MUHAMMAD SIDDIQUE Versus THE STATE
KHAWAJA MUHAMMAD SHARIF, J .‑‑‑This judgment will dispose of Murder Reference No.7‑T of 1999 and Criminal Appeal No.83 of 1999 filed by Muhammad Siddique son of Ata Muhammad who was convicted and sentenced for the murder of Mushtaq Ahmad, School teacher aged 42 years by Special Court constituted under Act, 1997, Sargodha vide his judgment, dated 5‑1‑1999, to undergo death sentence under section 302, P.P.C., read with section 7 of Anti‑Terrorist Act, 1997. He was further directed to pay Rs. 1,00,000 as fine or in default to undergo further 10 years R.I. Half of the fine if recovered shall be paid to the legal heirs of the deceased under section 544‑A, Cr.P.C.
2. The occurrence in this case took place on 8‑11‑1997 at 8‑15 a.m. within the area of Sahiwal, two furlongs away from the Police Station, Sahiwal, District Sargodha and the matter was rep6xted by Haji Abdullah, maternal uncle of the deceased through F.I.R. Exh.P.N. in the Police Station on the same day at 8‑45 a.m.
3. Brief facts of the case are that on the day of occurrence the complainant after purchasing bearing of Saw Machine was returning to his home when he reached near the shop of Riaz bouring service at 8‑15 a.m., he saw that his real nephew Mushtaq Ahmad a School teacher was going to his School on a bicycle. On seeing the complainant he slow down the speed of his bicycle and paid him regards. In the meanwhile the complainant saw that Muhammad Siddique was also following Mushtaq Ahmad on a bicycle and he was armed with .30 bore pistol. He fired at Mushtaq Ahmad which hit on his left side of fore‑head, who after receiving the same fell down on the ground. This occurrence was witnessed by Haji Muhammad Rafique and Zahoor Ahmad. Muhammad Siddique accused ran away from the spot on his bicycle. Mushtaq Ahmad died at the spot.
4. The motive behind the present occurrence was that Mushtaq Ahmad had opened a shop of fertilizer in partnership with some person while Muhammad Siddique accused had also a shop of fertilizer in the adjacent Bazar. In the year 1993 Mushtaq Ahmad deceased had informed Muhammad Chiragh Lamberdar that Muhammad Siddique accused used to sell adulterated fertilizer. Muhammad Chiragh Lamberdar further informed the higher authorities on which resident Magistrate Sahiwal raided at the shop of Muhammad Siddique and took into possession adulterated fertilizer and three cases bearing F.I.Rs. Nos.172, 173 and 174 of 1993 were registered under section 420/468, P.P.C., against Muhammad Siddique accused. On 6‑11‑1997 Muhammad Siddique accused also went on the shop of Mushtaq Ahmad deceased and threatened to kill him for the above said complaint against him.
5. Dost Muhammad S.I. (P.W.9) the Investigating Officer after recording, the F.I.R., went at the spot and prepared inquest. report. He also took into possession blood stained earth vide memo Exh.P.A. The Investigating Officer also took into possession one empty cartridge P.1 vide memo Exh.P.B. Bicycle of deceased P.2 was also taken, into possession vide memo. Exh.P.C. By the Investigating Officer. The appellant was, arrested on 12‑11‑1997. He got recovered pistol P.10 alongwith 6 live bullets P.11 / 1-6 vide memo Exh. P. L. The appellant also got recovered Bicycle P.6 belonging to the, deceased, vide memo. Exh.P.M. on 12‑11‑1997. The report of the Fire‑arm expert is Exh.P.J. which is negative in nature. Reports of Chemical Examiner and that of Serologist regarding blood‑stained earth are Exhs.P.R. and P.S.
6. The prosecution in order to prove its case had produced 9 witnesses in all. Three D. Ws. were produced by the appellant in his defence and their statements were recorded by the trial Court. It may be noted here that before the commencement of the trial the complainant died on 19‑6‑1998 and he could not be produced before the Trial Court. There were two eye‑witnesses produced by the prosecution namely Muhammad Rafique P. W .1, the maternal uncle of the deceased and Zahoor Ahmad, Shopkeeper examined as P.W.2, the maternal nephew of the complainant and brother in law i.e., the husband of deceased's sister. Dr. Nazir Ahmad P.W.4 had conducted the post -mortem examination on 8‑11‑1997 at 11‑10 a. m.
7. Learned counsel for the appellant has read, before us the prosecution evidence, statement of the appellant and statements of D.Ws. and of appellant recorded under "section 342, Cr.P.C., and submits that appellant is 72 years of age and he has been falsely implicated in this case. That both the eye‑witnesses are closely related to the deceased. That prosecution has failed to prove the motive against the appellant because F.I.Rs., were not produced which were registered in 1993, against the appellant, that no independent witness has been produced, although, there were shops near the place of occurrence. The presence of the eye‑witnesses has not been proved. He has also relied upon 1985 SCMR page 836 and PLD 1982 Pesh.
136. He also submits that the, F.I.R., cannot be read as evidence because the maker of .the F.I.R., had died before the commencement of trial, so the accused could not avail the right of cross‑examination. He further submits that F.I.R. is not a substantial piece of evidence. He also submits that the witnesses have tried to improve their statements regarding motive and they were duly confronted with their statement Exh.D.A. and Exh.D.B. Learned counsel further submits that appellant was in Karachi at the relevant time on the day of occurrence and he had produced three D.Ws. in support of his plea of alibi and had discharged the onus lies on him by‑ proving his innocence through these D. Ws. He lastly submits that immediate cause of murder is not known and the motive is shrouded in mystery and it is not a case of capital punishment.
7‑A. On the other hand learned A.A.‑G. supported the case of the prosecution but admits that it was a case of having a very weak motive.
8. We have heard the learned counsel for the parties and have also gone through the evidence recorded by the trial Court. In the instant case the occurrence took place on 8‑11‑1997 at 8‑15 a.m. while the matter was reported to the police at 8‑45 a.m. within half an hour. It was a broad daylight‑ murder and parties were known to each other. There, was no question of substitution because the appellant was the only accused in this case. Appellant had used a pistol .30 bore and an empty cartridge was also recovered. from the spot. Although, two eye‑witnesses produced by the prosecution are close relatives of the deceased but there was no enmity between the parties so in the instant occurrence which took place in broad daylight there was no question of false implication. The old age is no ground in which a person of this age cannot commit a murder as submitted by the learned counsel for the appellant. Ocular account is also corroborated by the medical evidence because according to the Doctor Nazir Ahmad, whose statement is mentioned below found the fire‑arm injuries as stated by P Ws.
The Doctor conducted the post‑mortem examination on the dead body of Mushtaq Ahmad on 8‑1 1.‑1997 and found the following, injuries:
(1) A circular fire‑arm wound of entry. 1/2 x 1/2 c.m. with a collar of abrasion on the left side of forehead, 2 c.m. above the left eyebrow. No burning, blackening or tattooing was seen.
(2) A lacerated fire‑arm wound of exit 2 x 1 c. m., on the right side of head, 1 c.m. above the right ear with everted margins.
On dissection he found under injury No. 1 scalp muscles were perforated. There was a circular hole on the skull bone. Skull cavity was full of blood, brain matter was shattered. Under injury No.2, scalp muscle lacerated and skull bone was fractured with a piece of bone and brain matter was coming out through .it. All the organs of thorax were normal. In the abdomen stomach was full of churned meal. Small intestine was full of semi digested food, large intestine containing small amount of fecaela spatter and air. Bladder was empty. All other organs were normal. Muscles, bone and joints were normal except mentioned above.
In .his opinion death in this; case had occurred due to injury No. 1 leading to brain damage, shock and death. All the injuries were ante‑mortem and inflicted by fire‑arm. Injury No. 1 was sufficient to cause death in ordinary course of life. The probable time that elapsed between death, and injuries was almost immediate while that between death and post‑mortem was within 2 to 3 hours.
There was a fire‑arm injury on the left side of fore‑head of the deceased which proved fatal and there was also no burning, tattooing and blackening on the wounds of the deceased. The objection of the learned counsel that no person from the nearby shop was produced is not tenable because the occurrence took place at 8‑15 a.m. in the month of November and the shops usually open at 9‑00 to 10‑00 a.m. in this month. Moreover, in such a situation of law and order which is prevalent today, no person ‑from the public comes forward to depose against the accused person who is charged for the murder for the reason that the said person cannot dare to get the enmity of the said accused. As far as D.Ws. are concerned, D.W.1 never identified the appellant in the Court that he was the same person who appeared before him on 8‑11‑1997 in Karachi. Moreover, none of these D.Ws. appeared before the police during the course of investigation. Neither any application was given to the higher police officers by the appellant or his near relatives to the effect that police/I.O., was not bringing on record the defence evidence of the appellant. In our view this defence evidence is‑ an afterthought and cannot be considered in view of the prosecution evidence.
9. Now we come to the question of sentence. In the instant case the F.I.R., cannot be read as evidence because the complainant had died before the commencement of trial against the appellant. Moreover, the cases which were registered by the Resident Magistrate on the request of Lamberdar to whom the deceased had informed about the adulteration of fertilizer by the appellant, those F.I.Rs., were never produced or got exhibited by the prosecution in order to prove the motive of the instant case. The two eye‑witnesses namely Haji Muhammad Rafique and Zahoor Ahmad had tried to improve their statements regarding this part of the motive before the learned trial Court but they were, duly confronted with their statements Exhs.D.A. and D.B. because, this motive was not mentioned in their statements recorded under section 161, Cr.P.C., by the Investigating Officer. It may also be noted here that we do not believe that after four years of the registration of case the appellant would come on the shop of Mushtaq Ahmad deceased and would threaten him with dire consequences of murdering him. In the instant case nobody knows what transpired between the deceased and the appellant just before the occurrence. The prosecution itself could not prove the motive against the appellant. The motive is shrouded in mystery and immediate cause of motive is not known. In this view of the matter, this is not a case of capital punishment in our view, so keeping in view the circumstances of the case we maintain the conviction of the appellant under section 302(b), P.P.C., but convert the same from death to life p imprisonment. Appellant is also granted benefit of section 382‑B, Cr.P.C. Sentence of fine is set aside. However the appellant is directed to pay Rs. 50,000 as compensation to the legal heirs of deceased as required under section 544‑A, Cr.P.C., or in default to undergo six months S.I. Death sentence awarded to the appellant is not confirmed. Murder Reference is replied in the negative.
Death sentence awarded to the appellant is not confirmed.
N.H.Q./M‑1170/L
Sentence reduced.