MUKHTAR AHMAD Versus THE STATE

SARDAR MUHAMMAD RAZA, J.--- Mukhtar Ahmad son of Muhammad Ramzan, after leave of Court, has filed this appeal against the judgment, dated 20-11-1997 of a learned Division Bench of Lahore High Court, dismissing his appeal against the judgment, dated 25-6-1995 of learned Additional Sessions Judge, Pakpattan, whereby the appellant was convicted under section 302, P.P.C. and sentenced to death for the commission of murder of Mst. Shagufta Parveen. In addition, the appellant was also convicted under section 337-F(iii) and- 337-F(vi), P.P.C. for causing injuries to P.W. Muhammad Rafique and P.W. Fazal Muhammad, respectively. While confirming the death sentence and the aforesaid other sentences, the conviction and sentence of six months SI under section 325, P.P.C. for attempting to commit suicide recorded by the trial Court was, however, set aside.

2. Muhammad Rafique son of Fazal Muhammad in the instant case had lodged the F.I.R. commencing from the background of the case, to the effect, that his niece (sister's daughter) Mst. Shagufta Parveen daughter of Abdul Shakoor, aged 19/20 years was residing with him. That she was abducted by Mukhtar Ahmad appellant, whereupon Muhammad Rafique initiated a Criminal Case No. 109 of 1992 on 5-5-1992 against Mukhtar Ahmad under sections 452/148/149, P.P.C. read with section 11 of Ordinance VII of 1979 at Police Station Saddar, Pakpattan. ASP Arifwala cancelled the aforesaid case whereupon Mukhtar filed a suit No.279 of.1993 on 10-8-1993 charging complainant Muhammad Rafique and Mst. Shagufta Parveen under the law of Qazaf. That as the appellant had procured a Nikahnama as well, his niece Mst. Shagufta Parveen filed a suit for jactitation of marriage against which Mukhtar Ahmad filed- a suit for restitution of conjugal rights, which were pending at the time of occurrence.

3. On 30-8-1993 Muhammad Rafique alongwith Mst. Shagufta Parveen; Fazal Muhammad, his father-in-law; Muhammad Latif, his brother and Sabir Hussain, his nephew started for the Courts at Pakpattan alongwith and in the Tonga of one Easa son of Ali Muhammad. At about 6-00 a.m. when the Tonga reached a bridge on Khadar Canal within the limits of Mochipura, the complainant got the Tonga stopped and alighted therefrom when, in the meanwhile, Mukhtar Ahmad appellant alongwith a pistol (Mouser) appeared on the scene and proclaimed that he would teach the complainant and Mst. Shagufta Parveen a lesson for filing a suit for jactitation of marriage. Faza1 Muhammad, the father-in-law of the complainant got up from the front seat, whereupon the appellant fired at him which landed on his left calf. The second shot was fired at Mst. Shagufta Parveen who was seated in the rear and who sustained injury at her hip. She fell down to the ground whereafter the appellant fired 4 to 5 shots that hit Mst. Shagufta Parveen at different parts of her body. Muhammad Rafique complainant tried to catch hold of Mukhtar Ahmad whereupon the latter fired at the left thigh of Muhammad Rafique, making an exit. That thereafter the appellant with his own pistol fired at his own chest in order to commit suicide. Easa Kochwan, Abdul Latif and Sabir Hussain got aside out of fear but saw the occurrence. Mukhtar Ahmad appellant also fell down and was taken to the hospital by two persons in a trolley. The deceased and the injured alongwith other companions were taken to Civil Hospital, Pakpattan in the same Tonga. Mst. Shagufta Parveen succumbed to her injuries near the hospital while complainant and his father were admitted in the hospital.

4. The prosecution, during trial examined numerous witnesses important being Muhammad Rafique (P.W.5), Fazal Muhammad (P.W.6), Sabir Hussain (P.W.7), Easa Kochwan (P.W.8), Dr. M.A. Jalil (P.W.1), Dr. Muhammad Siddique (P.W.10) and Mansab Khan S.H.0./Investigating Officer (P.W.11). At the end of trial accused Mukhtar Ahmad was examined under section 342, Cr.P.C. To a question, as to why was he charged and why the prosecution witnesses had deposed against him, his answer is pertinent to be reproduced as follows:--

"Mst. Shagufta Parveen deceased contracted lawful marriage with me of her own .free will and consent. Muhammad Rafique complainant who is maternal uncle of the deceased was angry over this marriage. He got registered a false case of abduction against me and my companions and got recovered Mst. Shagufta Parveen deceased forcibly through police. That abduction case was cancelled by the D.S.P., Pakpattan Sharif having been found to be false. The complainant by coercion got instituted a suit for jactitation of marriage against me and I filed a suit for restitution of conjugal rights against her at Pakpattan Sharif. On the day of occurrence, I was present at Bridge Khadar Canal and there Muhammad Rafique complainant was taking Mst. Shagufta Parveen deceased under duress on a Tonga to the District Courts, Pakpattan Sharif and when the Tonga stopped at the Bridge Khadar Canal, Mst. Shagufta Parveen deceased on seeing me got down from the Tonga and came towards me. On this Muhammad Rafique complainant caught hold of Mst. Shagufta Parveen deceased and fired at me and Mst. Shagufta Parveen deceased. I, in self defence and in order to save the life of my wife Mst. Shagufta Parveen deceased, fired on the legs of Muhammad Rafique complainant and Fazal Muhammad P.W. who had also advanced alongwith Muhammad Rafique complainant to launch assault upon us. The prosecution story has been fabricated by the complainant in connivance with the Medical Officer and the police. The P.Ws are inimical towards me and they have deposed against me due to enmity."

5. The statement of the accused has entailed upon two-pronged consequences. One is to the effect that the occurrence is admitted and the matter is simplified. The second is to the effect that two stories concerning same occurrence have cropped up before the Court. This has rendered the matter a bit complicated because now an onerous duty is cast upon the Court to decide as to which of the stories is correct and plausible, supported by the evidence and circumstances on record. The learned two Courts, we observe, have not put in the required effort in the matter. In order to ascertain the truth or otherwise of the two stories before the Court, one has to refer to numerous circumstances on record.

6. To be in sequence, we would start from the motive. It is an admitted fact on record that Mukhtar Ahmad and Mst. Shagufta Parveen had married each other. A case of abduction against Mukhtar Ahmad had been initiated by Muhammad Rafique complainant alone, which resulted in cancellation before the police. It was so cancelled on the grounds that Mst. Shagufta Parveen had never been abducted and she of her own free will had married Mukhtar Ahmad. We must also not lose sight of the fact that Mst. Shagufta Parveen barring certain physical or social shortcomings, was not a usual village girl. She was an educated lady up to Matric and was also, unlike village girls, maintaining a bank account in the city at Pakpattan. Once having had married Mukhtar Ahmad, she resided with him for a considerable time and ordinarily was not supposed to return to her maternal uncle who is so domineering that in the whole affair he has not allowed Abdul Shakoor, the father of the girl, to appear on the scene. Learned counsel for the appellant claimed. at the Bar that the father was still alive, which statement was never refuted at the Bar. The only inference qua her retrieval which can reasonably be drawn is that after getting a, police case registered against Mukhtar Ahmad, the complainant Muhammad Rafique managed to retrieve the girl physically through police. Apparently, the circumstances do not raise an inference that Mukhtar Ahmad should become annoyed with the girl.

7. After the cancellation of criminal case Mukhtar Ahmad had filed a suit for damages which was. also decreed is his favour. He also filed a cause against the complainant under the law of Qazf in addition to a suit for restitution of conjugal rights against Mst. Shagufta Parveen. This was too obvious because there was a suit for jactitation of marriage. At first impression, one can assume that Mukhtar Ahmad was annoyed due to suit for jactitation of marriage but a close examination of evidence would suggest that he was not. Mst. Shagufta Parveen was never allowed by Muhammad Rafique complainant to appear before the Court in the family litigation. He had possessed a power of attorney Exh.DF on behalf of the girl purporting to have been executed at Pakpattan but he admitted before the Family Court that the girl had never come to Pakpattan. Therefrom the Court arrived at an inescapable conclusion that the power of attorney was forged, that Muhammad Rafique complainant was not allowing the girl to appear before the Family Court and thus, the Court imperatively ordered the production of girl in person. All these, proceedings and order of the Court is available at pages 211 and 212 etc. of the file. Despite such order which was positively in the knowledge of the contesting party i.e. Mukhtar Ahmad, the girl could never appear before the Court. She might have been produced on the day of occurrence. Being in the knowledge of such facts, Mukhtar Ahmad was never expected to have had nursed any grudge against Mst. Shagufta Parveen who being forced by the circumstances and by Muhammad Rafique had been residing with him and suits had been instituted on her behalf without her consent or will. Her plight and worries can well be imagined by the fact that despite her expected day long stay in the city and having started in the early morning, she did not or could not eat anything. Her stomach was empty containing a small fluid. The real person responsible for causing all trouble for Mukhtar Ahmad and Mst. Shagufta Parveen was certainly Muhammad Rafique and none else. In the circumstances, Mukhtar Ahmad was expected to have killed Muhammad Rafique complainant and not Mst. Shagufta Parveen who could easily be taken along after such killing.

8. The circumstances provide a motive for Mukhtar Ahmad singularly directed against Muhammad Rafique. It is quite intriguing to note that despite such strong motive against Muhammad Rafique, he killed Mst. Shagufta Parveen but injured Muhammad Rafique only on his leg. If we see the site-plan, Muhammad Rafique all along had remained within the killing range. A doubt, in the circumstances, is inculcated in the mind as to why Mukhtar Ahmad would spare Muhammad Rafique and would kill his own wife.

9. Same principle can be applied to the injuries caused to Fazal Muhammad. The latter is the father-in-law of Muhammad Rafique. Having no relationship with Mst. Shagufta Parveen, he cannot be considered to be emotionally involved in the affair. His own village is 35 miles away from the village of the complainant. It does not appeal to reasons as to why Mukhtar Ahmad would fire at him unless it was imminently needed and unless it was justifiable under normal human conduct. Both Muhammad Rafique and Fazal Muhammad had sustained injuries on the non-vital parts of their body wherefrom it can be strongly inferred that. the assailant was not really interested in killing them. We may recall our observation that the assailant was never interested in killing Mst, Shagufta Parveen either. Still the occurrence took place to which we have to find an answer from record. So far as the motive is concerned, we observe and hold that the assailant might have had motive to kill Muhammad Rafique but never at all to kill Mst. Shagufta Parveen.

10. Concerning two parallel stories, we have next to revert to the statement of Easa Kochwan, examined as P.W.8. Easa is the only witness who is neither related to the complainant nor inimical towards the accused. He also belongs to village Behrampur but, though not related, yet admittedly maintains very cordial relations with the complainant since his childhood. Whenever Muhammad Rafique complainant had to go anywhere out of his village, he hired the Tonga of Easa. Being a co-villager, he is acquainted in detail with all the affairs of the village as well as the people.

11. Throughout his cross-examination, Muhammad Rafique complainant (P.W.5) had beets denying the presence of any person on or around the spot and his relationship with Dr. Muhammad Siddique (P.W.10), who, according to defence, had helped the prosecution a lot. Easa Kochwan has categorically stated, completely negating the complainant, that all the shops on the spot were open, that numerous customers were present in the shops and all the people present on the spot had seen the occurrence. The question is, as to whether he is uttering these words in order to favour the accused as a won over witness or there do exist on record any other indications corroborating his version. We may, at this stage, refer to the statement of Fazal Mahmood (P.W.6), the father-in-law of the complainant, who states that by the time they left for the hospital all the people had gathered on the spot. It is an admitted fact that the deceased as well as the injured from the side of the complainant were taken to the hospital in the same Tonga which they were already traveling in. Obviously, .there should be no loss of time and hence from the statement of P.W. Fazal Muhammad as well, it can be safely gathered that people were present around. Mansab Khan, Investigating Officer (P.W.11) also determined through investigation that people were present on the spot and he had. examined a few as well. The presence of people on the spot would be relevant in our discussion when we come to the relevant point but one thing may be remarked at this stage that Easa Kochwan is telling the truth supported by other evidence.

12. The most crucial are the words of Easa Kochwan turning upside down the entire prosecution version when he says that no one alighted from the Tonga except Mst. Shagufta Parveen, who started heading towards Mukhtar Ahmad. In the meanwhile, Muhammad Rafique. had returned after purchasing the cigarettes. When Muhammad Rafique saw Mst. Shagufta-Parveen going towards Mukhtar Ahmad, he fired at her. He made an astonishing admission that Muhammad Rafique complainant and Fazal Mahmood were injured by the accused after when Mst. Shagufta Parveen was fired at by the complainant. The above utterances were in complete consonance with the background of all that had happened between the parties. We have already held that Mukhar Ahmad might have had a motive to kill Muhammad Rafique but had no motive at all to kill Mst. Shagufta Parveen. They had chosen to join through thick and thin after breaking all the normal traditions of the society. In this background, it was natural that when the Tonga stopped and Muhammad Rafique went to the nearby shop, Mst. Shagufta Parveen on seeing Mukhtar Ahmad rushed to join him and to liberate her from the complainant. This was never liked by Muhammad Rafique, who would have been the last person to tolerate her going to her husband. Obvious reaction was that Muhammad Rafique fired at Mst. Shagufta Parveen while she was going towards Mukhtar Ahmad. This is why she received the injury at her back. Easa has also explained that since the marriage of the two involved and after civil and criminal litigation, Muhammad Rafique used to be armed. No doubt, this witness has supported prosecution version in his-examination-in-chief, but, at the same time, he has explained that this was done at the prompting and tutoring by Muhammad Rafique complainant.

13. The truth of the statement of Easa is further reinforced by the statement of Mansab Khan, Investigating Officer, who categorically admitted that all the people on the spot favoured the story narrated by the accused or so narrated by Easa Kochwan. The Investigating Officer had even examined Muhammad Abbas, Muhammad Hanif and Muhammad Aslam who had supported the version put forth by the accused. Had Mansab Khan Investigating Officer. cited the aforesaid witnesses as prosecution witnesses, the fate of, the trial,. would have been different altogether.

14. The Investigating Officer also seems to have worked under influence. He admitted that people on the spot supported the story narrated by the accused but he never examined them as witnesses. If examined, those must have been independent. On the other hand, Muhammad Abbas, Muhammad Hanif and Muhammad Aslam, who also favoured the accused, were never arrayed as prosecution witnesses.

15. Learned High Court was also convinced of such story and that is why it acquitted the appellant of the charge under section 325, P.P.C. for attempting to commit suicide. Rather, it is interesting to note, that the High Court even went to the extent of saying that it was well nigh possible that the injury to the accused might have been inflicted by the complainant. When this conclusion drawn was not the case of the prosecution and was never so admitted by the complainant, the trial Court as well the High Court ought to have had accepted the defence version as correct. When once the appellant is acquitted of the charge under section 325, P.P.C. it is tantamount to not believing the version of the complainant that at the end the appellant fired at his own self in order to commit suicide.

16. The portion of the statement of Easa Kochwan favouring the accused is not only corroborated by other witnesses but more strongly by the circumstances. He was wrongly disbelieved by the two Courts below. Learned Additional Sessions Judge disbelieved Easa simply. because he had made a favourable statement only in the cross-examination. Learned High Court was of the similar view that Easa should not be believed because he gave favourable statement at the fag end of his cross examination. Both the Courts 'have failed to appreciate that cross examination is a continuing part of the whole statement, rather,, more .important than the examination-in-chief. A close examination of the witness would indicate that he has rather favoured Muhammad Rafique complainant by not saying that he had fired at Mukhtar Ahmad as well. The concessional part of his statement, as stated earlier, is, fully supported by other evidence on record. The most decisive connection that such statement has got, is, with the injury of the accused. If it is held that Easa Kochwan was won over, the prosecution ought to have had got him declared hostile. It never resorted to such process.

17. Reverting to the injury of the accused, if it is not proved to be suicidal, the unavoidable conclusion would be that it was caused by the complainant during the process when Mst. Shagufta Parveen was heading towards the appellant and had gone near him. It is categorically alleged by Easa Kochwan that Mst. Shagufta Parveen was fired at by Muhammad Rafique and that it was thereafter that the accused fired at the complainant and Fazal Muhammad, that too, on their legs. Same is the version -of the accused. Here, we must remark that if the injury in the above said sequence is caused to the appellant by someone else, he remains not at all in a position to fire to kill anyone. He had dropped on the spot immediately. It was but 'obvious because he had sustained a chest injury which had found an exit at the back of chest. He seems to have survived miraculously.

18. Coming to the nature of injury sustained by Mukhtar Ahmad appellant, we would pause to say, according to the statement of Easa, that Dr. Muhammad Siddique (P.W.10) who conducted the whole affair was related to the complainant and also an adjoining neighbour. Complete detail of relationship is furnished by naming the relations by Easa Kochwan. Said Dr. Muhammad Siddique found the appellant's injury as follows:--

"A penetrating firearm wound 1 c. m. x 1 c.m. going deeply inward on left side of chest about 5 c.m. to the inner and upper, part of left chest. The wound was bleeding profusely and air bubbles were coming out of the wound and its margins were inverted. "

It is admitted that the appellant was armed with a 30 bore pistol. The barrel whereof is not ire any case more than 8 c.m. long. In a case of suicide and in the present circumstances, if a shot is fired by an assailant at his own chest, it would either be a `contact shot' or a `close shot' with a distance of at the most 5 to 10 centimeters or 2 to 4 inches from the body. Another feature may also be kept in mind that the occurrence took place in the month of August, which is very hot in the Punjab and people wear only one shirt. Dr. Muhammad Siddique tried to prove it to be a self inflicted injury yet Dr. M.A. Jalil (P.W.1), a disinterested witness, in his report Exh.PE has excluded the possibility of such injury to be self inflicted. According to him, it was caused from a distance of 8 to 10 feet. Obviously, if it is not caused by Mukhtar Ahmad himself, it is certainly caused by the complainant side and this goes to demolish the entire case of the prosecution.

19. If the injury is considered to be a `contact shot' with a pistol then the skin and bone is filled with soot and gunpowder and the wound margins are split due to expanding gases. The gases, flame, powder, smoke and metallic particle of molten metal from the bullet are blow into track taken by the bullet through the body. The margin is contused and inverted due to gases coming out of the entry wound under pressure. No such phenomena has occurred in the present injury and hence one can rule out altogether that it was a `contact shot' the muzzle touching the body of the victim.

20. If the muzzle of a pistol remains 3 to 5 c.m. away from the body, particles of gunpowder are centered around the bullet hole and the soot is dispersed over a wider area. The skin is burnt with singeing of the hair, the skin surrounding the wound shows some bruising, burning, blackening and tattooing. In the instant case the wound had not even charring marks much less the other characteristics.

21. Up to a distance of 15 centimeters, abundant gunpowder and diminishing amount of soot are deposited on the target. This also is not the condition of the wound in hand. The obvious conclusion would be that it was a `distant shot' in which the margins are inverted like the one seen in the injury reproduced above. In such `distant shot' there is no burning, no blackening, and no tattooing. All these characteristics are not visible in the injury in question and hence it is a `distant shot' not fired by the assailant himself but by somebody else. It is such a vital shot that after having received the same' one cannot, under any circumstances, resort to killing. We believe that the injury in question was not at all suicidal. Once it is so held, it happens certainly to be caused by somebody else which totally negates the prosecution version. The High Court also believed the same. and acquitted the accused under section 325, P.P.C. It is inconceivable that once it is held to be .shot fired by somebody else or by the complainant, as thr, High Court believed, how could the victim resort to killing thereafter. When once it is held not to be a suicidal injury, the prosecution story was bound to be thrown out altogether on this one and the single score alone. The description of the injuries narrated above is borrowed from Dr. K. S. Narayan Reddy's Medical Jurisprudence and Toxicology (Ist Edition pages 205 to 208).

22. All, the injuries sustained by Mst. Shagufta Parveen. bore charring marks, one on the chest being a simple burning. All said injuries most certainly are fired from a pistol, are fired from a range not beyond 2 to 4 inches. On the other hand, the so-called assailant Mukhtar Ahmad is shown in the site plan to be 5 to 8 feet away from the victim. At .the time of first alleged fire, the distance is 8 feet and at the time or second round of consecutive firing at Mst. Shagufta Parveen his distance is 5 feet. Under no circumstances, such fire shots could cause charring or blackening which is, of course, present on all the injuries.

23. All the shots are attributed to Mukhtar Ahmad, the appellant. The Medico-Legal Reports and the postmortem report would indicate that Mst. Shagufta Parvem bears the marks of six injuries. Two injuries are sustained by Muhammad Rafique, one by Fazal Muhammad and one by Mukhtar Ahmad appellant himself. This brings the total to ten fire shots. It is a matter of practical experience that a magazine of 30 bore pistol cannot contain ten rounds at a time. With the fall of the appellant. his pistol also dropped. It was recovered but with one magazine. No extra magazine to be reloaded could be found either on the spot or from the possession of the accused. Most certainly, some of the shots are wrongly attributed to the accused. And if so, those are certainly fired by somebody else.

24. Consequent upon what has been discussed above, we hold that Mukhtar Ahmad appellant had no motive to kill Mst. Shagufta Parveen. That the complainant was highly inimical towards the accused and that Dr. Muhammad Siddique was his relative. That, the involved story of prosecution stood completely demolished by the fact that injury to Mukhtar Ahmad appellant was not suicidal one and that Easa Kochwan was the most important witness wrongly discarded by the two Courts below. That Mst. Shagufta Parveen was murdered by the same person who also fired at Mukhtar Ahmad. As a sequel to the above findings, we hold that the prosecution has failed to bring home the charge of Mst. Shagufta Parveen's murder against the appellant. He deserves acquittal and is hereby acquitted of charges under sections 302, 337-F(iii) and 337-F (vi), P.P.C. If not required to be detained in any other case, the appellant is directed to be released forthwith.

M.B.A./M-857/S Appeal accepted.