ZULFIQAR ALI Versus STATE
This appeal is directed against the judgment, dated 20‑1‑1992 passed by the Additional Sessions Judge, Rahim Yar Khan whereby he convicted and sentenced Zulfiqar Ali accused to undergo imprisonment for life and to fine of As.10,000 or in default of its payment to undergo R.L. for a period of two years under section 302, P.P.C. for causing the murder of Muhammad Moosa Khan; to R.I. for a period of two years and to fine of Rs.1,000 or in default of its payment to undergo R.I. for a period of six months under section 457, P,P.C. for committing the lurking trespass into the house of Abdur Rehman, P.W. and to R.I. for a period of five years and to fine of Rs.2,000 or in default of its payment to further undergo R.I. for a period of one year under section 307, P.P.C. on each count for making the murderous assault upon Abdur Rehman, P.W. and Farooq‑e‑Azam, Constable P.W. The amount of fine of Rs.10,000 was directed to be paid to the heirs of Muhammad Moosa deceased. The amount of fine of Rs.2,000 on each count was directed to be paid to the injured Abdur Rehman and injured Farooq‑e‑Azam, Constable P.W. All the sentences were directed to be undergone concurrently. The convict was also granted the benefit of section 382‑B, Cr.P.C.
2. The facts of the prosecution case are narrated in statement Exh.P.A. of Abdul Latif complainant P.W.5 recorded by Sana Ullah, S.I. while on Gasht of the area on the basis of which Ghulam Ali Moharrir/HC, P.W.1 prepared the formal F.I.R. Exh.P.A./1. According to Abdul Latif complainant P.W.5 on the night falling between 19/20‑4‑1989 one thief trespassed the house of Abdur Rehman injured P.W.6 at night to commit the theft. Abdur Rehman was awoke who raised the alarm. The thief left his house. Farooq‑e‑Azam Constable PW.7 was on Gasht of the area who arrived there and attempted to apprehend the thief. That thief fired which hit the said Constable. He and his brother (not produced) followed the thief. Abdur Rehman P.W.6, Ghulam Mustafa P.W.8 and Muhammad Aslam P.W. (not produced) also chased the thief. In the meanwhile Moosa Khan (deceased of this case) came out of his house where the thief had arrived. Moosa Khan tried to catch hold of that thief who asked him to get aside otherwise he would be murdered. Thereafter that person inflicted the Chhuri blow in the chest of Moosa Khan who fell down and immediately expired. Abdur Rehman P.W.6 went close to the accused who was injured with the Chhuri by him. He (complainant) and his brother Nazir Ahmad and other P.Ws. caught hold of that accused alongwith Chhuri and one pistol with magazine. On their enquiry the thief told his name as Zulfiqar Ali son of Khushi Muhammad, Caste Arain, resident of Nisar Colony, Khanpur. During the occurrence Zulfiqar Ali appellant was also injured.
3. The case yeas investigated by Sana Ullah, S.I. P.W.10, Zulfiqar Ali appellant was produced before him alongwith pistol P‑4 having magazine P‑5 with one missed bullet and blood‑stained Chhuri P.6 which he took in his possession. Alongwith the accused and others he reached the place of occurrence. He prepared injury statement about Abdur Rehman and Farooq‑e- Azam, Constable as well as that of Moosa Khan deceased. He prepared inquest report about Moosa Khan deceased. The accused was also injured during the occurrence and the injury statement pertaining to him was also prepared. He sent the dead body for autopsy and the injured persons for their medical examination. He took into possession blood‑stained earth from the place of occurrence. He got prepared site plan from Habib Ullah Patwari.
4. Dr. Jam Jamil Akhtar, Medical Officer, Civil Hospital, Khanpur P.W.12 conducted the post‑mortem examination on the dead body of Muhammad Moosa Khan on 20‑4‑1989 and found one incised wound 3‑1/2 c.m. x 1‑1/2 c.m. x 7 c.m. deep in the 3/4 left inter costal space, the 4th rib costal cartilage was fractured, the right artrium of heart had incised wound with size 2‑1/2 c.m. He issued the post‑mortem report. He medically examined Abdur Rehman, Farooq‑e‑Azam, Constable and Zulfiqar Ali accused and issued the medico‑legal reports. The earth and the Chhuri were sent to the Chemical Examiner who found the same to be stained with blood and the Serologist gave his opinion that both the said items were stained with human blood.
5. At the trial Zulfiqar Ali appellant was charged under sections 302/ 457/307 (on two counts). The P.Ws stood in the witness box and supported the prosecution case.
6. When examined under section 342, Cr.P.C. Zulfiqar Ali appellant stated in different version about the facts of the prosecution case and took up the following stand:‑‑‑
"I have been falsely involved in this case. The fact is that I run a sweet meat shop at Adda Iqbal Nagar, Rahimyarkhan and as routine I returned by a passenger train to my house at Khanpur. I had a cash of Rs.3,500 the daily sales money, a Seiko 5 wrist‑watch, keys of shop, my national identity card and a railway ticket from Rahimyarkhan to Khanpur with me. After alighting from the train, I was travelling to my house afoot near Railway Level Crossing at near about 10‑15 p.m. Their two police constables were already present. They stopped me and searched my person and forcibly took into possession the abovementioned money and articles illegally. I told them that I am not at fault and have committed no offence. They wanted to take me to the police station forcibly. When I told them that I am not at fault and have committed no offence, they shouted, shut up and further asked me to keep quiet. They slapped me thrice and I turned to them in the same coins. One constable caused injury at my fore‑head and eye‑brow with the butt of the gun. They again gave me two slaps and they tried to injure me with gun bayonet at my belly which I took at my left hand and it injured my hand. Then they took me to the police station City Khanpur in a Police Van. I had become unconscious. I was made to drink water and I became again conscious. Then my eyes were blind folded and they took me to a jungle. There they threw me in a ditch and gave beatings to me. On the next morning, I was got admitted in the hospital at 6‑00 a.m."
7. After hearing the parties learned trial Court gave the weight to the ocular account corroborated by medical evidence and recoveries as well as the arrest of Zulfiqar Ali appellant from the spot and convicted the appellant as narrated above. Hence this appeal which has been resisted by the State.
8. I have heard the learned counsel for the appellant as well as the learned State Counsel and gone through the record before me. The first assertion of the learned counsel for the appellant is that according to the statement of Abdur Rehman P.W.6 he was not a wealthy person as he had no television, VCR etc. in his house and it could not be expected that Zulfiqar Ali appellant went to his house. It would be a palpable error to agree with him. A thief trespasses the house to make the theft and obviously no enquiry is effected by him about the presence of the costly articles in the house. He has to depend upon the chance and the luck. Hence I do not give the weight to this argument.
9. The next contention of the learned counsel for the appellant is that the police has not produced the duty roster about Farooq‑e‑Azam Constable and his statement is not entitled to be relied upon. As rightly pointed out by the learned State Counsel in this regard the vigilance was to be shown by the learned defence counsel who could requisition the Daily Diary of the concerned Police Station to confront Farooq‑e‑Azam Constable P.W.7 and this laxity on his part has made me to ignore this assertion.
10. It was argued on behalf of the appellant that the uniform and the rifle of Farooq‑e‑Azam Constable P.W.7 were not taken into possession by the police and the version of the prosecution can easily be termed to be doubtful. I do not agree with him. Learned State Counsel has rightly pointed out that without the uniform and the rifle of Farooq‑e‑Azam Constable the remaining prosecution evidence is of that much weight that the appellant cannot save his skin as desired by him.
11. Last of all learned counsel for the appellant relied upon the version of Zulfiqar Ali appellant reproduced supra from his statement recorded under section 342, Cr.P.C. and argued that the police wanted to deprive Zulfiqar Ali, a sweetmeat seller in Rahim Yar Khan, of the amount earned by him when he was belaboured and a scuffle took place. According to him Haji Karam Din P.W.4 admitted that Zulfiqar Ali appellant was running the shop of sweet‑meat. He added that the statements of the eye‑witnesses are neither full of confidence nor inspiring which are liable to be ignored and the version of the appellant has to be accepted. He maintained that keeping in view the version of the appellant he cannot be held liable in the matter. The learned State Counsel argued that the version of the appellant as expressed above was neither put to the eye‑witnesses especially Farooq‑e‑Azam Constable P.W.7 nor to the Investigating Officer during their respective cross‑examination and this aspect of the matter is simply afterthought which is devoid of legal force. He added that Zulflqar Ali appellant may be a sweet‑meat seller at any place but that is not enough to exonerate him. In my view the statements of the eye‑witnesses out of whom Abdur Rehman P.W.6 and Farooq‑e‑Azam P.W.7 were injured during the occurrence are without any material discrepancy fatal to the prosecution case which have inspired the confidence. The eye‑witnesses had no animosity against Zulfiqar Ali ; appellant. After the first alarm raised by Abdur Rehman injured P.W. the; attraction of the other eye‑witnesses was quite natural. Unfortunately Muhammad Moosa Khan deceased of this case arrived out of his house and met his fate at the hands of Zulfiqar Ali appellant. The most important aspect of the matter is that the version of Zulflqar Ali appellant is not believable. He was apprehended at the spot. During the occurrence he was also injured. In such cases a thief (and in the instant case Zulfiqar Ali appellant) is inflicted the injuries by the persons who apprehended him and especially in the instant case when Muhammad Moosa Khan had expired at his hands. The eye‑witnesses were justified to injure the appellant to overpower him. The medical evidence has corroborated the eye‑witnesses. The injury on the person of Muhammad Moosa Khan deceased is in consonance with the statements of the eye‑witnesses. Two of the eye‑witnesses namely Abdul Rehman P.W.6 and Farooq‑e‑Azam Constable P.W.7 were also injured during the occurrence and their statement are that of utmost and enormous importance. The Chhuri used by Zulfiqar Ali appellant was taken into possession by the police at the time of his arrest as the complainant produced the appellant before the police after the occurrence. The same was found to be stained with human blood in view of the reports of the Chemical Examiner and the Serologist. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, analysis of evidence and discussion would be that the prosecution has established its case beyond any reasonable doubt.
12. The trial Court has already exercised its discretion in favour of the appellant by imposing the lesser punishment. I see no merit in this appeal and dismiss the same.
N.H.Q./Z‑167/L Appeal dismissed.