QAZI MUHAMMAD AMIN AHM-ED, J:-Muhammad Qasim, 24/25, a lawyer by profession, hereinafter referred to as the deceased, as usual left home on 12-10-2006 at 9:30 p.m. for jogging in Divisional Sports Ground Multan; as he failed to return, his father Ghulam Sarwar (PW-20), an aged diabetic with diminished eye side, contacted Rescue-15; her sister received a suspicious message from cell phone no.0304-6100726 on internet at 10:00 p.m. whereby an anonymous sender asked her to call him, however , on attempt, he did not respond. After midnight, at 12:30 p.m, once again a caller , introducing himself as Shahbaz asked to communicate with the family , however , the call dropped soon thereafter . In this backdrop, the complainant informed his other son Muhammad Hashim, residing in Saudi Arabia and shared with him apprehension of abduction or murder , when said Muhammad Hashim contacted on the above cell phone number , initially he was informed that the deceased was in Multan, hale and hearty , however , on a subsequent call, the attendant denied any knowledge about the deceased. It was in this background that application Ex.PA was moved, 12:15 p.m. on 14-10-2006 at Chehlyak Police Station Multan and initially a case under Section 364 of the Pakistan Penal Code, 1860 was registered.
On 13-10-2006 at about 7:30 a.m. Mukhtar Hussain (PW-8) spotted a dead body within the area of Mouza Panwar Shumali within the limits of Police Station Mehmood Kot District Muzaf fargarh, lying by roadside; as gunshot wounds were found on the dead body , a case of homicide was registered vide FIR No.298; the dead body was dispatched for autopsy Dr. Qadir Munir (PW-13) noted an oval shaped wound of entry measuring 1 x 3/4 c.m. on the upper part of neck with its exit on the left lower rib accompanied by another entry wound 1 x 3/4 c.m. on the posterior side of left shoulder and on the right flank, on the lower part of the body with their respective exits. Multiple abrasions on both elbows as well as upper part of right eyelid were also observed. Injury on the upper part of neck with its exit was blamed as cause of death and time between death and injuries was estimated as immediate whereas between death and postmortem, it was reckoned as 12 to 24 hours.
Muhammad Shafi, SI (PW-15) upon receipt of information about registration of a case at Police Station Chehlyak, entrusted the file to Nazeer Ahmad, SI (PW-21); he arrested the appellants on 31-10-2006 and pursuant to a disclosure by Farukh Akhtar appellant, recovered a 30-caliber pistol (P-1) as well as a cell phone handset (P-3) while Shahid appellant led to the recovery of pistol (P-4).Farukh Akhtar appellant on 2-11-2006 led the Investigating Officer to a rent-a-car outlet where from car LZU-5663 (P-7), register (P-8) and receipt (P-9) were secured vide inventory . On 4-11-2006, both the appellants pointed out the place of occurrence wherefrom three casings (P-10/1-3) were taken into possession; memos Ex.PS and PT were prepared at the spot; casings and weapons recovered at the instance of Farukh Akhtar appellant were dispatched to the Forensic Science Laboratory Punjab Lahore on 8-11-2006 through Abdul Rasheed/C (PW-19); empties secured from the spot, according to forensic report Ex.T/I were opined to have been fired with pistol (P-1). On completion of investigation, the appellants were sent to face trial; they were indicted by a learned Additional Sessions Judge at Multan on five counts on 3- 2-2007; they claimed trial, pursuant whereto, prosecution produced as many as 21 witnesses besides placing reliance upon forensic report in order to drive home charge against them; the appellants confronted prosecution evidence with a unanimous denial alleging deceased' s antecedents and pursuits as factors leading towards his death. The learned Additional Sessions Judge vide impugned judgment dated 10-1-2009 convicted the appellants under Sections 302(b), 201 read with Section 34 of the Pakistan Penal Code, 1860 and sentenced Farukh Akhtar appellant to death whereas Shahid Ali to imprisonment for life; they were directed to pay compensation in the sum of Rs.50,000/ - each or to undergo six months SI in the event of default; they have also been convicted under Section 201 read with Section 34 of the Code ibid and sentenced to 5-years RI along with fine of Rs.30,000/- or to undergo one year SI in default thereof, with benefit of Section 382-B of the Code of Criminal Procedure, 1898, vires whereof, are being impugned through Crl. Appeals Nos.24 & 119 of 2009; Crl. Revisions Nos. 62 & 63 of 2019 seek enhancement of fine as well as sentence whereas Murder Reference No.103 of 201 1 has been filed for confirmation of death penalty; these are being decided through this single judgment.
2. Learned counsel for the appellants contend that the appellants are not named in the crime report nor there is any evidence, obliquely suggesting their involvement in the crime and that they have been prosecuted on the basis of fabricated evidence and as such the learned trial Court erred in returning a guilty verdict on capital charge; that a retracted extrajudicial confession is hardly sufficient to sustain the charge, particularly in the absence of independent corroboration, therefore, the impugned judgment is not sustainable. Contrarily , the learned Officer assisted by learned counsel for the complainant argued that circumstantial evidence is a valid method to prove a charge of homicide and that prosecution has been able to establish an irresistible nexus, through various links, synchronized together with one another to drive home charge against the appellants and that as the deceased in his prime youth was done to death in cold blood, penalty of death was justified in the facts and circumstances of the case; he also prayed for enhancement of compensation as well as sentence awarded to Shahid Ali appellant.
3. Heard. Record perused.
4. There is no direct evidence in this case and the fate of prosecution case is hinged upon various pieces of circumstantial evidence, of them the evidence of last seen is furnished by Abdul Aleem (PW-6); his case is that on 12-10- 2006 at about 9/10:00 p.m. he along with Kashif Hussain PW was present outside Nishtar Hospital, waiting for a wagon, when he saw the deceased sitting with the appellants in Car (P-7) while drinking Lassi; his statement was recorded by the Investigating Officer on 20-10-2006 and reason cited by him for withholding this most vital information was his journey along with Kashif Hussain PW to Lahore for purchase of spare parts, an assignment which kept them in the city till 19-10- 2006 whereafter they appeared before the Investigating Officer and laid their suspicion against the appellants; next in line is extrajudicial confession, allegedly made by Farukh Akhtar appellant before Sajjad Haider (PW-7) on 24-10-2006; his case is that he had gone to the house of Muhammad Afzal PW on 20-10-2006 where on 24-10-2006, Farukh Akhtar appellant visited him and made a detailed confessional statement, in the presence of his host and sought their intervention for a compromise; he further narrated that after a shot while, Shahid co-accused also joined them and reiterated the same narrative; this witness was examined by the Investigating Officer on 24-10-2006. Muhammad Yousaf (PW-4) and Mehmood Ayaz (PW -5) are witnesses of various recoveries.
These two pieces of circumstantial evidence coupled with recovery of weapons and other articles hardly constitute the chain of circumstances required to frame the appellants with the charge so as to visit them with ultimate penalty of death. Silence of Abdul Aleem (PW-6) till 20-10-2006 about the fact of his having seen the deceased in the company of the appellants is mindboggling; he is a close relative, as his sister is married with Hashim, real brother of the deceased; it is in complaint Ex.PA that the said Hashim while being in Saudi Arabia was worried about disappearance of his brother and remained in touch with the family members back home; explanation furnished by this witness for his belated disclosure merits outside rejection in this era of fast and instant communication. There are other reasons as well to discard his evidence, as this so called evidence of last seen is outside the ambit of proximity in terms of time and space; according to his own deposition, he saw the deceased in the company of the appellants in front of Nishtar Hospital Multan whereas the dead body is found in District Muzaffargarh on 13-10-2006 at 730 a.m. According to Dr. Qadir Munir (PW-13) time between death and postmortem was reckoned as 12 to 24 hours at 1:00 p.m. on 13-10-2006 when autopsy was conducted. Inter se difference both in terms of time and space is not in consonance with the hypothesis of last seen.
Even otherwise, Abdul Aleem (PW-6) never saw the accused leaving the said spot in the company of the appellants, as he boarded the wagon just after having seen them. Case of Sajjad Haider (PW-7) is not on a better footing either; he had gone to visit Muhammad Afzal PW one of his relatives on 20-10-2006 where he stayed till 24-10-2006 for no apparent reason; it is strange as to how the appellants learnt about the presence of this witness at the residence of Muhammad Afzal, not produced by the prosecution; equally difficult is to understand as to why Farukh Akhtar appellant would make his breast clean and that too by relating a detailed narrative with minute peripheral details of the occurrence, needed by the prosecution to prosecuted him in the absence of any evidence, otherwise pointed upon him, that too, under a temporary compunction of his conscience, merely to retract therefrom subsequently; it is an old poor script. Subsequent arrival of Shahid Ali to follow the ritual is ludicrous to say the least; even date dispatch of weapon and casing render forensic report Ex.PT/1 as inconsequential; prosecution despite detailed confessional statements being attributed to the appellants is reticent on the motive. Unless every hypothesis of innocence is found excluded, circumstantial evidence cannot be relied upon to sustain the charge and that is not a case in hand, therefore, it would be grievously unsafe to maintain the conviction. Consequently, by extending benefit of the doubt to the appellants, Crl. Appeal No. 24 of 2009 and Crl. Appeal No.119 of 2009 are allowed; impugned judgment dated 10-1-2009 is set aside; appellants are acquitted from the charges; Farrukh Akhtar, appellant shall be released forthwith if not required in any other case whereas Shahid Ali, appellant is on bail, his bonds are cancelled and sureties discharged . Murder Reference is answered in the NEGA TIVE and death sentence is NOT CONFIRMED . As a natural corollary , Crl. Revisions No.62 & 63 of 2009 stand dismissed.