QAZI MUHAMMAD AMIN AHMED, J:-. Ahmad Ali, 50, hereinafter referred to as the deceased, was done to death in the morning of 27 June, 2008 within the area of Chak 62/GD, situating at a distance of 12 miles from Police Station Noor Shah, District Sahiwal; incident was reported by his son Farooq Ahmad (PW-1) through complaint Ex.PA, recorded by Muhammad Aslam SI (CW-4), 08:00 a.m. at the spot alleged wherein is that the deceased resided with his second wife Kousar Bibi along with children from the said marriage; the complainant and his nephew Muhammad Akram (PW-2) came to visit the deceased and stayed overnight with the family in an improvised hovel; attracted by commotions in the morning, the PWs saw Bashir Ahmad appellant armed with hatchet dealing multiple blows landing on different parts of his body; they attempted to subdue him, however, he managed to decamp from the scene. Motive for the crime is appellant's annoyance with the deceased over his second marriage with Kousar Bibi.
Dr. Aftab Ahmad (PW-4) conducted autopsy on 27-6-2008 at 10:00 a.m. and noted as many as four incised wounds on right cheek, right side of neck, front of chest and on back of left index finger; major blood vessels on the right side of neck were ruptured while sternum with 2 & 3 rib cut down; right and left lungs were also damaged and 4 & 5 metacarpals of left hand were chopped off; hemorrhage leading to shock was blamed as cause of death, occurred immediately after receipt of injuries; duration between death and postmortem was estimated as six hours and the weapon used was opined as sharp edged; injuries were found sufficient to cause death in the ordinary of nature.
During spot inspection, besides taking other investigative steps, Muhammad Aslam, SI/Investigating Officer (PW-4) secured bloodstained earth, cot (P-3) and quilt bed sheet/Gadda (P-4); the appellant was arrested on 30-10-2008 and pursuant to a disclosure, led to the recovery of hatchet (P-5), secured vide respective inventories; after completion of investigation, he was sent to face trial before a learned Addl. Sessions Judge at Sahiwal. Dissatisfied with the investigation and with a view to graduate the number of accused from one to four, Farooq Ahmad, complainant instituted a privateth nd rd th th complaint wherein he added Ameer Ali, Abbas and Riaz in the array of the accused; all the accused were sent for by the learned trial Court and indicted on 31-10-2009 when they denied the charge and claimed trial, pursuant whereto, prosecution produced as many as twelve witnesses; of them, Farooq Ahmad (PW-1), Muhammad Akram (PW-2) and Hamid Ali (PW-3) furnished ocular account; remainder of the witnesses were examined as court witnesses. Forensic reports Ex.PQ and Ex.PR were relied upon to establish presence of human blood at the spot; hatchet (P-5) according to report Ex.PP was found stained with blood, however, nature thereof in the absence of serological report cannot be commented upon. The accused confronted prosecution evidence with the following unanimous plea:- "It is a false case. All the PWs are closely related with the deceased. They have made false statements against me and my co-accused just to blackmail me and my co-accused".
The learned trial Judge vide judgment dated 23-7-2010 acquitted Ameer Ali, Abbas and Riaz, co-accused, however, proceeded to convict the appellant under Section 302(b) of the Pakistan Penal Code, 1860 and sentenced him to death along with payment of compensation in the sum of Rs.50,000/- or six months imprisonment in the event of default; he was additionally convicted under Section 449 of the Code ibid and sentenced to five years RI with fine of Rs.5000/- or six months SI in the event of default, vires whereof, are being challenged by the appellant vide Crl. Appeal No.307 of 2011 whereas Murder Reference No.179 of 2010 seeks confirmation of death penalty; PLSA No.84 of 2010 seeks reversal of acquittal of co-accused; these are being decided through this single judgment.
2. Learned counsel for the appellant contend that there are material contr adictions and discrepancies in the prosecution evidence; that identically placed co-accused have since been acquitted by the learned trial Court on the same set of evidence and that as such evidence relied upon qua the appellant cannot be pressed into service without independent corroboration, lacking conspicuously; that motive as well as recovery in the absence of Serologist report do not advance prosecution case; that even otherwise, prese nce of the witnesses in a small irregular dwelling with a family comprising of ten members is extremely improbable and finally it is argued that somersault taken by the complainant in a belatedly instituted private complaint raises the entire edifice to the ground. Contrarily , the learned Law Officer assisted by learned counsel for complainant has defended the impugned judgment and prayed for confirmation of death penalty on the ground that the deceased was done to death within the view of his family inside the safety of their dwelling.
3. Heard. Record perused.
4. The prosecution case is resting upon the testimony of Farooq Ahmad, Muhammad Akram, Hamid Ali, PWs and Mst. Kousar Bibi (CW-8); they claimed to have witnessed the occurrence. Farooq Ahmad (PW-1) is author of complaint Ex.PA; though owing to awful incompetence and negligence of defence counsel, he is not confronted therewith, nonetheless, it is on the record through testimony of Muhammad Aslam SI (CW-4), who stated under solemn affirmation to have recorded it on the statement of Farooq Ahmad (PW-1), signed by him in affirmation of its correctness; neither names of the acquitted co-accused nor those of Muhammad Akram and Hamid Ali, PWs find mention therein. In private complaint Ex.PB, the complainant admitted his statement albeit with the plea that names of other co-accused were not recorded therein; the complaint is instituted in November 2008 almost after five months of the occurrence. Mst. Kousar Bibi (CW-8), second wife of the deceased gave time of occurrence 3:00 a.m. and she blamed Ameer, Abbas and Riaz accused for having assaulted her husband; she omitted the name of Bashir appellant, however, nominated him when cross-examined by her own counsel, an exercise that must be disapproved being inconsistent with and antithetical to the fundamental principles of fair trial. In this backdrop, it would be grievously unsafe to place implicit reliance upon the rendition of these so called eye witnesses. Complaint Ex.PA is duly thumb marked by Farooq Ahmad PW and he cannot circumvent its details through a belated assertion that it was not faithfully recorded and for the same reason testimony of Muhammad Akram and Hamid Ali PWs as eye witnesses merits outright rejection on account of absence of their names in the original complaint.
Examination of Kousar Bibi as CW-8 and opportunity of cross-examination to her counsel is repugnant to settled norms of criminal jurisprudence; she has entered the witness box to advance the case of the complainant in the private complaint and as such there was no occasion to summon her as a court witness, as she ought to have been examined as a prosecution witness and if at all, she was summoned as a court witness, the learned trial Judge ought not to have afforded the complainant to cross-examine his own witness; this is incompatible with the principles of fair trial so as to ensure safe administration of criminal justice besides being violative of the scheme of examination of witnesses provided under Article 132 of the Qanun-e-Shahdat Order, 1984. A witness can only be cross-examined by the adverse party for the purposes of his impeachment or by the party who called him with the permission of the Court in case he turned hostile, that too, while observing statutory safeguards available to an accused confronting the charge. Opportunity of cross-examination must not be afforded to the prosecution as a methodology to improve upon its case through soliciting choice answers from its own witness, otherwise prohibited in examination-in-chief and for this reason testimony of Kousar Bibi (CW-8) merits outright rejection. For the foregoing reasons, ocular account relied upon by the complainant is far from being sufficient to sustain the charge, particularly when their presence at the spot appears extremely improbable. Motive is vaguely formulated and the prosecution has miserably failed to disclose as to what grudge Bashir Ahmad appellant harboured for deceased's second marriage solemnized two decades back; same is the case with the recovery of hatchet (P-5) which in the absence of a positive forensic report remained inconsequential, therefore, it would be grievously unsafe to maintain the conviction.
Consequently, by extending benefit of doubt to the appellant, Crl. Appeal No.307 of 2011 is allowed; judgment dated 23- 07-2010 is set aside; petitioner shall be released forthwith, if not required in any other case. Murder Reference No.179 of 2010 is answered in NEGATIVE and death sentence is NOT CONFIRMED.
P.S.L.A. No.84 of 2010 whereby acquittal of co-accused is questioned, still at the threshold, in view of reasoning recorded above, as a natural corollary , stands dismissed.