' Qazi Muhammad Amin Ahmed, J.--Prosecution case is founded upon complaint Ex. PA recorded by Muhammad Majeed, S.I. (PW-8) on the statement of Muhammad Almas (PW-3) on 31.1.2006, 2:40 a.m. At General Store Ayyubia Market, situating at a distance of 150 yards from Police Station Muslim Town, Lahore, alleged wherein is that during the fateful night he left Mohsin Abbas, aged 25/26, hereinafter referred to as the deceased, at 10:00 p.m. In his grocery store as the deceased failed to return home, the complainant went to the store at about 2:25 a.m; as he pulled up the closed shutter, he saw Muhammad Adeel, appellant along with Hameed Ahmad co-accused; the appellant was carrying 30-caliber pistol and within complainant's view Hameed Ahmad, co- accused exhorted the appellant to avenge illicit liaison of the deceased with the women of his family; the appellant fired a shot hitting the deceased on his forehead; who felled and died at the spot immediately thereafter; the accused decamped from the scene. Autopsy was conducted at 2:30 p.m. On 31.1.2006; Dr. Muhammad Ubaid Ullah (PW-12) noted a star shaped lacerated entry wound on the middle of the forehead extending to left side thereof 2.5 -cm above left eyebrow; it made an exit from the upper most part of right side of neck; Injury No, 1 caused lacerated damage to the skull bone, brain and its membranes, leading the deceased into coma and as such opined as fatal with probable duration of death as immediate thereafter and 10 to 16 hours between autopsy. Investigating Officer during spot inspection took from the spot blood and a casing of 30- caliber, secured vide inventory. The appellant was arrested on 7.2.2006 along with bloodstained clothes and pursuant to a disclosure, led to the recovery of pistol (P-1) secured through inventories; casing was dispatched to Forensic Science Laboratory Punjab, Lahore on 24.2.2006, followed by pistol (P-1) on 7.2.2006 through Mukhtar Ahmad/C (PW-5). Forensic Science Laboratory report (Ex.
PM) is in the positive. After conclusion of investigation, the appellant was sent to face trial before a learned Additional Sessions Judge at Lahore; he was indicted on 2.3.2007 when he denied the charge and claimed trial, pursuant where to, prosecution besides placing reliance on forensic reports produced as many as 14 witnesses to drive home the charge. The appellant confronted prosecution evidence, with a story of suicide by the deceased; the learned trial Judge vide impugned judgment dated 16.5:2011 convicted the appellant under Section 302 (b) of the Pakistan Penal Code, 1860 and sentenced him to death along with compensation of Rs,2,00,000/- to be recovered as arrears of land revenue or six months S.I. In the event of default, vires whereof, are being challenged through Crl. Appeal No, 849 of 2011; the State seeks confirmation of death penalty vide Murder Reference No, 218 of 2011; these are being decided through this single judgment.
2. Learned counsel for the appellant contends that according to complaint (Ex.PA) no witness other than Muhammad Almas (PW-3) is shown to have witnessed the occurrence and induction of Muhammad Idrses (PW-1) and Shafqat Abbas (PW-4) is a subsequent case management by the complainant whose own arrival at the scene, according to the learned counsel, is highly improbable and unnatural; that when juxtaposed, plea raised by the appellant sounds more plausible than the case set up in case (Ex. PA). Contrarily the learned Law Officer has defended the impugned judgment and prayed for confirmation of death penalty by arguing that given the locale of the injury, the hypothesis of suicide stands nullified.
3. Heard. Record perused.
4. Motive cited in complaint Ex. PA is deceased's illicit liaison with the women of accused's side; it is non-specific and vague in as much as the appellant is accompanied by Hameed Ahmad co- accused; the latter is let off as he was not put to trial. Though through an indiscreet cross- examination, name of one Mst. Mehwish has surfaced on the record, however, her relationship with the appellant finds mention nowhere. Presence of the deceased during his fateful moments in the grocery store at that odd hour of night sans explanation as well as probability; it is intriguing as to why the deceased preferred to stay in the store in preference to the comforts of his residence during a chilled January night. Muhammad Almas (PW3), a businessman by profession, is certainly to be credited with some degree of intelligence; he is architect of the case and narrated all the relevant facts, unambiguously, in complaint Ex. PA, both the eyewitnesses i,e, Muhammad Idrees (PW-1) and Shafqat Abbas (PW-4) are conspicuously absent in complaint Ex. PA; they are residents of Chak No, 65 and 34/4-R respectively, located in District Sahiwal, a faraway locality from the place of occurrence. The stated purpose of their visit is to fetch household articles from a place as far away as Lahore, that too in the mid of winter night; not only their arrival is too odd to be believed, they could have taken the desired stuff from the nearby city of Sahiwal. Arrival of Muhammad Idrees (PW-1), Muhammad Almas (PW-3). And Shafqat Abbas (PW-4) exactly at the point of time when the deceased came under attack requires a pinch of salt; unanimity in their narrative renditions no matter how impressively articulated alone cannot sustain the charge unless their testimony is found confidence inspiring on the touchstone of probability in respect of incidence of events in the natural course of human conduct; this falls much short of that. Induction of two additional witnesses, initially missing in complaint (Ex.PA) admits a reasonable possibility that Muhammad Almas (PW-3) was not present at the spot, otherwise there was no occasion for him to omit their names; all the witnesses are closely related with one another and hail from the same locality in District Sahiwal they are also related to the deceased. The Investigating Officer retrieved video potage from close circuit television installed in the store with the assistance of Nadeem Sadiq (PW-11), none from among st the witnesses nor the appellant figured therein and as such this piece of automated technical evidence does not advance prosecution case. There is a positive recovery of weapon, however, after prosecution's failure on its substantive side to drive home charge against the appellant beyond a shadow of doubt corroborative evidence cannot sustain the charge. Insofar as hypothesis of suicide is concerned, we would not comment on that plea of the appellant for the reason that in the first place it is primary responsibly of the prosecution to establish the charge, plea of accused is to be taken into consideration subsequent thereto. As we have found motive vague and ambiguous, arrival and presence of the eye- witnesses at the spot rather doubtful and their induction from a far flung area so as to arrive at the scene in a manner far from being natural and plausible, plea raised by the appellant is beside the mark, for the reason that the accused cannot be pinned down to a plea taken by him either during the investigation or before the Court unless plea taken falls under general exceptions provided under Chapter IV of the Pakistan Penal Code, 1860 requiring him to discharge onus within the contemplation of Article 121 of the Qanoon-e-Shahadat Order, 1984; that is not a case in hand. This plea cannot be taken into consideration' to the detriment of the appellant in the event of failure by the prosecution to drive home charge against him and there is yet another reason to ignore the plea raised by the appellant and that is its acceptance or rejection in totality. It cannot be sliced into pieces to pick one for the sake of prosecution and reject the remainder favouring the accused.
It would be grievously unsafe to maintain the conviction. Consequently, Cr1. Appeal No, 849 of 2011 is allowed, judgment dated 16.5.2011 is set aside. The appellant shall be released forthwith, if not required in any other case. Murder Reference No, 218 of 2011 is answered in the negative and death sentence is NOT CONFIRMED.