' ASIF SAEED KHAN KHOSA, J.-- Sohail Ahmad appellant was convicted on five counts of an offence under section 302(b), P. P. C. Vide judgment, dated 24-6-1997 handed down by the learned Additional Session Judge, Khushab at Jauharabad and was sentenced to death as Ta'zir on all the five counts and was ordered to pay a sum of Rs, 50,000 to the heirs of each deceased on each count by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months on each count. The appellant has challenged his convictions and sentences before this Court through this appeal which has been heard by us along with Murder Reference No, 180 of 1997 seeking confirmation of the sentences of death passed by the learned trial Court against the appellant. We propose to decide both these matters together through the present consolidated judgment.
2. The prosecution's allegation against the appellant is that at about 3-00 A.M. On 12-7-1996 he had Committed the murders of his own father namely Mehtab Ahmad Khan, his mother namely Mst.
Zarina his brother namely Zain-ul-Abideen and his two sisters namely Mst. Ayesha and Mst. Salma inside the house of the appellant and the deceased situated at G/78 within the area of Police Station Jauharabad, District Khushab. It had been alleged by the prosecution that the appellant had committed the said murders while using a lid of a pressure-cooker and a leg of a cot as weapons of offence. The said occurrence had allegedly been witnessed by Muhammad Arshad Khan complainant (P.W.6) and Irshad Ahmad Khan (P.W.7) who were related to the deceased and were staying for the night at the relevant house as guests. The motive set up in the F.I.R. Was that the appellant was unemployed and he usually used to quarrel with his parents as he used to demand money from them.
3. F.I.R. 187 was lodged in respect of the said incident by Muhammad Arshad Khan complainant (P.W.6) at Police Station Jauharabad, District Khushab at 3-45 a.m. On 12-7-1996 for an offence under section 302, P.P.C. The said case was investigated by Akbar Ali, S.-I. (P.W.12) who got the dead bodies subjected to post-mortem examination, effected recoveries from the spot, arrested the appellant and secured the blood-stained clothes of the appellant. After completion of the investigation a challan was submitted before the learned trial Court.
4. At the commencement of the trial a charge with five heads under section 302, P.P.C. Was framed by the learned trial Court against the appellant to which he pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced twelve witnesses in support of its case against the appellant. Muhammad Arshad Khan complainant (P.W.6) and Irshad Ahmad Khan (P.W.7) furnished the ocular account of the incident in question and also deposed about the motive. Abdul Ghafoor (P.W.Ll) and Muhammad Ayub, FC (P.W.9) stated about the recoveries effected in this case. The medical evidence was provided by Dr. Ajmal Nadeem (P.W.4) and Dr. Rab Nawaz (P.W.8).
Akbar Ali, S.-I. (P.W.12) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In his statement record under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. However, he opted not to make any statement on oath under section 340 (2), Cr.P.C. And did not produce any witness in his defence.
7. At the conclusion of the trial the learned trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted- and sentenced by it as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
8. We have heard the learned counsel' for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt as the eyewitnesses produced by it were chance witnesses who had not only failed to establish the reason for their claimed presence at the scene of the crime at the relevant time but had also failed to receive independent corroboration from any quarter. As against that the learned counsel for the State has maintained that the prosecution had succeeded in establishing the appellant's guilt beyond reasonable doubt and, thus, his convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that the prosecution had miserably failed to prove the motive set up by it against the appellant. It had been maintained in the F.I.R. As well as in the statements of Muhammad Arshad Khan complainant (P.W.6) and Irshad Ahmad Khan (P.W.7) that the appellant used to quarrel with his parents for obtaining money from them but both the said witnesses had failed to point out any particular occasion when the appellant had demanded money from his parents or had quarrelled with them in the presence of these witnesses. The motive set up by the prosecution was, therefore, based upon nothing but hearsay. With the discarding of the motive set up by the prosecution the record of this case contains no other earthly reason for the appellant to brutally murder not only both his parents but also his younger brother and sisters and, thus, wiping out his entire family .
10. Both the eyewitnesses produced by the prosecution, i.e, Muhammad Arshad Khan complainant (P.W.6) and Irshad Ahmad Khan (P.W.7) were admittedly chance witnesses but they had utterly failed to establish the stated reason for their staying for the fateful night at the house where the occurrence had taken place. Muhammad Arshad Khan complainant (P.W.6) ordinarily resided at Faisalabad which was situated about one hundred and fifty kilometers away from the place of occurrence and according to him he had come to visit his uncle namely Mehtab Ahmad Khan deceased and had stayed for the night at his house and had, thus, managed to see the present occurrence. This witness had disclosed no reason at all for his visit to the house of Mehtab Ahmad Khan deceased. Irshad Ahmad Khan (P.W.7) was a resident of Hafizabad which was also situated, scores of kilometers away from the place of occurrence and he had maintained before the learned trial Court that he had gone to see Mehtab Ahmad Khan deceased because somebody had informed him that Mehtab Ahmad Khan deceased was unwell. The identity of the person providing him such information was never disclosed by this witness and no proof whatsoever was adduced before the learned trial Court regarding any ailment of Mehtab Ahmad Khan deceased. We have curiously noticed that according to this witness he had himself been surgically operated upon about 20/25 days prior to his visit to the house of Mehtab Ahmad Khan deceased and Muhammad Arshad Khan complainant (P.W.6) had visited him at Hafizabad from Faisalabad to inquire about the health of this witness and from Hafizabad both this witness and the complainant had gone to the house of Mehtab Ahmad Khan deceased in Jauharabad for inquiring about the latter's health.
No independent proof regarding any surgical operation of Irshad Ahmad Khan (P.W.7), about the visit of Muhammad Arshad Khan complainant (P.W.6) to the house of Irshad Ahmad Khan (P.W.7) at Hafizabad and about travelling of these two witnesses together to the house of Mehtab Ahmad Khan deceased in Jauharabad had been produced before the learned . Trial Court. It may be relevant to mention here that both these witnesses were closely and sensitively related to Mehtab Ahmad Khan deceased inasmuch as the wife of Mehtab Ahmad Khan deceased was the paternal aunt of Muhammad Arshad Khan complainant (P.W.6) and Mehtab Ahmad Khan deceased was himself a first cousin of the complainant's father. Irshad Ahmad Khan (P.W.7) was a brother-in-law of Mehtab Ahmad Khan deceased. Surprisingly both these witnesses had been made by Mehtab Ahmad Khan deceased to sleep at night in the street outside the house of Mehtab Ahmad Khan deceased whereas the house of the deceased was sufficiently commodious and these closely and sensitively related witnesses were not accommodated for the night in a room or in the courtyard or on the roof of the house of Mehtab Ahmad Khan deceased. All these factors have gone a long way in convincing us that both these eyewitnesses were procured and planted in this case at a C subsequent stage and they had not actually seen the occurrence in issue.
11. We have also pertinently observed that the occurrence in this case had taken place during the dead of a night at 3-00 a.m. And identification of the appellant was claimed by the eyewitnesses to have been made possible through an electric bulb which was statedly alight in the room where the alleged murders had taken place. However, the . Site-plan of the place of occurrence prepared in this case did not show availability Of any electric bulb at the spot and no such bulb was taken into possession by the Investigating Officer. Thus, even the source of light at the time of the occurrence had remained shrouded in doubt.
12. Another significant factor noticed by us in this case is that all the five deceased were stated to be sleeping in one room and on two beds and a cot before the present occurrence but admittedly the investigating officer had found no blood on any bed or cot available in that room. According to the prosecution's own case all the dead bodies were found on the floor of that room. This shows that before their murders all the deceased had been removed from their beds and cot and it was quite likely that during such removal the deceased would have woken up. The weapons of offence in this case were alleged to be a lid of a pressure-cooker and a leg of a cot. If the five murders in issue had been committed by the appellant all by himself and that too not with any firearm but with unconventional blunt weapons like the ones mentioned above then there was ample opportunity for the five grown up and woken up deceased to offer resistance to the appellant or to catch hold of him but strangely no such indication is available on the record of this case. The five murdered persons in this case had received as many as thirty-one injuries in all and each and every injury was on the heads of the deceased persons. It was well nigh impossible for the solitary appellant to have caused all such injuries without facing any resistance from the woken up and grown up victims. We have also found it to be intriguing that after conducting postmortem examinations on the dead bodies the viscera taken therefrom were sent to the Chemical Examiner to detect poison or any intoxicating drug administered to the deceased before their deaths but the prosecution had failed to produce any report of the Chemical Examiner in that regard. This factor hints towards a fact that the investigating agency itself had doubted at that stage that the appellant could have single-handedly caused all those injuries to all the five deceased without facing any resistance from them and that there was a real possibility that the deceased had been immobilized through poison or some drug before they were given injuries by the assailant. This possibility surely militated against the veracity of the statements made by the eyewitnesses before the learned trial Court.
13. The weapons of offence, i.e, a blood stained lid of a pressure-cooker and a blood-stained leg of a cot had been recovered from the place of occurrence itself and not from the possession of .The present appellant and, thus, such recovery did not connect the appellant with the alleged offences at all. We have, however, noticed that according to the prosecution's case the appellant was wearing bloodstained clothes at the time of his arrest on 12-7-1996 and a blood-stained vest as well P as a blood-stained Shalwar had allegedly been secured by the police at that time. We have found it to be Tather strange that the blood-stained Shalwar so recovered was neither sent to the Chemical Examiner nor the Serologist Or the reports of the said experts had been deliberately withheld by the prosecution. Even at the time of recording of his statement under section 342, Cr.P.C. a question had been put to the appellant only in respect of recovery of a blood-stained vest from his possession and no question had been put to him regarding recovery of any blood-stained Shalwar from him. It may be relevant to mention here that the appellant ha3 been arrested in this case on 12-7-1996, i.e, during the day following the night of occurrence and thus, the police could conveniently plant a blood-stained vest belonging to any of the five deceased upon the present appellant and, therefore, we have exercised caution in this regard. Muhammad Ayub, FC (P.W.9) had been produced by the prosecution in respect of recovery the blood-stained vest and Shalwar from the appellant's possession and he had stated in his cross-examination that at die time of his arrest the appellant was roaming in the area of Lorry Adda and many persons from the public were present at that Adda at that time. Despite that no witness from the public was associated with the alleged recovery and, thus, the provisions of section 103, Cr.P.C. Had flagrantly been I violated in that regard. We have, therefore, felt quite reluctant in accepting the said recovery to be sufficient by itself to fasten a finding of guilt around the appellant on that score alone.
14. As we have already disbelieved the eyewitnesses produced by the prosecution, therefore, the medical evidence produced by the prosecution has been rendered legally inconsequential as it cannot by itself point an accusing finger towards any person as the culprit,
15. Before parting with this judgment we may also add that the persons murdered in this case were the appellant's parents, brother and sisters and the appellant used to live in the same house where the said murdered persons lived. The time of occurrence was such that the appellant was expected to be present inside the said house at that time but the appellant had failed to advance any explanation as to how and in what circumstances the appellant's entirely family had been brutally done to death. | These factors surely gave rise to a suspicion regarding the appellant's involvement in the alleged murders but we may hasten to add that we are cognizant of the settled legal proposition that suspicion howsoever grave or strong can never be a proper substitute for proof beyond reasonable doubt required in ai criminal case.
16. For what has been discussed we have arrived at an inescapable conclusion that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of the appellant recorded by the learned trial Court are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required in any other case.
17. Murder reference No, 180 of 1997 is answered in the negative and the sentences of death passed by the learned trial Court against Sohail Ahmad appellant are not confirmed.