Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ALLAH BAKHSH AND OTHERS VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Dr. Javed Iqbal, Abdul Jabbar Khan Title: ALLAH BAKHSH AND OTHERS vs THE STATE Case No.: Criminal Appeal No, 457 and Murder Reference No, 122 of 1974 Date of Judgment:1975-04-17 Reported As: 1976 P Cr. L J 1272 Result: Appeal dismissed
Judgment ORDER ' ABDUL JABBAR KHAN, J.-Aliah Bakhsh son of Karim Bakhsh (25), Aliah Yar son of Abdul Ghaffar (26). Aliah Diwaya son of Khair Muhammad (40), Ghulam Rasul son of Khuda Bakhsh (70), Karim Bakhsh son of Din Muhammad (60), Ghulam Qadir son of Pic c3iskhsb (35), Fida Hussain son of Palya Shah (25), Ghulam Akbar son of Inayat Until (30) and Nur Muhammad son of Qadir Bakhsh (23), were tried by the learned Sessions Judge,, Bahawalpur, Ex-Officio Additional Sessions Judge, Muzaffargarh, under sections 302/323, 148/149, P. P. C. For causing the death of Ghulam Farid deceased and inflicting simple injuries on the person of Qadir Bakhsh P. W. Vide his judgment dated 17th June 1974, the learned trial Judge convicted all of them and sentenced them as follows !- ' Aliah Bakhsh accused to death under section 301/149, P. P. C. With a fine of Rs, 100 or in default to undergo one month's R. I. Ghulam Rasul, Aliah Diwaya, Karim Bakhsh and Aliah Yar accused, were sentenced to imprisonment for life each under section 302/149, P. P. C. With a fine of Rs, 100 or in default whereof to undergo further one month's R. I. Each. They were further ordered to pay 1,000 each to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C., or in default of payment of this amount to suffer further R. I. For one year each. Fida Hussain, Ghulam Qadir, Nur Muhammad and Ghulam Akbar were sentenced to six month's R. I. Each under section 323/34, P. P. C. With a fine of Rs, 100 each to be paid to Qadir Bakhsh P. W. As compensation under section 544-A, Cr. P. C. Or in default of payment of fine they were ordered to suffer further one month's R. I. Each. Ali the above-mentioned nine accused were sentenced to one year's R. I. Each under section 148, P. P. C.
---
## Page 2
' Aliah Bakhsh, Aliah Yar, Aliah Diwaya, Ghulam Rasul and Karim Bakhsh accused/convicts have filed an appeal (Criminal Appeal No, 457 of 1974) against their conviction and sentences through Mr. Mahmud Ali Kasuri and Mr. Mushtaq Raj, Advocates while Ghulam Akbar and Ghulam Qadir accused/convicts have filed a joint appeal (Criminal Appeal No, 479 of 1974) through Mr. D., M. Arbey, Advocate, against their conviction and sentences. Out of the convicts Fida Hussain and Nur Muhammad accused have not preferred any appeal. There is also a Murder Reference (No, 122 of 1974) referred by the learned trial Court under section 374, Cr. P. C. For the confirmation of the death sentence awarded to Aliah Bakhsh accused/ appellant. We propose to dispose of both the two appeals as well as the Murder Reference by a single judgment. 2. The occurrence took place on 25th May 1972, at 11 a.m. Within the premises of District Courts, Musaffargarh in a plot lying between the Court of Sessions on the east and office of the Deputy Commissioner and Copying Agency on the west, situated at a distance of one furlong from Police Station Sadder, Muzaffargarh. F. 1. R. Exh. P. I,./1 was based on the Dyin Declaration of the deceased Ghulam Farid which was recorded by Mia Muhammad tqbal M. I. C., Muzaffargarh (P. W. 1) on the same day a 11-45 a.m. The formal F. 1. R. Exh. P. L./1 was registered at. Polio Station, Saddar Muzaffargarh at 12-15 p.m. By Ahmad Din S. La P. W. 1 initially under section 307/148/149, P. P. C. But after the death of the deceased which occurred on the same day at Multan in Nishtar Medical Hospital, the same was altered under section 302/148/149, P. P. C. 3, A number of motives have been set up by we prosecution against the appellants for the murder of Ghulam Farid deceased, which are as follows:- ' That one Ghulam Rasul, the brother of Aliah Bakhsh appellant contested B. D. Election against Mian Ghulam Murtaza, the brother of Ghulam Farid deceased, who was defeated in that election; (if) that a decree Exh. P. Q. Dated 29th December 1968, was passed by Ghulam Farid deceased in favour of one Ghulam Farid son of Ghulam Haider against Ghulam Rasul, the brother of Aliah Bakhsh appellant for the recovery of Rs, 500 ; (iii) that Mst. Zohran wife of Ali Muhammad who is the brother of Allah Bakhsh appellant, had filed a suit for the recovery of maintenance allowance against said Ali Muhammad in the Union Council of which Ghulam FaridSieceased was the Chairman. The appearance of Mst. Zohran against the brother of Aliah Bakhsh appellant was resented by Aliah Bakhsh ; (iv) 5/7 years prior to the occurrence Aliah Bakhsh appellant and his brother Ghulam Rasul were challaned in a case of abduction of a woman and it was suspected by them that Ghulam Farid deceased had sent a man to the relatives of the woman that the woman had been concealed by Aliah Bakhsh appellant in his house ; On that one Manzoor was involved in a civil litigation for the recovery of produce rent with Aliah Bakhsh appellant and his brother Ghulam Rasul and according to the prosecution ultimately both the parties were bound down under section 107, Cr. P. C. The above-mentioned Manzoor was able to get himself bailed out on a surety given by Muhammad Shafi, the driver of Ghulam Farid deceased. In consequence thereof it is alleged that Aliah Bakhsh appellant and Ghulam Rasul, his brother, extended threats of murder to Ghulam Farid deceased as he was helping their opponent; (vi) that one Mst. Azim Khatun wife of Karim Bakhsh appellant is stated to have been identified by Ghulam Farid deceased at the time when she mutated her property in favour of one Amir Bakhsh Ambreen. This action of Ghulam Farid was highly resented by Karim Bakhsh appellant who it is stated had filed a private complaint against Ghulam Farid deceased and Amir Bakhsh Ambreen to the effect that Mst. Azim Khatun had not sold her land and that Ghulam Farid deceased had wrongly identified her at the time of sanction of that mutation; (vii) that Abdul Rehman P. W. 7, the uncle of the deceased bad purchased some land from the cousin of Aliah Yar appellant. Whereupon Aliah Yar had filed a suit against the factum of said sale and was able to secure the decree for its cancellation. Abdul
---
## Page 3
Rehman P. W. Went in appeal against that decree but the same was dismissed. Despite losing his legal title Abdul Rehman P.W. Did not deliver the possession of the land to Aliah Yar appellant. The motive against Ghulam Rasul and Aliah Diwaya appellants is stated to be that Ghulam Rasul appellant had abducted Mst. Sakina of Sakhiani caste and had kept her in his house. It is alleged that Mst. Sakina was got recovered by Ghulam Farid deceased and both the appellants under reference were challahed in that case. 4. The first picture of the incident has been revealed by the deceased "melt while making his statement Exh. P. L. Before a Magistrate First lass in the following manner : ' On the fateful day Ghulam Farid deceased went to District Courts to attend to some of his personal affairs. At 11 a.m. When he emerged from the office of the Deputy Commissioner he saw Aliah Diwaya, Aliah Bakhsh, Ghulam Rasul, Karim Bakhsh and Aliah Yar appellants alongwitb 5/6 other persons not known to the deceased, present under a jarnon tree. He was immediately fired at by Aliah Bakhsh appellant which hit the deceased on the right side of his abdomen. The other persons duly named and described by him caught hold of him and belaboured him with lathis. According to the deceased one of the latht blows caused the fracture of his head. He in his statement held Jalil Haider Shah, Advocate and Ghulam Rasul son of Karim Bakhsh Makwal, resident Uttera Sandila, as the persons who had arranged this attack on his life. It was told by the deceased to the Magistrate that he was taken to the hospital by Nawab Asadullah Khan of Khan Garh accompanied by his brother-in-law Manzoor Ahmau and his driver Muhammad Shah. 5. Ahmad Din S. (P. W. 7) who was posted as an S. H. 0. At Police Station, Saddar, Muzatfargarh, at the relevant time, happened to be present in the office of the Superintendent of Police, Muzaffargarh in connection with some official duties on the day of occurrence. He received an information that firing had taken place in the district Courts and immediately left for the place of occurrence after the receipt of the information. When he reached the spot he gathered the information about the incident and was told that (-Mutate Farid deceased who bad fired upon, had already been taken to the hospital in an injured condition. Realising the gravity of the situation regarding the physical condition of the deceased be went to the office of the Deputy Commissioner and filed an application Exh. P. L./2 without wasting any them, stating therein that arrangement for the recording of dying declaration or the deceased be made. The Deputy Commissioner acting in the capacity of District Magistrate, deputed Mien Muhammad lqbal M, I. C. (P. W. 1) for recording the dying declaration of the injured person. The S. I. Apprised Mien Muhammad What of the Oistrict Magistrate's order who immediately left the hospital all alone by himself. The S. L also managed to reach the hospital following the Magistrate. Mien Muhammad Iqbal P. W. I, recorded the statement of Ghulam Farid deceased whereupon the S. I. Obtained its copy from the Court of Midis Muhammad Iqbal P. W. For the purpose of registration of the case and thus be recorded F. I. R. Exh. P. L./1 on the basis of dying declaration Exh P. L. Leaving the injured under the care of the doctor he went to the Place of occurrence for the purpose of investigation. Irshad Hussain P. W. 11 had caught hold of Aliah Bakhsh appellant along-with the pistol while Nazir Ahmad (not produced) caught hold of Ghulam Qadir appellant. Nazir Ahmed also apprehended Aliah Yar appellant when he had handed over Ghulam Qadir appellant to an F. C. Who had arrived at the spot in the meantime. Subsequently these accused were handed over to Ahmed Din S. I. At the spot who formally arrested them alongwitb Fide. Hussain accused. The remaining accused bad run away and could not in; apprehended. Ahmad Din S. I. P. W., arrested Karim Bakbsh, Aliah Diwaya and Ghulam Rasul appellants on 28th May 1972, while Ghulam Akbar appellant was arrested on 14th August 1972, by Nafeesud-Din P. W. 14, who was posted as S. H. 0. At Police Station, Kinjar, The Investigating Officer took into possession an unlicensed pistol P. 3, live cartridge P. 4 and empty cartridge P. 5 (from inside the pistol) recovered from Aliah Bakhsh appellant, vide memo. Exh. P. C., which was attested by Irshad Hussain P. W. 11 and Nazir Hussain
---
## Page 4
(not produced) besides the Investigating Officer himself. He also took into possession sarya P. 1, produced by Nazir Hussain which he recovered from Ghulam Qadir appellant and clang P. 2 which Nazir Hussain had obtained from Aliah Yar appellant, vide memo. Exh. P. B. He took some blood- stained earth from the spot, into possession vide memo. Exh. P. N. He got prepared site plans Exh P. A./1 j". A./2, from Khalil At mad Draftsman P. W. 6. Ijaz Ahmad P. W. 2 who was posted as an A. S. I. On 25th May 1972, at Police Post, Shish Mahal, Multan, received an information from Dr. Zubair regarding the death of Ghulam Farid deceased. He went to Nishtar Hospital, Multan. He examined the dead body of Ghulam Farid deceased ; prepared inquest report Exh. P. J. And injury statement Exh. P. H. In respect of it. After completing the formalities he had sent the dead body to the Anatomy department. Nishtar Hospital, Multan, for post-mortem examination through Samand Khan F. C. And Fateh Khan F. C. The inquest report Exte P. J was prepared by him on the information which he gathered from Abdul Rehman P. W. 7 and Taj P. W. 8 who were with the deceased at the time of his death and was also told by these persons that a case bad already been registered at P. S. Saddar, Muzaffargarh. 6. Dr. Muhammad Afzal P. W. 15, medically examined Ghulam Farid deceased on 25th May 1972, and found that he was pale, sweating and cold with weak pulse but all the same he found him conscious and informed the Magistrate to record his dying declaration. He found the following injuries on his person :- (1) A lacerated gunshot wound of entry lr lr in the right hypocondrium. There was bleeding from the wound. Some of intra-abdominal contents in ruptured condition were protruding out of this wound. Two big holes were also present on the right and front of maimed blood-stained chola, Smoke was smeared around the chola holes, A big hole was also present in the front part of right side of the bitnyan. Smoke was also present around this hole. There was no wound of exit but few hard foreign bodies could be felt under the skin near right kidney angle. (2) A transverse lacerated wound x I" x scalp deep was present at the top of the head between the ears. ' According to the doctor Injury No, 1 was grievous and dangerous to. Life. Injury No, he was kept under observation. Both the injuries were quite fresh. Injury No, 1 was caused by a fire from the fire- arm, while injury No, 2 was caused by a blunt weapon. On the same day this doctor medically examined Qadir Bakhsh son of Khuda Bakhsh P. W. 12 and found the following injuries on his person :- (1) A transverse lacerated wound 2' x 1' into scalp deep on the right side of back of the head, 3' above the right ear. (2) A contusion mark 4+1-' x 4' in the middle of left upper arm. (3) A transverse contusions mark 2'x r in the middle of right upper arm. (4) A transverse, abraided contusion mark 4" le in the middle of lei calf. (5) An oblique lacerated wound 3' x r x scalp deep on the right head 4" above the right ear. ' After the deceased had succumbed to his injuries post-mortem examination was conducted upon his body by Dr. Altai Hussain Gardezi P. W. 13, who found similar injuries on his person as given in the medical examination report of Dr. Muhammad Afzal P. W. 15 and besides this Dr. Altaf Hussain Gardezi P. W. Removed six big pellets from the back of right chest and wads of cartridge from the wound, which he handed over to the police in a sealed parcel. He found that plurea, peritonium, pancrease and mesentry, liver and right kidney were ruptured. In the opinion of the doctor the cause of death was shock and haemorrhage as a result of injury No, 1. This injury was antimortem and was sufficient to cause death in the ordinary course of nature, Injury No, 2 was caused by a blunt weapon and was simple in nature. The time between injuries and death was about six hours and between death and post-mortem was within 16 to 18 hours. During his cross-examination he stated that the edges of injury No, 1 were scorched which means burning. The burning according to
---
## Page 5
him could be caused by the flame of the powder. The two wads, one of card board and the other of felt, were lying inside the wound. This could happen only if the weapon was fired from very close range or almost in contact with the body. 7. Aliah Bakbsh appellant when examined at the trial under section 342, Cr. P. C. Denied all the motives attributed against him and also denied the making of dying declaration by Ghulam Farid deceased before a Magistrate. When questioned that why the P. Ws. Had deposed against him, he replied that he had been falsely involved due to political rivalry with Minn Ebsan Karim, Advocate whose brother Ghulam Mustafa was opposed by him, his relations and party-men. He claimed himself to be a member of P. D. P. Of Nawab Zada Nasrullah Khan and had refused to oblige Mian Ghulam Mustafa and Mian Ehsan Karim, to cast vote in favour of Mian Ghulam Mustafa, He also challenged the veracity of Irshad Hussain P. W. For the reason that he was munshi of Mian Ehsan Karim. Be however, did not deny his presence on the day of occurrence in the District Courts premises where he had gone to get his Land Reform papers prepared from the Patwari. According to him after getting his Land Reform papers completed he left the Court premises and went to his house which was situated in Mohallah Sheikhupura in Muzaffargarh City. He claimed that he was arrested from his house and not from the spot as was the case of the prosecution. ' Aliah Diwaya appellant has professed his innocence and has attributed the case due to party faction with Misn Ehsan Karim, Advocate and has added that Ghulam Farid deceased was a notorious man and a number of persons including his cousin Aliah Bakbsh son of Mian Miran, had filed applications against him. Aliah Yar appellant has also denied his participation in the crime and has explained that Abdul Rehman has deposed against him for the reason that he had filed a suit against him in connection with the land which said Abdul Rehman had obtained illegally. He also attributed this case at the machination of Mian Ebsan Karim, Advocate whom he had refused to oblige to cast vote in favour of bis brother. He produced a copy of decree Exb. D. C. Dated 1st November 1971, in the civil suit titled Khuda Bakhsh and Aliahyar etc. v. Ibrahim etc. ' Ghulam Qadir, Ghulam Akbar, Noor Muhammad, Gbulam Rasul, Fida Hussain and Karim Bakhsh accused have similarly, claimed to be innocent and have attributed their involvements in the case due to party faction. Fida Hussain appellant has, however, claimed that he was a grocer by profession and bad come to Muzaffargarh city for the purpose of purchasing articles for his shop. He was arrested by the police when he was purchasing articles at the shop in Muzaffargarh city. 8. The case of the prosecution rests on the following categories of evidence- (I) the evidence of motive; (ii) the Dying Declaration of Gheilam Fetid deceased; (iii) the ocular testimony as provided by Irshad Hussain. P. W. 11 and Qadir Bakhsh P. W. 12 the injured witness; (iv) the evidence of recovery of pistol P. 3 with crime empty P. 5 in its chamber alongwith one live cartridge P. 4 recovered from the person of Aliah Bakhsh appellant supported by the positive report of the Fire Arms Expert Exh. PR; and (v) the medical evidence. 9. We have heard the learned counsel for the appellants as well as learned counsel for the State and have perused the entire record of the case with their assistance, very carefully. As far as the different motives given in the earlier part of the judgment set up by the prosecution in this case against various appellants are concerned, it may be pointed out that the learned trial Court has repelled all the motives except the two, one regarding the election contest between the brother of Aliah Bakhsh appellant and Mian Ghulam Murtaza, the brother of the deceased and a decree for the recovery of Rs, 500 against Ghulam Rasul, the brother of Aliah Bakhsh appellant, passed by the deceased at the instance of one Ghulam Farid son of Ghulam Haider. We have gone through the reasoning as given by the learned trial Court while declining to rely on other motive besides the
---
## Page 6
two given above and find that it had good reasons to reject all these allegations which the prosecution failed to substantiate with cogent evidence so as to persuade a retinae' mind to accept these contentions. The outcome of all these averments by the prosecution at the most can only show that there did exist a bad blood and enmity between the deceased and the appellant Aliah Bakhsh. Undoubtedly both these events do not relate to a time either close or immediately prior to the occurrence yet it indicates towards unsavoury relations between the tre,o. Moreover it is settled law that the absence of motive or presence of weak motive does not provide reason for the Court to disbelieve direct evidence of the main incident if that evidence is otherwise worthy of credit and can form sound basis for conviction of the accused. In view of the matter we are of the considered opinion that Aliah Bakhsh appellant had no love lost for the deceased Ghulam Farid and his alleged action can emanate from a long standing rancor of certain past events. 10. The learned counsel for the appellant Aliah Bakhsh and Aliah Yar, Aliah Diwaya, Ghulam Rasul and Karim Bakhsh appellants, who have been sentenced to life imprisonment in this case has assailed the F. I. R. Which in fact is a Dying Declaration by Ghulam Farid deceased as being of doubtful nature for the reasons that it was not signed by the deceased himself and the promptitude with which it was recorded within a period of 45 minutes, reflects on its authenticity and indicates towards strong presumption that in fact it was recorded at some time later but the insertion of timings in it, has been manipulated by the prosecution in collusion with the Magistrate. It has been further submitted that Qadir Bakhsh, the injured witness, who had come forward to support the version of the Prosecution, does not find mention in the F. I. R,, whereas persons mentioned in it . Like Nawab Asadullah Khan of Khan Garb, Manzoor, the brother-in law of the deceased and the deceased's driver, had not come forward to support his narration. Great stress has been laid on the absence of motive in this dying declaration which was within the knowledge of the deceased and would have gone a long way to establish animus of Aliah Bakhsh appellant and his other co-appellants. It has also been submitted that according to this dying declaration the deceased has claimed that he was beaten with lathis by Aliah Diwaya, Ghulam Rasul, Kyitn Bakhsh and Aliah Yar, accused, after he was tired upon by Aliah Bakash appellant. The learned counsel has pointed out that this part of narration of the deceased is against the medical evidence as according to that evidence there was only one injury on the head of the deceased which the P. Ws have attributed to Ghulam Qadir appellant who was stated to be armed with a sarya which was recovered at his instance during the course of investigation in this case. Lastly he has closed the criticism of this document Exh. PL (the dying declaration) by saying that strangely enough Jalil Haider Shah, Advocate and Ghulam ;Rawl who were pin pointed by the deceased as the persons who were really responsible for this attack on his person, were never interrogated by the investigating agency either to affirm this allegation or to repel it. ' As regards the ocular testimony which only consists of two witnesses namely, Irshad Hussain P. W. 11 and Qadir Bakhsh P. W. 12, it has been submitted that this Irshad Hussain P. W. Happens to be a clerk of Mian hhsan Karim, Advocate, who according to the defence was pivot in the drama staged by the prosecution and had also not hesitated to play the role of a prosecutor on the side of the complainant party. With regard to Qadir Bakhsh P. W. It has been reiterated that he was a put up witness whose name was not mentioned in the F. 1. R. By the deceased and has been brought on the scene with self-suffered injuries so as to show that his presence at the spot could not be excluded because of the injuries on his person. In the same strain it has been contended that the two Foot Constables and one Nazir H ussain who were responsible for the apprehension, at the spot, of Fide Hussain, Aliah Bakhsh, Aliah Yar and Ghulam Qadir accused, were kept back by the prosecution without any cogent reasons whereas they would have been the natural witnesses to support the prosecution version. It has been the common argument with all the appellants in this case that Jalil Haider Shah, Advocate, was a Chairman of
---
## Page 7
Pakistan People's Party at Muzaffargarh whereas the appellants were supporter of Nawabzada Nasrullah Khan, a leader of the Pakistan Democratic Party and thus the prosecution considered this Advocate of the Pakistan People's Party, sacrosanct and could not muster strength or courage to interrogate him despite the fact that he was named as conspirator and the moving spirit behind the murder of the deceased. 11. We have given our anxious thought to all the contentions raised by the learned counsel for the appellants and find that the dying declaration Exh. PL was a document recorded by Mian Muhammad iqbal P. W. 1, a First Class Magistrate, who fully satisfying himself that the person making the dying declaration was conscious and was in a fit condition to make a statement and took all possible care to see that there was nobody around him at the time he made a statement and also consulted the doctor by recording a statement that the deceased was fully capable of giving narration of the incident in which he was involved. Despite the lengthy cross-examination by a battery of lawyers, we do not find anything to show that the Magistrate either acted carelessly by not complying with the mandatory provisions under the law as laid down for the recording of dying declaration or acted…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.