1. QAZI MUHAMMAD AMIN AHMED, J. --- Naeem Abbas, 30, hereinafter referred to as the deceased, was stabbed to death on 22-05-2010 at 3:30 p.m. within the area of Mohra Jumma, situating at a distance of 6 kilometers from Police Station Rawat, Rawalpindi. Incident was reported by his father Pervaiz Akhtar (PW-5) through complaint (Ex.PD) recorded by Muhammad lmtiaz, S.I (PW-14); same day, 6:50 p.m. at the spot. According to the complainant on the fateful day at 4.45 p.m he was informed by Rohail Afzal (PW- 6) about the murder of his deceased son by Adnan Ilyas appellant accompanied by an unknown person; as rushed to the spot the said PW shared with him the details of the incident; according to him he aiongwith deceased Shah Nawaz given-up (PW) were shifting wooden planks in a van to village Mohra Wains. As they passed by the venue, a poultry farm, the deceased deboarded the vehicle on asking of the appellant; when the witnesses returned they saw the deceased hung up side down with a tree, with the appellant dealing him blows with an hatchet as the witnesses attempted to intervene, they were forced to flee from the scene on gun point.
2. Dr. Abbas Awan (PW-11) conducted autopsy on 2305-2006 at 02:00 a.m; it was a case of massive violence; the Medical Officer observed as many as 28 injuries of different dimensions on right eyebrow, right ear, upper part of right ear pinna, left ear, left side of chest, left elbow, medial side of left upper arm, ventromedial side of right lower forearm, medial side of right arm, right elbow, right knee joint, left thigh, knee joint, leg, buttock, upper thigh, right thigh. buttock and lower chest; all the injuries were ante mortem in nature and caused by sharp edged weapon; these damaged muscles, bones, vessels with severe blood loss leading to haemorrhagic shock collectively blamed as cause of death; duration between injuries and death was within one hour whereas between death and postmortem it was estimated as six to twelve hours- Muhammad Imtiaz. Sub-Inspector (PW-14) carried out initial investigation; during spot inspection, he secured bloodstained earth; arrested Adnan Ilyas, appellant on 2305-2010; pursuant to a disclosure, he led to the recovery of last worn clothes of the deceased i,e, Qameez (P-1), Shalwar(P- 2), Banyan(P-3), pair of shoes (P-4/1-2), hatchet (P-5) and 30-caliber pistol (P-6) secured vide inventories; Waqas Khayam co-accused was nominated through supplementary statement purportedly dated 23-05-2010, arrested on 13-07-2006; after completion of investigation, the appellant accompanied by his co-accused was sent to face trial before a learned Additional Sessions Judge at Rawalpindi; indicted on 24-02- 2011. they claimed trial, pursuant whereto, prosecution in order to bring home charge against them, besides relying upon forensic reports, produced as many as 16 witnesses; of them, Rohail Afzal (PW-6) and Ghulam Abbas (PW-7) furnished ocular account, the mainstay of the prosecution case; the former is informant of the case as well. The accused confronted prosecution evidence with a unanimous denial albeit with some variations in their positions.
3. The learned Additional Sessions Judge vide judgment dated 24-08-2013 acquitted Waqas Khayam, co-accused, however, proceeded to convict Adnan Ilyas, appellant under Section 302(b) of the Pakistan Penal Code, 1860 and sentenced him to death along with payment of compensation in the sum of Rs,500,000/- or six months SI in the event of default; he was further convicted under Section 297 of the Code ibid and sentenced to one year R.I with benefit of Section 382-B of the Code of Criminal Procedure, 1898, vires whereof, are being challenged by the appellant vide Crl.
4. Appeal No,335 of 2013; Murder Reference No,74 of 2013 seeks confirmation of death penalty whereas the complainant has prayed for reversal of acquittal of Waqas Khayam co-accused vide Cr1. Appeal No,418 of 2013; these are being decided through this single judgment.
5. 2.Learned counsel for the appellant 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 presence of witnesses at the spot at the relevant time is highly improbable: that evidence disbelieved qua identically placed cc-accused cannot be pressed into service against the appellant in the absence of independent corroboration, hopelessly lacking in the case. The bottom-line of the ' arguments is that belatedly introduce ocular account through a supplementary statement was not worthy of reliance and that circumstances of the case spelt out a scenario diametrically incompatible with the case set up in the crime report. 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, a Masoom-ud-Dam, was brutally murdered in a wanton and merciless manner and as such the appellant deserved no leniency. While arguing Criminal Appeal.
6. No,418 of 2013, learned counsel for the complainant seeks reversal of acquittal of Waqas Khayam, co-accused on the ground that prosecution successfully proved charge against him as well and there was no occasion for the learned trial Judge to acquit him after he believed prosecution case in its entirety qua the identically placed co-accused.
7. 3.Heard. Record perused.
8. 4.Statement of Pervaiz Akhtar (PW-5) being based upon hearsay is not of much consequence and as such the prosecution case is primarily founded upon the narratives furnished by Rohail Afzal (PW-6) & Ghulam Abbas (PW-7); they claimed to have witnessed the occurrence. The former pointed his finger both upon the appellant as well as acquitted co-accused Waqas Khiyam for having jointly inflicted torture upon the deceased, he was duly confronted with his previous statement wherein he only named the appellant accompanied by an unknown assailant; he cited confusion as an explanation for his failure to name the co-accused. In the next breath he admitted that he never conveyed name of Waqas accused to the complainant during his telephonic conversation with him. This witness has been disbelieved by the learned trial Court qua Waqas co- accused, placed inexorably in an identical position with that of the appellant and thus independent corroboration is required to place reliance upon his testimony qua the latter. Complaint (Ex.PD) conspicuously sans reference to any specific motive for the crime, attributed to the appellant.
9. Once again the complainant attempted to improve upon his case by introducing a motive of dispute over money, belatedly during the trial; he too was duly confronted with this improved portion of his statement in addition whereto he admitted that there was no other motive except the one referred to above. In this backdrop, the motive cannot be pressed into service as independent corroboration against the appellant for the reason that a massively improved statement in deviation to the earlier position is liable to exclusion. Adverting to the statement of Ghulam Abbas (PW7), he is not placed in the better position either; there is no reference about his presence at the scene either in complaint (Ex.PD) or in the statement of Rohail Afzal (PW6). On his own showing Ghuiam Abbas and Sher Muhammad given up PWs visited Police Station on 26-52010, four days . after the occurrence to record their statements as eye witnesses thereof; their silence for so long a period is mind boggling; reason cited as an explanation is preposterous to say the least. Testimony of these witnesses cannot be accepted without seriously compromising upon standard of safe administration of criminal justice, to be observed strictly in order to allow corporal consequences after exclusion of every hypothesis of innocence. Another intriguing aspect of the case is stark nakedness of the dead body, both in the relevant column of inquest report (Ex.PG) wherein it is shown lying on the ground as well as on the autopsy table even if, belatedly introduced motive through improvement during the trial is believed, one would remain at loss to understand as to why the deceased was stripped naked in the backdrop of a petty financial dispute; it spells out a scenario inconsistent with the. prosecution case set up in the crime report; seizure of deceased's last worn clothes from the appellant takes us nowhere as none of the witnesses alleged removal of clothes from the scene. Circumstances surrounding the death are profoundly confusing and thus a reference by the appellant about the antecedents and pursuits of the deceased as factors behind his homicidal death cannot he dismissed out of hand. It would be unsafe to maintain the conviction as the prosecution's case is fraught with confounding questions with no plausible answers. Brutality alone without positive proof beyond reasonable doubt cannot be made basis to convict an accused as it can only be based upon evidentiary certainty and not on moral satisfaction. Consequently by extending benefit of doubt to the appellant, Cri. Appeal No, 335 of 2013 is allowed: impugned judgment dated 24-08-2013 is set aside; the appellant is acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No,74 of 2013 is answered in NEGATIVE and death sentence is NOT CONFIRMED.
10. As natural corollary, Crl. Appeal No,418 of 2013 is dismissed.