ZULFIQAR ALI KHAN AND 2 OTHERS Versus THE STATE

MUFTAKHIRUDDIN, J.-- Zulfiqar Ali Khan son of Fateh Khan, Muhammad Yousaf son of Ch. Din Muhammad and Ghafoor Khan son of Shirin Khan are aggrieved of the order of conviction dated 11-11-1987 passed by Mahar Muhammad Altaf Hussain, Additional Sessions Judge Lahore whereby they have been convicted under Section 307/34, P.P.C. and under section 460, P.P.C. and sentenced to undergo R.I. for four years and fine of Rs.1,000 each and three years R.I. with fine of Rs.1,000 each respectively and it has been ordered that the fine if realized, half of it is to be paid to the legal heirs of the deceased (Waseem Khan). In default of payment of fine they have been ordered to suffer R.I. for six months under each count. The sentences are to run concurrently. Taj Muhammad Khan, the petitioner in Criminal Revision No.133/L of 1987 is also not satisfied with the order and has prayed that the acquittal of the accused/ appellants in Criminal Appeal No.305/L of 1987 from the charges under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and under sections 211, 458, 342, 436, P.P.C. be set aside and the accused persons may be convicted under those offences also. It has been further prayed that the sentences awarded to them may also be enhanced. Since both the matters arise out of the same judgment they have been heard together and shall be disposed of by this judgment.

2. Taj Muhammad Khan, the petitioner herein filed a complaint against Zulfiqar Ali and others (appellants in Criminal Appeal No.305/L of 1987) and 14 others persons on 27-10-1984 before the Ilaqa Magistrate at Lahore. The same is reproduced: --

"That I am peaceful citizen and am residing with my brother Sultan Said and Farid Khan in the Katchi Abadi, Mahmoodabad Begumpura, alongwith my family members, and I am working as a labourer in the Railway Department; that on 10-8-1984 at about 11/12 p.m. I was present in my house, when I heard noise and running of the persons and I rushed towards that direction and saw that Waseem Khan son of Nasim Khan was running and shouting to save, to save, and all the accused persons including Zulfiqar Ali, SI alongwith police officials, Ghafoor Khan and Fazal Zaman, etc. armed with fire arms were chasing him. Waseem Khan entered the house of my brother Sultan Said to save his life, and bolted the door from inside, but all the accused persons encircled the house of my brother, and some of the police officials climbed over the roof of the house. They broke open the roof and started firing when my brother Sultan Said, and Farid Khan alongwith their inmates of the house continued weeping and making entreaties to the accused to desist from damaging their house, but they did not abstain from it and threw explosive substance, whereupon, the house caught fire. All the beddings, cots, wooden boxes, valuables, currency notes worth Rs.12,000 which were in a tin box and rest of the household articles were burnt to ashes, then all the accused entered the house forcibly and searched other whole house. They took out gold ornaments of four tolas, one necklace, two ear-rings, one finger-ring, Rs.1,500 cash and one Citizen wrist watch from a trunk, and Zulfiqar Ali, S.I. and Ghafoor Khan accused took out Waseem Khan from the house and caused him injuries with their fire shots. My brother Sultan Said, protested against the conduct of the police officials and also threatened to initiate proceedings against them before the High-ups, when they also apprehended my brother Sultan Said. The complainant (he) and rest of his family members were hurled abuses by the accused persons. I myself, my two uncles Said Ullah Khan, Mian Abbas Khan, Sultan Said and Waseem Khan were captured by the accused and were taken to PS Mughalpura and confined there for one day and for one night, we were confined illegally and Rs.1,350 were received from our relatives by Zulfiqar Ali and Muhammad Yousaf accused to let off us, but my brother Sultan Said and Waseem Khan being seriously injured were taken to Mayo Hospital, Lahore, where they were struggling for their life. The accused persons being influential, got recorded less injuries by the Medical Officer on the person of Waseem Khan and he was sent to the Judicial lock up. The police officials planted fake recoveries of illicit arms against Waseem Khan and Sultan Said to show a police encounter. This occurrence was witnessed by my brother Sultan Said, Waseem Khan, Farid Khan, Said Ullah Khan, Mian Abbas Khan, Fazal Akbar son of Jehan Zaib, Dr. Ghulam Jillani Tahir and other respectables of the Ilaqa besides myself, but none of us intervened, out of fear, hence, the accused have committed an offence, under section 307/211/ 458/342/460/436/148 read with section 149, P.P.C. and under section 17 of Offences Against Property (Enforcement of Hudood) Ordinance No. V I of 1979; that the motive behind this occurrence is, that Ghafoor Khan accused, abducted Mst. Fazal Bibi, wife of Waseem Khan, injured P.W., took her from place to place and committed Zina with her, but when Waseem Khan tried to restore her wife from him, Ghafoor Khan accused lodged a case against him under section 307, P.P.C., in P.S. Mughalpura, in collusion with the local police, and thereafter, having bribed heavily, Zulfiqar Ali, SI and Muhammad Yousaf, ASI P.S. Mughalpura, Lahore in furtherance of their common intention and pre-planned scheme, attempted to murder Waseem Khan, showing fictitiously a police encounter, but Waseem Khan was saved fortunately, and is in the Judicial lock up. The brother-in-law, Abdul Ghafoor Khan of Waseem Khan, lodged an abduction and zina case against Abdul Ghafoor Khan, Mst. Fazal Bibi, wife of Waseem Khan, at P.S. Misri Shah, Lahore, which is still under investigation. Due to these grievances, the accused wanted to commit the murder of Waseem Khan, who was saved luckily; that I have moved various applications to the higher, police .officials for the registration of the case, and have also met the concerned officers but my grievance has not been redressed, therefore, I am constrained to file the present complaint. In these circumstances, it is humbly prayed that Zulfiqar Ali, SI and others, mentioned above, be taken to' task, iii accordance with law and be punished accordingly."

The said complaint was dismissed on 18-11-1985 by Malik Nazir Hussain Awan, 'Additional Sessions Judge, Lahore to whom the complaint was referred to. On appeal before this Court the complaint was remanded to the 'Additional Sessions Judge Lahore with the observations that only the respondents Zulfiqar Ali Khan and others (the appellants herein) be proceeded as the rest of the respondents were acting under the orders of the respondents Nos.1 and 2 after the registration of the criminal cases.

3. The accused persons the appellants in Criminal Appeal No.305/L of T98,7, were charged under sections 435, 307, 342,. 4$0, 458 read with section .34, O.P.C. and under section 17 of the Offences Against Property (Inforcement of Hudood) Ordinance, 1979 Zulfiqar Ali, Muhammad Yousaf and Ghafoor Khan were also charged under section 211/34, P.R.C. and on the denial of the charges the complainant (Taj Muhammad) examined seven witnesses in support of the allegations. P.W.1 (Ghulam Abbas ASI) placed on record the copy of F.I.R No.171 dated 10-8-1984 lodged by ZuIfiqar Ali under section 307/332/353/34, P. P. C. P. W .4 (Muhammad Ashraf H.C) placed on record an attested copy of F.I.R. No.332 dated 29-9-1984 registered against (Abdul Ghafoor Khan) P.W.2 (Sultan Said) P.W.3 (Dr. Ghulam Jilani Tahir (Homoeopath) and P.W.5 (Fazal Akber) and the complainant Taj Muhammad (P.W.7) appeared to support the ocular account of the alleged occurrence and P.W.6 (Dr. Anwar Saeed) testified about the injuries found on the person of Waseem Khan and re-iterated his observations earlier recorded in the M.L.R. The accused persons when examined under section 342, Cr.P.C. denied all the incriminating circumstances. Ghafoor Khan put his case in these words: -

"Because I was a witness in case F.I.R. No.418/84 P.S. Mughalpura. Offence under section 307, P. P. C. and case F.I.R. No.171 P.S. Shalimar, dated 10-8-1984, under section 307/332, P.P.C. etc against the complainant party. My wife Mst. Bibi Tajan lodged F.I.R. No.1, dated 1-1-1984 P.S. Shringal, District Deer, under section 436, P.P.C. against Waseem Khan, etc. My brother-in-law Bar Khan lodged F.I.R. No.20, dated 14-4-1984, under section 302/34, P.P.C., P.S. Gandi Gujar, District; Deer against Waseem Khan etc. Another brother-in-law of mine Amir Ghar Khan lodged F.I.R. No.92 at P.S. Timer Garan, District Deer, under section 302/307/34, P.P.C. against the complainant party, etc. The complainant party lodged a false case of abduction against me and my other relatives vide F.I.R. No.332, dated 29-9-1984 P.S. Misri Shah, Lahore. Due to this litigation, the complainant party has lodged the present complaint.

"

Muhammad Yousaf pleaded: -

"Becuase, I raided the house of Sultan Said to effect arrest of Waseem Khan who was required by the police in case F.I.R. No.418/419/87 P.S. Mughalpura, Lahore and he was also a P.O. in case F.I.R. No.1 dated 1-1-1984 offence under section 436, P.P.C. P.S. Sharangel, District Deer and F.I.R. No.10/84 dated 14-4-1984 offence under section 302, P.P.C. P.S. Ghandi Gar, District Deer. I also wanted to arrest another co-accused Noor-ul-Haque, who is related to Waseem Khan and the complainant party, a P.O. in a case vide F.I.R. No.92, dated 25-5-1984, P.S. Timergarh, District Deer offence under section 302/307/34, P.P.C. and that the case F.I.R. No.418/84, P.S. Mughalpura, under section 307/326/148/149, P.P.C., dated' 9-8-1984. I investigated this case F.I.R. No.418/84 P.S. Mughalpura, under section 307, P.P.C. and a witness in case FIR No.171, dated 10-8-1984 P.S. Shalimar, Lahore offence under section 307/332/34, P.P.C. and section 13 of the Arms Ordinance, 1965, against the complainant party, who are inter-related."

And Zulfiqar Ali Khan answered in these words: -

"The present case is outcome of enmity because I accompanied the police party who arrested Waseem Khan accused in a police encounter, and I was a witness against Waseem Khan, accused and the complainant party."

Zulfiqar Ali Khan also made a statement on oath in disproof of the allegations/ charges. The other accused, however, did not like to produce any defence nor made statement under section 340(2), Cr.P.C. and relied upon the stand taken by Zulfiqar Ali made under section 340(2), Cr.P.C. Zulfiqar Ali deposed that on 10-8-1984 he alongwith his co-accused went to arrest Waseem Khan an absconder and another Noorul Haq. Waseem Khan and his party men opened fire on the police party at about 2-30 early in the morning. Sultan and another had given shelter and protection to the said absconders. The police party had arrested but during this police encounter Waseem Khan was injured and was immediately removed to the Mayo Hospital, Lahore for medical examination. The case was registered at Police Station Shalimar, Lahore vide F.I.R. No. 171 on 10-8-1984 against Waseem Khan, Noorul Haq was absconder in the F.I.R. No. 418/84, dated 9-8-1984 at Police Station Mughalpura, Lahore as well as Waseem Khan. The certified copies of the F.I.Rs. registered against Waseem Khan and others were placed on record as Exh.D.A., Exh.D.B. and Exh.D.C.

4. The trial Court held that no explosive substance was used and only tear-gas shells were used thus the charge under section 435/436, P.P.C. is not established and since none of the P.Ws. has been able to say about the illegal gratification the applicability of section 161, P.P.C. is ruled out. In the opinion of the learned trial Court it is a case of two versions. The trial Court has believed the prosecution case and the accused /appellants have been held guilty of the offences under section 307/460, P.P.C. read with section 34. P.P.C. and they have been accordingly sentenced as mentioned above'.

5. We have heard the learned counsel for the parties and have gone through the record carefully. It is established on record oil this case that a case under section 307/148/149, P.P.C. was got registered against Waseem Khan by Ghafoor Khan at Police Station Mughalpura on 9-8-1984 which authorised the police to search for Waseem Khan. The attempt to arrest him therefore cannot be denied to the police. It is not believable that police would have burned the house immediately. The police simply wanted to arrest, Waseem Khan, had it been otherwise nothing could prevent him to fire at him earlier before he entered the house, not of his own but. belonging to the complainant party. The circumstances lend support to the version put by the police officials. Why Waseem Khan should not have concealed himself in his own house. It was the duty of the complainant party to produce Waseem Khan before the police and the whole matter would have ended. The provisions of section 58, Cr.P.C. authorise the police officer to pursue such person who is involved in any offence in order to arrest him in any place in Pakistan. It has been urged by the learned counsel for the petitioner that there was no material available' to the police to suggest that Waseem Khan was a proclaimed offender or that the cases against him were being tried in Deer. At least Ghafoor Khan was aware of those cases and he might have laid the information before the police but the F.I.R. lodged by Ghafoor Khan at Police Station Mughalpura certainly set the police in motion. The raid to arrest Waseem Khan was therefore within the powers of the police. P. W. 2 (Sultan Said) did not mention the name of Dr. Ghulam Jilani',(P.W.3) having witnessed the recovery. Though both of them belong to the same locality and were known to each other. Dr. Jilani appears to have been arranged in order to give respectability to the prosecution case as he happens to be a medical practitioner but in our view. Dr. Jilani does not deserve that credit. His conduct is dubious. He has avoided the registration since 1962 knowing that he could not practice, without due authorization. According to P.W.3 two persons had fired two shots at Waseem Khan. Taj Muhammad (P.W.7) deposed that Waseem Khan had received four injuries. Both these witnesses have been belied by Dr. Anwar Saeed (P.W.6) who in his M.L.R. Exh.P.B. has noted only one injury to the injured Waseem Khan. The medical evidence could not be ignored as it has come on record through a witness produced by the complainant party. It is the case of the prosecution that police employees started firing inside the house and explosive material was thrown but the witnesses other than Sultan Said and Taj Muhammad did not corroborate this version. Sultan Said, a real brother of Taj Muhammad resided at a distance of four houses. It is not possible therefore that they had teen the occurrence as described by them. Since Waseem Khan was arrested and was injured during the encounter his relations Sultan Said and Taj Mohammad are naturally interested persons to depose in favour of Waseem Khan. The place where the encounter had taken place is populated. It is strange that no important person came forward to support the complainant party. Sultan Said admitted in his cross-examination that he had not produced the ownership of the ornaments and wrist watch. Which of the accused had brought Waseem Khan outside the house and from whose shot he was injured is no: specifically established. The use of reasonable means to effect the arrest of a person who resists the endeavour to arrest him is permissible under section 46, Cr.P.C.

6. For all these reasons we are of the view that the complainant has failed to establish the charges against the accused /appellants and they are entitled to acquittal. The appeal is accordingly accepted, the conviction and sentences passed against the appellants are set aside and they are acquitted of the charge. As a consequence of the acceptance of the appeal (Criminal Appeal No. 305M of 1987) the Criminal Revision (Criminal Revision No. 133/L of 1987) stands dismissed.

M.Y.H./400/F.Sh. Appeal allowed.