' QAZI MUHAMMAD AMIN AHMED, J. --- Irshad, aged about 45 years, hereinafter referred to as the deceased, was done to death within the area of Chak No. 291/EB, situating at a distance of 17-km from Police Station Sahu-ka, District Vehari on 6-9-2007 at 12:05 am; the incident was reported by his brother Sardar Muhammad (PW-6) through complaint Ex.PG recorded by Falak Sher, SI (PW-10) at Adda Ajmair 1:00 a.m. According to the complainant, the deceased was an auto mechanic running a workshop at Adda Ajmair; during the fateful night, the complainant inquired about him from his family at about 9:00 p.m. and was informed that he was in his workshop hereafter the complainant along with Haji Muhammad Aslam and Saqib Yaqoob (PW-7) went to the workshop, however, the deceased had already left and they were told by Javed Bhatti (PW-9) that he'had received a phone call by the deceased at 7:30 p.m. asking him to pay a sum of Rs. 50,000/- to Muhammad Sarwar, appellant; pursuant to this information, the complainant and the PWs on a motorcycle went to the land of the appellant when they were attracted by gun report and saw in search light the appellant firing consecutively thrice on the deceased hitting him on left thigh, chest and right flank, who felled on the ground whereafter the appellant dealt him repeated hatchet blows on The neck. Motive cited in Ex.PG is transfer of workshop and a previous altercation over the payment of Rs. 50,000/-. The Investigating Officer secured blood-stained earth and two casings of .30 caliber through inventory besides taking other investigative steps. Autopsy was conducted by Dr. Fayyaz Saleem (PW-3) on 6.9.2007 without reference to the time. Two incised wounds on front of neck measuring 17 cm x 3 cm and 10 cm x 4 cm respectively were observed; trachea, esophagus and Hyde bone were cut to the level of cervical vertebrae; one lacerated wound measuring 10 cm x 1.5 cm was noted on the inner side of penis; two fire-arm entry wounds on left side of chest and inner side of left thigh were also observed accompanying one exit. Injuries were collectively blamed for death.
2. The appellant was arrested on 10.9.2007 and pursuant to disclosure led to the recovery of pistol P-5 and hatchet P-6. Casings and pistol P-5 were dispatched together to the Forensic Science Laboratory through Muhammad Ashraf-C (PW-2) on 19.9.2007; report Ex.PQ is in the negative owing to a shortened firing-pin; hatchet P-6 was found stained with blood of human origin.
After completion of investigation, the appellant was sent to face trial before a learned Addl.
Sessions Judge at Burewala, on indictment, he denied the charge and claimed trial on 7.12.2007, pursuant whereto, the prosecution produced as many as 10 witnesses besides relying upon forensic reports to drive home charge against the appellant, who confronted prosecution evidence with the following plea:--- "Complainant did not like that my RISHTA would be settled with the daughter of lrshad deceased.
Therefore, he with mala fide and false intention roped me in this case. PWs due to friendship with the complainant party deposed falsely against me on the behest of complainant."
' Upon conclusion of trial, the learned Trial Judge convicted the appellant under Section 302(b) of the Pakistan Penal Code, 1860 and sentenced him to death with compensation of Rs. 100,000/- or to undergo six months SI in the event of default, vires whereof, are being challenged through Crl.
Appeal No. 51 of 2009 whereas confirmation of death sentence is prayed for through M.R. No. 40 of 2009, both being decided through this single judgment.
3. Learned counsel for the appellant contends that prosecution case on the face of it is inherently improbable and flawed; the motive is inadequate; that there was no point for the appellant to use two weapons side by side and injury on the private organ spells out some different scenario.
Contrarily, the learned Law Officer assisted by the learned counsel for the complainant has defended the impugned judgment and prayed for confirmation of death sentence.
4. Heard. Record perused.
5. No doubt, two eye-witnesses furnished ocular account which finds corroboration from medical evidence insofar as homicidal death is concerned and apparently there is no reason as to why they would falsely frame the appellant, a single accused, with the crime; there is recovery of weapon, though inconsequential, and a motive has also been cited these exculpatory details pointed on the appellant, at first sight, are inexorably focused on the appellant, however, on a closer scrutiny, the question of probability inescapably confronts the charge against the appellant.
Narrative details supported by immaculate investigative steps with an apparent motive, by itself cannot support a charge unless these fit comfortably within the ambit of probability. Such precisions can be successfully manipulated. There is no apparent cause as to why complainant (PW-6), who himself is running an auto workshop at the same place would specially inquire about the deceased from the family members; his meeting with Javed lqbal Bhatti is again a chance encounter, who passes on an information which the deceased would not supposedly share with him. Arrival of the PW at the scene of crime in the absence of any information or purpose, exactly at a point of time when the deceased came under assault, requires a pinch of salt; it is a mere coincidence and such coincidences seldom occur. It is also intriguing to note that the appellant is shown, carrying a 30 caliber pistol and a hatchet side by side; after he fatally gunned down the deceased, there was hardly an occasion for him to attempt hatchet blows on an already fallen prey, injury on the private organ is suggestive of a motive other than cited in the complaint Ex.PG.
The alleged motive does not provide structural strength to the prosecution case as the eventful midnight and venue of occurrence spell out an improbable scenario for account settlement. Taken from this angle, various components of the prosecution case to sustain the charge, are not adequately synchronized leaving a space to admit doubt about the manner in which the occurrence took place as well as reasons there for. This doubt is neither illusory nor imaginary; it is rooted in the stated positions of the prosecution case. In this backdrop, it would be unsafe to maintain the conviction. Consequently, by extending benefit of the doubt, Crl. Appeal No. 51 of 2009 is allowed, appellant is acquitted from the charge; he is in custody and shall be released forthwith, if not required in any other case. Murder Reference No. 40 of 2009 is answered in NEGATIVE and death sentence awarded to the appellant is NOT CONFIRMED.
Criminal .