MUHAMMAD ZAHID Versus State
SADAQAT ALI KHAN, J.--- This single judgment shall dispose of Criminal Appeal No.443/J of 2014 filed by Muhammad Zahid alias Goga appellant (against his conviction) and Murder Reference No.369 of 2014 sent by the learned trial court for confirmation of the death sentence of Muhammad Zahid alias Goga appellant or otherwise as both the above mentioned matters have arisen out of the same judgment dated 01.07.2014 passed by learned Additional Sessions Judge, Faisalabad according to which the appellant was convicted and sentenced as under:-
Muhammad Zahid alias Goga appellant was convicted under section 302(b), P.P.C. and sentenced to death with compensation of Rs. 1,00,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default whereof to further undergo six months' S.I. by the learned trial court in case FIR No.394 dated 13.03.2011 under section 302/34, P.P.C. Police Station Batala Colony, Faisalabad, wherein his co-accused namely Ghulam Mustafa alias Billa, Muhammad Shahid and Muhammad Faisal have been acquitted.
2. The facts of the case have been stated by Shahid-ul-Haq complainant P.W.8 (real brother of Nadeem Alam deceased) in his statement before the learned trial court which is hereby reproduced for narration of the facts:
"About more than three years ago, I came to the house of my father situated in Peoples Colony No.2, Ghosia Chowk, Faisalabad, it was after Asar time I along with Hameed Alam and Bahadar Ali were present at Mian General Store, Peoples Colony No.2, Faisalabad. We heard hue and cry and reached ahead again said at the corner of street where accused persons namely Zahid alias Goga armed with pistol 30 bore, Faisal armed with pistol, Ghulam Mustafa and Shahid accused persons present in the court were present there in an ambush. Nadeem Alam deceased was coming from house to purchase rice. The accused persons Shahid, Ghulam Mustafa and Faisal raised lalkara on seeing Nadeem deceased that Nadeem deceased should not be escaped alive today and he be taught a lesson of their insult. On this Zahid alias Goga accused present in the court made two fire shots on the deceased but only one hit on him on the back side of neck and which exit from chest Nadeem deceased fell on the ground, we tried to apprehend the accused persons but they made fire on us. Zahid alias Goga and Faisal pointed their pistol on us and raised lalkara that if anyone came forward, he will be done to death. The occurrence was witnessed by me, Bahadar Ali and Hameel Alam PW. After that Zahid alias Goga and Faisal accused persons fled away toward Maqbool Raod on motorcycle while Shahid and Mustafa went toward Ghosia Chowk. We took care of our brother Nadeem Alam but he was succumbed to the injury and died at the spot. The motive behind the occurrence was that Zahid alias Goga was used to tease my Bhabhi Rukhsana for illicit relations but Nadeem appraised oftenly forbade him and due to this grudge one day prior to the occurrence Zahid alias Goga threatended my deceised brother Nadeem that he will be murdered by him and quarrel was also taken place between Nadeem deceased and Zahid alias Goga and due to this reason Zahid alias Goga committed murder Nadeem Alam deceased along with his co-accused Faisal, Shahid and Mustafa. Police came at the spot and police official recorded my statement and it was signed by me which is Ex.P.J. When my statement was read over to me by the police official I told him that I have got written the seat of injury on the back of neck as entry wound but he replied that he will correct my statement subsequently. After two months of the occurrence I visited police station along with Muhammad Ashraf PW and joined investigation and during interrogation Zahid alias Goga who was in police custody made a disclosure that he could get recover pistol .30 bore weapon of offence from the Bethak of his house and in pursuance of which he led to place of recovery and got recovered pistol .30 bore P-3 from the Bethak of his house beneath the bed in our presence. On unloading the pistol two alive bullets P-4/1-2 were also recovered. I.O. took the same into possession vide recovery memo Exh.PK which was attested by me and Muhammad Ashraf PW. I.O. recorded our statements under section 161, Cr.P.C."
3. After registration of the case, investigation started and on completion of the same report under section 173, Cr.P.C. was submitted in the trial Court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 23.12.2013 against Muhammad Zahid alias Goga, appellant and his co-accused namely Ghulam Mustafa alias Billu, Muhammad Shahid and Muhammad Faisal under sections 302/34, P.P.C., to which they pleaded not guilty and prosecution, evidence was summoned.
5. The prosecution produced the following witnesses during the trial before the learned trial court:-
Dr. Saeed Akbar Tariq
P.W.1
Muhammad Ashraf 1833/C
P.W.2
Talib Hussain
P.W.3
Liaqat Ali ASI
P.W.4
Akbar Ali Nizami Draftsman
P.W.5
Bashir Ahmad ASI
P.W.6
Hameed Alam
P.W.7
Shahid-ul-Haq (complainant)
P.W.8
Zafar Iqbal Inspector
P.W.9
Muhammad Ashfaq
P.W.10
Ghulam Mustafa
P.W.11 whereas P.Ws. Muhammad Ashraf (being unnecessary) and Bahadur Ali (being won over by the accused) were given up and while tendering certain documents i.e. report of Chemical Examiner Ex.P.R and that of Serologist Ex.P.S closed its evidence.
6. Medical evidence was furnished by Dr. Saeed Akbar Tariq (P.W.1), who conducted postmortem examination on the dead body of Nadeem Alam deceased and observed as under:-
"INJURIES
1-A. A fire arm wound of entry 1 x 1 c.m. on the back of neck in the mid Collar of abrasion was present.
1-B. A fire arm wound of exit x 1 cm on the outer side of right chest, 10 c.m. from exilla.
OPINION:
Cause of death in this case was injuries Nos.1-A and 1-B, leading to haemorrhage and shock, resulting death injuries Nos.1-A and 1-B were by fire arm, ante-mortem and sufficient to cause death in ordinary course of nature.
The probable time between injuries and death was immediate and between death and post mortem was within 24 hours."
7. On the other hand, statements of Muhammad Zahid alias Goga appellant and his co-accused namely Ghulam Mustafa alias Billu, Muhammad Shahid and Muhammad Faisal (since acquittal) were recorded under section 342, Cr.P.C. in which they refused the allegations levelled against them by the prosecution. Muhammad Zahid alias Goga appellant neither opted to appear as witness under section 340(2), Cr.P.C. nor produced any oral defence evidence. Ex.D.A was produced by Muhammad Zahid alias Goga appellant in documentary evidence. In reply to the question. "Why this case against you and why the PWs deposed against you? Muhammad Zahid alias Gogo appellant replied as under:-
"PWs are related inter-se and deposed falsely against me and my co-accused with ulterior motive. Infact, some unknown assailants made fire at deceased in the darkness, who could not be traced out and after due deliberation and consultation, I and my co-accused were falsely implicated in this case for the reasons that the complainant obtained Rs.70,000/- from me and my co-accused Ghulam Mustafa alias Billu, who is my real brother as advance for the work of embroidery. We were demanding the abovesaid advance/amount from the complainant, who is habitual intoxicator. Due to the abovesaid reasons, the complainant booked me and my co-accused, who are my real brothers to blackmail us."
8. After conclusion of the trial, learned trial court while acquitting co-accused namely Ghulam Mustafa alias Billu, Muhammad Shahid and Muhammad Faisal, convicted the appellant with above stated sentence. Hence this appeal.
9. Learned counsel for Muhammad Zahid alias Goga appellant has contended that:- i. The judgment of the trial court dated 01.07.2014 is against law and facts and is liable to be set aside; ii. it is submitted that the story of the prosecution is improbable and not believable; iii. it is further submitted that prosecution has failed to prove its case against the appellant beyond shadow of doubt and the learned trial court wrongly convicted appellant in surmises and conjectures. iv. and lastly submitted for the acceptance of the appeal of the present appellant.
10. On the other hand, learned DPP has vehemently opposed the appeal and submitted that the prosecution has proved its case beyond any shadow of doubt against Muhammad Zahid alias Goga appellant with solid evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the appellant as well as learned DPP and perused the record.
12. The detail of prosecution case has been given in para 2 of this judgment, therefore, there is no need to repeat the same to avoid duplication and repetition.
13. According to the FIR, occurrence took place on 13.03.2011 (13.03.2010) at 6:15 p.m., whereas FIR was registered on the same day i.e. 13.03.2011 at 7:10 p.m. on the statement Ex.P.J made by Shahid-ul-Haq complainant P.W.8, real brother of Nadeem Alam deceased, who was murdered in the street near Mian General Store Peoples Colony No.2. Prosecution has introduced following accused in this case:-
1. Ghulam Mustafa alias Billu 2. Muhammad Shahid 3. Muhammad Faisal
(These three accused have been acquitted by the learned trial court through the impugned judgment and the complainant/ State has not filed any appeal against their acquittal, as stated by learned DPP.)
4. Muhammad Zahid alias Goga
(Appellant)
Hameed Alam P.W.7 and Shahid-ul-Haq complainant P.W.8 (real brothers of Nadeem Alam deceased) claim themselves to be the eye-witnesses of the occurrence. Hameed Alam P.W. 7 stated in his statement (examination-in-chief) that he along with Shahid-ul-Haq complainant P.W.8 was present at Mian General Store Peoples Colony No. 2, Faisalabad, meanwhile, his younger brother Nadeem Alam deceased came from his house to purchase rice, when Nadeem Alam deceased reached at the corner of the street where Muhammad Zahid alias Goga appellant armed with .30-bore pistol already present there along with his co-accused (since acquitted) made fire shot which hit on the back side of neck of Nadeem Alam deceased and made its exit from chest (it is-important to note here that this witness had stated in his statement Ex.D.A. that fire shot made by Muhammad Zahid alias Goga appellant hit on the chest of Nadeem Alam deceased). On the other hand, Shahid-ul- Haq complainant P.W.8 (real brother of Nadeem Alam deceased) stated in his statement (examination-in-chief) that he along with Hameed Alam. P.W.7 was present at Mian General Store Peoples Colony No.2, Faisalabad, heard hue and cry and reached at the corner of the street where Nadeem deceased was coming from the house to purchase rice, Muhammad Zahid alias Goga appellant already present there along with his co-accused (since acquitted) made two fire shots on Nadeem Alam deceased, only one fire shot hit him on back side of his neck and made its exit from the chest (This witness had also stated in his statement Ex. P.J/Ex.P.A. that fire shot made by Muhammad Zahid alias Goga appellant hit on the chest of the deceased). We have perused the rough site plan Ex. P.N. and scaled site plan Ex.P.C. where Mian General Store Peoples Colony No. 2, Faisalabad from where Hameed Alam P.W.7 had seen the occurrence and from where Shahid-ul-Haq complainant P.W.8 (real brother of Nadeem Alam deceased) after hearing hue and cry came to the corner of the street and saw the occurrence, as stated by them in their statements (examination-in-chief), has not been mentioned. Further both the site plans show only one place (point-4) of presence of both these witnesses (Shahid-ul-Haq complainant P.W.8 and Hameed Alam P.W.7) from where they had allegedly seen the occurrence. Shahid-ul-Haq complainant P.W.8 (real brother of Nadeem Alam deceased) stated that after hearing the hue and cry, he went to the corner of street and saw the occurrence, but presence of Shahid-ul-Haq complainant P.W.8 has not been shown near the corner of the street. Other witness Hameed Alam P.W.7 did not state in his statement that before the occurrence, some hue and cry were heard, upon which Shahid-ul-Haq complainant P.W.8 went to the corner of the street from where he (Shahid-ul-Haq complainant P.W.8) had seen. the occurrence. Zafar Iqbal Inspector/I.O. of the case P.W.9 has also stated-in his cross-examination that he had not shown Mian General Store Peoples Colony No.2, Faisalabad in, rough site plan. Ex.P.N. He further stated in his cross-examination that if Mian General Store Peoples Colony No.2, Faisalabad was situated near the place of occurrence, he must have shown it in the rough site plan Ex.P.N.
14. Hameed Alam, P.W. (eye-witness) stated that Muhammad Zahid alias Goga appellant made fire shot with his pistol which hit on the back side of neck or Nadeem Alam deceased, Muhammad Zahid alias Goga appellant made two fire shots upon Nadeem Alam deceased but only one fire shot hit him. He stated in his cross-examination that he got recorded in his statement before the police that Muhammad Zahid alias Goga appellant made fire shot which hit Nadeem Alam deceased on back side of his neck and made exit from his chest which was confronted to him with his statement recorded under section 161, Cr.P.C., Ex.D.A. where it was not so recorded. Likewise, Shahid-ul-Haq complainant P.W.8. (real brother of Nadeem Alam deceased) stated in his statement that Muhammad Zahid alias Goga appellant made two fire shots upon Nadeem Alam deceased but only one fire shot hit him on back side of neck and made exit from his chest. He stated in cross-examination that he got recorded in his statement before the police that fire shot made by Muhammad Zahid alias Goga appellant hit on the back side of neck of Nadeem Alam deceased and made exit from his chest, which was confronted to him with his statement recorded under section 161, Cr.P.C. Ex.P.A. (Ex.P.J) where it was not so recorded. Dr. Saeed Akbar Tariq P.W.1 who conduct post mortem examination on the dead body of Nadeem Alam deceased observed single firearm entry wound on the back of neck of Nadeem Alam deceased which made its exit from chest (initially Muhammad Zahid alias Goga appellant was attributed exit wound on the chest of Nadeem Alam deceased).
15. Zafar Iqbal Inspector/I.O. of the case P.W.9 stated in his statement (examination-in-chief) that according to FIR and statements of P.Ws., Nadeem Alam deceased sustained injuries on the right side of chest. He further stated that so long the investigation remained with him, no application or supplementary statement was got recorded by Shahid-ul-Haq complainant P.W.8 (real brother of Nadeem Alam deceased) and P.Ws. regarding change of seat of injuries. Considering above, we are of the view that Hameed Alam P.W.7 and Shahid-ul- Huq complainant P.W.8 (eye-witnesses) while making statements (examination-in-chief) before the learned trial Court made dishonest improvements by changing the seat of firearm entry wound of Nadeem Alam deceased from chest to back of neck to bring their case in line with the medical evidence, which shatter their credibility. Such conflict between ocular account and medical evidence cannot be ignorable.
16. According to FIR Ex.P.J/1, occurrence took place on 13.03.2011 at 6:15 p.m. Dr. Saeed Akbar Tariq P.W.1, who conducted post mortem examination on the dead body of Nadeem Alam deceased, stated in his statement (examination- in-chief), that according to police papers, time of death was 8:30 p.m. on 13.03.2011. We have also perused post-mortem examination Ex.P.C, where in column of death, it is specifically mentioned as under:-
"13.3.11 at 8:30 p.m."
17. Hameed Alam P.W.7 stated in cross-examination that his first statement was recorded at police station, the statement of Shahid-ul-Haq complainant P.W.8 (real brother of Nadeem Alam deceased) was also recorded in the police station on the day of occurrence prior to 10-15 minutes of his statement. He further stated in his cross-examination that Shahid-ul-Haq complainant P.W.8 reached at police station at 8:30 p.m. He further stated in his cross-examination that dead body was taken to the hospital prior to his departure for police station. He further stated in his cross-examination that from police station, they returned to their house. He further stated in his cross-examination that after the day of occurrence, he never ever met the police and also did not join investigation. On the other hand, Shahid-ul-Haq complainant P.W.8 (real brother of Nadeem Alam deceased) stated in his cross-examination that he had not visited the police station on 13.03.2011 (day of occurrence). He further stated in his cross-examination that after the day of occurrence, he visited the police station, joined the investigation after three months of occurrence. Statement Ex.P.J made by Shahid-ul-Haq complainant P.W.8 (real brother of Nadeem Alam deceased) upon which FIR Ex.P.J/1 was registered, shows that Bashir Ahmad ASI P.W.6 met Shahid- ul-Haq complainant P.W.8 (real brother of Nadeem Alam deceased) at Haji Chowk Peoples Colony No.2, Faisalabad at 7:00 p.m. on 13.03.2011 where he made statement to him. Further post mortem report Ex. P.C. shows that post-mortem examination on the dead body of Nadeem Alam deceased was conducted on 14.03.2011 at 11:40 a.m. with unexplained delay of about 17 hours from the time of occurrence mentioned in the FIR Ex.P.J/1 (13.03.2011 at 6:15 p.m.). Such noticeable delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye- witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a postmortem examination of the dead body conducted. Above discussed circumstances do not support that FIR Ex.P.J/1 was lodged promptly as shown by the prosecution. We are of the view that it was unseen occurrence, finding of dead body of Nadeem Alam deceased, the complainant party cooked up a story by planting eye-witnesses who are real brothers of Nadeem Alam deceased. It is important to note here that Shahid-ul-Haq complainant P.W.8 (real brother of Nadeem Alam deceased) is resident of Street No.3, Rabani Colony No.2, Faisalabad and is not resident of the place where the occurrence took place. This witness is a chance witness who has failed to establish his presence at the time of occurrence at the place of occurrence with his stated reasons.
18. Shahid-ul-Haq complainant P.W.8 (real brother of Nadeem Alam deceased) stated in his statement (examination-in-chief) regarding motive that Muhammad Zahid alias Goga appellant used to tease his Bhabhi (Mst. Rukhsana) for illicit relations but Nadeem Alam deceased used to forbid him and due to this grudge, one day prior to the occurrence, Muhammad Zahid alias Goga appellant extended threat of dire consequences to Nadeem Alam deceased and a quarrel had also taken place between them. Zafar Iqbal Inspector/I.O. of the case P.W.9 stated in his statement (examination-in-chief) that during investigation, Shahid-ul-Haq complainant P. W.8 (real brother of Nadeem Alam deceased) has not produced his Bhabhi namely Mst. Rukhsana. He further stated in cross-examination that he has not investigated the case in respect of motive. He stated in volunteered portion that Mst. Rukhsana (Bhabhi of the complainant) did not appear before him to support the motive story. Shahid-ul-Haq complainant P.W.8 (real brother of Nadeem Alam deceased) admitted in cross-examination that his elder brother Shahzad (husband of said Mst. Rukhsana) committed suicide. He further stated in his cross-examination as under:-
"It is correct that few days ago, I also drink acid in order to commit suicide."
In view of the above, we are of the view that prosecution has failed to prove motive.
19. Recovery of pistol .30-bore P-3 on pointing out of Muhammad Zahid alias Goga appellant on 12.05.2011 by Zafar Iqbal Inspector/I.O. of the case P.W.9 is inconsequential in the present case in absence of positive report of Forensic Science Laboratory regarding matching of crime empty with weapon of offence, as learned DPP submits that no crime empty has been recovered from the place of occurrence.
20. Considering above, we entertain serious doubt in our minds regarding participation of Muhammad Zahid alias Goga appellant in the present case. It is settled principle of law that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of the accused, then he would be entitled to its benefit not as a matter of grace or concession, but as of right. Reliance is placed on case reported as "Muhammad Akram v. The State" (2009 SCMR 230), in which Hon'ble Supreme Court of Pakistan has observed in para No. 13 of page 236 as under:-
"13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
21. For the foregoing reasons, Criminal Appeal No,443/J of 2014 filed by Muhammad Zahid alias Goga appellant is accepted and conviction and sentence of the appellant awarded by the learned Trial Court through the impugned judgment are hereby set aside. Muhammad Zahid alias Goga appellant is ordered to be acquitted in case FIR No.394 dated 13.03.2011 under section 302/34, P.P.C., Police Station Batala Colony, Faisalabad. He is directed to be released forthwith if not required in any other case. Murder Reference No.369 of 2014 is answered in NEGATIVE and death sentence of Muhammad Zahld alias Goga appellant is NOT CONFIRMED.
JK/M-198/L Appeal accepted.