked Ashraf deceased and on an attempt by Mushtaq P.W. and Fazal Dad to rescue the deceased, they were also injured by the assailants. The complainant had added that when he, Bahadar Khan and Qadar Dad reached the spot, the assailants ran away whereafter the three injured were carried to A.B.S. Hospital at Gujrat from where Ashraf deceased was shifted to the General Hospital at Lahore where he died on 21‑3‑1991.

10. The complainant had disclosed that about 2/3 years prior to the present occurrence, Zulfiqar etc. had beaten up Ashraf deceased in respect of which a case had been registered at Police Station Lala Musa which, however, ended as a result of oath. Ashraf deceased was serving in the Army and had come home on leave when 3/4 days prior to the occurrence Zulfiqar appellant abused Ashraf deceased who retaliated in the same kind at which Zulfiqar appellant went away after extending threats of dire consequences to Ashraf deceased.

11. During the course of investigation Zulfiqar, Asghar, Rehmat end Khawaj Din had led to the recovery of their respective weapons of offence which were, however, not stained with blood.

12. When confronted with the prosecution case, Zulfiqar appellant pleaded through his statement under section 342, Cr.P.C. that the land where the occurrence had taken place belonged to his father Khawaj Din accused (since dead) which was in possession and cultivation of the said Khawaj Din; that on the day of occurrence Azhar absconder and his father Ashraf were cutting fodder when Ashraf deceased, Mushtaq (P.W.5) and Fazal Dad (given up) trespassed into the said land in order to take forcible possession of the same; that an encounter took place thereafter in which Azhar absconder and his father inflicted injuries on the person of the deceased and the two injured P.Ws. and finally that he was not present at the place of occurrence. The other accused persons adopted the statement made by Zulfiqar appellant. Each one of them refused to be examined under section 340(2) of the Cr.P.C. Ghulam Muhammad D.S.P. appeared as D.W.1 and stated that during the course of investigation conducted by him Walayat and Ghazanfar accused had been declared innocent by him.

13. The defence version appears to be nothing more than a mere bald assertion as the same does not find support from any material available on record.

14. It was the prosecution's own case that the occurrence in question had taken place when the deceased was passing along the fields of Khawaj Din accused. The defence never questioned either the Draftsman or the I.Os. or even the eye‑witnesses to elicit proof that the place of occurrence was the field of Khawaj Din accused.

15. In any case, the defence has offered no reason or explanation as to why the deceased and the two injured P.Ws. should have trespassed into the field of Khawaj Din in order to take forcible possession of the same. The defence has not given even an indication of any dispute between the two parties about the land in question.

16. It is highly improbable that the deceased and the two injured‑ P.Ws. would go to take forcible possession of some body's land without carrying even a stick in their hands and would trespass into the said land only to be belaboured and killed.

17. The defence version thus offers no reasonable explanation of the occurrence in question. The same is highly implausible and does not stand substantiated on record at all. It is, therefore, accordingly rejected.

18. Muhammad Khan complainant who is one of the eye‑witnesses of the occurrence in question, has his land in the close vicinity of the place of occurrence. His claim that he had gone to his fields to cut fodder is a claim which is reasonably possible. Mushtaq P.W. is a son of Muhammad Khan complainant and is thus a paternal‑uncle of Ashraf deceased. He had received injuries on his person during the occurrence in question. His presence at the place of occurrence at the relevant time which is even admitted by the accused persons through their statements under section 342, Cr.P.C. thus stands undeniably proved on record.

19. Nothing was brought on record by the defence to demonstrate any enmity or illwill on the part of these two witnesses to falsely depose about the present occurrence. The motive and the medical evidence further testify the veracity of their testimony.

20. The ocular testimony thus appears to be independent and is therefore, trustworth.

21. Rehmat Khan's conviction is, however, open to exception on the ground that he stands convicted only for murderous assault on Fazal Dad. This Fazal Dad never ,appeared before the learned trial Court and the only explanation offered by the prosecution of his non‑production was that he was suffering from paralysis. No proof was made available to the learned trial Court to support this assertion of inability of Fazal Dad to appear at the trial.

22. In the circumstances, Rehmat Khan's conviction for Fazal Dad's injuries allegedly attributed to him cannot be sustained. He is even otherwise sixty years of age and his daughter is married to a son of Khawaj Din accused (since dead) and the possibility of his having been roped in on account of his relationship with the said Khawaj Din cannot be ruled out.

23. Consequently, the conviction and the sentences of Rehmat Khan appellant recorded under section 148, P.P.C. and section 307/149, P.P.C. are set 4side. He is acquitted of both the charges and shall be set at liberty forthwith if not required to be detained in any other case.

24. As has been held above, the ocular testimony as against Zull'iqar, Asghar and Ghazanfar is reliable and is accordingly accepted. No exception can thus be taken to the finding of guilt recorded against them by the learned trial Court.

25. The quantum of punishment awarded to Zulfiqar convict, however, deserves reconsideration. He was attributed an injury on the left side of the head of the deceased which was followed by a blow by Asghar absconder almost on the same site as was the seat of the injury attributed to Zulfiqar accused. It was these two injuries which had caused the death of Ashra deceased. These two injuries were continuous with each other and it is difficult to determine as to what damage was done by which injury.

26. In the circumstances, we would find it unsafe to award the maximum penalty of death to Zulfiqar appellant. The death sentence awarded to him is, therefore, set aside and he shall. instead suffer imprisonment for life.

27. In view of our above findings, the conviction and sentences of Zulfiqar, Asghar.and Ghazanfar under section 148, P.P.C. are set aside.

28. Their conviction on the murder charge shall now be one under section 302/34, P.P.C. The sentences awarded to them by the learned trial Court on the murder charge are maintained except to the extent of conversion of the death sentence awarded to Zulfiqar appellant into a sentence of imprisonment for life.

29. All these three appellants shall be entitled to the benefit of the provisions of section 382‑B, Cr.P.C.

30. ,Murder Reference No.147/91 and Crl. Appeal No.234/91, are disposed of in the above terms.

Death sentence is not confirmed.

N.H.Q./Z=25/L order accordingly.