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Petitioner: ABDUL RASHID Alias SHEEDA VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Afzal Cheema, Ataullah Sajjad, Bashir-ud-Din Ahmad Title: ABDUL RASHID Alias SHEEDA vs THE STATE Case No.: Criminal Appeal No. 730 and Murder Reference No. 205 of 1968 Date of Judgment:1970-01-09 Reported As: 1971 P Cr. L J 635 Result: Appeal allowed
JUDGMENT
JUDGMENT MUHAMMAD AFZAL CHEEMA, J.-Abdur Rashid alias Sheeda (25) was tried by the learned Additional Sessions Judge, Lyallpur, on to counts firstly; under section 460, P. P. C. For having trespassed into the house of Ali Ahmad deceased on the night between 19th and 20th October 1966 in Chak No. 223/R. B., District Lyallpur and, secondly, under section 302/34, P. P. C. For having murdered him and his relation Inayat with the help of Chiragh and Sanatta, to absconding co-accused. Vide judgment dated 26-8-1968, the learned Judge convicted the appellant on both counts (1) under section 460, P. P. C. With an award of five years' R. I. And (2) under section 302/34, P. P. C. With the award of capital punish--ment. He has appealed against his conviction and sentences and his case has also been referred to us under section 374, Cr. P. C. For the confirmation of the death sentence. This judgment will dispose of the appeal as well as the Murder Reference. 2. The relevant background of the case according to the prosecution is that about three years prior, to the occurrence Sheeda appellant, a weaver of Chak No. 225/R. B., District Lyall--pur, apparently a man of dubious antecedents, started living with his wife Mst. Maqsoodan in Abadi Kartar Singhwala of Chak No. 223/ R. B. Where the to deceased also lived. On conviction in case of theft, he was sent to jail and in his absence Mst. Maqsoodan was maintained by Ali Ahmad deceased as a keep in his house. After more than a year, she was handed over by the deceased to his Pir (Spiritual leader) Karim Khan Pathan of Chak No. 116 of Police Station Jaranwala who got her married to his brother Amin Khan presumably after she had obtained a decree for dissolution of her marriage with the appellant. It appears that on his release from jail the appellant, whose movements were restricted in Chak No. 225/R. B. His permanent place of residence, contacted Ali Ahmad deceased to seek restoration of his wife and on his refusal threatened him with dire consequences. Apprehending
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danger to his life, Ali Ahmad deceased submitted on 26-9-1967 application Exh. P. U. To the Inspector-General of Police seeking protection of life and initiation of security proceedings against the appellant. In this application there is also a reference to the appellant's abscondence from jail and subsequent arrest. Appre--hensions of a dacoity were also expressed therein. It is not clear, however, what action, if any, was taken on this application. 3. On the fateful night, Ali Ahmad deceased and Maulvi Muhammad Shafi P. W. 12, an Imam of the local mosque, were sleeping in the bethak of the deceased, indicated at point No. 1 in the site plan Exh. P: D., while Inayat deceased and Chiragh Muhammad P. W. 16, a brother of the sister's husband of the deceased, were sleeping inside in the verandah, shown at points Nos. 2 and 4 in the site plan. Mst. Rani P. W. 13 and Mst. Raj Bibi P. W. 14, the to daughters of Ali Ahmad deceased, slept inside the room in the rear of the verandah along with Mst. Anwar P. W. 15. About an hour or so after midnight, the deceased and Maulvi Muhammad Shafi heard the sounds of foot-steps of some persons in the lane and also heard someone bolting the door of the bethak from outside. Then came a knock at the door with a firm demand to the inmates to open it. The query by Ali Ahmad deceased fetched no reply which alerted the deceased, who told Maulvi Muhammad Shafi that his enemy had come. The assailants scaled over the outer wall of the courtyard and breaking open the inner door of the bethak forced their entry therein. They were three in number and carried guns with them. The attack was opened by Sheda appellant, who fired to shots at Ali Ahmad deceased in quick succession hitting him in the neck and on the left leg. They then turned towards Maulvi Muhammad Shafi P. W., who on enquiry told them that he was a poor Imam of the local mosque. Sheda appellant caught hold of him by the arm and took him outside the bethak. In the meantime, Inayat deceased, who was sleeping in the verandah, on hearing gun. Reports, pro--ceeded towards the bethak, but was hit in the chest near the throat by one of the absconding accused. On receipt of injury, he immediately returned to the verandah and set on the floor. The first shot was followed by a second shot by Sheeda appellant hitting him oil the head. Ali Ahmad and Inayat succumbed to the injuries instantaneously. The appellant and his to companions then went to the rooms where the girls were sleeping. Sheeda allegedly demanded keys from them, but was told by Mst. Rani P. W. That the keys were with their mother, who had gone to Gojra for treatment of her eyes. The accused then broke open a box, and took out as contents consisting of some garments and, jewellery. It is also in evidence that at the relevant the one lantern was burning in the bethak and the other in this room which were put out by the culprits. The appellant is also stated to have given to rupees each to the to daughters of Ali Ahmad deceased telling them that he had no grudge against them and had killed their father, who was his enemy. It is also in evidence that a fourth accused stood outside firing in the air. The assailants made their exit from the door of the deorhi. After their departure, Maulvi Muhammad Shafi came out of the house and met Wali Muhammad complainant P. W. 11, giving him details of the occurrence. This witness, who was the sister's husband of Ali Ahmad deceased, as also his cousin proceeded to Police Station Sadar, Lyallpur, and lodged report Exh. P. C. At 5-15 a.m., after traversing a distance of five miles, which was recorded by Abad Muhammad A. S. I. P. W. 3. In this elaborate report, besides giving details of 14 allegedly stolen articles, he also referred to the theft of some cash, of which he could not give the details. Abad Muhammad Khan A. S. I. P. W. 3, who recorded the F. I. R. Exh. P. C., sent a copy of the same after Anwar Hussain Shah S. I. P. W. 17, who was out of station. The latter reached the spot at about 8 a.m., prepared injury statements Exhs. P. S. And P. T. And inquest reports Exhs. P. G. And P. H. Of Ali Ahmad and Inayat deceased respectively. He sent both the dead bodies for post-mortem examination under the escort of F. Cs. Muhammad Ashraf P. W. 2 and Ghulam Haider. The former brought back to him blood-stained clothes of Ali Ahmad deceased shirt P. 1 and Chadar P. 2, along with a phial containing pellets P. 3, extracted from his body, which were taken into possession vide memo. Exh. P. E. Muhammad Ashraf also produced before him blood-stained clothes of Inayat deceased, i. e.
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Vest P. 4 and Lungi P. 5, which were taken into possession vide memo. Exh. P. F. He recovered blood- stained earth from' to places vide memos. Exhs. P. J. And P. N., where the dead bodies of Ali Ahmad had been found respectively. Pillow P. 6, Khes P. 7 and blood-stained quilt Exh. P. 8 were also taken into possession; vide memo. Exh. P. K., from the bethak of Ali Ahmad, in addition to a lantern P. 9, which was recovered vide memo. Exh. P. L. Three empty cartridges found from outside the house near the outer door and four empty cartridges found near the inner door of the bethak inside the courtyard and one cartridge from the courtyard were recovered vide memo. Exh. P. M. And made into a sealed parcel. Trunk P. 10 and lantern P. 11 were also taken into possession from the inner room where the ladies lay asleep vide memos. Exh. P. Q. And P. R. Respectively. The Sub-Inspector also got prepared plan Exh. P. D. In duplicate by Aurangzeb Draftsman P. W. 6. Recovery memos. P. L. To P. R. Were witnessed by Muhammad Aslam, Member, Union Council Chak No. 223/R. B., P. W. 10 and Ghulam Qadir, another, Member Union Council, who was murdered before the commencement of the inquiry, and, as such, could not be produced. The sealed parcels, containing blood-stained earth and cartridges, were made over by the S. I. To Abad Muhammad M. H. C. On 24-10-1966 for safe deposit in the Malkhana which, on the following day, were sent to the Forensic Science Laboratory, Lahore, through F. C. Muhammad Yaqoob P. W. 4 and were found to be stained with blood, vide Chemical Examiner's report Exh. P. V., determined to be of human origin vide Serologist's report Exh. P. X. 4. Dr. Ahmad Ghulam Muhammad, Medical Officer, District Headquarters Hospital, Lyallpur, performed the post--mortem examination .Of the to dead bodies on 20-10-1966 at 4 p.m. The dead body of Ali Ahmad was found to be of stout built. The blood-stained shirt and Chadar on his person bore corresponding tear marks to injuries Nos. 4, 5 and 6 on the shirt and 7, 8, 9 on the Chadar. Vide memo. Exh. P. A. The doctor found the following injuries on his person :-- (1) A gun-shot wound 1" x 1", going inside the mouth 'situated on the left side of the face --" from the left angle of the mouth. There was blackening and scorching around the injury. It was the wound of entry. (2) A gun-shot wound 6" x 3--" on the right side of the face 1" below the right ear. The facial bones and the jaw bones were blown of. The tongue was badly injured. It was the wound of exit. (3) A lacerated wound 1--" x --" x skin deep close to the right shoulder joint in the region between the neck and the shoulder joint; (4) A pellet wound 3/8" x 3/8" going inside the chest situated on the front aspect of the left side of the chest 2--" below the nipple and 1" to its outer side. (5) One pellet wound --' x --" going inside the chest situated on the front aspect of the left side of the chest 2--" below the left nipple and half inch to outside of it. (6) One pellet wound --" x --" going inside the chest cavity situated on the front aspect on the left side of the chest --" below injury No. 5. (7) A pellet 3/8" x --" going superficially inside the thigh obliquely on the front aspect of the left thigh upper part. It was the wound of entry. (8) A pellet wound which was the wound of exit --" x --" on the front aspect of the left thigh --' from injury No. 7. (9) A pellet wound 3/8" x --" going obliquely in the thigh situated at the back of left thigh in its middle. (10) A pellet wound which was wound of exit -- x --" at the back of the left thigh in its middle --" from injury No. 9. (11) A gun shot wound 4--" x 2" bone deep on the outer aspect of left leg lower part. Fibula bone was fractured. (12) A gun-shot wound 2-- x 1--" x --" deep on the dorsum of the left foot in its outer aspect. The proximal phalynx of the fifth toe was fractured.
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The fourth and fifth ribs were found to be fractured on the left. All the organs were healthy. The left pleasure was torn. The left lung was pierced through and through at three places due to injuries Nos. 4, 5 and 6. All other organs were found to be healthy The penis was completely cut of from the root. The scrotal skin was cut exposing the testicles. The penis was found to be thrust in the mouth. Stomach was empty and bladder full of urine. Death in the opinion of the doctor was due to shock and heamorrhage on account of damage to the left lung and as a result of injuries Nos. 1, 2, 4, 5 and 6 which were individually and collectively sufficient to cause death in the ordinary course of nature. Injuries Nos. 1, 2, 11 and 12 were grievous in nature. All the injuries were caused by a fire arm. A piece of card-board and a pellet were recovered from inside the mouth besides to pellets recovered from the chest cavity. Probable the between injuries and death was a few minutes and between death and post--mortem 13 to 14 hours. The blood-stained vest of Inayat deceased bore three tears corresponding to injuries Nos. 4, 5 and 6. 5. The details of injuries of Inayat deceased as given in medico-legal report Exh. P. B. Were as follows :- (1) A gun-shot wound 1" x --" x bone deep situated on the chin. The mandible bone was fractured. There was scorching and blackening around the injury. (2) A gun-shot wound 2" x 2" on the right side of the head going inside the skull 1--" above the right ear. It was the wound of entry. Brain matter was coming out of the wound. There was blackening and scorching around the injury. (3) A gun-shot wound which was the wound of exit 4" x 2" situated on the left side of the head 1" above the left ear. Brain matter was coming out of the wound. The skull bone was smashed. (4) Three pellet wounds each --" x --" going inside the chest situated at the back of the left side of the chest close to each other in the upper part. (5) A pellet wound --' x -- which was the wound of exit on the front aspect of the left side of the chest J" below the clavicle bone. (6) A pellet wound --" x --" which was the wound of exit on the front aspect of the left shoulder joint in upper part. (7) A pellet wound --" x --" which was the wound of exit on the front aspect of the left side of the chest --" below injury No. 5. (8) A pellet wound --" x -- on the front aspect of the left side of the neck going obliquely below the skin. (9) A pellet wound --" x --" which was the wound of exit half inch medial to injury No. 8 on the left side front aspect of the neck. The skull was badly smashed and parietal and occipital bones were fractured on both sides. The membranes were badly torn. The brain was injured and brain matter was coming out of the head wounds. Stomach and bladder were empty and all other organs were found to be healthy. Death, in the opinion of the doctor, was due to shock and haemorrhage on account of injuries to brain. Injury No. 3 was an exit wound. All the injuries were caused by a fire arm. Injury No. 4 had fractured the left scapula bone. Probable the between injuries and death was about half a minute and between death and post-mortem 14 to 15 hours. 6. On completion of investigation, Sheeda appellant who alone could be apprehended, was sent up to face inquiry and, as stated earlier, on commitment, was tried and convicted by the Additional Sessions Judge, Lyallpur. 7. At the trial, the prosecution case rested principally on the testimony of five eye-witnesses, namely, Muhammad Shafi P. W. 12, Mst. Rani P. W. 13 and Mst. Raj Bibi P. W: 14, daughters of Ali Ahmad deceased, Mst. Anwar P. W. 15 and Chiragh Muhammad P. W. 16, Wali Muhammad complainant P. W. 11 and the evidence of extra judicial confession deposed to by Muhammad Ali P. W. 8 and Nur Muhammad P. W. 9.
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7-A. Placing reliance on the testimony of Wali Muhammad P. W. 11 and that of the eye-witnesses, the learned trial Judge came to the conclusion that the existence of a strong motive was established against the appellant and further that there was no doubt as to his identity as proved by the statements of the P. Ws. In fact, the appellant had himself admitted in his statement under section 342, Cr. P. C. That he had been taking Panchaits to Ali Ahmad deceased for the restoration of his wife, and yet, in the same breath, went on to say that he had no grudge against him. It would be advantageous to reproduce the defence plea in his own words: "All Ahmad deceased was a man of bad character. He used to deal in women. I demanded my wife from him through panchayats and he had been putting me of. I had no grudge to kill him. Some one of his enemies had killed him at night and I have been named because of suspicion." 8. Learned counsel for the appellant raised the following contentions before us :- (1) that assuming that Sheeda appellant had a strong motive to kill Ali Ahmad deceased on account of his dispute with him over his wife, it is incredible that he should also have resorted to committing theft of articles, none of which was recovered after the fulfilment of his principal mission. (2) that the eye-witnesses' account given by the P. Ws., some of whom were admittedly tutored by the appellant, was full of material inconsistencies and discrepancies. (3) that none of the inmates of the neighbouring houses appeared in support of the prosecution version. (4) that the identity of Sheeda appellant does not stand fully established and, at best, it would be a case of a very strong suspicion, which could not take the place of legal proof. 9. Having considered the contentions raised by the learned counsel, we have not been able to see much substance in them. In the first instance, application Exh: P. U. Dated 26-9-1966, addressed by the deceased to the Inspector-General of Police, which appears to have reached S. I. Anwar Hussain Shah P. W. 7 sometime after the occurrence, furnishes a strong evidence of motive. Wali Muhammad complainant gave the details of the stay of Mst. Maqsoodan with Ali Ahmad deceased during the appellant's detention in jail and of the latter's unsuccessful efforts to seek her restoration. He stated in cross-examination that "Met. Maqsoodan had been living with Ali Ahmad deceased by way of adulterous companionship and she also gave birth to to children out of the cohabitation." In. This, Wali Muhammad was fully supported by Mst. Rani P. W. 13, who observed as follows: "Sheeda accused used to visit our house and was on friendly terms with our father. When he was jailed, he left his wife in our house. The wife of Sheeda accused lived in our house for about to years . . . . . It is a fact that when Sheeda accused was released from jail, he came to my father and asked for the return of his wife." As stated earlier, this position was frankly conceded by the appellant in his examination under section 342, Cr. P. C. Another significant fact, namely, the cutting of the penis and thrusting it into the mouth of Ali Ahmad, would also unmistakably suggest that the commission of the offence was motivated by a strong sense of vengeance having some sexual background. 10. The next important point, which really formed the crux of the matter, however, is whether the appellant was identified by the P. Ws. At the spot. Wali Muhammad complainant P. W. 11, who himself was not an eye-witness, but was the first to reach the spot, stated in his examination-in- chief as follows :- "Muhammad Shafi had related the incident to me like this: Four persons came to the house of Ali Ahmad and had murdered him. He had also told me that the culprits could not be identified by him. However, when Muhammad Shafi left me he mentioned the fact that one of the culprits, while leaving the scene of offence, was making a lalkara, `I am Sheeda'."
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This position was reiterated by him in answer to a question in cross-examination in the following words :- "I was told by him that one of the culprits, while leaving the place of occurrence, was shouting by claiming himself to be Sheeda. He had further said that as Sheeda was entertaining enmity against Ali Ahmad deceased and also one of the accused person styled himself to be Sheeda, the murder must have been committed by Sheeda and his friends." He added, "Muhammad Shafi hall told me that the culprits had muffled their faces and it was dark". Three things would emerge from the above statement (1) firstly, that the claim of Muhammad Shafi, having met Sheeda appellant in the jail once or twice in the company of Ali Ahmad deceased, who had allegedly taken him to show him the husband of the woman he was keeping, stands falsified. (2) that the culprits had muffled their faces. (3) that one of them styled himself as Sheeda. 11. Next comes Muhammad Shafi before whom the bloody drama was staged and who was spared by Sheeda being a poor Imam of the mosque. According to him, Sheeda after having fired the fatal shots at Ali Ahmad deceased, caught hold of his arm, dragged him outside the bethak and then releasing him fired a fatal shot at Inayat hitting him in the head. According to this witness, the culprits next entered the room where 'the girls were sleeping. Sheeda told them that he had come to take revenge from their father for having kept his wife, demanded the keys from them, broke open the trunk and before leaving gave to rupees each to the to daughters of Ali Ahmad deceased telling them that he had no grudge against them. This witness told in cross--examination as follows :- "I do not perfectly remember as to which of the accused persons had asked about my identity when they entered the bethak. I have mentioned the name of Sheeda accused by guess only." Notwithstanding all this, we have every reason to believe that Mst. Rani P. W. Knew Sheeda before the occurrence as a former friend of her father who, on his release from jail, visited their house to seek restoration of his wife. She supported Maulvi Muhammad Shafi on the point of the demand of keys and the gift by Sheeda of to rupees each to her and to her sister. She stated:- "Sheeda then gave me and my sister to rupees each and told us that he had done away his father who was his enemy. When the accuse) were about to leave the house they threw the lantern lying in the room." She stated in cross-examination :- "While I was in my room, I heard `raula' being raised by Sheeda accused. I am Sheeda, I am Sheeda . . . . They (culprits) told us that they were sparing us because we were daughters of the house." In reply to another question, she told that in fact one of the culprits had muffled his face and the faces of Sheeda and Sanatta were not muffled. She denied the suggestion that the thieves could not be identified by her as it was dark and they had muffled their faces. 11-A. This brings us to the statement of Mst. Raj Bibi P. W. 14, a young girl of ten years of age. She also repeated the version given by her sister Mst. Rani P. W. And specifically referred to the demand of keys, the breaking open of the box, removal of clothes and jewellery from it and to the gift of rupees to each by Sheeda to her and to her sister as also to the throw--ing away of the lantern. No doubt in cross-examination she conceded that the Thanedar had read out a statement to her telling her that she should state that Sheeda, Jaulaha and to others had come to their house at night and had fired at and killed Inayat and her father and it was because of that she had made the statement. She, however, asserted that Sheeda had not muffled his face although his to companions ad done so. She added that it was pitch dark and that it was her uncle Wali Muhammad who had told them that the culprits were Sheeda and his com--panions. 12. We next come to Mst, Anwar P. W. 15,-according to her, her father and Ali Ahmad deceased were the disciples of the same Pir and, perhaps, it was on account of this spiritual relationship that she
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happened to sleep with the daughters of Ali Ahmad on the fateful night. Going back on her statements before the Police and the committing Magistrate, this witness appears to have softened her attitude towards the appellants. She could not give the number of the assailants. She could not describe the weapons wielded by them, but, however, admitted that one of the accused persons had told them that they need not fear as he had no grudge against them having already killed his enemy. She further added that he gave to rupees each to Rani and Mst. Raj Bibi, the. Daughters of Ali Ahmad deceased. Being confronted with her statement before the committing Magistrate, she admitted it to be correct and attributed her ignorance of the number of the culprits or the weapons used by them to lapse of memory. 13. Lastly, we come to Chiragh. He frankly stated in his examination-in-chief that he did not identify the assailants, that a fourth companion of the culprits, who stood guard outside the house, kept firing and was heard saying that Sheeda had come to take revenge of his wife. He claimed to have known and identified Sheeda and Sanatta, whose faces were covered. According to him, one of the culprits had muffled up his face. Earlier, before the committing Magistrate, with which he was duly confronted, this witness had stated that Sheeda and his companions had partly covered their faces. He further stated that at the the when Inayat deceased was fired at, one of the culprits had remarked that Sheeda had come and that this utterance was made by the accused, namely, Sheeda, who had fired at Inayat. 14. Having carefully analysed the above evidence in the context of the discrepancies in the statements of the P. Ws., the improvements made by Muhammad Shafi and Chiragh, of whom the latter was a chance-witness, the untenability of the claim of Muhammad Shafi of having seen Sheeda in jail, we are, neverthe--less, clearly of the view that the identity of Sheeda appellant stands established beyond any reasonable doubt and was rightly held to be so by the learned trial Judge. (i) We have…
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