SHAUKAT ALI Versus THE STATE
MUHAMMAD MUNIR KHAN, J. ‑‑ These two Criminal Appeals Nos. 90 and 89 of 1983 and the connected Murder Reference No.86 of 1983 arise from the judgment of learned Additional Sessions Judge, Vehari whereby he on 30‑4‑1983 convicted Shaukat Ali appellant under section 302, P.P.C. for causing death of Sardar Khan and under section 1.3 of the Arms Ordinance, 1965 for the possession of unlicensed gun and sentenced him as under:‑‑
(1) Under section 302, P.P.C. to death and a fine of Rs.2,000 in default thereof one year R.I. Compensation of Rs.1,000 under section 544‑A, in default thereof six months' R.I. with the direction that the fine and compensation when recovered be paid to the legal heirs of the deceased.
(2) Under section 13 of the Arms Ordinance, 1965 to one year R.I.
We propose to dispose of these two appeals and Murder Reference through single judgment.
2. The occurrence took place at 3.00 a.m. in the courtyard of the house of Sardar Khan deceased situated in village Lal Deh of Police Station Ladhar. The distance between the place of occurrence and the Police Station is two miles. F.I.R. is the statement of Ghulam Fareed P.W.11, the nephew of the deceased recorded by Maqbool Ahmad, A.S.I. P.W.13 at 5‑00 a.m. on the tubewell of Muhammad Hussain Doultana in village Lal Deh. Formal F. I. R. Exh. P. E./1 was drawn up by Muhammad Ashraf Moharrar Head Constable P.W.4 at 5‑30 a.m. on the same day.
3. The motive alleged by the prosecution was that 15 days before the murder, the buffaloes of the deceased had damaged the crops of the appellant when the appellant complained of his damage the deceased said that it was just an ordinary thing and that in future there would be no damage to his crops. The appellant feeling not satisfied, hurled abuses which were returned by the deceased. The appellant then threatened the deceased with dire consequences. It so happened that three days before the murder, the appellant passed near the tubewell of Sardar Khan who asked as to why he (appellant) was roaming there, on which the appellant said that who he was to inquire from him. Whereupon Sardar Khan deceased slapped the appellant in presence of Allah Jiwaya. P. W. 6.
4. The prosecution case as disclosed in the F.I.R., was, that on the eventful night Ghulam Fareed P.W.11, Ali Muhammad Khan Haji Sardar Khan deceased, Mst. Sardar Bibi P.W.12 wife of the deceased and her children were sleeping in the Haveli of the deceased. At about 3‑00 a.m. Ghulam Fareed, Mst. Sardar Bibi P.W.12 woke up on the reports of gunfire. Sardar Bibi raised alarm. Ghulam Fareed complainant and Ali Muhammad Khan ran to the Charpai of Sardar Khan. They found him lying injured on his Charpai. On inquiry, the deceased told them that while he was asleep he had been fired at 2‑3 times and that Shaukat Ali might have launched this murderous assault. Sardar Khan in injured condition was, removed towards Vehari Hospital. He was then taken to Nishtar Hospital, Multan where he succumbed to the injuries.
5. On 6‑10‑1980 Dr. Akbar Saeed P.W.3 conducted post‑mortem examination on the body of Sardar Khan. He found following injuries on his person.
"Injury No.1.‑‑ Two circular fire‑arm entry wounds located 1 c. m. above each other and 2 c. m. to the left of mid line over the back of left side of chest. 35 c.m. below the root of neck. Each wound measured 0.7 c.m. in diameter with inverted ragged and blackish scarred margins.
Injury No.2.‑‑ One circular fire‑arm entry wound 0.7 c.m. in diameter with inverted ragged and blackish scarred margins, located 5 c.m. to the right of mid line on the back of right renal area.
Injury No.3.‑‑ A circular fire‑arm entry wound 0.7 c.m. in diameter with inverted and ragged margins over the upper side of right buttock, 3 c.m. away from the mid line and 12 c.m. below the iliac crest.
An exit wound 0.8 c.m. in diameter with everted irregular and ragged margins and located over the lower part of right inguinal region close to the root of testies.
Injury No.4.‑‑ Five circular fire‑arm entry wounds located almost in a vertical line above each other with inverted ragged and scarred margins and each measuring 0.7 c.m. in diameter over the hole of the left buttock.
For irregular exit (fire‑arm wound with everted ragged margins and located almost vertically above each other over the back of the left thigh, the upper most exit wound being 10 c.m. below the left thigh and lower most being 16 c.m. above the back of the knee joint each measured 0.9 c.m. in diameter.
Injury No.5.‑‑ A circular fire‑arm entry wound 0.7 c.m. in diameter with ragged inverted and scarred margin 16 c.m. below the left popliteal‑fossa (back of knee) of back of left leg.
Injury No.6.‑‑ A circular fire‑arm entry wound 0.7 c.m. in diameter with blackish scarred ragged and‑inverted margins and located over the inner side of the left lower leg 14 c.m. below the back of popliteal‑fossa 14 c.m, below the back of‑ knee joint."
In his opinion the cause of death was due to extensive internal haemorrage and shock. Injuries Nos.l and 2 were grievous, dangerous and fatal. The rest of the injuries were simple in nature. The injuries were sufficient to cause death in the ordinary course of nature. All the injuries were caused by fire‑arm and were anti‑mortem. The time between the injury and the death was within 9 hours and the death and the post‑mortem was about 24 hours. In cross‑examination the Doctor stated that the injuries were the result of more than one shot. The doctor stated that the deceased could talk for abut or 7 hours after receiving the injuries.
6. Maqbool Ahmad A.S.I. P.W.13, after recording the statement Exh. P.E. of Ghulam Fareed complainant, went to the spot. He secured crime empty P.7, and took into possession blood‑stained bed‑sheet P.8, blood‑stained Dohar P.9, Pillow P.10 and Cot P.11. Ghulam Sarwar S.I. P.W.14, arrested Shaukat Ali appellant on 16‑10‑1981. On 25‑10‑1981 the appellant got recovered gun P.4 which was taken into possession vide memo. P.G. attested by Hafiz Muhammad Abdullah P.W.8. The gun contained two empty cartridges Exhs.P.5 and P.6. The gun was made into a sealed parcel. The Forensic Science Laboratory report Exh. P.O. revealed that the two parcels containing empty and gun were received together in the office on 27‑10‑1981 and that on examination it was found that empty P.7 was fired from the right barrel of the gun Exh. P.4.
7. To prove its case prosecution produced as many as 14 witnesses. Allah Jawaya P.W.6 and Ghulam Freed P.W.11 appeared to prove the background of the murder i.e. the incident of the damage to the crops of the appellant by the cattle of the deceased and the subsequent incident wherein the deceased slapped the appellant three days before the occurrence. They supported the motive. Ghulam Fareed P.W.11, Mst. Sardar Bibi P.W.12 supported the prosecution case given in the F.I.R. as detailed in para. 3 of the judgment. They claimed to have seen and identified the appellant at the time of occurrence. They further stated that on inquiry, the deceased had told them, that Shaukat Ali appellant had fired shots on him. Muhammad Ramzan P.W.9 and Muhammad Bakhsh P.W.10 were produced as Wajtakar witnesses. They stated that on hearing the report of the gun when they proceeded towards the house of the deceased they saw the appellant coming out from there. Sher Khan P.W.6 was the witness of the extra‑judicial confession made by the appellant but he has been disbelieved by the trial Court for cogent reasons. Ghulam Fareed and Maqbool Ahmad are the witnesses of the recovery of the crime empty. They stated that crime empty P.7 was secured from the Haveli of the deceased. Hafiz Muhammad Abdullah P.W.8 and Ghulam Sarwar P.W.14 are the witnesses of the recovery of gun P.4 containing empty P.5 and P.6 at the instance of appellant. They supported the recovery. The rest of the evidence is more or less of formal nature.
8. When examined under section 342, Cr.P.C. the appellant denied all incriminating circumstances. He raised plea of false implication on account of enmity. In defence he did not produce any witness. He tendered photo copy Exh. D.G. of electoral roll of village Budha Ghulam.
9. The learned counsel for the appellant contends that prosecution has failed to prove its case beyond reasonable doubt inasmuch as in the F.I.R. only suspicion against the appellant has been expressed; that the names of the Wajtakar witnesses are not mentioned in the F.I.R. and that the crime empty and the gun having been sent to Forensic Science Laboratory together, the recovery is of no consequence. Conversely the learned counsel for the State has supported the judgment of the trial Court.
10. We have considered the arguments advanced by the learned counsel for the parties with care. From the statement of facts and the details of evidence given in paras. 3, 4 and 7 it is very much obvious that the incriminating evidence produced by the prosecution against the appellant is to the effect that he was seen by Ghulam Fareed P.W.11 and Sardar Bibi P.W.12 in the Haveli of the deceased; that when these witnesses approached Sardar Khan in his injured condition he (Sardar Khan) told them that Shaukat Ali appellant had fired shots at him; that Muhammad Ramzan and Muhammad Bakhsh, the Wajtakar witnesses saw the appellant coming out of the Haveli of the deceased immediately after the occurrence; and that the motive is supported by Allah Jiwaya P.W.6 and Ghulam Farid P.W.11. After having appreciated entire incriminating evidence in the light of the guiding principles laid down by the superior Courts for the safe administration of justice in criminal cases, we feel that prosecution has not been able to prove its case beyond reasonable doubt and it would be highly unsafe to maintain the conviction and sentence of the appellant. Ghulam Farid complainant left for the Police Station after having conversation with the deceased and the arrival of Wajtakar witnesses in the Haveli. Strangely enough in the F.I.R he did not state to have seen Shaukat Ali appellant in the Haveli. He did not state therein that the deceased had identified the culprit or that the deceased had told that Shaukat Ali appellant had fired shots at him. So much so, the arrival of Muhammad Ramzan and Muhammad Bakhsh, the alleged Wajtakar witnesses and of their having seen the appellant coming out of the house is also not mentioned in the F.I.R. The statement of the complainant, at trial stage, that Muhammad Ramzan and Muhammad Bakhsh P.Ws. reaching immediately after the occurrence had told them that they had seen the appellant coming out of the house appears to be highly doubtful. Had Muhammad Ramzan and Muhammad Bakhsh told him of their Wajtakar with the appellant then the appellant would have mentioned it in the F.I.R. .The omission to mention the identification of the appellant by the complainant Sardar Bibi P.W.12 and of the names of Wajtakar witnesses, negates the claim of these witnesses to have seen and identified the appellant at the time of occurrence. It is remarkable that in the F.I.R. which was lodged by Ghulam Fareed P.W.11 after his conversation with the deceased and his meeting with the Wajtakar witnesses it is stated;
It is thus very much obvious that by the time the F.I.R. was lodged there was no certainty of the culprit. There was only suspicion against the appellant that he might have launched the murderous assault on Sardar Khan. To disbelieve the witnesses or exclude their evidence it is not necessary that there should be numerous reasons. If there is) one reason or circumstance which makes their evidence doubtful that may be sufficient to discard their testimony. To our mind, the expression of suspicion in the F.I.R. that the appellant might have fired snots on the deceased casts doubt on the claim of Ghulam Farid P.W.11, Sardar Bibi P.W.12, Muhammad Ramzan P.W.9 and Muhammad Bakhsh F.W.10 of having seen and identified the appellant. It is remarkable that in the inquest report, which was prepared after some investigation in statement of Sardar Bibi P.W.12 under section 161, Cr.P.C. and in the first Zimni it has not been stated with certainty that Shaukat Ali had fired at deceased. As for the recovery of gun P.4 from the appellant that too is of no consequence inasmuch as Forensic Science Laboratory report Exh. P.O. reveals that the crime empty and the gun were received together. The possibility of the firing of crime empty by the police itself before sending the gun to Forensic Science Laboratory thus cannot be excluded. Coming to the evidence of motive we find that motive is a double edged weapon and in the instant case it actually gave rise to the suspicion as mentioned in the F.I.R. that the appellant might have IC launched the murderous assault.
11. For what has been stated above, there being no statutory basis for upholding the conviction while giving him the benefit of doubt, the appellant is acquitted of the charge under section 302, P.P.C. The evidence of the recovery in case under section 13 of the Arms Ordinance is not convincing. He is also acquitted of that charge. He shall be released forthwith if not required in any other case.
Death sentence is not confirmed.
M. A. K. Appeal accepted.