ALLAH BAKHSH ALIAS BAOO Versus THE STATE
RAJA MUHAMMAD KHURSHID, J .--- A case under section 337, P.P.C. was registered against Allah Buksh alias Bao and Muhammad Rafiq at the report of Muhammad Boota for an occurrence, which took place on 21-12-1990 at about 9-00 a.m. in the area of Chak No.95 Northern Police Station, Jhal Chakian, District Sargodha in which Faryad Ali was seriously injured. The injured Faryad Ali succumbed to his injuries on 24-12-1990 whereupon the offence was changed from section 337, P.P.C. to section 302/34, P. P. C.
2. The brief facts are that the report of the occurrence was lodged by Muhammad Boota a brother of the aforesaid Faryad Ali deceased on 22-12-1990 at about 2-20 p.m. in which he contended that on the preceding day at about 9-00 a.m. he alongwith his brother Faryad Ali had come out of their house to make purchases. They proceeded towards the main Chowk. The deceased was ahead of the complainant at some distance. At the main Chowk the accused Allah Buksh alias Bao armed with Chhuri and Muhammad Rafiq empty-handed challenged them while raising Lalkara. Muhammad Rafiq accused held the deceased from arms whereupon Allah Buksh alias Bao gave repeated Chhuri blows thereby causing injuries to him on his left flank, abdomen, right hand, right ankle, right shin back of thigh and right buttock. In all 11 injuries were inflicted to the deceased, who fell on the ground.
3. The notice raised by the complainant attracted Noor Elahi given up P.W. and Said Ali (P.W.9), who were present nearby being residents of the same village. They also saw the occurrence and implored with the accused etc. to spare the deceased.
4. The motive leading to the occurrence consisted of an incident in which the accused Allah Buksh had given abuses to Faryad Ali, when the latter restrained him to stand in front of the house. In pursuance of the aforesaid motive, both the accused aforenamed in furtherance of their common intention took the life of the deceased as narrated above. The occurrence having taken place on 21-12-1990 the F.I.R. was lodged on 22-12-1990 with the explanation that it was delayed because the accused were persuading for compromise through the respectables of the village.
5. Both the accused were challaned and sent up for trial. Out of them Allah Buksh alias Bao accused was convicted under section 302(b), P.P.C. and sentenced to death subject to its confirmation by the High Court. The other accused namely Muhammad Rafiq was however, acquitted vide judgment, dated 16-12-1991 recorded by Mr. Riaz-ul-Hasan Alvi, the then learned Additional Sessions Judge, Sargodha.
6. The learned trial Court made a reference under section 374, Cr.P.C. for the confirmation of death sentence passed upon Allah Buksh alias Bao for which Murder Reference No.23 of 1992 was registered. Likewise Allah Buksh alias Bao convict/accused filed Criminal Appeal No. 17 of 1992 to challenge his conviction and requested for acquittal. Criminal Revision No.232 of 1992 was filed by the complainant against the acquitted accused namely Muhammad Rafiq with the prayer for conviction and also for awarding compensation under section 544-A, Cr.P.C. by the convict accused namely Allah Buksh alias Bao.
7. We propose to dispose of all the abovementioned matters by this judgment.
8. The learned counsel for the convict/appellant has submitted that the trial Judge fell in error to record the conviction of Allah Buksh accused on the evidence upon which he had acquitted his co-accused namely Muhammad Rafiq. In this regard, it was contended that there was no corroboration so as to distinguish the case of the convict from the acquitted accused.
9. Secondly it was contended that the recovery of Chhuri P.4 was effected after about one month of the occurrence and could not be used as a corroborative piece of evidence because according to the recovery memo. Exh. P.C. it was not blood-stained although improvements were made by the witnesses that the same was blood-stained. The delayed recovery and it having not been mentioned to be blood-stained in the recovery memo. would create a genuine doubt regarding the authenticity of the recovery from the accused or that the same was used by him during the occurrence to finish the deceased.
10. Lastly it was submitted that the occurrence took place in a busy place like bazar and there was an evidence that a number of independent persons were present but no independent witness was relied upon or produced by the prosecution to prove its case. In the normal course of events it was not difficult for the prosecution to look for an independent witness keeping in view the place of occurrence, which was humming with people being a Chowk of bazar; that the Investigating Officer and the A.S.P., who later on conducted the investigation subscribed to the defence version that the assault was initiated by the deceased and that the victim had only caused injuries to him in exercise of the right of private defence of his person.
11. Lastly it was contended that the delay in F. I. R. showed that there had been consultations and undue deliberations to implicate the victim in this case falsely. It was, therefore, urged that the case of the prosecution was doubtful from the very start and it was never proved beyond any shadow of doubt through an independent evidence. In this regard, it was added that Muhammad Boota P.W.7 was the real brother of the deceased, whereas Said Ali P.W.9 was also an interested witness and both of them could not be relied upon safely against the convict/accused. It was, therefore, alleged that the appeal of the appellant/ convict should be allowed particularly when the facts of the case will show that the defence version was not only probable but also carried intrinsic value to dislodge the prosecution version.
12. Finally it was contended that without conceding to the above submissions, it was not a case of capital sentence because origin of the occurrence remained shrouded in mystery and that it took place on a spur of moment without any premeditation.
13. The learned counsel for the State submitted that the prosecution has been able to prove its case beyond any reasonable doubt against the appellant/accused through an independent and disinterested evidence. In this regard, it was contended that though Muhammad Boota P.W.7 was a real brother of the deceased, but he had no enmity with the accused side so as to implicate him falsely or substitute him for the real offender. Likewise there was nothing on record to show that Said Ali P.W.9 was either inimical or interested witness so as to depose against the convict/appellant. It was alleged that both these witnesses were sufficient to prove that Allah Buksh alias Bao was the real culprit and if the benefit of doubt was given to his co-accused namely Muhammad Rafiq, it would not change his destiny. In this context it was urged that the learned trial Court acted on the principle "Ward off punishments--- with doubt", and in pursuance of that principle the benefit of doubt was given to Muhammad Rafiq which would not effect the conviction of Allah Buksh alias Bao against whom there was clear cut motive and the injuries found on the person of the deceased and narrated by the eye-witnesses were corroborated through the medical evidence. There was no such corroboration against the acquitted accused and, therefore, the case of the appellant/convict Allah Buksh was manifestly distinguishable from the acquitted accused namely Muhammad Rafiq.
14. Lastly it was contended that it was a cold-blooded murder in the broad daylight and called for no leniency nor it made out a case for mitigation of the sentence.
15. The learned counsel for the revision petitioner submitted that Muhammad Rafiq was wrongly acquitted as he was vicariously liable with the co-accused Allah Buksh alias Bao having common intention to murder the deceased. Likewise it was submitted that the learned trial Court violated the compulsory provisions regarding the award of compensation under section 544-A, Cr.P.C. and as such the same should be awarded while convicting and dismissing the appeal of the appellant/convict Allah Buksh alias Bao.
16. We have considered the submissions made at the Bar from both sides. First of all it is to be seen whether the prosecution has been successful to prove its case against the convict/appellant beyond any reasonable doubt. In this regard, it may be observed that the learned trial Court relied upon the evidence at the trial consisting of eye-witnesses, recovery of weapon of offence i.e. Chhuri P.4 and the medical evidence given by Dr. Muhammad Aslam Chaudhry P.W.5, who conducted medico-legal examination of Faryad Ali when he was brought to D.H.Q., Hospital; Sargodha on 21-12-1990 in injured condition. He observed the following injuries on his person:--
(i) ???????? An incised wound 3 x 1 c.m. transversing in direction 4 c.m. deep on probing was bleeding profusely and was located on the back of left lower chest 13 c.m. lateral from the midline on the back.
(ii) ??????? An incised wound 2.5 c.m. x 1 c.m. It was 4 c.m. deep on probing and was located on the back side in central area it was transverse in direction and was 16 c.m. below from the base of neck.
(iii) ?????? An incised wound 1-1/2 x 1 c.m. transverse in direction and was located on the back of right middle chest.
(iv) ?????? An incised wound 2 x 1-1/2 c.m. in direction and was not probed due to fear of bleeding. It was located on the back of left lower chest. 12 c.m. lateral from the midline. It was just above the left buttock.
(v) ??????? An incised wound 4 x 1-1/2 c.m. x muscle deep. It was oblique in direction and was located on the back side of left hip joint.
(vi) ?????? An incised wound 1-1/2 x 1/2 c.m. on the back side of right lower buttock. It was skin deep.
(vii) ???? An incised wound 3 x 1 c.m. It was oblique in direction on the later side of left middle thigh. It was muscle deep.
(viii) ????? An incised wound 5 x 3 c.m. x 4 c.m. deep. The muscle underneath was also cut. It was located on the back of left middle thigh.
(ix) ?????? An incised wound 1 x 1-1/2 c. m. x skin deep and was located on lateral and lower side of left knee joint.
(x) ??????? An incised wound 2 x 1/2 c.m. skin deep front lower leg on its middle part.
(xi) ?????? An incised wound 2 x 1/2 c.m. skin deep on the back side of left lower leg on its middle part.
The doctor was of the opinion that all the injuries were inflicted with sharp-?edged weapon and the probable duration of injuries was fresh i.e. about 1-1/2 hours. The correct carbon copy of the medico-legal report was produced on record as Exh.P.E. and diagram of the injuries was prepared as Exh.P.E./1 by the aforesaid doctor.
17. The post-mortem examination upon the dead body of Faryad Ali was conducted at 11-00 a.m. on 25-12-1990 by Dr. Muhammad Khalid Akhtar, Medical Officer, D.H.Q. Hospital, Sargodha, who found the following injuries:--
(i) ???????? A stitched incised wound 3 x 1/4 c.m. transverse in direction on the back of left lower chest 13 c.m. from midline.
(ii) ??????? A stitched incised wound 2-1/2 x 1/4 transverse in direction on back side in contral area 16 c.m. below base of the neck.
(iii) ?????? A stitched incised wound 1-1/2 x 1-1/4 in direction on the back of right middle chest 19 c.m. lateral to midline.
(iv) ?????? A stitched incised wound 2 x 1/2 c.m. in direction on back of left lower chest 12 c.m. on midline just above the left buttock.
(v) ??????? A stitched incised wound 4 x 1/4 c.m. in direction on the back of left hip joint.
(vi) ?????? A stitched incised wound -1-1/2 x 1/4 c.m. on right buttock. Lower part.
(vii) ???? A stitched incised wound 3 x 1/2 c.m. in direction on lateral side of left middle thigh.
(viii) ???? A stitched incised wound 5 x 1 c.m. on back of left middle thigh. 11 c.m. from injury No.7 horizontal in direction towards medial side.
(ix) ?????? A stitched incised wound 1 x 1/4 c.m. on lateral and lower side of left knee joint.
(x) ??????? A stitched incised wound 2 x 1/4 c.m. on front of left lower leg on middle part.
(xi) ?????? A stitched incised wound 2 x 1/4 c.m. on back of left lower leg middle part.
(xii) ???? Bleeding from the nosteral of the nose.
In the opinion of the Medical Officer the death was caused due to cumulative effect of injuries Nos.1, 2 and 3 causing haemorrhage, shock and death. These injuries were ante-mortem and inflicted with sharp-edged weapon. The said injuries were also held to be sufficient to cause death in the ordinary course of nature. The probable time between the injuries and death was 86 hours and the time between the death and post-mortem was 12 hours. The post-mortem report Exh. P.D. was correct carbon copy of the original report, whereas Exh.P.D./I-2 was the diagram of the injuries. The post-mortem report and the diagram were in the hand and signed by the Medical Officer (P.W.4).
18. The ocular account of occurrence consisted of Muhammad Boota P.W.7 and Said Ali P.W.9. Both of them deposed that the deceased was held by Muhammad Rafiq whereupon Allah Buksh alias Bao convict had given Chhuri blows. Both of them denied the defence version put to them by the learned defence counsel during the cross-examination. The story about the motive was stated by P.W.7 and there was no rebuttal so as to make it doubtful.
19. A question would arise whether the eye-witnesses should be disbelieved qua the appellant/convict due to the acquittal of his co-accused Muhammad Rafiq. In this respect, it may be pointed out that the principle of sifting the grain out of chaff has been accepted by the Courts of this country, for the safe administration of criminal justice. The same principle has been applied in the instant case in acquitting Muhammad Rafiq co-accused as there was no motive against him in the F.I.R., lodged by the complainant. The motive was only against the convict accused. However, the complainant linked the acquitted accused during the statement in the Court by stating that both the accused used to stand in front of their house, whereupon they were restrained by the deceased which led to the unfortunate occurrence. This improvement qua the acquitted accused will not change the position, which was actually taken up in the F.I.R. and admittedly was the first version of the case. The allegation against the acquitted accused was that he had caught the deceased by his arms whereupon the convict/appellant had opened assault. However, this aspect of the case also remained in doubt keeping in view 11 injuries suffered by the deceased at the hands of the convict/accused. Those injuries were found on different parts of his body and if the acquitted accused was actually holding him by his arms then it would have been difficult for him to escape scratchless particularly when the victim being a young and robust man must have struggled to save himself from the assailants. The mere fact that the acquitted accused did not suffer even a bruise would make his participation in the awful transaction highly doubtful. Even otherwise the heavy and indiscriminate attack launched by his co-accused i.e. in causing eleven injuries on different parts of the victim will show that had he joined hands in the occurrence, he must have suffered some sort of injury during the callous and headless attack by his accomplice upon the victim. As such the benefit of doubt was rightly extended to Muhammad Rafiq i.e. the acquitted accused.
20. Now the question would arise whether the acquittal of co-accused would adversely affect the merits of the case against the convict/accused. In this respect, it may be pointed out that even according to the prosecution no specific part was assigned to the acquitted accused in causing any of the injuries found on the person of deceased except that he had held the victim by his arms. As will be clear from the post-mortem report the deceased was a healthy man of stout built. It would not have been easily possible or physically probable that he would be rendered helpless by the acquitted accused by simply holding his arms so as to make him a sitting duck for the convict/accused to open brutal attack. In view of this physical improbability, the principal part was played by the convict/ accused in taking the life of the deceased by wilfully and intentionally causing multiple injuries on different parts of his body, which included vital parts. The case of the convict/accused is, therefore, apparently distinguishable from the acquitted accused and as such the acquittal of the co-accused will not tell upon adversely on the finding of conviction by the learned trial Court. Admittedly there is no enmity between the appellant and the complainant side and the unfortunate incident occurred only because the deceased had restrained the appellant to stand in front of his house. The appellant/convict must have made it a matter of false ego to avenge the aforesaid "insult" by killing the deceased in a cruel manner during the broad daylight in a crowded place like bazar. The mere fact that the complainant is the brother of the deceased wound not be a ground to disbelieve his evidence particularly when there is no enmity between the two sides nor the complainant has any type of interest to implicate the appellant/convict in this case falsely. On the contrary it will be the natural urge of the complainant to bring the real offender to the book who had taken the life of his brother. As such the evidence of the complainant Muhammad Boota (P.W.7) was rightly relied upon being trustworthy and disinterested. Likewise the other eye-witness namely said Ali P.W.9 had no interest to implicate the accused/Convict in this case falsely. He had corroborated the complainant thoroughly and consistently regarding the ocular account of occurrence. The aforesaid Said Ali P.W. is an independent and natural witness in the case, He was present at a hotel in the Chowk of his village when the occurrence took place. His presence, therefore, cannot be doubted nor any reason has been shown that it should be discarded.
21. The ocular account of occurrence is so persistent that there is no need to seek any further corroboration to bring home the offence of murder against the convict/accused. Any way if any corroboration is required, then reliance can be placed on the motive, which stands proved as pointed out above. The medical evidence also corroborates the ocular account of occurrence keeping view the locale of the injuries and the nature of the weapon used to kill the deceased. The recovery of Chhuri P.4 from the appellant does not provide any corroboration of intrinsic value as it was recovered after about one month of the occurrence and was not shown to have been stained with blood in the recovery memo. Exh. P.C. Though the witnesses had stated at trial that it was blood-stained but it appears to be an afterthought and does not deserve genuine consideration to be used as, corroborative piece of evidence. However, as pointed out above, the ocular account of occurrence being consistent stands corroborated by motive and medical evidence so as to link the appellant convict with the murder of deceased beyond any shadow of doubt.
22 Finally it will be worthwhile to consider the defence version advanced by the appellant/convict. In this connection, it may be pointed out that he was not persistent to make out a plausible story in defence. He was rambling about throughout as will be clear from the suggestion made to the eye-witnesses and the Investigating Officer. The first suggestion was made to P.W.7 whereby it was contended that Haider Ali and his daughter Shabana had appeared before the police in his defence and stated that the deceased Faryad Ali attacked him with Chhuri and that he while acting in self-defence caused him injures. Second suggestion was made to Said Ali P.W.9 that the deceased and the appellant were sitting at a Phata of Haider Ali to purchase meat when both of them picked up a quarrel upon which the deceased took a Sota from the Phata of Haider Ali and opened an attack upon him, but the latter fell down and while picking up a Chhuri from the shop of Haider Ali caused injuries to the deceased from underneath. The 3rd suggestion was made during the statement of P.W.10 i.e. Investigating Officer. According to that suggestion the appellant alongwith his co-accused Muhammad Rafiq and the deceased were present at the Phata of Haider Ali Qasab, where exchange of abuses took place between them. The deceased took up a Toka from the Phata of Haider Ali butcher and opened attack on the convict/accused. There was grapple between the deceased, acquitted accused and Haider Ali, Qasab when the deceased fell the convict/appellant on the ground and sat over him. In the meanwhile the convict/accused picked up a Chhuri from the Phata of Haider Ali and caused injuries while lying under the deceased. It follows that there are three different versions advanced in defence which are mutually destructive to each other and as such look highly improbable and incredible that the deceased was aggressor or that the appellant/convict had acted under self-defence. This possibility can be totally ruled out because the deceased was a healthy young man and if at all he was assailant having picked up either Sota, Chhura or Toka then the appellant/convict or his co-accused would have not gone scratchless. The story raised n defence is, therefor, hopelessly unbelievable so as to create any doubt in the veracity of the prosecution version.
23. The appellant/convict claimed innocence in his statement under section 342, Cr.P.C. but did not opt to make a statement on oath in disproof of the allegations against him or to prove the story of self-defence. On the contrary he contended that he was involved in the case due to enmity but there is nothing on record to show that the parties were actually inimical to each other. In such a situation, the bald plea of innocence would not help the convict/appellant to belie the prosecution version, which stood proved beyond any reasonable doubt.
24. Before I finally part with the order I would like to comment that the Investigating Officer had granted undue concessions to the accused party and did not properly associate the complainant party during the investigation. The Investigating Officer erroneously found that there was no motive for the commission of the offence or that it was a case of sudden fight. The evidence examined at the trial totally belies the finding of the Investigating Officer, which fully exposed his partiality; or to say least manifestly exhibited his casual and indolent approach towards the investigation.
25. The question of sentence is not difficult in this case. The convict/ appellant had acted under a motive and as such the occurrence was a premeditated affair. The number of injuries i.e. eleven on the person of the deceased would show that he was mercilessly done to death by the appellant/convict. The occurrence took place in Chowk of a bazar in the broad daylight. As such the law will call for a deterrent punishment. The sentence of death was therefore, rightly awarded by the learned trial Court to the appellant/convict namely Allah Bukhsh alias Bao and the same is maintained. The appeal is dismissed and the death sentence passed upon Allah Bukhsh alias Bao is confirmed. The murder reference is disposed of accordingly. The connected revision petition against the acquittal of co-accused namely Muhammad Rafiq is also dismissed. The prayer for compensation under section 544-A, Cr.P.C. is declined as the same has not been pressed.
N.H.Q./A-67/L ?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.