BAHAWAL BAKHSH Versus THE STATE

KHAWAJA MUHAMMAD SHARIF, J. ‑‑‑ This judgment will dispose of Criminal Appeal No. 1005 of 2000 filed by Bahawal Bukhsh and Criminal Appeal No. 1155 of 2000 filed by Allah Ditta, appellants who were convicted and sentenced by Special Judge, Anti‑Terrorism Court, Sargodha, vide judgment, dated 21‑7‑2000 as under:‑‑

Death under section 302/34, P.P.C. 7 years' R.I. and to pay a fine of Rs.20,000 and in default R.I. for six months under section 9 of Anti‑Terrorism Act, 1997.

Murder Reference No.545/T of 2000 for confirmation of death sentence or otherwise shall‑also be replied through this single judgment.

2. Occurrence in this case had taken place on 6‑35 p.m. on 11‑5‑1999 at a distance of 11 kilometres from Police Station Nawshera, District Khushab while the matter was reported to the police at 7‑30 p.m. on the same day by Muhammad Amir and the formal F.I. R. Exh. P. M. was recorded by S.‑I. /S. H. O.

2‑A. Briefly stated that facts of the case are that on 11‑12‑1999 at about 6‑35 p.m. within the area of village Sodhi Jaywali when Allah Ditta accused was armed with pistol, while Bahawal Bukhsh accused was empty‑handed, challenged Atta Muhammad (deceased) and after raising Lalkara by Bahawal Bukhsh accused, issued two fires and caused injuries to him which hit on the right knee and left flank with their common intention who later on succumbed to those injuries in the hospital.

The motive behind the occurrence was religious differences between Bahawal Bukhsh accused and Atta Muhammad deceased. Two days prior to the occurrence, there was exchange of abuses between the parties.

3. After registration of the formal F.I.R., Muhammad Mumtaz S.‑I. /S. H. O: (P.W.12) went to Civil Hospital, Nowshera where the dead body of Atta Muhammad deceased was lying, prepared injury statement Exh.P.B., inquest report Exh.P.C.; proceeded to the place of occurrence, inspected the spot and took into possession the blood stained earth vide memo. Exh.P.K.; two crime‑empties of .30 bore pistol P.8/ 1‑2 were secured vide memo. Exh. P. L. recorded the supplementary statement of the complainant in respect of motive; took into possession the blood‑stained clothes of the deceased vide memo. Exh.P.E.; then the investigation was transferred and was taken over by Naveed Murtaz, S.‑I./S.H.O. (P.W.13) who on 8‑3‑2000 arrested Allah Ditta who in police custody on 10‑3‑2000 led to the recovery of pistol P.7 which was secured vide memo. Exh.P.J. and after completion of investigation both the accused were challaned to face the trial.

4. At the trial, prosecution in. order to prove its case produced 13 witnesses in all; then the learned P. P. tendered in evidence report of the Chemical Examiner Exh.P.Q., report of the Serologist Exh.P.R. and closed the prosecution case; thereafter statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence and claimed false implication due to enmity; however, after conclusion of the trial, both the accused were convicted and sentenced as stated above.

5. Learned counsel for Bahawal Sher appellant at the very outset submits that the instant case neither being a case of sectarian nor of terrorism, the Special Court constituted under the Anti‑Terrorism Act. 1997 had no jurisdiction to hold the trial and it being a case of ordinary nature, should have been tried by the Sessions Court. He has referred to section 6 of the said Act. As to merits of the case learned counsel submits that there is conflict between the ocular account and medical evidence inasmuch the injuries which were told by the complainant to be entry wounds were in fact exit wounds; the occurrence‑had taken place at 6‑30 p.m. on 11‑12‑1996, that is near about the time of Isha prayer; it is not possible that matter was reported to the police within 15 minutes when the distance between the place of occurrence and the police station was 11 kilometres: in fact it was over prompted F. I. R.; the complainant is not the natural witness, not being the resident of place of occurrence; the reasons the complainant was away from his village on the day of occurrence; appellant has been involved due to the fact that those persons who had enmity with the appellant prompted the complainant party to involve the appellant, report of the Fire‑arm Expert is in the negative because the empties recovered from the spot did not match with the pistol allegedly recovered on the pointation of the appellant, Mian Muhammad the eye‑witness is resident of a place which was at a distance of 1/1‑2 furlongs from the place of occurrence; in between his house and the place of occurrence there ‑was a mosque of Ahle‑Sunat Wal Jamat where he could have easily said his prayer and there was no fun of his coming to the mosque which was nearby the place of occurrence; P. Ws. have made material and malicious improvements in their statements; there was no independent corroboration to the independent testimony of the interested two eye‑witnesses; motive was not mentioned in the F.I.R.; in fact the prosecution has failed to prove the motive; the motive given by the complainant that two days prior to the occurrence there was an altercation between the deceased and Allah Ditta appellant over Saying of prayer in the mosque and that the motive having been shrouded in mystery, it is a mitigating circumstance in favour of Allah Ditta appellant to award the lesser sentence. Learned counsel has relied upon 2002 SCMR 99 and 2002 SCMR 199.

6. Learned counsel for Bahawal Bukhsh appellant submits that there are so many dishonest improvements in the statements of the witnesses; he has referred to page 32 of the paper book; the detailed motive was introduced for the first time before the trial Court with which the complainant was duly confronted; Ghulam Mustafa who had produced documents to prove the motive was never produced by the prosecution to prove the fact that 16 Marlas of land was given by Bahawal appellant for construction of an Ahl‑e‑Hadiat mosque in front of the mosque of Able Sunat Wal Jamat; Mumtaz, S.‑I. had not showed 16 Marlas of land as vacant, Bahawal had no relationship with Allah Ditta appellant and he had no common intention with him and that the prosecution has failed to prove its case against the appellant and the appellant is entitled to clean acquittal.

7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that F.I.R. is not a substantive piece of evidence; there was no reason to give details in the F. I. R. he has relied upon PLD 1997 SC 529, PLD 1983 SC 393 head note (v); reference has also been made to Exh.D.B. and mark P.6; the occurrence had taken place near the mosque and the presence of light near the mosque was natural; post‑mortem was conducted on the same night, that is, 9 p.m. within 2 hours; the complainant. is originally resident of the place of occurrence; it was a case of promptly lodged F.I.R., names of the accused, names of the witnesses and the roles played by the accused, are specifically. mentioned in the F.I.R.; both the parties were known to each other as they belonged to the same village; merely on the ground of the report of the Fire‑arms Expert being negative cannot destroy the case of prosecution; Mian Muhammad eye witness was the resident of the village where the occurrence had taken place; it was a sectarian case; reliance has been placed. upon PLD 1976 SC 53 and PLD 2000 SC 458; during the cross‑examination, the defence has itself got cleared from the Investigating Officer about the motive; the Special Judge has got the jurisdiction to try the case; no such objection was ever raised before the trial Court; reliance has been placed on 2002 SCMR 203; PLD 1997 SC 940, PLD 1974 SC 87; the occurrence took place due to sectarian differences; there was no conflict between the ocular account and there medical evidence; there was no direct enmity between the parties the other learned counsel for the complainant namely, Ch. Abdul Wahid, Advocate has referred to Ayat No.217 of Surah Albaqra and states that according to this Verse of Holy Qur an:' '

He has also referred to section 114, P.P.C.; the crux of the arguments of learned counsel for the State and learned counsel for the complainant is that the prosecution has been successful in proving its case against the appellant and that the conviction and sentence awarded to the appellants convicts may be maintained.

We have heard learned counsel for the parties and have gone through the record with their able assistance. In the instant case, the occurrence had taken place on 11‑12‑1999 at about 6‑35 p.m. It was the holy month of Ramzan‑ul‑Mubarak. The .time of occurrence was the time of Isha prayer. The matter was reported at the police station on the same day at 7‑30 p.m. vide Exh.P.M. though the police station was at a distance of 11 kilometres. The complainant was originally the resident of place of occurrence, that is, Sodhi Jay Wali, District Khushab but he had also constructed his houses at Bhalwal, District Sargodha. He had gone to the house of Atta Muhammad (deceased) his brother 2 days prior to the occurrence. On the day of occurrence, he was going alongwith his deceased brother to the mosque adjacent to Daira Aaizmal, when the appellant Allah Ditta armed with pistol and Bahawal Bukhsh empty -handed came there. Bahawal raised Lalkara that they had come to take revenge of their disgrace when Allah Ditta fired a shot with pistol which hit Atta Muhammad on his right knee and he fell down. The second fire made by Allah Ditta landed on the left flank of Ata Muhammad deceased. We have gone through the statement of Dr. Muhammad Saleem, Medical Officer (P. W .1) at page 7 of the paper book and have also examined the diagram from the original record. The injuries are there on the right knee and left flank of the deceased. We are thus fully I convinced that there is no conflict between the ocular account and the medical evidence. The duration given by the doctor between the injuries and death coincides with the time of occurrence given by the prosecution. The names of the accused, weapon of offence being carried by Allah Ditta appellant, the role they played and the names of the eye witnesses are mentioned in the F.I.R. with full description. The complainant, who is brother of the deceased was originally the resident of the place of occurrence. After retirement from WAPDA, he had also constructed a house at Bhawal. Two days prior to the occurrence he had come to inquire about the health of one Ali Muhammad who was invalid and this fact has been proved by the defence itself at page 27 of the paper book while cross‑examining the witnesses. The other eye‑witnesses namely Mian Muhammad is resident of place of occurrence and his house was at 1‑1/2 furlongs from the place of occurrence. It is a matter of common knowledge that villagers are more religious than the people living in the area of cities. It was the holy month of Ramzan; hence the presence of the eye‑witnesses alongwith the deceased was natural. As far as electric light is concerned, that was mentioned in the F.I.R, which was lodged very promptly. Non‑mention of the bulb in the site plan may be due to negligence or inefficiency of the Investigating Officer and the draftsman and it does not support the defence plea. There was not an iota of evidence on record which could suggest or prove that the complainant had any enmity against the appellants to falsely depose against them. Bahawal Bukhsh appellant was arrested in this case on 6‑11‑2000 while the occurrence took place on 11‑12‑1999. Version of Bahawal appellant or one can say his first version before the Investigating Officer was that he was innocent which has no legs to stand because there is difference of 25 days between the occurrence and his arrest. Allah Ditta, appellant remained fugitive from law. Warrants for his arrest were obtained and he was arrested on 8‑3‑2000 by Naveed Murtaza, S.‑I. Allah Ditta also led to the recovery of his licensed revolver on 10‑3‑2000. The submission of learned counsel for appellant Allah Ditta that the crime empties recovered from the spot did not match with the pistol recovered` on the pointation of the appellant is without any force because there was no evidence on record as to whether it was the same pistol which was used in the commission of the offence. In our society, the accused normally does not commit any act with their licensed arm but commit the offence with unlicensed arms, so the negative report of the Fire‑arms Expert is of no avail to the defence. The Court has to see the quality of evidence and not the quantity specially the ocular account which we are satisfied in our mind has come from an unimpeachable source. There is nothing on record that the eye‑witnesses had told a lie. There is thus, no reason to disbelieve the two eye‑witnesses. After lodging the F. I. R., the injury statement and the inquest .reports were prepared and all the documents were sent to the doctor for post‑mortem examination. The inquest report bears the signature of the doctor. In the brief facts of the inquest report, number of the F.I.R. is also given. This shows that the post‑mortem examination was conducted after registration of the F.I.R. which was lodged promptly.

As to question of jurisdiction, it has come on record that the occurrence had taken place due to religious differences because one party was claiming to be Sunny while the other party that is appellants was Ahle‑Hadees. This case is fully covered by the preamble of Anti‑Terrorism Act, 1997. Moreover, this objection was never raised before the trial Court at the first, instance. Even otherwise no prejudice has been caused the appellants. In our view the Special Judge constituted under Anti‑Terrorism Act, 1997 was fully competent to try the offence and the objection of the defence as to jurisdiction of the trial Court is overruled.

The defence of the appellant has been that the complainant party has implicated the convicts at the behest of enemies of the appellants. This submission of learned counsel is not tenable because nothing whatsoever has come on record to prove direct enmity between the complainant and the appellants. The documents produced by the .convicts have no relevancy to prove the enmity of the eye‑witnesses.

Now, we take up the motive. Learned counsel for the appellants have submitted before us that the details of the motive which were given by the complainant were never given in the F.I.R. We may note here that F.I.R. is not a substantive piece of evidence. It is only an information to put the machinery of law into motion and thereafter it is the duty of the F Investigating Agency to collect evidence. The complainant while elaborating the motive before the trial Court in his examination‑in‑chief stated as under:‑‑

"The motive behind this occurrence is that my brother Atta Muhammad deceased and the accused persons were having religious differences with each other and two days before this occurrence, there was exchange of hot words and abuses between my deceased brother Atta Muhammad and Allah Ditta and Bahawal Bukhsh accused persons. My brother Atta Muhammad belonged to Brailvi Sect of Sunni Muslims whereas

Bahawal Bukhsh and Allah Ditta accused belongs to Ahl‑e‑

Hadiath Sect. My brother Atta Muhammad deceased was General Secretary of Management Committee of the mosque belonging to Brailvi Sect. Another mosque is also available in our village of Ahl‑e‑Hadiat Sect but both these accused persons leaving their own mosque used to come to the mosque of Brailvi Sect, and, also used to injure the feelings of Brailvi Sect and due to that reason' Atta Muhammad deceased had ejected both the accused now present in Court from Brailvi mosque two years prior to this occurrence. At the dine of ejection of said mosque, Atta Muhammad deceased had given slaps to Bahawal Bdkhsh accused. Bahawal Bukhsh accused also donated sixteen Marlas of his own land for construction of another mosque for Ahl‑e- Hadiat Sect just in from the Brailvi mosque. There was no other motive existing between Atta Muhammad deceased and present accused.

The complainant while being cross‑examined by the learned defence counsel stated as under:‑‑

"Volunteers that in fact I had given more details about the said differences to the Investigating Officer and that he told me that I could make a detailed statement during investigation and I gave him said details during investigation."

It was also argued before us that only proverbial Lalkara was attributed to Bahawal appellant but in our opinion this occurrence had in fact taken place at the behest of Bahawal. He is the main cause of murder of the deceased and this fact has been proved through Exh. P.6 which is at p.90 of the paper book whereby he had donated 16 Marlas of land to Ahle Hadees Sect. In this regard we would also like to refer to Exh.D.B. which is case diary recorded by Inspector Ijaz of Range Crimes, Sargodha, whereby, he recorded the detailed statement, of Muhammad Amir complainant which proves the motive against the appellants and also. proves that it was a sectarian case and there cannot be two views in this regard. According to this document, Atta Muhammad deceased belonged to Sunni Sect. He was General Secretary of the said Sect while Bahawal Bukhsh and Allah Ditta appellants belong to Ahle Hadees Sect. They did not bear Atta Muhammad deceased. In our view the prosecution has proved that motive as set up in the F.I. R., so there is no reason for us to discard the same. Even otherwise according to the law laid down in the case of Waris Khan v. The State 2001 SCMR 387 weakness of motive or its absence or where alleged but not proved would hardly make any difference in awarding the death sentence and would not constitute mitigating circumstances. As to reliance placed by learned counsel for the appellant Allah Ditta on 2002 SCMR 99 is concerned, we have respectfully gone through the report. It was against the judgment of the High Court delivered by a D.B. of which one of the member was from us (Khawaja Muhammad Sharif, J.). We have also summoned the file. The facts of that case with due respect were totally different. In that case there was conflict between the ocular account and the medical evidence. One appellant had died. The motive was shrouded in mystery and was wavering one but these circumstances are missing in the instant case. We have earlier held in this case that the prosecution has been successful in proving the motive.

In the instant case, both the parties were known to each other, so there was no question of mistaken identity. The occurrence had taken place near the mosque and we endorse the view of one of learned counsel for the complainant that:

Section 114, P.P.C. is also applicable in this case. It is correct that in cases of Lalkara, normally bails are granted or the accused are acquitted but in the peculiar facts and circumstances of this case, the occurrence had taken place due to the mischief played by Bahawal appellant and it was he who commanded his co‑accused to commit the murder of deceased Atta Muhammad in the holy month of Ramzan‑ul‑Mubarak at the time of Traveeh prayer. The appellant Allah Ditta did not fire one shot but he repeated the shot which resulted into death of the deceased.

After having critically examined the entire prosecution case and the defence set up by the appellants, we are fully satisfied that the prosecution has been successful in proving its case against the appellants to its hilt through ocular account corroborated by the medical evidence and the motive. Resultantly, conviction and sentence are recorded against the appellants by the learned trial Court is maintained. Appeals filed by them are dismissed. Their death sentence is confirmed. Murder reference is replied in the affirmative.

H.B.T./B‑99/L

Appeals dismissed.