QAZI MUHAMMAD AMIN AHMED, J:-. Ghulam Shabbir , 30, hereinafter referred to as the deceased, was gunned down on 04-08-2007 within the area of Mouza Ahsan Pur, situating at a distance of five miles from Police Station Daira Din Panah, District Muzaf fargarh; incident was witnessed in the dusk by his mother Siraj Bibi (PW-4) accompanied by Ghulam Abbas and Javed Iqbal, PWs who lodged a report through complaint Ex.PD recorded by Tahir Mehmood, SI (PW-9), 8:00 p.m. at Qasba Ahsan Pur; her case is that she accompanied by above named witnesses was on way to Ahsan Pur to attend a piece of work and as they came by the house of Aslam, they saw the deceased on a motorbike with Azhar Chisthi, PW when Ghulam Abbas, Khizar Abbas, Muhammad Shafi and Muhammad Javed, armed with Kalashnikovs, emerged at the scene and confronted the deceased. Ghulam Abbas appellant fired hitting the deceased on his face and head followed by Khizar Abbas appellant targeting left hand and abdomen while Muhammad Shafi appellant along with Muhammad Javed acquitted co-accused made burst shots landing on abdomen, legs and other parts of the body; the deceased felled on the ground and was jointly fired upon by all the four accused. The witnesses were threatened to stay at bay. Motive for the crime is previous litigation; Azhar Chishti PW decamped unscathed.
Dr. Muhammad Iqbal (PW-3) conducted autopsy same night at 10:30 p.m. and observed as many as twelve lacerated wounds of different dimensions on left and right side of face, top of skull, on the lower side of abdomen, right shoulder , right side of chest, both thighs as well as on the back of index finger; most of the injuries crushed and fractured the bones and muscles; hemorrhagic shock owing to severe blood loss and damage to vital organs was blamed as cause of death; the injuries were found sufficient to cause death in the ordinary course of nature, which occurred immediately after receipt thereof; duration between death and postmortem was opined as 4 to 6 hours.
Tahir Qureshi, SI (PW-9) carried out initial investigation; during spot inspection, he secured bloodstained earth and motorcycle (P-5) of the deceased; Khizar Abbas appellant was arrested by Abdul Rasheed SI (PW-10) on 30-12-2008 and pursuant to a disclosure led to the recovery of Kalashnikov with four live bullets (P-6/1 -4); Ghulam Abbas, appellant was arrested by Khadim Hussain, SI (PW-11) on 23-4-2009 and got recovered Kalashnikov (P-4), secured vide respective inventories; Muhammad Shafi appellant was exonerated during the course of investigation; two reports under Section 173 of the Code of Criminal Procedure, 1898 in the wake of piecemeal arrest of the appellant s were sent to the Court and they were finally indicted by a learned Addl. Sessions Judge at Muzaf fargarh on 10-11-2009 when they claimed trial, pursuant whereto, prosecution in order to bring home charge against them, besides relying upon forensic reports, produced as many as thirteen witnesses; of them, Siraj Bibi (PW-4) and Ghulam Abbas (PW-5) furnished ocular account, the mainstay of the prosecution case. According to forensic report, earth secured from the spot was found stained with blood of human origin.
Report of Forensic Science Laboratory is not available on the record. The appellants confronted prosecution evidence with a plea of alibi. It has been pointed out at the bar that Javed co-accused, tried separate ly, was acquitted on the basis of compromise.
The learned Additional Sessions Judge vide judgment dated 25-01-201 1 proceeded to convict the appellants under Section 302 (b) read with Section 34 of the Pakistan Penal Code, 1860 and sentenced Khizar Abbas and Ghulam Abbas to death along with payment of compensation in the sum of Rs.200,000/- each or six months R.I. in the event of default whereas Muhammad Shafique alias Muhammad Shafi was sentenced to imprisonment for life with compensation of Rs.200,000/- or six months RI in the event of default, vires whereof, are being challenged by the appellants vide Crl. Appeal No.251 of 2011 and Crl. Appeal No. 253 of 2011; Murder Reference No.34 of 2011 seeks confirmation of death penalty awarded to Khizar Abbas and Ghulam Abbas, appellants whereas the complainant has prayed for enha ncement of sentence awarded to Muhammad Shafique alias Muhammad Shafi appellant through Crl. Revision No.129 of 2011; these are being decided through this single judgment.
2. Learned counsel for the appellants contend that the prosecution case is fraught with contradictions, inconsistencies and improbabilities and as such the learned Court below erred in returning a guilty verdict with ultimate penalty; that a most important witness, namely , Azhar Chishti did not come forward to support the story set up in complaint Ex.PD; that presence of witnesses at the spot is highly improbable ; that the occurrence took place in the dark with no source of light to establish appellants' identification; that no casing was found available at the scene which goes a long way to contradict the story set up in the crime report. Lastly , it is argued that an inconsequential recovery and a vaguely formulated motive do not provide corroboration to ocular account and it would be unsafe to maintain the conviction. Contrarily, the learned Law Officer assisted by the counsel for the complainant has defended the impugned judgment and prayed for confirmation of death penalty on the ground that a mother would not substitute the real culprits with the innocent and that her testimony, duly supported by medical evidence and recovery of weapons excluded every hypothesis of appellants' innocence; while arguing Criminal Revision No.129 of 2011, sought enhancement of the sentence of imprisonment for life inflicted upon Muhammad Shafi, appellant to death on the ground that he was identically placed with Khizar Abbas and Ghulam Abbas appellants and opinion that injuries were sufficient to cause death in the ordinary course of nature left no space to visit him with alternate penalty.
3. Heard. Record perused.
4. The prosecution case is structured upon the statements of Siraj Bibi (PW-4), mother of the deceased and her nephew Ghulam Abbas (PW-5); they claimed to have witnessed the occurrence. The residence of Siraj Bibi, as per her own admission, is situated at a distance of two kilometers from the place of occurrence and according to her, she was on way to Ahsan Pur to attend some personal engagement; Ghulam Abbas (PW-5) and Javed Iqbal, given up accompanied her for the said purpose and as such presence of these witnesses is inexorably linked with each other . When inquired, during the cross-examination, she disclosed that she was going to Ahsan Pur for medical treatment, as she had contracted some stomach disorder; she also stated that both the eye witnesses Ghulam Abbas as well as Javed Iqbal were sent for by her on the birth of deceased' s daughter; she further stated that she shared her stomach problem with both the witnesses and also informed them that she intended to visit a doctor; they were on foot. It is in evidence that Siraj Bibi (PW-4) had twelve sons and daughters; it is mindboggling that a woman in her fifties undergoing the agony of stomach disorder would cover a long distance on foot with the assistance of two nephews in preference of her own kith and kin, that too, by avoiding the convenience of some conveyance, readily available in these days even in rural neighbourhoods. Explanation furnished by Ghulam Abbas (PW-5) for his presence in the company of Siraj Bibi (PW-4) is diametrical ly different, as according to him, he had gone to the house of the complainant to accompany him to get medicine for his wife, who was suffering from fever; he unambiguously stated that all of them were going to Ahsan Pur to purchase medicine for his ailing wife and that his aunt readily agreed to attend his wife. These positions are poles apart and narrative of one witness cannot be accepted without excluding the other and vice versa and the inference, irresistibly drawn is that these two witnesses had no occasion to be together at the relevant time. Arrival of these two witnesses to come across the deceased exactly at a point of time when the former came under attack is yet another coincidence; such happenings seldom occur . According to complaint Ex.PD, the sun was about to set and complaint Ex.PD was recorded at 8:00 p.m. whereas autopsy was conducted at 10:30 p.m; in this sequential order , argument that occurrence took place in the dark cannot be brushed aside out of hand.
According to Dr. Muhammad Iqbal Khan (PW-3), some pellets were retrieved from injury No.2 and that there were five entry wounds in all with their corresponding exits. Presence of pellets inside the body is not consistent with the weapons allegedly used in the occurrence and there was no real necessity for all the four accused to target the deceased one by one when the task could be accomplished by any one of them; this aspect of the case admits a real possibility of casting a wider net; exoneration of Muhammad Shafique alias Shafi appellant reinforces this hypothesis.
Though Siraj Bibi (PW-4), in her cross-examination mentioned presence of empties at the spot, however , none was found there nor secured; this aspect of the prosecution case also runs counter to the position taken in the crime report.
Attribution of different roles to the assailants vis--vis the deceased, by the complainant as well as the PWs with immaculate precision, in a crisis situation that befell upon them, all of a sudden is incompatible with the normal human response even by the most intelligent. Recoveries of weapon in the absence of a positive forensic report are beside the mark. Motive is vaguely formulated and not specific qua any of the appellants. Copies of First Information Reports, 21 in number, registered against the deceased wherein the deceased figured either as accused or complainant lend credence to the argument that a formidable past was hounding him with a good number of foes and adversaries looking for an opportune moment to settle the score.
No doubt, independent witnesses hesitate to come forward to offer their testimony, nonetheless, no explanation has been cited by the prosecution for its failure to produce Azhar Chishti, who on its own showing, accompanied the deceased shortly before his last moments; according to the complainant, he fled away five minutes before the firing started and this assertion is inconsistent with the case set up in the crime report. The First Information Report, seemingly has not been recorded in the manner stated therein, as according to the complainant, the Investigating Officer met her and the PWs at 7:45 p.m. in Ahsan Pur where she had gone with the witnesses leaving the dead body at the spot and returned again in the company of I.O; instinctively, a mother is not expected to leave the dead body of her son to lay information with the police, particularly in the presence of her two nephews, who could conveniently undertake the assignment.
Above circumstances taken together , cast a dark shadow of doubt; doubts neither imaginary nor illusory rather embedded in the stated positions, benefit whereof cannot be denied to the appellants. Consequently , by extending benefit of doubt to the appellants, their appeals are allowed; judgment dated 25-1-201 1 is set aside; they shall be released forthwith, if not required in any other case. Murder Reference No.34 of 201 1 is answered in NEGA TIVE and death sentence is NOT CONFIRMED.
As a natural corollary , Criminal Revision No.129 of 201 1 stands dismissed.