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Petitioner: The State and others VS Respondent: Moula Bakhsh and others
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Tariq Nadeem Title: The State and others vs Moula Bakhsh and others Case No.:Murder Reference No.31 of 2020, Criminal Appeal No. 438 of 2020, Petition
JUDGMENT
Reported As: 2023 LHC 7348 Result: Murder Reference Answered in Negative Judgment JUDGMENT SADIQ MAHMUD KHURRAM, J.- Moula Bakhsh son of Rasool Bakhsh (convict) was tried alongwith Khair Bakhsh son of Rasool Bakhsh, Rahim Bakhsh son of Rasool Bakhsh, Elahi Bakhsh son of Rasool Bakhsh and Faiz Bakhsh son of Rasool Bakhsh(since acquitted), the co-accused of the convict by the learned Additional Sessions Judge, Rojhan in the case instituted upon the private complaint titled "Muhammad Ramzan Vs. Khair Bakhsh and four others" (relating to F.I.R. No. 08 of 2019 dated 08.01.2019 registered at Police Station Rojhan, District Rajanpur) in respect of offences under sections 302 ,324, 337 F(i),337 F(v), 337 A(i), 337 L(2), 148 and 149 P.P.C. for committing the Qatl-i- Amd of Muhammad Qasim son of Dariya Bakhsh (deceased). The learned trial court vide judgment dated 29.09.2020 convicted Moula Bakhsh son of Rasool Bakhsh (convict) and sentenced him as infra: Moula Bakhsh son of Rasool Bakhsh:- Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Qasim son of Dariya Bakhsh (deceased) and directed to pay Rs.5,00,000/- as compensation under section 544- A, Cr.P.C. to the legal heirs of the deceased; in case of default of payment of compensation amount, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. Moula Bakhsh son of Rasool Bakhsh (convict) was however acquitted of the charges under sections 324, 337 F(i),337 F(v), 337 A(i) , 337 L(2), 148 and 149 P.P.C. by the learned trial court Khair Bakhsh son of Rasool Bakhsh, Rahim Bakhsh son of Rasool Bakhsh, Elahi Bakhsh son of Rasool Bakhsh and Faiz Bakhsh son of Rasool Bakhsh, the co-accused of the convict, were all acquitted by
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the learned trial court. 2. Feeling aggrieved, Moula Bakhsh son of Rasool Bakhsh (convict) lodged the Criminal appeal No.438 of 2020, assailing his conviction and sentence. The learned trial court submitted Murder Reference No.31 of 2020 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Moula Bakhsh son of Rasool Bakhsh (convict). The complainant of the case namely Muhammad Ramzan filed Petition for Special Leave to Appeal No.54 of 2020 seeking permission to file an appeal against the acquittal of Khair Bakhsh son of Rasool Bakhsh, Rahim Bakhsh son of Rasool Bakhsh, Elahi Bakhsh son of Rasool Bakhsh and Faiz Bakhsh son of Rasool Bakhsh, the co-accused of the convict, all since acquitted. We intend to dispose of the Criminal Appeal No.438 of 2020, the Petition for Special Leave to Appeal No.54 of 2020 and the Murder Reference No.31 of 2020 through this single judgment. 3. Precisely, the necessary facts of the prosecution case, as stated by Muhammad Ramzan (PW-3), the complainant of the case, are as under:- " On 01.07.2019 1 alongwith Muhammad Qasim my brother went to our land alongwith peter engine for the purpose of operating the tube-well. Maula Bakhsh accused came there. He asked us not to operate the tube-well. Whereas myself and my brother Muhammad Qasim insisted that we would operate the tube-well on the ground that the tube-well is joint ownership including us. Meanwhile Ghulam Sarwar and Ghulam Hussain PWs came there and Maula Bakhsh went to his house. Thereafter we started the tube-well for the purpose of irrigating the land. At about 10:00 am Maula Bakhsh came there alongwith his brothers. Maula Bakhsh accused present in police custody facing the trial of this case was armed with hatchet, Khair Bakhsh accused was armed with hatchet, Ellahi Bakhsh accused armed with hatchet, Rahim Bakhsh accused armed with hatchet and Faiz Bakhsh accused armed with Sota present on bail facing the trial of this case. Maula Bakhsh accused made a Lalkara that they would teach a lesson to us for starting/operating the tube-well. Maula Bakhsh accused gave a wrong side of hatchet blow on the right side of head of Muhammad Qasim (since deceased). Maula Bakhsh accused repeated the wrong side of hatchet blow over the right ear of Muhammad Qasim. Muhammad Qasim receiving the above said injuries fell down on the ground. Khair Bakhsh accused gave a wrong side of hatchet blow which was landed on the right collar bone of Muhammad Qasim. Ellahi Bakhsh accused made a wrong side of hatchet blow on the right foot of Muhammad Qasim. Faiz Bakhsh accused gave a Sota blow on the right hand of Muhammad Qasim. Rahim Bakhsh accused made a wrong side of hatchet blow on the finger of right hand Ghulam Hussain. Faiz Bakhsh accused made Sota blow on the left forehand of Ghulam Hussain. Khair Bakhsh accused gave a wrong side of hatchet blow on my head. On our hue and cry the neighbors attracted and on the arrival of neighbors the accused persons went to their housed alongwith their respective weapons. Thereafter I alongwith Ghulam Sarwar, Ghulam Hussain and Muhammad Qasim went for police station for reporting the matter. When we were on our way Thanedar met us he prepared the necessary documents and sent us to the hospital with police constable he obtained my thumb impression. Doctor referred Qasim to Rajanpur due to his precarious condition. The hospital of Rajanpur further referred Qasim to D.G Khan hospital. Qasim succumbed to the injuries in the hospital Dera Ghazi Khan, Thereafter his dead body was shifted to Rojhan hospital where Thanedar sent the dead body to hospital for the purpose of post mortem examination alongwith necessary documents which was escorted by Haq Nawaz constable. I asked the Thanedar that he had not correctly recorded my statement according to my version. Thanedar made a promise that he would correct my statement according to my version. I asked Thanedar to read out my statement to me but my statement was not read over to me by Thanedar. During the investigation of this case, police in league with the accused party illegally declared Faiz Bakhsh accused innocent in this case he is nominated accused of this case.
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Motive behind this murder was Maula Bakhsh accused committed theft of goats of Muhammad Qasim and criminal case was registered gains (sic) him due to above said reason accused party committed murder of my brother Muhammad Qasim. I engaged my advocate and filed my private complaint Exh.P.C. My private complaint Exh.P.C was read over to me I thumb marked the same as a token of its correctness. After two months and seven days of the occurrence I alongwith Ghulam Hussain went to police station Rojhan to know the progress of the case. On that day Maula Bakhsh, Ellahi Bakhsh and Rahim Bakhsh were arrested and they were in police lockup. Thanedar taken out Maula Bakhsh from the police lockup and started interrogation from him. During the interrogation Maula Bakhsh made a disclosure that hatchet used by him during the occurrence is lying at his house. He further offered that he could lead to recovery of that hatchet. Thereafter police taken out Ellahi Bakhsh accused for the purpose of interrogation and Maula Bakhsh accused was once again locked in the police lockup. Ellahi Bakhsh accused voluntarily offered that the hatchet used by him during the occurrence is lying at his house and he could lead to recovery of that Satchel. Thereafter Thanedar taken out Rahim Bakhsh from police lockup and started interrogation from him. Rahim Bakhsh voluntarily offered before me and Ghulam Hussain that the hatchet used by him during the occurrence was lying at his house and he could lead to recovery of hatchet. Police taken Maula Bakhsh, Ellahi Bakhsh and Rahim Bakhsh accused in a police Dala to their respective houses alongwith myself and Ghulam Hussain for the purpose of recovery, the police Dala was parked in front of house of Maula Bakhsh accused. Maula Bakhsh accused led us and police party to his residential room and taken out blood stained hatchet P-5 and produced it before the police. That hatchet was taken into possession made into sealed parcel by police through recovery memo Exh.P.D. Myself and Ghulam Hussain attested the recovery memo. Maula Bakhsh accused was put in the police Dala and thereafter taken out the Ellahi Bakhsh accused. Ellahi Bakhsh accused taken us and police party to his residential room and taken out bold stained hatchet P-6 and produced that hatchet before police. That hatchet was taken into possession by police made into sealed parcel through recovery memo Exh.P.E. Myself and Ghulam Hussain attested the recovery memo. Ellahi Bakhsh was put in police Dala and police taken out Rahim Bakhsh accused. Rahim Bakhsh accused taken us and police party to his residential room and taken out hatchet P-7 under the cot that hatchet was taken into possession by police through recovery memo Exh.P.F. Myself and Ghulam Hussain attested the recovery memo. After three months and seven days of the occurrence I alongwith Ghulam Hussain went to police station to know the progress of the case on that day Khair Bakhsh accused was arrested and in police lockup. Khair Bakhsh accused was taken out from the police lockup by Thanedar for the purpose of interrogation. Khair Bakhsh accused offered to police that he could lead to recovery of hatchet which was used by him during the occurrence. Khair Bakhsh accused led us and police party in a police Dala to his house and taken out hatchet P-8 under the cot of his residential room and produced before Thanedar, Thanedar had taken that hatchet into possession through recovery memo Exh.P.G. Myself and Ghulam Hussain attested the recovery memo. Thanedar recorded my statement and statement of Ghulam Hussain about the recovery of above mentioned hatchets." 4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Muhammad Ramzan Vs. Khair Bakhsh and four others" (relating to F.I.R. No. 08 of 2019 dated 08.01.2019 registered at Police Station Rojhan, District Rajanpur) in respect of offences under sections 302 ,324, 337 F(i),337 F(v), 337 A(i), 337 L(2), 148 and 149 P.P.C. for committing the Qatl-i- Amd of Muhammad Qasim son of Dariya Bakhsh (deceased). The learned trial court framed the
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charge against the accused on 14.10.2019, to which the accused pleaded not guilty and claimed trial. 5. The complainant of the case in order to prove its case got recorded statements of as many as thirteen witnesses. The ocular account of the case was furnished by Muhammad Ramzan (PW-3) and Ghulam Sarwar (PW-4). Ghulam Mustafa, patwari (PW-1) prepared the scaled site plan of the place of occurrence (Exh.PA) . Mumtaz Hussain 1409/C (PW-2) stated that on 17.03.2019 in his presence, Ashiq Hussain received the Call Data Record (comprising four pages P1,-P-2,P-3 and P- 4) of the mobile phone device under the use of the accused Faiz Bakhsh (since acquitted). Pathan (PW-5) stated that on 08.01.2019 he identified the dead body of the deceased and the Medical Officer handed over the last worn clothes of the deceased to the Investigating Officer of the case in his presence. Haq Nawaz 150/C (PW-6) stated that on 08.01.2019, he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Iftikhar Ahmad 849/C (PW-7) stated that on 07.01.2019, he took the injured to the hospital. Falak Sher 736/HC (PW- 9) stated that on 08.01.2019, Muhammad Nasrullah, SI (PW-12) handed over to him the sealed parcel said to contain the blood stained cotton and the last worn clothes of the deceased and on 13.01.2019, he handed over the sealed parcel said to contain the blood stained cotton to Muhammad Nasrullah, SI (PW-12) for its onward transmission to the Punjab Forensic Science Agency, Lahore and on 14.03.2019, Ashiq Hussain, SI (PW-13) handed over to him three sealed parcels said to contain hatchets and on 26.03.2019, he handed over two sealed parcels said to contain hatchets to Ashiq Hussain, SI (PW-13) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Wazir Ahmad, SI (PW-10) stated that on 07.01.2019, he recorded the oral statement (Exh.PQ) of Muhammad Ramzan (PW3) and also prepared the injury statement of the injured on the said date. Muhammad Nasrullah, SI (PW-12) investigated the case from 08.01.2019 till 20.01.2019 and detailed the facts of the investigation in his statement before the learned trial court. Ashiq Hussain, SI (PW-13) investigated the case from 25.02.2019 till 12.01.2020, arrested the appellant namely Moula Bakhsh on 06.03.2019 and detailed the facts of the investigation conducted by him in his statement before the learned trial court. 6. The complainant also got Dr. Muhammad Sajid Jamil (PW-8) examined, who on 07.01.2019 was posted as Medical Officer at THQ hospital, Rojhan and on the same day medically examined Muhammad Qasim son of Dariya Bakhsh ( then injured later deceased). Dr. Muhammad Sajid Jamil (PW-8), on medically examining Muhammad Qasim son of Dariya Bakhsh ( then injured later deceased) observed as under :- "INJURIES 1. Lacerated wound of about 2 x 0.6 cm in size over the right parietal bone region. This wound has distance of 1.5 cm from right forehead. This wound has irregular margins and fresh blood is oozing from the wound. Underlying skull bone was exposed/visible. Advice X-ray skull AP, lat view. RESULT Vide x-ray film No. 04,05/2019 dated 07.01.2019 after x-ray examination, there was fracture of right parietal bone of skull. So injury No.1 was declared as "Shujjah-i-Hashimah". After the death of Muhammad Qasim, Dr. Muhammad Sajid Jamil (PW-8) also conducted the post-mortem examination of the dead body of the deceased, namely Muhammad Qasim son of Dariya Bakhsh on 08.01.2019. Dr. Muhammad Sajid Jamil (PW-8) on examining the dead body of the deceased namely Muhammad Qasim son of Dariya Bakhsh, observed as under:- " INJURIES: 1. Lacerated wound of about 2 x 0.6 cm in size over the right parietal bone region. This wound has distance of 1.5 cm from right forehead. This wound has irregular margins and fresh blood is oozing from the wound underlying skull bone was exposed/visible.
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2. On examination fresh blood was running from the right ear. 3. Bruise of about 0.8 cm x 0.2 cm in size over posterior aspect of right hand underlying skin was slightly reddish 4. Abrasion of about 5 cm x 1 cm in size over the dorsal aspect of right foot just superficial skin was peeled off. 5. Scratch mark of about 2 cm x 0.5 cm in size over a right clavicle, ............... Injury No.2 of Muhammad Oasim deceased. Bruise of about 0.8 x 0.2 cm in size over posterior aspect of right hand. Underlying skin was slightly reddish. Movement was normal So. Injury No.2 was declared as 337-L(ii). Injury No.3 of Muhammad Oasim deceased. On examination, fresh blood was running from the right ear Advised CT Scan brain. Injury No.4 of Muhammad Oasim deceased. Abrasion of about 5 cm x 1 cm in size over dorsal aspect of right foot. Just superficial skin was peeled off. Movement was normal injury No 4 was declared as 337-L(ii). ................ FINAL OPINION: On the basis of above mentioned findings in my opinion, all the injuries are anti mortem and caused by blunt weapon. CT scan report received from DHQ Hospital Rajanpur as below: "Fractures of right temporal and parietal bone with associated subcutaneous edema in bilateral (B/L) parietal regions and intra parenchymal petechial hemorrhages in left cerebellum and bilateral cerebral hemispheres without midline shift" On the basis of CT scan brain finding injury No.1 & 2 were declared as "Shujjah-i-Damighah". Injury No.3 was declared as "337-L(ii)". Injury No.4 & 5 were declared as "Jurrah-i-Damiyah". Injury No.1 & 2 were dangerous to life in nature as it cause injury to vital organ that is brain which is sufficient to cause death in ordinary course of nature." Dr. Muhammad Sajid Jamil (PW-8), on 07.01.2019 also medically examined Muhammad Ramzan (PW-3) and observed as under :- INJURIES 1. There was a laceration (superficial) of about 1 x 0.2 cm in size over right parietal region. This wound has irregular margins with mild blood stained. So, injury No.1 was declared as "Shujjah-i- Khafifah". Injury was caused by blunt weapon. I issued MLC No. 06/19, Exh.P.L. I also signed the injury statement Exh.P.L/1" Dr. Muhammad Sajid Jamil (PW-8), on 07.01.2019 also medically examined Ghulam Hussain (given up prosecution witness) and observed as under :- INJURIES 1. There was a lacerated wound of about 0.8 x 0.2 cm in size over anterior aspect of index finger of right hand. This wound has irregular margins with mild blood stained. This wound was skin deep in nature. Advice, Xray, right hand AP Lat view. 2. An abrasion of about 0.5 x 0.3 cm in size over posterior aspect of left wrist joint. Underlying skin was slightly breeched. Movement of left wrist joint is normal. So, injury No.2 was declared as "Jurrah-i-Damiyah". 7. On 19.11.2019, the Assistant District Public Prosecutor gave up the witness namely Shahzad Sharif 5574/C as being unnecessary. On 08.09.2020, the learned Assistant District Public Prosecutor tendered in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh.PV and Exh. PW) and closed the prosecution evidence. 8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Moula Bakhsh son of Rasool Bakhsh (convict) and under section 342 Cr.P.C. and in answer to the
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question why this case against you and why the P.W.s have deposed against you, he replied that he was innocent and had been falsely involved in the case. Moula Bakhsh son of Rasool Bakhsh (convict) further stated that he had not committed any offence and had rather himself suffered serious injuries during the occurrence. The appellant namely Moula Bakhsh son of Rasool Bakhsh opted not to get himself examined under section 340(2) Cr.P.C however, produced documents (Exh.DD, Exh.DE, Exh.DF, Exh.DF/1, Exh.DF/2, Exh.DF/3, Exh.DF/4, Exh.DF/5, Exh.DG and Exh.DH) as evidence in his defence. 9. At the conclusion of the trial, the learned Additional Sessions Judge, Rojhan convicted and sentenced the appellant as referred to above. 10. The contention of the learned counsel for the appellant namely Moula Bakhsh son of Rasool Bakhsh precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, was highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery of the hatchet (P-5) from the appellant namely Moula Bakhsh was full of procedural defects, of no legal worth and value, and were result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt. 11. On the other hand, the learned District Public Prosecutor along with the learned counsel for the complainant, contended that the prosecution had proved its case beyond the shadow of doubt by producing independent witnesses. The learned District Public Prosecutor along with the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned District Public Prosecutor along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of the eye witnesses. The learned District Public Prosecutor along with the learned counsel for the complainant, further argued that the recovery of the hatchet (P-5) from the appellant namely Moula Bakhsh son of Rasool Bakhsh also corroborated the ocular account. The learned District Public Prosecutor along with the learned counsel for the complainant, further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned District Public Prosecutor along with the learned counsel for the complainant prayed for the rejection of the appeal as lodged by the appellant namely Moula Bakhsh son of Rasool Bakhsh. The learned counsel for the complainant also argued that the Petition for Special Leave to Appeal No.54 of 2020, assailing the acquittal of Khair Bakhsh son of Rasool Bakhsh, Rahim Bakhsh son of Rasool Bakhsh, Elahi Bakhsh son of Rasool Bakhsh and Faiz Bakhsh son of Rasool Bakhsh by the learned trial court from the charges also merited acceptance. 12. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned District Public Prosecutor and with their assistance carefully perused the record and evidence recorded during the trial. 13. The learned District Public Prosecutor has vehemently argued that as the prosecution witness namely Muhammad Ramzan was injured during the occurrence, therefore, his statement could not be doubted in any manner. The stamp of injuries on the person of a witness may be proof of his presence at the place of occurrence, at the time of occurrence, however the same can never guarantee a truthful deposition. Injuries received by a witness during an incident do not warrant acceptance of his evidence without scrutiny. At the most, such traumas can be taken as an indication of his presence on the spot, but still, his evidence is to be scrutinized on the benchmark
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of principles laid down for the appraisal of evidence. It is not a given that a witness who suffered injuries during the occurrence will depose nothing but the truth. Even otherwise, it is not the simple presence of a witness at the crime scene but his credibility, which makes him a reliable witness. It has been held by the august Supreme Court of Pakistan repeatedly that the facts that an injured witness narrates are not to be implicitly accepted rather, they are to be attested and appraised on the principles applied for the appreciation of evidence of any prosecution witness regardless of him being injured or not. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Nazir Ahmad vs. Muhammad Iqbal and another (2011 SCMR 527) where at page 534 the august Supreme Court of Pakistan , was pleased to hold as under: "It is settled law that injuries of P.W. are only indication of his presence at the spot but are not affirmative proof of his credibility and truth". Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Amin Ali and another Vs. The State(2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to hold that the presence of injuries does not stamp a witness to be a truthful one and observed as under :-. "12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses. It has been held in the case of Said Ahmed supra as under:-- "It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suffered. But that by itself would not s h o w that they had, in view of the aforenoted circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye-witnesses mentioned in the F.I.R. namely,Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eyewitnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused." In the case of Mehmood Hayat supra at page 1417, it has been observed as under:-- "10. There is no cavil with the proposition laid down in the case of Zaab Din and another v. The State (PLD 1986 Peshawar 188) that merely because the P.Ws. had stamp of firearm injuries on their person was not per se tantamount to a stamp of credence on their…
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