KHIZAR ALI Versus THE STATE

MISS TALLAT YAQUB, J. --- Khizar Ali appellant before us was tried alongwith Ghulam Shabbir, Azhar Hussain and Mazhar Taqi for having murdered Basharat Ali deceased by Sher Zaheer Ahmad, Khan, learned Additional Sessions Judge, Sheikhupura under section 302/34, P.P.C.

2. The learned trial Court vide judgment, dated 20-7-1991 convicted the appellant under section 302, P.P.C. and sentenced him to suffer death. He was also sentenced to pay a fine of Rs.10,000 or in default to undergo R.I. for one year. The learned trial . Court also directed him to pay Rs.25,000 as compensation to the heirs of the deceased; or in default he was to undergo R.I. for two years. His co-accused namely Ghulam Shabbir, Azhar Hussain and Mazhar Taqi were, however, acquitted. The convict' filed an appeal in this Court while the learned trial Court sent a reference under section 374, Cr.P.C. to this Court for the confirmation of the death sentence. We propose to dispose of both these matters through this judgment.

3. The prosecution story as unfolded by, Hidayat Ali P.W.4 in his statement Exh.PA. made before Amanullah Inspector/S.H.O. P.W.10 at Adda Machhike, was that on the night between 11th and 12th of August, 1988 he was asleep in the Baithak of Murid Hussain alongwith his son Basharat Ali deceased and Irshad Ali (not produced). At about 1-30 a.m., the complainant and Irshad Ali heard a noise upon which they woke up and saw the appellant armed with single barrel .12 bore gun, Ghulam Shabbir armed with carbine, Azhar Hussain and Mazhar Taqi were armed with Sotas. Azhar Hussain raised a Lalkara that Basharat Ali and others should be taught a lesson for having given Rishta to Muhammad Sharif. Khizar Ali appellant fired at Basharat Ali deceased with his single barrel .12 bore gun which hit him on the right side of the forehead who died at the spot. All the accused decamped from the spot while raising Lalkaras and firing in the air. The occurrence was witnessed by Amir Hussain (not produced) and Dost Ali P.W.7 who were present on the nearby Dera of Murid Hussain.

4. According to the complainant, motive for the murder was that Mst. Sakina Bibi, a sister of appellant was married with Muhammad Sharif son of Bakhshi but on account of differences he divorced her. Later on, .the complainant gave the hand of his daughter, Mst. Haleema Bibi to said Shari The appellant and the acquitted accused bore grudge on this score.

5. The investigation of this case was conducted by Amanullah, Inspector/S.H.O. P.W.10 who after recording the statement Exh.P.A. of Hidayat Ali P.W.4 on the basis of which a formal F.I.R. Exh.PA./1 was recorded by Muhammad Yaqub A.S.I. P.W.1, went to the spot, and took into possession blood-stained earth from there vide memo. Exh.P.B., prepared inquest report Exh.P.H. and sent the dead 'body to the mortuary for post mortem. He also took into possession Khais. P.7, pillow P.8 and a cot P.9 (all blood-stained) from the roof of the Kotha vide Exh.P.E. He also recorded the statement of the witnesses under section 161, Cr.P.C. and arrested Azhar and Mazhar (since acquitted) on 27-8-1988 and two days later he arrested the appellant and Ghulam Shabbir (since acquitted). At the time of his arrest the appellant was found in possession of a single barrel .12 bore gun (Exh.P.1) which was taken into possession vide a memo. Exh.P.K. Since the gun was unlicensed, therefore, a case under section 13 of the Arms Ordinance XX of 1965 was also registered against him: On 31-8-1988, the complainant produced a lantern before him in the police station which was taken into possession vide a memo. Exh.P.C.

6. After completion of the investigation he filed the challan in the Court.

7. Doctor Zakaullah, who had performed the post-mortem of the deceased could not be produced because his whereabouts were not known and, therefore, post-mortem report Exh.P.G. was brought on record through Dispenser Ghulam Mustafa P.W.9 who had`been working with Dr. Zakaullah and was conversant with his handwriting. According to the medical report the deceased was found to have sustained the following injuries:--

(1) A fire-arm wound of entry measuring 2.5 c.m. oval diameter with lacerated margins on right side of forehead, 5 c.m. vertically above the mid part of right eyebrow and around the wound blackish burning of skin in an area measuring 6 c.m. On deep dissection the underlying scalp bone was fractured having hole in it. Menuges damaged, brain matter damaged, clotted and un-clotted blood was present in the cranial cavity. A plastic body was recovered from the right hemisphere of brain. Eight metallic particles were recovered from deep part of right hemisphere of brain and one from left hemisphere of brain. The material recovered from the cranial cavity, sealed and handed over to the police.

All the other organs of thorax and abdomen were healthy. Stomach contained digested food. Small and large intestines contained facus and gases. Bladder contained 3 Ozs of urine.

8. In the opinion of the, doctor, the injury leading to skull of fracture, brain damage and intra cranial haemorrhage, resulted in shock and death. The injury was ante-mortem and caused by fire-arm. It was grievous.

The probable duration between the injury and death, was within a few minutes; and between death and post-mortem examination, within 24 hours.

The case of the appellant before the trial Judge was that he was involved in the case due to guesses work and suspicion and that he had no occasion whatsoever to commit the murder. The occurrence, according to him, took place on the night when the P.Ws. were not present at the spot and that all the male members of his family had been involved in the case because of malice.

10. We have gone through the record of the case with the able assistance of the learned defence counsel and the learned counsel for the State as well as the learned counsel for the complainant.

11. We are not impressed by the evidence of P.W.4 Hidayat Ali and Dost Ali P.W.7 who claimed themselves to be eye-witnesses P.W.4 is the father of the deceased: He resides in Jia Mausa while the place of occurrence is within the area of Police Station Saddar District Sheikhupura. He was unable to tell the distance between Jia Mausa and the place of occurrence. He could not even affirm or deny that the distance was less than 40 miles or more. When cross-examined by the learned defence counsel, he could not tell the number of persons attracted to the scene of tragedy. We have every reason to believe that he was called from Jia Mausa to become an eye-witness of the case as it was an un-witnessed occurrence. P.W.7 is a cousin of the deceased. He could not even tell the exact height of the room where the occurrence took place. According to him four or five shots were fired but we noticed that no crime empty was found at the spot. He belies the statement of the draftsman who stated that he prepared the site plan on the pointation of the P.Ws. As the occurrence took place on the 26th of lunar month at 1-30 a.m. when there was no moon on the horizon, so it was pitched dark night, hence it was not possible for the eye witnesses and the complainant to correctly recognize the assailants. It appears that the assailants have been named after speculation and deliberation. In any case Hidayat Ali P.W. complainant had given the hand of his daughter to Muhammad Sharif and if the appellant bore grudge for the marriage he should have murdered the complainant instead of murdering Basharat deceased. We find that the eye-witnesses are interested and related inter se and their evidence to carry conviction on a capital charge cannot be accepted, unless supported by some strong circumstance to overcome the inherent doubt, which is lacking in the instant case. It was contended by learned counsel for the defence that no independent witness from the locality had come forward to give evidence. Contention of the learned counsel for the defence rings true. We find that Amir Hussain son of Inayat had allegedly seen the occurrence but he was not produced in the Court and was given up as unnecessary. The presumption is that had he been produced in Court, he would have deposed against the prosecution. Since he was the only independent witness mentioned in the F.I.R., therefore, his non-production before the trial Court is fatal to the case of the prosecution.

12. The recovery of single barrel gun from the appellant is highly doubtful. The appellant was arrested on 29-8-1988 while the occurrence took place on 11-8-1988. It is unbelievable that for more than seventeen days he would keep the gun with him to present as a souvenir to the police. Even otherwise the recovery of gun is of no help to the prosecution as no empty was recovered from the scene of the occurrence. The introduction of lantern after a p lapse of almost twenty days makes the case of the prosecution more doubtful. If the lantern was at the spot at the time of the occurrence it would have been taken into possession by the Investigating Officer or he would not hay omitted it at the time of inspection of the spot. We are of the firm view that the lantern was introduced after due deliberation in order to strengthen the case of the prosecution but instead of strengthening, it has weakened the entire case of the prosecution.

13. The motive as set up by the prosecution can hardly be believed. P.W.7 Hidayat Ali admitted in the cross-examination that no untoward incident had happened since the marriage of Mst. Haleema Bibi with Muhammad Sharif till the present occurrence although the spouses had five children. This shows that the accused party had accepted the factum of marriage and, therefore, they could not have any motive to attack and commit murder of the deceased.

14. The medical evidence belies the ocular evidence in that according to P.W.7 the deceased took his last meal after the sun set and before P.W.7 had offered his Mughrab prayer. In the post-mortem report we find that the stomach contained partially digested food while small intestine and the large intestine contained faecal gases. The time of death can be ascertained with some certainty from the degree of digestion as also from the stomach contents. The presence of partially digested food in the stomach shows that the deceased was done to death within 2/3 hours after the Mughrab prayers. The story of the prosecution that the deceased was murdered at 1-30 a.m. on 11-8-1988 is ~E completely belied by the medical evidence.

15. For all the foregoing reasons, we proceed to accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall F be released forthwith, if not required in any other case. The reference is rejected.

N.H.Q./K-167/L Appeal accepted.