MUHAMMAD SAEED alias RASHID alias SHEDA Versus State

MUHAMMAD ASHRAF BHATTI, J.--- Muhammad Saeed alias Rashid alias Sheda and Allaf Yar, appellants, have challenged their conviction and sentences through Criminal Appeal No.1179 of 2003. They were tried along with two others by the learned Additional Sessions Judge, Depalpur, District Okara in case F.I.R. No.70, dated 4-2-2002, Police Station Basirpur, under section 302/34, P.P.C. for the murder of Shahadat Ali (son of the complainant). Along with this appeal the learned trial Court has also sent a Murder Reference No.402 of 2003 for confirmation of death sentence awarded to Muhammad Saeed alias Rashid alias Sheda, appellant. We propose to dispose of both these matters through this single judgment.

2. After evaluating the evidence brought on record, the learned Additional Sessions Judge, Depalpur vide his judgment, dated 24-6-2003 came to the conclusion that the prosecution established it case beyond reasonable doubt against both the appellants. Accordingly, they were convicted under section 302(b), P.P.C. but while awarding sentences Muhammad Saeed alias Rashid alias Sheda, appellant was sentenced to death. He was also held liable to pay Rs.1,00,000 as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. and in default thereof to undergo further imprisonment for two years S.I. whereas Allaf Yar, appellant was sentenced to imprisonment for life. He was also ordered to pay Rs.50,000 as compensation to the legal heirs of the deceased as envisaged under section 544-A, Cr.P.C., and in default thereof to further undergo imprisonment for two years' S.I. The remaining accused, namely, Ali Ahmed and Ghulam Rasul were acquitted, giving them benefit of doubt.

3. The F.I.R. is based on the statement (Exh.P.A.), dated 4-2-2002 got recorded before Muhammad Siddique, S.-I./Investigating Officer (P.W.8) by the complainant Barkat Ali, father of the deceased. According to him, on 4-2-2002 he was on his way back to home from Adda Basirpur after shopping along with his son Shahadat Ali, brother Muhammad Ashraf and one Muhammad Yasin on a van "Dalla" bearing Registration No.7162-LHN, which was driven by Irshad Ahmed. The complainant and his deceased son were sitting, on its front seat next to the said driver. As soon as the 'Dalla' reached near the house of Muhammad Yasin Toor at about 5-15 p.m. Ghulam Rasul co-accused armed with Pistol standing behind allegedly got the van stopped. In the meantime Rashid alias Sheda and Allaf Yar (appellants) both armed with .12 bore guns along with Ali Ahmed their acquitted co-accused armed with pistol, emerged at the scene of occurrence. Ali Ahmed raised Lalkara while standing in front of the 'Dalla' that Shahadat Ali be done to death upon which Allaf Yar made a fire shot with his gun which hit the body of the 'Dalla'. Rashid alias Sheeda made fire shot with his gun which hit Shahadat Ali on his back near the left shoulder which proved fatal whereby he succumbed to the injuries at the spot. On the hue and cry of the complainant and the P.Ws., people were attracted who also witnessed the occurrence.

4. Motive behind the occurrence as disclosed in the complaint is that there was murder litigation going on between the parties and the appellants with their aforesaid co-accused, due to that grudge, had murdered Shahadat Ali son of the complainant.

5. Muhammad Siddique, S.-I. (P.W.8) conducted the investigation of the case. According to him on having received information about the occurrence, he reached at the spot, recorded the statement of Barkat Ali, complainant, Exh.P.A. and sent it to the police station for registration of formal F.I.R. through Muhammad Yahya, Constable 149. Then he prepared the injury statement of Shahadat Ali (Exh.P.H.); inquest report Exh.P.J.; and arranged for the post-mortem examination. He also collected blood-stained earth from the spot as also the blood (Exh.P.B.) from inside the Dalla. He took Dalla (P1) into possession vide recovery memo. Exh.P.C.; prepared the rough site-plan Exh.P.K. and recorded statements of the P.Ws. under section 161, Cr.P.C. After the post-mortem examination on 5-2-2002 the last worn clothes of the deceased Qameez P.2, Shalwar P.3, Sweater P.4, Woollen Jersy P.5, Muffler P.6, Bunian P.7, Socks P.8/1-2, Pair of shoes P.9/1-2 and a sealed Phial containing pellets P.10 were produced before him (Exh.P.D.). He got prepared scaled site-plan Exh.P.L. and Exh.P.L./1 of the place of occurrence through Nisar Ahmed Faridi, Draftsman on 6-2-2002. On 17-2-2002 he arrested both the appellants who in the same way from their respective residential rooms of their houses got recovered weapons of offence i.e., .12 bore gun which were lying in the "Jisty Paities" and prepared the site-plan of recoveries Exh.P.E./1 and Exh. P. F. /1 in the presence of the P.Ws. The other accused were declared innocent.

6. After completing the necessary formalities, the Investigating Officer got submitted the challan in Court where the aforesaid persons were formally charge sheeted on 11-12-2002 to which they pleaded not guilty and claimed trial.

7. At the trial Dr. Munir Ahmed (P.W.6), Medical Officer THQ Hospital; Depalpur who furnished the details of injuries conducted the autopsy on the person of Shahadat Ali, deceased and found the following injuries:

(i) A lacerated wound 2-1/2 c.m. x 2-1/2 c.m. deep going margin inverted mild blackening present at back upper and outer part of left chest, near posterior axillary's line (entry wound). On dissection: Wad and pellets entered through Injury No.1 through left chest wall and fractured left 3rd, 4th and 5th ribs injured left plura and left lung and perforated pericardium and both arteries of heart and also injured major vessels in the superior media -stinum. Then pellets travelled and injured right plura right lung and right chest wall. Four pellets were recovered from right chest wall. One pellet went out of the body from Injury No.2. One litre of blood was found in right plural cavity, one litre of blood was found in left plural cavity and 100 ML of blood was found in pericardium cavity. Wad was recovered from left plural cavity.

(ii) Lacerated wound 1/2 c.m. x 1/2 c.m. margins averted x deep going no blackening at front upper and outer part of right chest near anterior axillary's fold at 10 O'clock position from right nipple.

Scalp, skull, brain, spinal chord, vertibra and all the abdominal viscrae were found healthy. Stomach was semi-filled with semi-digested food. Urinary bladder had two Ounces of clear urine.

After thorough external and internal post-mortem examination of dead body, he opined that the deceased got single fire-arm weapon injury which was ante-mortem injury and that cause of his death was massive haemorrhage shock due to bleeding from injured heart and both lungs and major vessel of superior mediastinum. He observed that the injury No.(i) was sufficient to cause death of the deceased in ordinary course of nature. Exh.P.G. is the post-mortem report whereas Exh.P.G.A/1 is the sketch/diagram of injuries, which was endorsed by him. In his cross-examination the doctor stated that the deceased could not be fired at from his front side or from his right side as alleged in this case by the prosecution.

8. In order to prove its case the prosecution mainly relied upon the eye-witnesses i.e. P.W.1 Barkat Ali complainant, P.W.2 Muhammad Ashraf who provided the ocular account reiterating the contents of the F.I.R. (Exh.P.A./1). To corroborate it private recovery witness Muhammad Nawaz, P.W.5 was produced to prove recoveries of .12 bore gun from both the appellants on the same day when taken to their respective houses by the police party. P.W.3 Khadim Hussain, A.S.-I./Muharrir who is the scribe of the F.I.R. admitted in his cross-examination that on the basis of statement Exh.P.A. formal F.I.R. was recorded but inadvertently portion `A' to `A' containing words "hit on the Dalla, Rashid alias Sheda fired with his gun" was missed due to darkness. P.W.4 Muhammad Azam identified the dead body of the deceased whereas P.W.5 Muhammad Nawaz was the recovery witness. The remaining witnesses are more or less of formal nature as so need not be mentioned.

9. After tendering .reports of Chemical Examiner, Exh.P.M. and those of Serologist and Forensic Science Laboratory Exh.P.N. and Exh. P. P., the prosecution closed its evidence.

10. The accused-appellants were examined under section 342, Cr.P.C. who denied the very factum of having committed the offences under reference. They stated that they have been falsely implicated in this case and that none of them was present at the spot. The appellants, however, did not opt to record their statements on oath in terms of section 340(2), Cr.P.C. in disproof of the allegations against them.

11. The learned trial Court after hearing the arguments of the learned counsel for the parties recorded the conviction and awarded sentences to the appellants as mentioned in the opening paragraph of this judgment while acquitting Ali Ahmed and Ghulam Rasul of the charge against them.

12. The learned Additional Prosecutor-General appearing on behalf of the State supported the judgment of the learned trial Court.

13. We have heard the learned counsel for the appellants as well as the learned Additional Prosecutor-General appearing for the State in the light of motive as set up by the prosecution, ocular account, medical evidence and recoveries effected from the appellants and then sentences passed on the basis thereof by the learned trial Court.

14. At the outset we feel no hesitation to observe that there is a lot of weight in the defence version that if, at all, fatal shot is supposed to be fired by Muhammad Saeed alias Sheda, appellant as per contention raised by the complainant who was sitting on southern side of the front seat and the deceased in between him and the driver with their backs stuck to the rear thereof, with no gap or space left as stated, and this being a .12 bore gun fire, even a man of an ordinary prudence would not believe that a fire coming from right side or front side with volley of pellets would spare the other two and straight land on the person of the deceased only. It is the case of the prosecution that Allaf Yar, appellant fired from western side whereas Muhammad Saeed alias Sheda made fire from eastern side when the `Dalla' was heading towards north. So, as rightly pointed out by the defence that in such a situation causing of injuries only on the person of the deceased becomes highly doubtful. Similar is the view of the Doctor (P.W.6) when cross-examined on this aspect of the matter. It may, therefore, safely be said that in the absence of any explanation from prosecution side in this regard, the said eye-witnesses very presence at the spot also becomes highly doubtful. Further, there is also not an iota of evidence available on record to suggest that the driver or complainant had made any movement from their respective seats to save themselves from the coming fire shot nor the driver was produced to show as to how he saved his life in that position. The contention that he could be produced as defence witness carries no water because basically it was the duty of the prosecution to prove its case and so it makes sufficient room for creating a reasonable doubt in the mind of a layman for possibility of false implication of the appellants in this case.

15. It is also important to note that the prosecution witnesses i.e. Muhammad Ashraf P.W.2 in his cross-examination admitted that the fire shot by Allaf Yar, appellant after penetrating the body of the Dalla hit a woman also who was sitting in the same Dalla behind seat of the deceased and the complainant. Astonishingly, the complaint (Exh.P.A.) and the F.I.R. (Exh.P.A./1), are quite mum about this very important feature of the case creating again a strong doubt about the prosecution story giving the impression that the occurrence did not take place in the manner tried to be proved at the trial. So, either this is a deliberate attempt to withhold natural and direct evidence that could be made available at the trial by the prosecution or is a dishonest statement on the part of the prosecution, more particularly of the Investigating Officer. It, therefore, strengthen the defence version that the eye-witnesses did not see the occurrence.

16. It is also very strange to note that Allaf Yar, appellant spared the complainant who was at his mercy, being few feet away from him. We, therefore, find it improbable because neither he nor Muhammad Saeed alias Sheda appellant could afford to spare him, giving him a chance to be an eye-witness of the occurrence specially when they were fully in control of the situation and would have hardly any justification not to kill him. Moreover, if Allaf Yar, appellant could fire blindly at the Dalla from a close distance as narrated by the P.Ws. he would not have restrained himself from firing at the complainant also who was on the extreme left of the front seat and could very easily be a victim of his fire when the Dalla had too come to a complete stop.

17. There is also lot to be said about the formal F.I.R., recorded by Khadim Hussain, P.W.3, in the light of stance taken by the appellants to convince this Court that the concerned police officials in connivance with the complainant party had manipulated the complaint as to difference in contents of the F.I.R. and the complaint regarding attribution of role of effective firing. Admittedly, firing of fatal shot has been shifted from Muhammad Saeed alias Sheda to Allaf Yar, appellant in the F.I.R. which is in direct conflict with the effective fire attributed to the former in the complaint. The explanation given by Khadim Hussain, A.S.-I./ Moharrar/P.W.3 in this regard and the Investigating Officer (P.W.8) is quite unsatisfactory. According to Khadim Hussain, A.S.-I. this was merely an omission on his part due to darkness. The Investigating Officer tried to support him. The learned counsel for the appellants has rightly pointed out that it is not mere omission of few words but as a matter of fact a complete sentence has been so changed that role of firing be shifted to Muhammad Saeed alias Sheda. So, we are in full agreement with him to observe that this apparently tampering was made for extraneous consideration. This is further fortified from the insertion of the words " ﻤﻟﺰﻤﺎﻦﻤﻮﻗﻌﻪﺳﻱﻔﺮﺍﺮﻫﻮﮒﺉ " which appears to have been made later on directly affecting adversely the very sanctity of the complaint Exh.P.A.

18. Moreover, the motive is attributed to Allaf Yar, appellant and so if they had planned to take revenge, Allaf Yar would not have fired at the body of 'Dalla' as discussed above, sparing the complainant or his son when both were in his range. So, therefore, introduction of the effective role by Allaf Yar in the F.I.R. and thereafter, explaining it at the trial that it was just an omission, makes the prosecution story worthy of no credence.

19. There is also yet another glaring discrepancy as to the venue of recording of the statement Exh.P.A. According to the Investigating Officer/P.W.8, it was recorded at the spot whereas the complainant/P. W.1 as also Muhammad Azam, P.W.4 say otherwise. According to P.W.4 the Investigating Officer recorded the statement of the complainant as also the statements of eye-witnesses at the police station which clearly runs counter to the statement of the Investigating Officer. The learned counsel for the, appellants is of the view that a concocted story has been set up by the prosecution due to previous enmity and to support it they have drawn our attention to the recoveries of .12 bore guns effected in this case. Interestingly both the guns were allegedly recovered from the appellants on the same day form `Jisty Paties' from the rooms of their respective houses. The private recovery witness i.e. Muhammad Nawaz, P.W.5 associated the police at the time of both recoveries which were admittedly effected from the houses being jointly possessed by the appellants' families; therefore, it required strong corroboration. Moreover, he was admittedly summoned by the police with the intimation that on a particular day the same were to be effected. No person from the respective vicinity was associated with the recovery proceedings. These were not sealed into parcels and had been taken to the police station in a naked condition as told by this witness. No empties were also found from the place of occurrence and so there was no question of matching as to whether or not the fires were shot from the same guns. Therefore, the recoveries are absolutely not reliable.

20. In the light of above discussion learned counsel for the appellants has convincingly made out a case that the ocular account furnished by the prosecution is full of contradictions, based upon improbabilities not appealing to reason as also not confidence-inspiring in any manner, whatsoever. We have also gathered that the recording of F.I.R. on the part of Khadim Hussain, P.W.3 is not in line with the complaint Exh.P.A. and explanation given therefor, is neither valid nor convincing. Even the recoveries effected are of no corroborative value.

Neither the medical evidence has advanced the case of the prosecution. So, therefore, in such a situation we find number of discrepancies present in the prosecution case which discredit the, ocular account furnished by the eye-witnesses. Even in the matter of the venue of recording of statements of the complainant and the eye-witnesses, the prosecution case suffers from material discrepancy that it miserably failed to rectify at the trial which brings us to an irresistible conclusion that the prosecution has totally failed to make out a case against the appellants beyond reasonable doubt.

21. It may also be mentioned here that it is not necessary that there should be a number of circumstances creating doubt but a simple circumstance creates reasonable doubt. If a simple circumstance creates reasonable doubt in the mind of a man of ordinary prudence about guilt of the accused he would be entitled to such benefit not as a matter of grace and concession but as a matter of right. In case in hand we have found more than one instances that have shattered the case of the prosecution and so benefit thereof must go to the appellants. Reliance is placed on Tariq Pervez v. The State 1995 SCMR 1345 and Riaz Masih alias Mithu v. The State 1995 SCMR 1730. Resultantly, the Criminal Appeal No.1179 of 2003 filed by Muhammad Saeed alias Rashid alias Sheda and Allaf Yar, appellants is accepted. They are acquitted of the charge. The judgment of the trial Court is set aside. They are directed to be released from jail forthwith, if not required in any other case.

22. In the light of the above, the Murder Reference No.402 of 2003, is answered in the negative and the death sentence awarded to Muhammad Saeed alias Rashid Sheda, appellant is not confirmed.

H.B.T./M-290/L Appeal allowed.