QAZI MUHAMMAD AMIN AHMED, J:- Khuda Bakhsh, 48, hereinafter referred to as the deceased, was gunned down on 29-04-2009 at 8:00 a.m. within the area of Basti Mehmood Kot, situating at a distance of 13-miles from Police Station Luddan of district Vehari; incident was reported by his brother Pehlwan (PW-8) through complaint Ex.PK recorded by Muhammad Aslam, S.I (PW-16), same day, 9:30 a.m. at the spot, alleged wherein is that on the eventful day he along with the deceased and Hakim Ali (PW-9), on a motorb ike, was on his way to attend proceedings in the Court; as they reached near the land of Umar Draz Khakwani, all of a sudden, Muhammad Amin armed with a pump action, Saleem with a 12-caliber shotgun, Yasin with a hatch et, Mehmood Aslam with a 12- caliber carbine and Allah Yar with hatchet accompanied by three unknown persons emerged from a sunflower field; Muhammad Amin made a straight fire shot hitting the deceased on his back; he repeated a second shot at the same locale followed by Saleem who hit the complainant with a fire shot on left side of his chest while Abbas fired upon Hakim Ali hitting his right hand; Allah Yar accused dealt a hatchet blow to Hakim Ali on the back of his right shoulder whereafter Muhammad Saleem fired on the back of the deceased; Muhammad Amin dealt a hatchet blow on left arm of the complainant, as he was attempted to attend the deceased, Salee m accused dealt him a butt blow on right side of his forehead while Allah Yar gave a hatchet blow hitting the deceased on his right ear; gun reports and commotion attracted people from the locality that included Shoukat son of Sultan and Altaf (PW-10). Motive cited for the crime was previous litigation.
Dr. Ghulam Murtaza (PW-1) conducted autopsy same day at 2:00 p.m and observed a solitary entry wound 1.5 x 1.5 cm on the back of upper abdomen, 3 c.m away from right side of vertebral column accompanied by a laceration 1 c.m x /2 c.m on the pinna of right ear as well as an abrasion of 5 cm x 2.5 cm on right side of face; the firearm injury caused damage to liver and main abdominal vessels; excessive blood loss leading to hemorrhagic shock1 was blamed as cause of death. Duration between injuries and death was immediate whereas between death and postmortem, it was reckoned as 12 hours. Pehlwan & Hakim Ali, PWs were medic ally examined same day at 4:10 p.m by Dr. Muhammad Aslam (PW-7); the former was noted to have four injuries, those included a firearm wound of entry 1.5 cm x 1.5 cm going deep into the right side of forehead as well as lacerated firearm wound 3.5 cm x 1 cm into subcutaneous tissues on the front of left chest with an abrasion 4 cm x 2 cm on the front lower part of left forearm; Hakim Ali PW was noted to have three injuries; injury No.1 was an incised wound 3.5 cm x 1 cm x muscle deep on the back of left shoulder accompanied by a firearm lacerated wound 3 cm x 2 cm at the middle of right forearm and a firearm lacerated wound 12 cm x 4 cm on the back of right hand. Injury No.2 on the person of Pehlwan was a grazing wound, superficial in nature and so was injury No.3 though caused by a blunt weapon, however , superficial too.
Muhammad Aslam, S.I (PW-16) carried out initial investigation; during spot inspection, he secured bloodstained earth as well as three casings of 12-caliber (P-3/1-3); arrested Muhammad Saleem and Muhammad Yasin, on 31-05-2009; pursuant to their disclosures, Saleem, appellant led to the recovery of 12 caliber gun (P-6) followed by Yasin who got recovered hatchet (P-7), secured vide inventories; Muhammad Amin, appellant was arrested on 4.9.2009; he got recovered pump action gun (P-1) alongwith one live cartridge; Allah Yar, co-accused joined investigation while being on bail; after completion of investigation, the accused were sent to face trial before a learned Additional Sessions Judge at Vehari; indicted on 12-05-2010, they claimed trial, pursuant whereto, prosecution in order to bring home charge against them, besides relying upon forensic reports, produced as many as sixteen witnesses; of them, Pehlwan (PW-8), Hakim Ali (PW-9) and Altaf Hussain (PW-10) furnished ocular account which constitutes the mainstay of the prosecution case. The accused confronted prosecution evidence with a unanimous denial albeit with some variations in their positions. The learned trial Judge vide judgment dated 17-11-2011 acquitted Allah Yar & Yasin, co-accused, however, proceeded to convict Muhammad Saleem & Muhammad Amin, appellants under Section 302(b) read with Section 34 of the Pakistan Penal Code, 1860 and sentenced them to death along with payment of compensation in the sum of Rs.100,000/- each or six months S.I in the event of default; they were also convicted under Section 324 read with 34 of the Code ibid and sentenced to 5 years S.I with fine of Rs.10,000/- each or three months S.I in the event of default on each count with benefit of Section 382(B) of the Code of Criminal Procedure, 1898; Abbas, co-accused stayed away from the law and was proceeded against accordingly; the appellants have disputed the vires of their convictions and sentences vide Crl. Appeal No.1028 of 2011; Murder Reference No.161 of 2011 seeks confirmation of death penalty whereas the complainant has prayed for reversal of acquittal of Allah Yar and Yasin co-accused vide Crl.
Appeal No.1086 of 201 1; these are being decided through this single judgment.
2. Learned counsel for the appellants contends 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 ocular account is contradicted by medical evidence; that evidence disbelieved qua identically placed co-accused cannot be pressed into service against the appellants in the absence of independent corroboration, hopelessly lacking. The bottom line of the submissions made at the bar is that notwithstanding the presence of injured witnesses, prosecution case is a hugely exaggerated narrative and as such it would be unsafe to maintain the convictions. Contrarily , the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment and prayed for confirmation of death penalty on the ground that the deceased was brutally murdered in a merciless manner and as such the appellants deserved no leniency; it is argued that with the assistance of injured witnesses prosecution succeeded in establishing the charge beyond reasonable doubt and while arguing Criminal Appeal No.1086 of 2011, learned counsel for the complainant/appellant contends that there was no occasion for the learned trial Judge to acquit the respondents and since the impugned view is an impossible view , interference by this Court is warranted to avoid miscarriage of justice.
3. Heard. Record perused.
4. Prosecution case is structured upon testimony of Pehlwan (PW-8), Hakim Ali (PW-9) and Altaf Hussain (PW-10); they are eye witnesses of the occurrence and of them PW-8 and PW-9 suffered injuries during the occurrence that include firearm wounds as well and as such their presence at the spot cannot be doubted, as they were medically examined soon after the occurrence; firearm injuries sustained by both the above named witnesses have been seemingly caused by pellets; these are not extensive in nature and have been opined as superficial; firearm injury sustained by Pehlwan PW on his left chest was opined as a grazing wound; similarly, regarding injury No.1 on forehead, Dr. Muhammad Alsam (PW-7) expressed his inability to offer any opinion with regard to the weapon whereby it was caused; incised wound suffered by Hakim Ali PW is also muscle deep on the back of left shoulder.
However, even if their presence is not denied, question whether they are relating the whole truth is an issue altogether different; the culpability of the appellants is to be essentially adjudged by taking into account role assigned to them vis--vis the deceased. According to Dr. Ghulam Murtaza (PW-1), five oval shaped circular wounds each measuring 1.5 x 1.5 cm within the radius of 10 cm x 10 cm were noted on the back of the deceased; on probe, the Medial Officer recovered multiple pallets embedded in the lower part of chest on its left side; when correlated, this injury could not be possibly caused by four successive shots, two by Muhammad Amin and third by Saleem, appellants, particularly when examined in sequential order wherein the occurrence statedly took place; it can safely be assumed that after receipt of first fire shot, it was not humanly possible for Khuda Bukhsh deceased to remain static and as such a second entry wound at the same locale is seemingly not a possible scenario; third fire shot also statedly landed at the same locale; the scrip is poor to say the least. All the assailants assigned fire shot to the deceased are statedly armed with 12-caliber weapons and possibility of injury No.1 on the person of the deceased being result of a solitary shot cannot be described as conclusory; they have been found to have hugely exaggerated their narratives about the firearm injuries sustained by the deceased, each shot landing within the narrow radius of 10 x 10 cm, as it is humanly not possible, given the locale, dimension and nature of the said injury to identify the assailant who actually caused the same, as they are three in number, the error may have formidable repercussions given the irreversibility of sentence inflicted upon the appellants by the learned trial Court. These witnesses have been disbelieved qua Allah Yar and Yasin co-accused as well; Allah Yar is assigned hatchet blow to Hakim Ali (PW-9) and the reason cited by the learned trial Judge for his acquittal is that he being a crippled person could not possibly cause the injury assigned to him besides having been exonerated during the course of investigation. In this backdrop, notwithstanding the established presence of the witnesses at the scene during the course of occurrence, their testimony warrants a cautious and careful scrutiny, injuries on the person of the witnesses cannot be taken as a passport into the realm of truth; The learned trial Judge has relied upon principle of sifting, indeed a valid exercise under our jurisprudence, nonetheless, it has its limitations as well; in an appropriate case, the Court may rely upon the evidence discarded qua some of the accused in order to avoid miscarriage of justice with the help of independent corroboration having regard to the consequentiality of the role ascribed to the acquitted co-accused; sifting cannot be resorted to where the accusation is indivisibly identical. Allah Yar acquitted co-accused statedly caused a hatchet blow to Hakim Ali landing on the back of his left shoulder; his acquittal for the reason cited in the impugned judgment heavily reflects upon the veracity of statements of the witnesses. Recovery of weapons and positive Forensic Science Laboratory Report Ex.PBB is not of much help to the prosecution owing to dispatch of casings subsequent to appellants' arrest. Once witnesses are found to have violated the sanctity of oath administered upon them in their depositions with regard to the injuries sustained by the deceased, it would be a travesty to trust them on allied charges. We find it grievously unsafe to maintain the convictions, therefore, while extending benefit of doubt to the appellants, Crl.
Appeal No.1028 of 2011 is allowed; impugned judgment dated 17-11-201 1 is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No.161 of 201 1 is answered in NEGA TIVE and death sentence is NOT CONFIRMED .
5. As a natural corollary of above findings, Crl. Appeal No.1086 of 201 1 stands dismissed . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.