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Petitioner: The State, Khuda Bakhsh and another, The State VS Respondent: Khuda Bakhsh, The JUDGMENT
Court Name: Lahore High Court Judge(s): Sadiq Mahmud Khurram, Muhammad Amjad Rafiq Title:The State, Khuda Bakhsh and another, The State vs Khuda Bakhsh, The
JUDGMENT
Reported As: 2023 LHC 2002, PLJ 2024 Cr.C. 201 Result: Murder Reference answered in Negative Judgment JUDGMENT SADIQ MAHMUD KHURRAM, J.- Khuda Bakhsh son of Ghafoor Ahmed, and Muhammad Zafar Iqbal son of Ghafoor Ahmed (convicts) were tried by the learned Additional Sessions Judge/Model Criminal Trial Court Bahawalpur in the case FIR No. 421 of 2019, dated 10.11.2019, registered in respect of offences under sections 302 and 34 PPC at the police station Khairpur Tamewali, District Bahawalpur for committing the Qatl-i-Amd of Abdul Majeed son of Ghulam Qadir (deceased). The learned trial court vide judgment dated 03.06.2021, convicted Khuda Bakhsh son of Ghafoor Ahmed and Muhammad Zafar Iqbal son of Ghafoor Ahmed (convicts) and sentenced them as infra: Khuda Bakhsh son of Ghafoor Ahmed:- Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Abdul Majeed son of Ghulam Qadir (deceased) and directed to pay Rs.200,000/- as compensation under section 544- A, Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to remain in jail till the payment of the compensation. The convict was ordered to be hanged by his neck till dead. Muhammad Zafar Iqbal son of Ghafoor Ahmed :- Rigorous Imprisonment of one year and six months under section 34 P.P.C. and directed to pay compensation of Rs.100,000/- to the legal heirs of the deceased and in default thereof the convict was directed to remain in jail till the payment of the compensation The convict namely Muhammad Zafar Iqbal son of Ghafoor Ahmed was extended the benefit available under Section 382-B of the Code of Criminal Procedure, 1898 by the learned trial court.
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2. Feeling aggrieved, Khuda Bakhsh son of Ghafoor Ahmed and Muhammad Zafar Iqbal son of Ghafoor Ahmed (convicts) lodged Criminal Appeal No. 244 of 2021, assailing their convictions and sentences. The learned trial court submitted Murder Reference No.08 of 2021 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Khuda Bakhsh son of Ghafoor Ahmed. The State filed Criminal Revision No. 166 of 2021 seeking the enhancement of the sentence of the convict namely Muhammad Zafar Iqbal son of Ghafoor Ahmed. We intend to dispose of the Criminal Appeal No. 244 of 2021, Criminal Revision No.166 of 2021 and the Murder Reference No.08 of 2021 through this single judgment. 3. Precisely, the necessary facts of the prosecution case, as narrated by Habib ur-Rehman (PW-5), the complainant of the case are as under:- "Stated that on 07.11.2019, at about 08.30 am, my brother Abdul Majeed deceased was injured by Khuda Bakhsh, Mohammad Zafar and two unknown persons, at this, my brother got lodged ruppat No.8, dated 07.11.2019. At about 11.10 am on the same day, then injured Abdul Majeed was brought to Police Khidmat Center, THQ Khairpur and lodged ruppat by stating that he was resident of Mouza Ghanipur and labouer by profession. On that day, at about 08.30 a.m. he was standing in front of his house, meanwhile, Khuda Bakhsh s/o Abdul Ghafoor, caste Pawli r/o Basti Sultan Arain came there and started to abuse him, when he/deceased forbade him. Khuda Bakhsh accused flared up and started to give slaps and fists to the deceased Abdul Majeed (then injured). The accused gave fist blow on his left cheek and in the meanwhile, Mohammad Zafar accused came to help Khuda Bakhsh accused alongwith two unknown accused persons. Mohammad Zafar accused having a Soti in his hand, inflicted Soti blow on the Dola of left arm of Abdul Majeed, Khuda Bakhsh accused inflicted Soti blow to Abdul Majeed (deceased) on his right knee joint, Mohammad Zafar accused again caused Soti blow on left knee of Abdul Majeed. Khuda Bakhsh accused again gave Soti blow on left ankle of the deceased. Unknown accused persons also made kicks and fist blows to Abdul Majeed deceased. On hue and cry of Abdul Majeed, PWs Mohammad Bashir s/o Allah Bakhsh, Mohammad Sajjad s/o Noor Mohammad arrived there who witnessed the occurrence and rescued Abdul Majeed (since deceased) from the clutches of accused persons Motive behind the occurrence was that accused persons have dispute with close relatives of Abdul Majeed since deceased because Abdul Majeed deceased divorced his wife Mst Haseena Mai sister of accused Khuda Bakhsh and Muhammad Zafar about 08 days prior to the occurrence, the reason behind that the accused with intention to commit Qatal-i-Amd of Abdul Majeed deceased, caused severe injuries on his person and done him to death (The then injured Abdul Majeed went to THQ Hospital Khairpur Tamewali alongwith me and got recorded his statement which was verified by the Incharge Police Khidmat Counter, THQ Hospital, Khairpur Tamewali. The injured (since deceased) was medically examined by the Hospital of THQ KPT and then, he was referred to B.V.H. Bahawalpur. On 10.11.2019. the then injured Abdul Majeed succumbed to the injuries at B.V.H. Bahawalpur. The Police of P.S. Khairpur Tamewali came B.V.H. Bahawalpur, where, I submitted written application Ex.PE which bear my signature and thumb-impression and on the said written application, FIR was registered I also stated before the Police according to my application Ex.PE that Khuda Bakhsh accused, at the time of causing injuries to Abdul Majeed deceased, also caused injury to the deceased with the leg of cot (Paya) on the backside of his head and he also caused injury to Abdul Majeed deceased on his right shoulder, but these two injuries were not written by the Police in ruppat got recorded on the statement of the deceased After that, the police of P.S. Khairpur Tamewali escorted the dead body of Abdul Majeed deceased to THQ Hospital, Khairpur Tamewali and handed over the dead body of the deceased to the Doctor for autopsy examination. I alongwith Bashir Ahmad and Mohammad Sajjad were alongwith the dead body of the deceased Abdul Majeed. After handing over the dead body to the Doctor for autopsy, the I.O. came at the spot alongwith me as well as Mohammad Sajjad and Bashir Ahmad,
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where, the I.O. inspected the place of occurrence. At the place of occurrence, I produced leg of cot P-1 which was burnt from one side i.e. weapon of offence before the I.O. who took the same into possession vide recovery memo Ex.PF, attested by me, Mohammad Bashir and Mohammad Sajjad PWS. The I.O. also recorded my statement and the statements of PWs in this regard. After post- mortem examination, I received the dead body of my deceased brother Abdul Majeed and I affixed my thumb- impression on the receipt Ex.PG, as a token of its correctness." 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the accused were sent to face trial. The learned trial court framed the charge against the accused on 30.01.2020, to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case got statements of as many as ten witnesses recorded. The ocular account of the case was furnished by Habib-ur -Rehman (PW-5) and Muhammad Bashir (PW-6). Muhammad Nawaz, ASI (PW-3) stated that on 10.11.2019, he got recorded the formal F.I.R (Exh.PD). Shafqat Mahmood 1023/HC (PW-4) stated that on 10.11.2019, he received a stump of cot from the Investigating Officer of the case and on 17.11.2019, the Investigating Officer of the case handed over to him the last worn clothes of deceased and on 24.11.2019, the Investigating Officer of the case handed over to him two Sotis recovered from the appellants. Abdul Rasheed (PW-7) stated that on 10.11.2019, he identified the dead body of the deceased at the time of its post mortem examination and on 17.11.2019, Nabi Ahmad 983/C handed over the last worn clothes of the deceased to the Investigating Officer of the case. Ghulam Qadir, Patwari (PW-10) prepared the scaled site plan of the place of occurrence (Exh.PP).Muhammad Siddique, SI (PW-8) investigated the case from 10.11.2019 till 25.11.2019, arrested the appellants namely Khuda Bakhsh and Muhammad Zafar Iqbal on 17.11.2019 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. 6. The prosecution also got Dr. Qasim Hussain (PW-1) examined, who on 07.11.2019 was posted as Medical Officer at THQ hospital, Khairpur Tamewali and on the same day, examined Abdul Majeed son of Ghulam Qadir (the then injured later deceased). Dr. Qasim Hussain (PW-1), on examining Abdul Majeed son of Ghulam Qadir (the then injured later deceased) observed as under:- "Description of Injuries. Injury No.1: Lacerated wound of (0.5 x 0.25 cm) on left check near lips which is skin deep. Advised X- ray PNS. Injury No.2; Subjective complain of pain, upper side of left arm near to elbow joint, on examination an abrasion of (1.5 x 0.5 cm) mild to moderate swelling slightly restricted movement of elbow joint, advised X-ray upper arm with elbow joint. Injury No.3: Subjective complain of pain on right knee joint, mild swelling present and small abrasion advised right X-ray AP/lateral knee joint. Injury No.4: Subjective complain of pain in left knee joint abrasion-swelling present on left knee joint. Advised X-ray left knee joint AP/lateral view. Injury No.5: Subjective complain of pain in left foot ankle joint on examination abrasion measuring (1 x 0.25 cm) and mild to moderate swelling present on left foot ankle joint. Advised X-ray left foot with ankle joint AP/lateral view. Patient referred to BVH Bahawalpur dated 07.11.2019 for further management and detail surgical notes, if any, because progressively detoriating conscious level. It is mentioned in original MLC record. Receiving surgical notes from neuro surgery departments Bahawalpur on CT brain there was diffused axonal injury patient managed conservatively, he was not improved." The prosecution also got Dr. Amin Ullah Khan (PW-2) examined, who on 08.11.2019 was posted as Medical Officer at Neurosurgery Ward ,BV hospital, Bahawalpur and on the same day, examined
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Abdul Majeed son of Ghulam Qadir (then injured later deceased). Dr. Amin Ullah Khan (PW-2), on examining Abdul Majeed son of Ghulam Qadir (then injured later deceased) observed as under:- "Neurosurgical Findings/Intervention/Remarks (If any). On CT scan brain, patient was diagnosed as diffuse axonal injury of brain. Patient managed conservatively but he could not improve. His condition was deteriorated and expired in Ward on 10.11.2019." The prosecution also got Dr. Ahmad Faraz (PW-9) examined, who on 10.11.2019, was posted as Medical Officer at THQ, hospital Khairpur Tamewali and on the same day conducted the postmortem examination of the dead body of Abdul Majeed son of Ghulam Qadir (deceased). Dr. Ahmad Faraz (PW-9), on examining the dead body of Abdul Majeed son of Ghulam Qadir (deceased) observed as under:- "Injury No.1 There was healing laceration of 0.25 x 0.25 cm in sized present on left cheek just lateral to corner of the mouth. Injury No.2 There was a healing abrasion of 1 x 0.5 cm in size present on left arm near back of the elbow joint. Injury No.3 There was a healing abrasion on medical aspect of right knee joint. Injury No.4 A small healing abrasion in front of left knee joint. Injury No.5 NAD. Injury No.6 There is no swelling, no abrasion or no mark of injury. Injury No.7 There was a healing a abrasion 6 x 3 cm in size present on upper aspect of right shoulder. VII. REMARKS BY M.O. After thorough external and internal post mortem examination of the dead body lying on the mortuary table, I am of the opinion not a single injury can caused death will be determined after detail surgical notes from BVH and expert report from PFSA, Lahore (receiving surgical from neurosurgery department BVH. Bahawalpur #138170-3318-88, on CT. Scan brain there was diffused axonal injury, patient manage conservatively he was not improved his condition was detoriating and expired in ward. VIII. ACCORDING TO PFSA 1. Forensic Toxicology analysis Report: a. Diazepam was detected in liver in item No.1. b. Liver in item No.1 contain 0.26 mg/kg nor diazepam. c. Poisons were not detected in stomach contents in item No.1 2. Forensic Histopathology Report: a. Histological examination of the lungs sections reveals lungs tissues congestions, the alveoli are clear. The brain sections reveal bone, no anti-mortem injury seen. FINAL OPINION: So, I am of the opinion that diffused axonal injury of brain may leads him to death. In this case it is highly suggestive that injury of face may cause diffuse axonal injury." 7. On 01.03.2021, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Muhammad Sajjad and Muhammad Asif as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh. P.Q. and Exh. P.R).
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8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Khuda Bakhsh son of Ghafoor Ahmed and Muhammad Zafar Iqbal son of Ghafoor Ahmed under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, they replied that they had been involved in the case falsely and were innocent. The appellants namely Khuda Bakhsh son of Ghafoor Ahmed and Muhammad Zafar Iqbal son of Ghafoor Ahmed, opted not to get themselves examined under section 340(2) Cr.P.C. and did not adduce any evidence in their defence. 9. At the conclusion of the trial, the learned Additional Sessions Judge/Model Criminal Trial Court Bahawalpur convicted and sentenced the appellants as referred to above. 10. The contention of the learned counsel for the appellants 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 Soti (P-2) from the appellant namely Khuda Bakhsh son of Ghafoor Ahmed and the recovery of the Soti (P-3) from the appellant namely Muhammad Zafar Iqbal son of Ghafoor Ahmed were full of procedural defects, of no legal worth and value, and were result of fake proceedings. The learned counsel for the appellants also argued that the appellants had been involved in the occurrence only on suspicion. The learned counsels for the appellants 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 Deputy Prosecutor General along with the learned counsel for the complainant, contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General 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 appellants namely Khuda Bakhsh son of Ghafoor Ahmed and Muhammad Zafar son of Ghafoor Ahmad. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further contended that the medical evidence also corroborated the statements of the eye witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recovery of the Soti (P-2) from the appellant namely Khuda Bakhsh son of Ghafoor Ahmed and the recovery of the Soti (P-3) from the appellant namely Muhammad Zafar Iqbal son of Ghafoor Ahmed also corroborated the ocular account. The learned Deputy Prosecutor General 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 offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeals. 12. We have heard the learned counsels for the appellant, the learned counsel for the complainant, the learned Deputy Prosecutor General and perused the record with their able assistance. 13. At the very outset, we have noticed a bludgeoning flaw in the statement of the prosecution witness namely Habib-ur-Rehman (PW-5). We have reproduced the examination in-chief of the prosecution witness namely Habib-ur-Rehman (PW-5) as recorded by the learned trial court in paragraph 3 of the judgment and a bare perusal of the same reveals that the prosecution witness namely Habib-ur-Rehman (PW-5) never claimed to be an eye witness of the occurrence and while getting the examination in-chief before the learned trial court, which has been reproduced by us in paragraph 3 of the judgment, the prosecution witness namely Habib-ur-Rehman (PW-5) only narrated the account of the occurrence as recorded in the Rapt No.8 dated 07.11.2019, which Rapt
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No.8 was recorded allegedly on the basis of the statement made by Abdul Majeed (deceased) himself. The learned counsel for the complainant has candidly conceded that a perusal of the examination in-chief of the prosecution witness namely Habib-ur-Rehman, as recorded by the learned trial court, made it apparent that the prosecution witness namely Habib-ur-Rehman (PW - 5) never gave any evidence that he himself was present at the place of occurrence and had witnessed the same. The prosecution witness namely Habib-ur-Rehman (PW-5) also admitted himself that according to the narrative of the Rapt No.8, which was recorded allegedly on the basis of the statement made by Abdul Majeed (deceased) himself, the prosecution witness namely Habib-ur-Rehman (PW-5) had not been mentioned as a witness who was present at the place of occurrence or had indeed witnessed the same. During cross-examination Habib-ur-Rehman (PW- 5), admitted as under:- "I was not cited as witness in ruppat incorporated on the statement of Abdul Majeed. Volunteered that at the time of recording above said ruppat, 1 was present there I did not inform the police about the occurrence. Volunteered that the said information was laid down before the Police by Imran and Rashid. Said Imran is my Mulair and Rashid is my nephew." (emphasis supplied) Similarly, Muhammad Siddique, SI (PW-8), Investigating Officer of the case , also admitted that according to the written application (Exh.PE) submitted by the prosecution witness namely Habib- ur-Rehman (PW-5) for the registration of the F.I.R on 10.11.2019, Habib-ur-Rehman (PW-5) had not claimed himself to be an eye witness of the occurrence . Muhammad Siddique, SI (PW-8) during cross-examination , stated as under:- "According to complaint Ex.PE, complainant did not himself claim to be eye witness of the occurrence. " Even the prosecution witness namely Muhammad Bashir (PW-6) did not state that at the time of occurrence, the prosecution witness namely Habib-ur-Rehman (PW 5) was present at the place of occurrence or had been attracted to the place of occurrence , rather stated that only he and Muhammad Sajjad (given up prosecution witness) were attracted to the place of occurrence. In view of the above discussion of the prosecution evidence, it is more than apparent that the prosecution witness namely Habib-ur-Rehman (PW-5) had not witnessed the occurrence and was not present at the place of occurrence, at the time of occurrence. It is also proved on record that whatever was stated by the prosecution witness namely Habib-ur Rehman (PW-5) in his statement before the learned trial court, regarding the facts of the occurrence, was based on the information he had recovered from the perusal of Rapt No.8 (Exh.PE/1) and he himself was not a witness of whatever was narrated in the Rapt No.8 (Exh.PE/1). Therefore, the evidence of the prosecution witness namely Habib-ur-Rehman (PW-5) does not prove any fact in issue relevant in the case. 14. The prosecution also got recorded the statement of Muhammad Bashir (PW 6) who claimed to had witnessed the occurrence. The deceased namely Abdul Majeed was closely related to the prosecution witness namely Muhammad Bashir (PW-6) and the said relationship has been brought on record. According to the prosecution witness namely Muhammad Bashir (PW-6) himself, the deceased as well as Habib-ur-Rehman (PW-5) were his maternal cousins. Muhammad Bashir (PW-6) during cross-examination also claimed that his house was at a distance of only 2-3 houses from the house of the deceased, in front of which house the occurrence had taken place. Muhammad Bashir (PW-6) during cross-examination, stated as under:- "Complainant Habib ur Rehman is my maternal cousin (Phophu-Zad). My house is at a distance of 02/03 houses from the house of Abdul Majeed." A perusal of the prosecution evidence itself reveals that this claim of the prosecution witness namely Muhammad Bashir (PW-6) that his house was at a distance of only 2-3 houses from the
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house of the deceased, in front of which house the occurrence had taken place, was not correct. We have perused the rough site plan of the place of occurrence (Exh.PM) as prepared by the Muhammad Siddique, SI (PW-8), the Investigating Officer of the case, as well as the scaled site plan of the place of occurrence (Exh.PP) as prepared by the Ghulam Qadir, Patwari (PW-10) and find that though in both the site plans of the place of occurrence (Exh.PM and Exh.PP), one house of one Muhammad Arshad Maitla has been shown to be present towards the southern side of the house of the deceased, whereas it has been mentioned that on the eastern side of the house of the deceased, a cattle shed had been made by one Muhammad Arshad Maitla, whereas on the northern and western sides of the house of the deceased there was vacant land, however, the house of Muhammad Bashir (PW-6) has not been shown in the same. Then the prosecution witness namely Muhammad Bashir (PW-6) also did not give any reason for his presence at the place of occurrence. In this manner, the prosecution witness namely Muhammad Bashir (PW-6) can be validly termed as a "chance witness" and therefore was under a bounden duty to provide a convincing reason for his presence at the place of occurrence, at the time of occurrence and was also under a duty to prove his presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witness namely Muhammad Bashir (PW-6) failed miserably to provide any consistent evidence as to the reason for his arrival at the place of occurrence and his presence at the place of occurrence, when the same was taking place, denuding the fact that Muhammad Bashir (PW-6) had indeed not witnessed the occurrence. 15. We have also noted that both the prosecution witnesses namely Habib-ur Rehman (PW-5) and Muhammad Bashir (PW-6) admitted that though the occurrence had taken place on 07.11.2019 at about 08.30 a.m., however, they neither themselves reported the matter to the police nor got recorded their statements till 10.11.2019, i.e after as many as three days of the occurrence. The prosecution witness namely Habib-ur-Rehman (PW-5) stated that he submitted the written application (Exh.PE) to Muhammad Siddique, SI (PW-8) at BV hospital on 10.11.2019, whereas the prosecution witness namely Muhammad Bashir (PW-6) stated that he got recorded his statement to the police only on 10.11.2019. The prosecution witness namely Habib-ur-Rehman (PW-5) also admitted that prior to submitting the written application (Exh.PE) on 10.11.2019, he had also visited the Police Station, however, still did not make any statement with regard to the occurrence. Habib- ur-Rehman (PW-5), during cross-examination, stated as under:- "I had obtained the copy of ruppat incorporated on the complaint of Abdul Majeed one day prior to submission of complaint Ex.PE. I did not make any statement prior to submission of complaint Ex.PE. After the occurrence, I firstly visited the police station, one day prior to submission complaint Ex.PE, however, I cannot tell the time of my visit to the police station on that day. No statement of any PW as well as that of mine was reduced into writing by the Police prior to submission of complaint Ex.PE" (emphasis supplied) As mentioned above, Habib-ur-Rehman (PW-5) also admitted during cross-examination that he did not inform the police about the occurrence…
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