Ch. Abdul Aziz, J. Shameer Ahmad (appellant) along with another co-accused, namely , Wazeer Ahmad, involved in case FIR No.425/2009 dated 11.07.2009 registered under sections 302 & 109 PPC at Police Station Baghdad-ul- Jadeed, was tried by learned Additional Sessions Judge, Bahawalpur . The learned trial court in terms of judgment dated 05.09.2013 while acquitting the afore mentioned co-accused proceeded to convict and sentence the appellant in the following terms:- "Under section 302 (b) PPC to suffer death sentence. He was also directed to pay compensation of Rs.200,000/- to the legal heirs of deceased under section 544-A, Cr .P.C. and in default thereof to undergo RI for one year".
Challenging his conviction and sentence, Shameer Ahmad (appellant) filed Criminal Appeal No.365 of 2013/BWP , whereas trial court sent reference under section 374, Cr.P.C. which was numbered as Murder Reference No.50 of 2013/BWP for the confirmation or otherwise of death sentence awarded to Shameer Ahmad (convict). Both these matters are being disposed of through this single judgment.
2. Succinctly stated the case of the prosecution as unveiled by Ameer Mai complainant in FIR (Exh.PE/1) is to the effect that she was a resident of Bashir Town, Bahawalpur; that at about 7/8 years ago, Mst. Shazia daughter of Manzoor Ahmad contracted marriage with Shameer Ahmad son of Allah Yar (appe llant); that Mst. Shazia obtained divorce through court by filing a suit for dissolution of marriage and contracted marriage with Muhammad Nasir , whereupon Shameer Ahmad (appellant) and his brother Wazeer Ahmad (since acquitted) had developed grudge and started to extend threats to Muhammad Nasir; that on 11.07.2009 at Maghrab prayer time, she (complainant) along with her daughter in law Mst. Shazia, her sons Muhammad Sajid, Muhammad Abid and Muhammad Nasir , was sitting on the cots lying in the courtyard of her house; that in the meanwhile Shameer Ahmad (appellant) entered into her house and while inquiring from Muhammad Nasir about Bashir , made four consecutive straight fire shots from his pistol hitting at the chest and left shoulder of Muhammad Nasir; that Shameer Ahmad (appellant) made an attempt to run away from the spot by brandishing his pistol; that her sons Muhammad Abid, Muhammad Sajid and her husband Bashir Ahmad chased Shameer Ahmad (appellant) and apprehended him along with his pistol having one round in it; that she and Mst. Shazia took care of Muhammad Nasir injured who succumbed to injuries at the spot.
3. The law was set into motion on the statement (Exh.PE) of Ameer Mai (complainant) made before Ghulam Rasool SI (PW.8) during his visit to the crime scene which was sent to the Police Station through Mubashir Hussain 1715/C (not produced as witness) for the registration of formal FIR. Subsequent thereto, he conducted spot inspection and took into possession blood stained earth vide memo Exh.PG. He also secured four crime empties of pistol (P.1/1-4) vide memo Exh.PF . He formally arrested Shameer (appellant) and took into possession pistol .30 bore (P.2) along with a live round (P.3) vide memo Exh.PH. He handed over to dead body of Muhammad Nasir (deceased) along with injury statement (Exh.PB) and inquest report (Exh.PC) to Shabbir Ahmad 74/C.
4. Prosecution in order to prove its case against the appellant and his co-accus ed produced ten PWs including Ameer Mai (PW.6) and Muhammad Sajid (PW.7), who are eye-witnesses of the occurrence, Dr.Ghulam Mustafa (PW.2) who furnished medical evidence and Ghulam Rasool SI (PW.8) who is Investigating Officer of the case. The remaining witnesses, more or less, were formal in nature.
5. Dr. Niaz Ahmad (PW.8) on 12.07.2009 at about 11:10 a.m. conducted the post-mortem examination of Muhammad Nasir and observed the following injuries:- "Injury No.1 A lacerated wound on the top of left shoulder longitudinal in direction, gutter shaped measuring 3 cm x 1.5 cm.
Ages of wound were blackish. Around the wound there was blackening and tattooing measuring 10 x 8 cm. On dissection underline skin and muscles were damaged only superficially . Underline wounds were intact and there was no bruising of deep muscles.
Injury No.2 A lacerated semi-circular wound on the middle of the left clavical with inverted and blackish margins. On dissection underline wound left clavical is broken in pieces and on tracing the track the bullet passes through and damaging ascending aorta, lower lobe of right lung and laudges in antro lateral side of chest at the lower level of lower border of right lung just below the skin. The bullet was recovered and handed over to police. Both lung cavities were filled with blood. There was slight tattooing around injury No.2 measuring 12 x 10 cm and it was entry wound of firearm.
Injury No.3 A lacerated semi-circular wound 1.5 cm x 1 cm margins were black and inverted, moon was sounded by tattooing.
It was entry wound on the left side of abdomen.
Injury No.4 A lacerated semi-circular wound 2.5 cm x 3.5 cm with everted margins. On dissection injury No.3, only underlying muscles were damaged. Abdominal cavity was intact and trace of wound was traced up to injury No.4, which was exit wound of injury No.3."
The doctor gave following opinion:- "After complete internal and external post mortem examination I am of the opinion that cause of death was injury No.2 which caused damaged to ascending aorta and right lung (vital organs) leads to excessive haemorrhage, shock and ultimate death. Such type of injury was sufficient to cause death in ordinary course of life. All injuries were ante-mortem in nature and caused by firearm weapon."
6. After the conclusion of prosecution evidence, the learned trial court examined Shameer Ahmad (appellant) under section 342, Cr.P.C., who in response to question "why this case against you and why the PWs have deposed against you" gave the following reply:- "I was married with Mst. Shazia Mai daughter of Manzoor Ahmad, caste Bhutta (Taili), resident of Kehror Pakka about 10 years prior to this occurrence who got divorced though court from me on 08.10.2005. I produced copies of plaint titled "Mst. Shazia Bibi Vs. Muhammad Shameer" Exh.DB, written statement Exh.DC, statement of Mst.
Shazia Mai plaintif f Exh.DD and short order and judgment dated 08.10.2005 passed by the learned Judge Family Court Kehror Pakka Exh.DE and Exh.DE/1. Thereafter , I had no concern with her and I had also no concern whether she remarried or to whom. Said Mst. Shazia eloped with her paramour after the occurrence and due to this reason, she did not appear as a witness in this case. The complainant and her sons had been shown as an eye- witness but they were present at Ameerpur Sadaat, Kehror Pakka, at the time of occurrence and they were brought from Ameerpur Sadaat after the occurren ce so they are false witnesses. No independent witness has been cited in this case while the occurrence was took place in Bahawalpur city. I have no conc ern with this occurrence. I have been roped falsely in this case. The complainant of this case (PW.6) is the real mother of Muhammad Sajid (PW.7).
They are close relatives to each other as well as of the deceased while the remaini ng PWs are Police Officials who deposed just to strengthen the prosecution story . In fact, Mst. Shazia Bibi was present at home and on the asking of said Shazia Bibi, the complainant party nominated me in this case falsely ."
The appellant neither opted to make statement under section 340 (2) of Cr.P.C. nor produced any witness in his defence. On the conclusion of trial, the appellant was convicted and sentenced as mentioned above, hence, the instant appeal and murder reference.
7. It is contended on behalf of the appellant that the case in hand is arising out of an occurrence which was not promptly reported to police; that during trial ocular account was furnished by two witnesses who badly failed to prove their presence at the crime scene; that even otherwise the narration of facts provided by the eye-witnesses is found to be in sharp contrast with the medical evidence brought on record through Dr. Ghulam Mustafa; that the eye-witnesses have contradicted each other on all material points which rendered their testimony unworthy of any credence; that the motive set up by the prosecution is far-fetched and strongly negated from the evidence of none other than the prosecution; that though according to the record Shazia Bibi was the main human of dispute, however, at the eventful time despite being present at the place of occurrence she received not a single scratch; that the recovery of pistol .30 bore effected from the appellant suffers from multiple legal infirmities; that the provisions of section 103, Cr.P.C. were not adhered to; that the report of PFSA, according to which the crime empties recovered from the spot were found to have been fired from the pistol alleged to have been recovered from the appellant, is also of no significance as all these articles were forwarded to the expert on the same date; that though from the plain reading of prosecution evidence reasonable doubt emerges, however, its benefit was withheld from the appellant which is against well settled principles of Criminal Jurisprudence. With these submissions, it was urged by the learned counsel that the conviction awarded to the appellant is liable to be set- aside.
8. Conversely , learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the arguments advanced on behalf of the appellant and argued that the instant case is arising out of a crime report which was promptly reported to the police; that though the deceased received multiple firearm injuries, however , only the appellant was held responsible and such aspect tentatively reflects upon the credibility of the eye witnesses; that the appellant was apprehended at the spot immediately after the occurrence and the weapon of offence was also recovered from him which later was found matched with the empties recovered from the spot by PFSA; that during trial the ocular account was furnished by the witnesses who were inmates of the house where this unfortunate occurrence took place, hence, there is no reason to disbelieve their depositions; that the medical evidence placed on record is in consonance with the statements of eye-witnesses; that though the eye- witnesses were cross-examined at length by the defence, however, nothing was brought on record which may provide some reasons for false implication of the appellant; that the prosecution case got due corroboration from the motive which was not even denied by the defence; that the appellant committed cold blooded murder of the deceased for no good reasons and that since the guilt of the appellant stands established on the basis of confidence inspiring prosecution evidence, hence he deserves no leniency. With these submissions, it was urged that the conviction awarded to the appellant needs no interference from this Court.
9. Arguments heard. Record perused.
10. A wade through the record reveals that the case of prosecution is comprising upon ocular account furnished by Ameer Mai and Muhammad Sajid (PW.6 & 7), the medical evidence brought on record through Dr. Ghulam Mustafa (PW.2), the motive which was canvassed as marriage of Shazia Bibi with Muhammad Nasir (deceased) after getting divorce from the appellant and the recovery of pistol (P .2).
11. The occurrence which formed basis of the instant case took place on 11.07.2009 at about Maghrab prayer time in an area known as Bashir Town situated at a distance of about 2-kilometers from Police Station Baghdad- ul-Jadeed. The occurrence was reported to police through the statement of Ameer Mai (PW.6) made before Ghulam Rasool SI (PW.8) on his arrival at crime scene at about 8:45 p.m. From above, it evinces that the case in hand is arising out of a promptly lodged FIR. It emerges from the record that the defence has not brought forward any material which may cast even an iota of doubt regarding the claim of prosecu tion about the case having been registered at the time mentioned in the crime report. Such prompt reporting goes long way in excluding all the hypotheses of false implication, fabrication of facts etc. Similarly , the promptitude in lodging the FIR is a step forward in establishing the presence of complainant and the witnesses on the spot at the time of occurrence.
Reliance in this regard can be made to the case of Muhammad Raza alias Gulai v. The State (NLR 1997 Criminal 499).
12. According to the detail of crime put forth by prosecution, Shazia daughter of Manzoor Ahmad entered into matrimonial contract with Shameer Ahmed (appellant) 7/8 years before the murder occurrence. On account of certain matrimonial differences, Shazia Bibi filed a suit for dissolution of marriage and got divorce from Shameer Ahmed (appellant). Two years thereafter , Shazia Bibi got married with Muhammad Nasir (deceased) which became source of annoyance for Shameer Ahmed (appellant). He had been expressing his resentment on the remarriage of Shazia Bibi with deceased very often. On the fateful evening, Ameer Mai (PW.6) along with Sajid (PW.7), Abid, Shazia and Muhammad Nasir (deceased) was sitting in her courtyard. Sudden ly, Shameer Ahmed (appellant) entered into the house and asked about uncle Bashir and immediately thereafter fired four pistol shots upon Muhammad Nasir hitting him on his chest, shoulders etc. Though Shameer Ahmed (appellant) tried to decamp from the spot but was overpowered by the witnesses and was also disarmed by them.
13. In the afore-mentioned backdrop, we have meticulously scrutinized the record and have found that the narrators of ocular account are none other than the inmates of the house, where the murder occurrence took place.
After evaluating the prosecution evidence from all angles, it is found by us that nothing is brought on record by defence which may persuade us to hold that the witnesses were not residents of the same house. Thus, we are swayed to hold that Ameer Mai and Muha mmad Sajid (PW.6 & 7) are the most natural witnesses of the occurrence.
In support of our afore-mentioned finding, we are guided by the observations of the Hon'ble Supreme Court of Pakistan expressed in the cases of Safid v. The State (2007 SCMR 1014 ) and Zulfiqar Ahmad and another v. The State (2011 SCMR 492 ) wherein the inmates of the house were termed as natural witnesses.
As per ocular account, Shameer Ahmed (appellant) was overpowered and nabbed by the witnesses immediately after the incident and that too at the crime scene. Not only this, the appellant was also disarmed by the witnesses and the weapon of offence was snatched from him. Such stance of the eye-witnesses stands corroborated from the investigation and more particularly from the police proceedings mentioned at the bottom of complaint (Exh.PE) and FIR (Exh.PE/1). This is another factor which provides strength to the case of prosecution and more importantly proves the presence of eye-witnesses at the spot. While holding so, we are mindful of the prevailing social dilemma whereby general public opts to stay away from such incidents and makes no endeavour to intervene, what to talk of apprehending a murderer.
An in-depth analysis of the testimony of two eye-witnesses reveals that they have burdened the appellant with blame of having caused all the firearm injuries to Muhammad Nasir (deceased). We consider it important to mention here that since the deceased suffered three firearm entry wounds, however , even then the witnesses contrary to the prevalent menace of false implication through wider net opted to implicate only a single accused.
Likewise, during their court deposition, the witnesses remained stuck to their stance and successfully provided all the features of occurrence including its time, the manner of appellant's ingress in the house, the mode of occurrence and the way he was apprehended at the spot. We are also impressed from the detail of post- occurrence events provided by the eye-witnesses like the arrival of police, the time of recording of statements, the shifting of dead body to the hospital etc. It will not be an over exaggeration to say that both the eye- witnesses stood firm by budging not an inch during cross-examination and gave no leverage or concession to the defence.
14. The learned counsel for the appellant has called in question the credibility of eye-witnesses on the basis of an injury found during autopsy on the left shoulder of deceased which was measuring 3 x 1.5 cm and obsessively argued it to have not been caused by .30 bore pistol. We have carefully attended to such argument and have found that it relates to injury No.1 which was described by doctor as a gutter shaped wound. Such injury is an aggravated form of grazed wound and is in the nature of furrow caused through firearm. Vincent J.M. Di Maio, M.D. in his book "Practical Aspects of Firearms Ballistics and Forensic Techniques, Second Edition", while embarking upon "gutter wounds" observed as under:- "Tangential wounds of the skull have classically been called "gutter wounds". In first-degree gutter wounds only the outer table of the skull is grooved by the bullet with resultant carrying away of small bone fragments. In second- degree wounds pressure waves generated by the bullet fracture the inner table. "
Likewise, Jaising Prabhudas Modi in his book "A Textbook of Medical Jurisprudence and Toxicology " expounded upon the "gutter wound" in the following manner:- "If a bullet creases a bone, it may produce a gutter with or without fracturing it and may or may not give the direction or deflection of the bullet. "
When reviewed in the light of above-referred extracts from medical jurisprude nce, the arguments of learned defence counsel holds no field. In the given circumstances, we have arrived at an irresistible conclusion that the medical evidence is in consonance with the case of prosecution as emanating from the ocular account.
15. We have also adverted to the objec tion raised by the defence, according to which, the distance between appellant and deceased was shown as sixteen feet in the site plan (Exh.P A), which does not coincide with the medical evidence in the presence of blackening and tattooing on the entry wounds. Suffice it to say in this regard that site plan itself is never regarded as a substantive piece of evidence and can only be used to discredit a witness if he is duly confronted with it. Admittedly , during cross-examination, the two eye-witnesses were never confronted with the contents of site plan (Exh.P A), hence, we are not persuaded to draw any inference adverse to the case of prosecution. If any reference in this respect is needed, it can be made to the case reported as Muhammad Iqbal and others v. Muhammad Akram and another (1996 SCMR 908) wherein while diluting upon similar proposition, the Hon'ble Supreme Court of Pakistan observed as under:- "No doubt, in the site plan it is mentioned that the distance between the deceased and the place wherefrom they were fired at was 32 feet but this will not help the defence either because site plan is not a substantive piece of evidence and cannot be used to discard the evidence of a witness unless he was confronted with the same. In the instant case the eyewitnesses were not confronted with this portion of the site plan, and it was not asked from them as to whether or not they had told this distance to the of ficial who has prepared the site plan. "
16. The crux of the above discussion can be summarized to the effect that prosecu tion has successfully proved its case against the appellant on the basis of confidence inspiring medical evidence which is found to be in line with medical record. The two eye witnesses had no animus against the appellant so as to substitute him with the actual culprit. Last but not the least, apprehension of Shameer Ahmed (appellant) from the spot is another factor, from which we are inclined to maintain his conviction. However, we have noticed certain extenuating circumstances, which warrant awarding of alternate sentence of imprisonment for life provided in section 302 (b) PPC. Firstly, it is noticed that the motive canvassed by the prosecution, from face of it, appears to be far-fetched. Shazia Bibi entered into matrimonial contract with Muhammad Nasir (deceased) two years before the murder occurrence.
Admittedly, during this period, no untoward incidence ever took place between both sides. Likewise, though Shameer was ex-husband of Shazia Bibi, however, his arrival in the house was not taken unpleasantly by any of the family member which appears to be nothing but strange. If at all, Shameer was having any grudge from the remarriage of his ex-wife Shazia then in such circumstances she should have been the primary target of his rage.
From these aspects, it can justly be concluded that the immediate cause behind the occurrence is shrouded in mystery and as a necessary corollary we consider it safe to hold that the motive put forth by the prosecution remained unproved. This is settled that failure to prove the motive itself warrants the Court to have resort to the alternate sentence of imprisonment for life. The guidance in this respect can be sought from the case of Amjad Shah v. The State (PLD 2017 Supreme Court 152) wherein the Hon'ble Supreme Court of Pakistan gave the following observation:- "Notwithstanding that that participation of the appellant in the commission of offence is duly established, his intention, guilty mind or motive to commit the same remains shrouded in mystery and is therefore unproven. In such like cases where the motive is not proved or is not alleged by the prosecution, the Court for the sake of safe administration of justice, adopts caution and treats the lack of motive as a mitigating circumstance for reducing the quantum of sentence awarded to a convict."
If any further reference in this regard is needed, it can be made to the cases of Hasil Khan v. The State (2012 SCMR 1936) and Zeeshan Afzal alias Shani v. The State and another (2013 SCMR 1602).
17. In the light of above discussion, we convert the death sentence of Shameer Ahmad (appellant) into imprisonment of life with the benefit of section 382-B, Cr.P.C. However , the appellant shall pay compensation of Rs.200,000/- to the legal heirs of the deceased under section 544-A, Cr.P.C. and in the event of default he shall further undergo simple imprisonment for six months. With this modification in the sentence of Shameer Ahmad (appellant), Criminal Appeal No.365 of 2013/BWP stands dismissed.
18. Resultantly , Murder Reference No.50 of 2013/BWP is answered in the negative and death sentence awarded to Shameer Ahmad (appellant) IS NOT CONFIRMED .