SULTAN Versus THE STATE

M. A. GHAFOOR KHAN LODHI, J. ‑Sultan, Muhammad Yar, Habib and Pira were tried by the learned Sessions Judge, Bahawalpur for committing the murder of Ahmad Bakhsh and Bakhat Ali deceased in furtherance of their common intention while committing lurking house trespass by nigh attempting to murder Ghulam Nabi P. W. causing simple injuries to him Sultan and Muhammad Yar were convicted under section 302, P. P. C. o n two counts for murdering Ahmad Bakhsh and Bakhat Ali deceased and were sentenced to death and a fine of Rs. 1,000 each in default of payment of which they were ordered to undergo one year R. I. each. They were also convicted under section 460/34, P. P. C. and were sentenced to life imprisonment. Sultan was also convicted under section 307, P. P. C. and was sentenced to life imprisonment. He was directed to pay Rs. 1,000 as compensation to Fida Hussain P. W. under section 544‑A, Cr. P. C. In default of payment of compensation he was directed to undergo six months' R. I. Habib was convicted under section 323, P. P. C. and sentenced to one year R. I. All of them have appealed against their convictions and sentences. We have before us Murder Reference made by the learned Sessions Judge for the confirmation of the death sentence awarded by him on two counts to Sultan and Muhammad Yar appellants. The appeals and the murder reference are being disposed of together through this judgment.

2. The prosecution story in short is that Ghulam Nabi complainant was sleeping outside his Sahl after closing its door. His father and other inmates were sleeping inside the said Sahl. At about 11 p.m. he heard the sound of opening of the outer doer of his house whereupon he woke up. In the meantime three assailants but of whom one was armed with a pistol and the two with sticks came near his cot and one of them gave hire stick blow when he raised an alarm. When the complainant tried to apprehend the man who had given trim stick blow his companion who was armed with a pistol fired the pistol at him which hit him on his head. The father and the nephew of the complainant on hearing the alarm came out of the Sahl whereupon the person who was armed with pistol and the fourth companion of the assailants who was standing near the outer door armed with pistol fired at the nephew and the father of the complainant, Ahmad Bakhsh died of the shot near the door.

Fida Hussain fell down in injured condition and became unconscious. In the meantime Bakhat Ali uncle of the complainant cam; to the spot from his Sahl who too was fired at by the assailants who were armed with pistols and he also fell down dead in the courtyard. Laloo, Manzoor Ahmad, Fida Hussain, Ghulam Farid, Muhammad Ramzan, Wahid Bakhsh, Sher Muhammad. Jind Wadha and Saddu etc. neighbourers came to the spot armed with sticks being attracted by the alarm, whereupon the four assailants tried to run away but they were beaten outside the house of the complainant by the above‑mentioned persons and were apprehended and tied with ropes. They disclosed their names as Sultan, Muhammad Yar, Habib and Pira and stated that they had come to commit theft.

3. After the appellants were apprehended Ghulam Nabi P. W. went to the Police Station, Naushera Jadid and lodged F. I. R. Exh. P. A Mr. Abdul Khaliq A. S. I. (P. W. 15) after registering the case left for the place of occurrence at about 2‑30 a.m. on the same night and arrested the four appellants who according to him were at that time tied with ropes. He prepared their injury statements Exhs. P. F., P. G. P. H. and P. J. as they were injured. He also prepared the injury statement Exh P.A.A. of Fida Hussain P. W. He recovered from the possession of Habib appellant eleven .12 bore live cartridges put in a small bag (guthli) P. 5 belonging to Habib appellant, soti P. 4 belonging to Pira appellant, '12 bore country made pistol P. 1 belonging to Sultan appellant and another '12 bore pistol P.2 of Muhammad Yar. The recoveries of the sticks were made in the presence of Malik Faiz Muhammad (P. W. 5), son of Ghulam Muhammad and Faiz Muhammad son of Haji Daim Khan (not examined). P. W. 8 in his statement supported the said recoveries. Live cartridges alongwith guthli P. 5 were recovered from the possession of Habib appellant in the presence of P. W. 1 and Malik Manzoor who were also witness of the recoveries of pistols P. 1 and P. 2 produced by the complainant. Out of them only Mali Manzoor Ahmad was examined who supported the recoveries. Blood stained earth was recovered by the A. S. I. from the places where the deal bodies were lying. In the presence of the above‑mentioned witnesses, namely, Malik Faiz Muhammad (P. W. 8) son of Ghulam Muhammad arid Faiz Muhammad son of Haji Daim Khan (not produced). Malik Fair Muhammad (P. W. 8) supported the said recoveries also. A torch eves also recovered vide memo. Exh. P. S. and three '12 bore crime empties P.7, P. 8 and P. 9 vide memo. Exh. P. R. in the presence of the said witnesses; and P. W. 8 supported these recoveries. Personal search of Pira appellant was effected in the presence of P. W. 8 and Faiz Muhammad, son of 14,10 Daim Khan and during the search 12 currency notes of the denomination of Rs. 100 each, one Camy Watch, one pencil, a phial containing white pills, one key and one cloth bag were recovered which were seized vide memo. Exh. P. B.

4. The said A. S. I. prepared the injury statements and inquest reports of the dead bodies and sent them to the mortuary for post‑mortem examina tion escorted by Abdullah Khan F. C.

5. Ocular account of the occurrence was given by Ghulam Nabi com plainant (P. W. 10) and Fida Hussain (P. W. 11) which is almost the same as narrated in the facts of the case. Manzoor Ahmad (P. W. 12) and Ghulam Farid (P. W. 13), also are the eye‑witnesses and they stated that they alongwith one guest were present at the door of Manzoor Ahmad at 11 p.m. when they heard hue and cry and the sound of firing and went to the place of occurrence. They saw that a fight was going on inside the haves of Ahmad Bakhsh between the inmates and the four appellants. They went on to say that two of the appellants were armed with pistols and the rest had sotis. Giving details of the occurrence they stated that first of all one of the appellants armed with pistol fired at Ahmad Bakhsh deceased who fell down dead and after that Fida Hussain P. W. grandson of Ahmad Bakhsh came out and he was fired at with a pistol. They further stated that thereafter Barkat Ali deceased arrived at the place of occurrence by scaling over the intervening wall and he was fired at by Sultan appellant sad after that they and Shcar, Ramzan, Saddu. Laloo and Jindwadha who had reached the place of occurrence picked up sticks, fought with the appellants in self‑defence and succeeded in apprehending them, outside the haveli. P. W. 13 stated that the appellants were not known to then before the occurrence.

6. Post‑mortem examination upon the dead bodies of the two deceased was performed by Dr. Hafiz Abdul Wahid who found the following injuries o n the person of Bakhat Ali deceased : ‑‑

(1) Five small rounded punctured wounds on the left side of the chest just near to the inner end of left collar bone, varying from ' x ' x 1/6' x chest deep.

(2) One small round punctured wound at the front and lower part of neck 1/6' x 1/6" x skin x muscle deep.

(3) One small round punctured wound (exit wound) at the back near to the inner angle of left shoulder blade 1/6 x 1/6' x chest deep.

According to the doctor the cause of death was injury to the left lung and puncture of left big vessel of the neck which were the result of injuries Nos. 2 and 3 respectively causing haemorrhage and shock. He opined that all the injuries were caused by fire‑arms and were sufficient to cause death in the normal courses of nature collectively as well as individually. In his opinion injury No. 4 was the exit wound of injury No. 2. He also said that the injuries could not be caused by a .12 bore cartridge but by a bullet shot. He further stated that a big pellet might have struck against the inner end of the left collar bone resulting in the smashing of that end and then returning back from the same route.

7. On the person of Ahmad Bakhsh deceased the said doctor found the following injuries:‑

(1) One big transverse rupture fracture of right occipital bone 2' x 1 x brain matter coming out (exit wound).

(2) One small round punctured wound at the right side of the head just above the tragus of the ear ' x ' x brain matter coming out and tae right mastoid bone fractures.

(3) One small lacerated wound at outer and back part of right pinna ' x x skin deep. He opined that the cause of death was injury to brain as a result of injury No. 2 which was the entrance wound causing injury No. 1 the exit wound. He said that all the injuries were fire‑arm out of which injury No. 3 was simple.

8. He had also examined Fida Hussain P. W. and Ghulam Nabi P. W. On the person of Fida Hussain the following injuries were found:‑

(1) One small round punctured wound at the front of right arm 1/6' x 1/6' x skin muscle deep. The underlying bone appeared to be fractured. Confirmation of the presence of any bullet or fracture was postponed till the X‑ray report was available.

(2) One small round punctured wound at the external aspect of right fore‑arm 1/6' x 1/6' x skin and muscle deep. X‑ray was advised for the detection of any bullet.

(3) One oblique lacerated wound at the back of head 2' x ' x skull deep.

(4) One round swelling at the right side of the head 2' x 2' without any local fracture.

(5) One transverse bruise mark at the front of right thigh 3' x 1'.

(6) Three oblique and transversely situated bluish red bruises at the back and left shoulder varying from 5' x 1' to 3' x 1'.

(7) The left hip was swollen and there was a bruise 2' x 1'.

On the receipt of X‑ray report injury No. 1 was declared dangerous. Injuries Nos. 1 and 2 were caused by fire‑arm and the rest with a blunt weapon. Other injuries were declared as simple.

On the person of Ghulam Nabi P. W. the following injuries were found :‑‑

(1) Lacerated wound at the left side of the head x ' x skin deep.

(2) One longitudinal contusion mark at the external aspect of left fore arm 5' x '.

Both the injuries were declared as simple and caused with a blunt weapon.

9. The four appellants were also examined by the said doctor. On the person of Sultan following injuries were found :‑

(1) One lacerated transverse wound at the head 2 ' x ' x scalp deep.

(2) Nothing as injury was seen as against No. 2 mentioned in the police injury statement.

(3) Only the lower portion of the right eye was bluish and swollen. The eye ball was saved.

(4) One long oblique reddish bruise mark at the back starting from left shoulder blade to the right side 11' x 1'.

On the person of Pira appellant following injuries were found :‑

(1) The left eye had one oblique lacerated wound at the upper eyelid 1' x ' x upper lid torn. The eyeball had also been badly hit and he had lost his vision on this side. The case was referred for special treatment.

(2) One oblique bruise mark at the back of left hand 3'x 1' without any evident fracture sign.

(3) Both the knees swollen and the movement was restricted at both the joints due to swelling. Muhammad Yar appellant had one injury which was oblique at the right side of the head near to the right prominence of the head 2' x x scalp deep. The injury was simple.

Own the person of Habib appellant following injuries were found :‑

(1) One longitudinal lacerated at the front of left leg 1' x ` x skin deep,

(2) One oblique bruise mark at the right thigh 5 x 1'.

(3) Two oblique blue bruise mark at the left back 5' x 1' and 4' x 1'.

(4) The right eye is scohymosed and the eyeball was totally saved.

(5) There was one oblique bruise mark at the back of left forearm 3'x 1'.

(6) There were multiple bruises which were at the right fore‑arm varying from 3' x 1' to 5' x 1'. All the injuries were declared as simple caused with blunt weapon. On the question of the Public Prosecutor the doctor stated that he had handed over the wads to the police after the post‑mortem examination, of Bakhat Ali deceased. He also said that such wads are definitely the cartridges and not the rifle bullets in cross‑examination he said that the wads were not the card‑boards but were pieces of woollen blanket. He also said that it was possible that some relatives of Bakhat Ali deceased might have placed these woollen pieces on his wounds to stop flow of blood.

10. The report of the fire‑arm expert was in the negative. The fire arm expert, however, was examined as Court‑witness.

11. The truthfulness or falsehood of the prosecution case rests upon the report of the fire‑arm expert. The appellants were not known to the eye witnesses before the occurrence because they were strangers. Since the crime empties found at the place of occurrence were not fired from the pistols recovered from Sultan and Ghulam Muhammad the story that the appellants were apprehended at the spot falls to the ground. If the appel lants had not been captured on the spot and had been arrested by the police sufficient time after the occurrence and at the instance of Sultan and Ghulam Muhammad appellants Pistols P. I and P. 2 had been recovered, it could be said that both the appellants destroyed or concealed the pistols which were actually user by them at the time of occurrence and in order to deceive the police produced other pistols which had not been used at the time of occurrence but since the appellants are alleged to have been appre hended in the spot this possibility stands excluded. The only inference, therefore, is that they were not apprehended at the spot, when the prosecu tion came forward with the story that the appellants were apprehended on the spot is that since that they not known to them previously they were not in a position to identify teem. It appears that the real assailants ran away after the occurrence and the appellants were apprehended by the police afterwards. (Since no identification parade was held before the inquiry made by the Committing Magistrate, the identification of the appellants by the eye‑witnesses at the inquiry and the trial stage is not helpful to the prosecution). (The presumption would be that the assailants were some other persons and not the appellants and that is why the fire‑arms recovered from their possession were not found to have been used at the time of occurrence). Even otherwise the story that the appellants were apprehended at the spot is highly improbable and thus unbelievable, when still the appellants had eleven live cartridges with them no body could go near to apprehend them. If the witnesses and their helpers who are alleged to have apprehended the appellants had been armed with fire‑arm and had used them it could be said that since the assailants were disabled they were apprehended. The story is that the witnesses and their helpers picked up the sticks‑A person armed with a fire‑arm would not allow a person armed with a stick to come near him, and would fire at him if such a person takes the courage of making an attempt to apprehend him. But on the contrary the prosecution story is that no fire was made outside the house of the complainant when the eye‑witnesses and their helpers armed with sticks successfully apprehended the appellants.

12. Admittedly the appellants were strangers. This is very strange that they came to know that they would find some valuables in the Sahl of the complainant. The persons living in Sahls usually are not very wealthy. There is no evidence that to reality cash or ornaments were lying in the Sahl. None of the witnesses stated so. It is, therefore, not clear that the appellants did enter the Sahl and attacked the inmates in order to commit theft or robbery. (The appellants explained the presence of injuries on their persons by saying that they were belaboured by the police. This explanation is believable). As the identification of the appellants is doubtful the conviction of Sultan under section 307, P. P. C. is also not maintainable. For the same reasons it is also doubtful if lurking house trespass by night was committed by the appellants. Habib appellant has been convicted and sentenced under section 323, P. P. C. for causing simple injuries to Ghulam Nabi with sots P. 3 which is said to be stained with human blood. As the story of apprehending Habib and his companions has been found to be false the evidence of snatching of soti from him at the place of occurrence also fails to the ground arid it cannot be said that it was he who had given simple injuries to Ghulam Nabi, P. W.

13. In view of the discussion made we come to the conclusion that the prosecution failed to make out any case beyond any shadow of doubt Therefore, we accept the appeals, and giving the benefit of doubt acquit all, the four appellants from all the charges. Death sentences awarded to Sultan and Muhammad Yar are not confirmed.

Appeal allowed.