SHER MUHAMMAD Versus STATE

ASIF SAEED KHAN KHOSA, J. ‑‑ Sher Muhammad appellant was convicted by the learned Additional Sessions Judge, Sahiwal vide judgment, dated 23‑11‑1995 on two counts of an offence under section 302(b), P.P.C. and was sentenced to death on both the counts. He has challenged his convictions and sentences before this Court through Criminal Appeal No.19 of 1996. We have heard the convict's appeal alongwith Murder Reference No.8 of 1996 seeking confirmation of the sentences of death passed against him. We propose to decide both these matters together through the present consolidated judgment.

2. The prosecution story narrated in the F.I.R. was that Nazir Ahmad complainant and his elder brother Naubahar were residents of the same house in Village Baghela situated about 9 kilometres towards the West of Police Station Harrapa, District Sahiwal. At about 5‑30 p.m. on 9‑7‑1993 Sher Muhammad appellant had sprinkled water in the street and had made the street muddy. The complainant's brother Naubahar forbade him from sprinkling water in the street which led to an exchange of abuses between them. In the meanwhile Haji Sadan also came there and in support of Naubahar he also strictly forbade the appellant from sprinkling water in the street. Threatening the two of them the appellant went to his house and after a little while emerged therefrom armed with a double barrel .12 bore gun alongwith his brother Nawab who was carrying a single‑barrel .12 bore gun. Sher Muhammad appellant fired his first shot at Naubahar who, fell down after getting injured. The second shot was fired by the appellant at Haji Sadan who also fell down after being hit. One Shahamand, who was standing close to Haji Sadan at that time, also got injured when stray pellets of the appellant's fire at Haji Sadan hit him. The complainant's brother Naubahar and Haji Sadan succumbed to their injuries at the spot., During that incident Nawab accused also indulged in firing in the air. Apart from Nazir Ahmad complainant the incident had been witnessed by Nazir Ahmad son of Haq Nawaz and Shaukat Ali P.Ws.

3. Leaving the dead bodies of his brother Naubahar and Haji Sadan at the place of occurrence in the care of Nazir Ahmad and Nausher P.Ws. Nazir Ahmad complainant went to Police Station Harrapa, District Sahiwal and lodged F.I.R. No.160 in that regard at 6.45 p.m. in the same evening. The F.I.R. was recorded by Muhammad Alam, Inspector (P.W.9) for offences under section 302/324/34, P.P.C.

4. After recording the F.I.R. Muhammad Alain, Inspector (P.W.9) took up the investigation of this case, proceeded to the place of occurrence, prepared injury statements and inquest reports qua the two dead bodies, collected blood‑stained earth from two places of murder, inspected the spot and prepared a rough site‑plan of the place of occurrence and then sent the dead bodies to the mortuary for autopsy.

5. The post‑mortem examination of the dead body of Naubahar was conducted by Dr. Salamat Ali Chaudhry (P.W.11) at 8‑00 a.m. on 10‑7‑1993. He had found 3 injuries on the dead body which were all ante‑mortem and caused by fire‑arm. Injury No.2 was declared to be dangerous and fatal. The cause of death, in his opinion, was Injuries Nos. l and 2 which were individually and collectively sufficient to cause death in the ordinary course of nature. The probable time elapsing between the injuries and death was stated by the doctor to be immediate while the duration between the death and post‑mortem examination was opined by the doctor to be 14 hours.

6. On the same day the same doctor had conducted the post‑mortem examination of the dead body of Haji Sadan at about 10‑00 a.m. He had found 3 injuries on the dead body which were all ante‑mortem and caused by fire‑arm. Injury No.2 was declared to be dangerous to life. The cause of death, in his opinion, was Injury No.2 which was sufficient to cause death in the ordinary course of nature. The probable time elapsing between the injuries and death was stated by the doctor to be immediate while the duration between the death and post‑mortem examination was opined by the doctor to be 16/17 hours.

7. The same doctor had earlier on medically examined Shahamand P.W. on 9‑7‑1993. He had found 4 injuries on his person which had all been caused by fire‑arm within a duration of 3 to 5 hours. The injuries had been kept under observation.

8. After the post‑mortem examination of the two dead bodies Muhammad Alam, Inspector (P.W.9), the Investigating Officer, took into possession the blood‑stained last worn clothes of the two deceased. He then got a site‑plan of the place of occurrence prepared by a draftsman. Subsequently he arrested the appellant on 23‑7‑1993 and on 28‑7‑1993 recovered a double‑barrel gun alongwith its licence and a bandoleer containing 12 live cartridges from him appellant. Thereafter, he completed the other formalities, finalized his investigation and submitted a Challan in respect of this case.

9. At the commencement of the trial the learned trial Court framed a Charge with three heads under sections 302/34, 302/34 and 324/34, P.P.C. against the appellant and his co‑accused Nawab to which they pleaded not guilty and claimed a trial.

10. During the trial the prosecution produced as many as twelve witnesses in support of its case against the appellant and his co‑accused. Nazir Ahmad complainant (P.W.1) and Shahamand (P.W.2) furnished the ocular account of the incident. Both of them also deposed about the immediate motive for the offences in question. Dr. Salamat Ali Chaudhry (P.W.11) provided the medical evidence. Muhammad Latif (P.W.10) deposed about the recovery of gun effected from the appellant. Muhammad Alam, Inspector (P.W.9) and Ahmad Latif, Additional S.P. (P.W.12) stated about various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.

11. In their statements recorded under section 342, Cr.P.C. the appellant and his co accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. While answering a question as to why they had been implicated in this case and as to why the prosecution witnesses had deposed against them the appellant and his co‑accused had stated in unison that:‑‑

"It is a false case against me. The P.Ws. are inimical towards me and as such they deposed against me falsely."

However, the appellant and his co‑accused opted not to make any statement on oath under section 340(2), Cr.P.C. They also did not produce any witness in their defence.

12. At the conclusion of the trial the learned Additional Sessions Judge, Sahiwal convicted and sentenced the appellant as noticed and detailed above but acquitted the appellant's co‑accused Nawab of all the charges against him. The appellant was also acquitted of the charge under section 324/34, P.P.C. for causing injuries to Shahamand P.W. Hence, the present appeal and the connected Murder Reference before this Court.

13. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have also gone through the record of this case with their assistance.

14. The learned counsel for the appellant has argued that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. According to him the witnesses produced by the prosecution did not inspire confidence and they had also. failed to find material corroboration from any independent source. As against that the learned counsel for the State has argued that the prosecution had successfully proved the guilt of the appellant to the hilt through convincing, cogent and reliable evidence. He has also maintained that the appellant did not deserve any concession in the matter of sentence.

15. After hearing the learned counsel for the parties and going through the record we have no hesitation in concluding that the prosecution had failed to prove its case against tile appellant beyond reasonable doubt. The ocular account of the incident in question had been furnished by Nazir Ahmad complainant (P.W.1) and Shahamand (P.W.2). Both of them have failed to inspire our confidence. Nazir Ahmad complainant (P.W.1)'s claim for presence at the place of occurrence at the relevant time was based upon his assertion that he lived with his brother Naubahar deceased in the same house which was situated just 10/12 Karams away from the place of occurrence. An impression was created by him that he and his deceased brother lived in the same street with the appellant and, thus, sprinking of water in the street by the appellant and thereby making the street muddy by him had caused annoyance to them. This impression about their proximity of living somewhere near the house of the appellant or at least in that very street is clearly dispelled by the site‑plan (Exh.PD) which does not show the house of the complainant or Naubahar deceased anywhere near the street in question or even in the vicinity of the place of occurrence! Thus, the complainant was not a natural witness of the occurrence. The complainant had also failed to specify the seats of injuries received by the two deceased and Shahamand (P.W.2) in the F.I.R. That surely was unusual. Apart from that the complainant had all along maintained that the two deceased and he himself had remained in the street till the return of the appellant to that street from his own house and that the appellant had fired at both the deceased when they were both present in the street. The site‑plan (Exh.PD), however, shows a completely different picture. It shows that Naubahar deceased was hit in the street whereas Haji Sadan deceased and Shahamand (P.W.2) were hit while present inside the compound of the house of Haji Sadan deceased! Thus, the complainant really did not know the actual scene of the crime. The locations of the assailant and his different victims given by the complainant were seriously contradicted not just by the site‑plan (Exh.PD) but also by Mirza Ashfaq Baig, Draftsman (P.W.8) and the Investigating Officer‑Muhammad Alam, Inspector (P.W.9). We have also found it to be unusual that it was Haji Sadan deceased and not the complainant who had come to the support of Naubahar deceased in his alleged altercation with the appellant. Haji Sadan was just a collateral of Naubahar whereas the complainant was Naubahar's real brother. Had the complainant been present during that altercation he would certainly have taken much more interest on the side of his brother than a collateral of his. The complainant was also not injured or even fired at by the appellant during the alleged occurrence whereas a collateral of his was allegedly shot dead by him. All these factors, and many more to follow, have created serious doubts in our minds about the claimed presence of the complainant at the place of occurrence at the time of the incident.

16. Credibility of Shahamand (P.W.2) as an eye‑witness is also not free from serious doubts. Admittedly be made his first statement before the police in respect of the occurrence in question as many as 14 days after the incident! His explanation for such an inordinate delay has not been found by us to be satisfactory or reliable. The prosecution has heralded him as an injured witness but his getting injured in the incident in question is not free from blemish or doubt. He was allegedly taken to the hospital by his son Riaz who was not present at the spot during the occurrence and had not been produced as a witness. He had failed to produce the original medico‑legal certificate in respect of his medical examination before the police despite his long hibernation. The two pellet injuries allegedly suffered by him were not of serious nature. The Doctor (P.W.11) had stated that Shahamand (P. W .2) had been admitted to the hospital after his initial examination. No bed- head ticket or any other record was produced in that respect. Shahamand (P.W.2) had denied being admitted to the hospital! Thus, even the Doctor's statement qua him was not above board. Shahamand (P.W.2) had admitted to be a Moeen of the village and an immediate neighbour of Haji Sadan deceased. Thus, a real possibility of his subsequent procurement and planting as an eye‑witness with fabricated injuries or a forged medico- legal certificate could not be safely ruled out. Apart from all that Shahamand (P.W.2) had also maintained that the two deceased and he himself had remained in the street till the return of the appellant to that street from his own house and that the appellant had fired at both the deceased when they were both present in the street. He had further maintained that he was himself hit by the appellant's stray pellets in the street. However, as pointed out above, the site‑plan (Exh.PD) depicted a completely different picture. It showed that Naubahar deceased was hit in the street whereas Haji Sadan deceased and Shahamand (P.W.2) were hit while present inside the compound of the house of Haji Sadan deceased! Thus, there was conflict within the prosecution's own evidence regarding the place where Shahamand (P.W.2) had received his injuries. The locations of the assailant and his different victims given by Shahamand (P.W.2) were seriously contradicted not just by the site‑plan (Exh.PD) but also by Mirza Ashfaq Baig, Draftsman (P. W .8) and the Investigating Officer Muhammad Alam, Inspector (P.W.9).

17. As if this were not enough to render the statements of the eye‑witnesses doubtful and unreliable, the medical evidence had also given a big lie to Nazir Ahmad complainant (P.W.1) and Shahamand (P.W.2) on a material aspect of the case. The Doctor (P.W.11) had found blackening on one injury of each deceased. As against that the Draftsman (P.W.8) and the Investigating Officer (P.W.9), who had been shown the locations of the assailant and the victims at the place of the occurrence by the eye witnesses; had categorically maintained that the distance between the appellant and Naubahai deceased and between the appellant and Haji Sadan deceased was 47 and 90 feet respectively at the time of firing. Blackening surely could not be caused on an injury by a fire from either of those distances! The learned counsel for the State had absolutely no explanation for such a glaring contradiction between the medical evidence and the other evidence based upon information supplied by the alleged eye witnesses. Even the spread of pellets on the two dead bodies showed fires at them from a long distance and the same also contradicted the ocular account.

18. The eye‑witnesses produced by the prosecution had also failed to receive material corroboration from any independent source. It was admitted by the complainant himself that there was no previous background of enmity, ill‑will or bitterness between the parties. It had also come on the record that a sister of the appellant was married to a .brother of Haji Sadan deceased. Thus, there was absolutely no reason why the appellant would be propelled into aggression of this nature against Haji Sadan deceased or. even against Naubahar deceased. Even the immediate motive, i.e. an altercation over sprinking of water by the appellant in the street, had not been proved by the prosecution through any independent evidence.

19. As regards the alleged recovery of a licensed gun from the appellant suffice it to observe that the said recovery is legally inconsequential. It was admitted by the investigating officer that no crime‑empty had been recovered from the place of occurrence after the incident. Thus, the said recovery of gun could not in any manner connect that gun or the appellant with the offence in question.

20. While finding the prosecution's evidence to be doubtful and unreliable on a capital charge against the appellant we are also not unmindful of the fact that the same evidence has already been held by the learned trial Court to be unreliable qua Nawab accused who has since been acquitted. The State as well as the complainant has not challenged the acquittal of Nawab accused.

21. In this context we are also conscious of the fact that it was a daylight occurrence and a case of double murder. However, we are equally alive to the reality that false implication of innocent persons or planting of false witnesses against actual murderers is not a malady referable exclusively to night‑time occurrences or single murders. We are of the considered opinion that whenever genuine and serious doubts arise qua the prosecution's evidence against the accused persons the benefit of such doubts must go to the accused persons irrespective of the time of occurrence or the number of victims. The rising or setting of the sun or plurality of the victims has hardly any relevance to the standard of proof required in a criminal case.

22. The upshot of the above discussion is that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, therefore, extending the benefit of doubt to the appellant, his appeal is hereby allowed, the impugned judgment passed by the learned Additional Sessions Judge, Sahiwal on 23‑11‑1995 is set aside and the appellant is acquitted of the charge against him. The appellant shall be released from jail forthwith, if not required in any other case.

23. As the appeal filed by the appellant has been accepted, with a resultant setting aside of his convictions and sentences recorded by the learned trial Court, and he has been acquitted by us, therefore, Murder Reference No.8 of 1996 is hereby answered in the negative.

Death sentences are not confirmed.

N.H.Q./S‑334/L

Appeal accepted.