QAZI MUHAMMAD AMIN AHMED, J:-.Nausher and Azhar, real brothers inter-se, hereinafter referred to as the appellants, were tried by a learned Additional Sessions Judge at Khanewal along with their third brother Tahir and father Hashim on the charge of Qatl-i Amd of Mst. Basran, 35, and her husband Bashir Ahmad, 40/45, on 8-10- 2001 at about 3:00 p.m. within the area of Basti Budhanke Mouza Dullowan situating at a distance of 12-miles from Police Station Talamba District Khanewal; the incident was reported by Asghar Ali (PW-3), brother of Mst.
Basran deceased straight at the Police Station at 4:30 p.m. through First Information Report (Ex.DA); it is alleged that on the fateful day at about 3:00 p.m. both the deceased were present in their agricultural land designated as Square No.134 while irrigating the crop whereas the complainant along with Shafqat Hussain and Maalik PW was present nearby on a Kacha path when the appellants carrying firearms along with their brother Tahir armed with Sota and father Hashim confronted the deceased after exhortation, Nausher appellant fired upon Mst. Basran deceased hitting on the right side of her back, who felled on the ground when he fired second shot hitting her head; Azhar appellant targeted Bashir Ahmad deceased with a fire shot on his flank repeated by second shot on the left side of his head; the accused decamped from the scene and as the witnesses attended the couple, they found them dead. Motive cited for the crime was cited a dispute over land, as Bashir Ahmad deceased had purchased a piece of land measuring one acre from one Ghulam Dillu while Hashim father of the appellants purchased four Kanals; there was dispute over possession and despite a settlement in the brotherhood, according to the complainant, the accused harboured a grudge. Though a supplementary statement, purportedly , of even date, the complainant changed his stance, earlier taken in the First Information Report (Ex.DA); he introduced weapons as a 7 mm caliber rifle held by Azhar appellant and a 12 caliber gun used by Nausher appellant in the occurrence; roles assigned to the appellants were also drastically changed, as second fire shot upon Bashir Ahmad deceased, earlier assigned to Azhar appellant was shifted to Nausher appellant with two successive shots and thus number of shots was graduated from 2 to 3; the complainant through supplementary statement (Ex.CW -1/A) sought modification in crime report (Ex.DA).
Dr. Nazir Ahmad (PW-8) conducted autopsy on 9-10-2001 at 8:00 a.m. and noted three entry apertures, with blackening, on the dead body of Bashir Ahmad deceased; these comprised of lacerated wound 8 cm x 5 cm on the forehead, a circular wound in oval shape /2 cm x /2 cm going deep into abdominal cavity over right hypocondrium and a circular wound 4 cm x 4 cm on the right buttock with multiple tinny pellets; injury No.3 is an exit wound noted on left chest; destruction of vital organs led to shock and hemorrhage; injury on the forehead was opined individually while remainders collectively as cause of death, occurred immediately after receipt thereof whereas duration between death and postmortem was estimated as 16-17 hours. Dr. Munaza Nazir (PW-10) conducted autopsy on the dead body of Basran Bibi at 9:00 a.m. on 9-10-2001 and noted two entry wounds on the skull and right shoulder; a firearm injury on the right side of head was described as wound of exit whereas injury on the right shoulder accompanied blackening around the margins; injuries were blamed individually as well as collectively sufficient to cause death in the ordinary course of nature which occurred 20 hours preceding the postmortem examination.
Kamal-ud-Din Dogar, SI (CW-1) carried out initial investigation; he inspected the spot and secured earth therefrom besides taking other investigative steps; he arrested the appellants on 21-10-2001 and pursuant to disclosure, on 27-10-2001 recovered a 12 caliber gun (P-7) on the disclosure of Nousher appellant while Azhar led to the recovery of a 7 mm gun (P-8), secured vide inventories. Tahir accused was exonerated and this prompted the complainant to file a private complaint; his case in the private complaint was that First Information Report (Ex.DA) was not faithfully recorded. The accused contested their indictment and claimed trial on 13-2- 2002, pursuant whereto, the prosecution was called upon to drive home the charge; eleven witnesses were examined as prosecution witnesses while Kamal-ud-Din Dogar testified as CW-1. The accused while declining to be witnesses in disproof of the charge, rallied behind a unanimous denial. The learned trial Judge, however, vide impugned judgment dated 14-1-2004 convicted Nosher, Azhar appellants under Section 302 (b) read with Section 34 of the Pakistan Penal Code, 1860 on two counts and sentenced them to death with compensation of Rs.100,000/- each on each count or to undergo six months SI in the event of default; Hashim accused was convicted for being in the community of intention; he was sentenced to imprisonment for life with benefit of Section 382-B of the Code of Criminal Procedure, 1898 while Tahir accused was acquitted from the charge, vires whereof, are challenged through Crl. Appeal No.29 of 2004 which came up before a learned Division Bench of this Court alongside Murder Reference No.252 of 2004 through a short order dated 1-7-2009, Hashim convict was acquitted from the charge while death penalty awarded to Nosher appellant was confirmed and sentence inflicted upon Azhar was altered into imprisonmen t for life, however , both the Hon'ble Judges were laid off before they could render a detailed reasoning thereof. The Hon'ble Supreme Court of Pakistan in Crl. Appeals Nos.192 and 193 of 2010 remanded the case for decision afresh with detailed reasoning.
2. Learned counsel for the appellants contends that both the deceased were done to death in an unwitnessed occurrence and this was the reason that Asghar Ali (PW-3) had to change his position from one taken in the First Information Report; that no casing was found at the spot which according to the learned counsel belies the story of multiple/successive fire shots; that delayed autopsies are suggestive of deliberations and consultations and admit a real possibility that First Information Report (Ex.DA) was not recorded at the point of time mentioned therein; that entire family has been roped in the case through casting of a wider net and as such the witnesses are not worthy of any credence; that evidence disbelieved qua Hashim and Tahir co-accused cannot be pressed into service vis a vis the appellants in the absence of independent corroboration which is hopelessly lacking in view of a motive jointly focused upon all the accused as well as inconsequential recoveries. The bottom line is that prosecution has not been able to prove the charge beyond reasonable doubt. Contrarily , the learned Law Officer assisted by learned counsel for the complainant contends that prosecution case to the extent of present appellants was believed by this Court and as such there is no occasion to take a different view as the issue has merely been remanded by the Supreme Court for detailed reasoning of the view earlier taken by this Court; additionally , it is argued that two1 1 innocent persons have been done to death on a petty issue, in cold blood, and the case stands fully proved on the strength of ocular account corroborated by medical evidence and recoveries.
3. Heard. Record perused.
4. The short order dated 01.07.2009 has since been set aside and as such Criminal Appeal No.29 of 2004 as well as Murder Reference No.252 of 2004 stand re-opened before the Court. According to First Information Report (Ex.DA), the appellants accompanied by their third brother Tahir and father of Hashim were alleged to have confronted the deceased; they arrived at the scene within the view of the witnesses standing nearby the venue; though assigned weapons, there is no reference in terms of caliber or kind; Nosher as well as Azhar had been assigned two successive shots to each deceased, however , the complainant opted to change his version, ostensibly same day when he came up not only with information about the weapon s in terms of their caliber but he also deviated from assignment of fire shots to each deceased by the appellants and reason cited for this departure is emotional trauma on account of the tragedy that befell upon him. Much late in the day, a private complaint was instituted on 23-4-2002 wherein once again the complainant narrated a detailed account to furnish explanations on inherent defects in the case; these are the positions diametrically apart and as such irreconcilable. Supplementary statement Ex.CW -1/A sans the source that improved upon complainant' s knowledge; even otherwise, it could not have been admitted in evidence being essentially a statement under Section 161 of the Code of Criminal Procedure, 1898 and thus could not be read in evidence in extension or continuati on of First Information Report; it is liable to be excluded from consideration, bringing Asghar Ali (PW-3) back to the position taken by him in crime report Ex.DA; he was duly confronted with his previous statement, during the course of cross-examination where all the details were found conspicuously missing. A witness, who deviates from his previous statement, particularly in a manner that may impinge upon the very complexion of the case, initially structured is hardly worthy of any credence. It is ludicrously preposterous on part of the complainant to assert that under the stress of trauma he had narrated details, diametrically incompatible with his account furnished subsequently as well as mistake in his observations with regard to attributions, earlier vividly given by him. The only irresistible conclusion that can be possibly drawn is that changes were brought about subsequently in order to bring ocular account in line with medical evidence, particularly after detection of tinny pellets in some of the wounds.
Though the First Information Report is statedly lodged in the Police Station at 4:30 p.m. on 8-10-2010; the autopsies were conducted on the following day i.e. 9-10-2010 at 8/9:00 a.m; in this backdrop, argument that First Information Report Ex.DA was not recorded at a point of time mentioned therein as inquest reports were not available as otherwise there was no occasion to hold autopsies in abeyance, is not beside the mark.
Argument that it is a case of casting of wider net cannot be dismissed out of hand for the reason that entire family has been roped in; father is assigned exhortation while three sons with their respective roles seemingly no one is left behind in the household; it does not make sense that a father would allow his sons to undertake a joint venture with formidable consequences, when every single one of them could have accomplished the task.
Presence of eye witnesses near the scene at the relevant time in the absence of any justification/explanation is even otherwise doubtful. Absence of any casing at the venue though attributed to the malafide of Investigating Officer is, nonetheless, another circumstance heavily reflecting upon the prosecution case, as in the absence of a positive forensic report, the recoveries fail to extend corroborative support to the charge and same is the case with the motive which remains shrouded in mystery in the absence of exact details of the dispute that might have possibly prompted the accused to take such a drastic action involving the entire household. The complainant has attempted conveniently to throw the blame for above gray areas on the Investigating Officer, a hypothesis that cannot be entertained in the absence of any positive proof, thus it would be grievously unsafe to maintain the convictions, as prosecution case is fraught with doubtful positions, therefore, it would be unsafe to maintain the convictions. Consequently, by extending benefit of doubt to the appellants, Crl. Appeal No.29 of 2004 is allowed; judgment dated 14-01-2004 is set aside; they are acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No.252 of 2004 is answered in NEGATIVE and death sentence is NOT CONFIRMED.