1. ' Qazi Muhammad Amin Ahmed, J.--Waqas Qasim, 27/28, hereinafter referred to as the deceased, was done to death on 21-032009 at 2:00 p.m. within the area of Mouza Sargana, situating at a distance of eight kilometers from Police Station Mitru, District Vehari; incident was reported by his father Muhammad Qasim (PW-10) through complaint Ex.PF recorded by Abdul Sattar, S.I. (PW-12), 7:00 p.m. at Pul Sargana wherein it is alleged that the deceased was carrying on with one Sanobar, former wife of his friend Mazhar Khan; she was divorced for her infidelity whereafter she started living with the deceased; as the complainant admonished his son; Sanobar Bibi left the house and rejoined her former husband. According to the complainant, on the fateful day at about 2:00 p.m, Mazhar Khan sent for the deceased through Sanobar Bibi on telephone, pursuant whereto, the deceased went to Sargana bridge on a motorbike where Mazhar Khan accompanied by Sanobar Bibi and her brother Altaf Hussain forcibly boarded him in a car and took on the Dera of Mazhar Khan; in search for the deceased, the complainant accompanied by Shahid Qasim and Shahbaz Aslam (PW-10) went to the Dera of Mazhar Khan and saw him thrashing the deceased with sticks and cutter; within their view Mazhar Hussain dealt a cutter blow landing on the left arm of the deceased followed by a Sota blow by Sanobar Bibi hitting right knee whereas Altaf Hussain hit left knee of the deceased; two unknown persons were also seen hitting the deceased with sticks; the PWs attempted to rescue the deceased, however, remained at bay when threatened. It is also alleged that the accused decamped from the scene after taking a sum of Rs, 23,000/-, mobile handset, a wrist watch, a gold ring along with motorcycle and its paper. Motive for the crime is cited as illicit liaison between the deceased and Sanobar Bibi.
2. ' Dr. Mazhar Akhtar (PW-6) conducted autopsy on 22-3-2009 at 1:30 a.m; it is a case of massive violence, as the Medical Officer observed as many as fifteen injuries that included five lacerations, seven multiple bruises accompanied by abrasions and swellings of different dimensions on lateral aspect of left upper arm, posterior aspect of left elbow, forearm, hand, posterior aspect of right elbow joint, wrist joint, interior and medial aspect of right knee joint, lower leg, anterio lateral and posterior aspect of left leg including knee joint; the violence caused fracture of proximal and distil part of radios and ulna of left forearm, fifth metacarpal bone of left hand and epicondyle of both femur as well as fracture of proximal part of tibia and fibula of both lower legs; these were caused by blunt object and declared sufficient to cause death in the ordinary course of nature. however, without any reference to their individual or collective impact; duration between injuries and death was estimated as half to one hour whereas between. death and post-mortem it was reckoned as 8 to 10 hours, respectively.
3. ' Abdul Sattar, S.I. (PW-12) carried out initial investigation; during spot inspection, he secured, blood-stained earth, Killa (P-6), motorcycle of the deceased (P-10); Altaf Hussain appellant was arrested by Abdul Jabbar, SI (PW-15) on 21-4-2009 and pursuant to a disclosure led to the recovery of Sota (P-5); Allah Rakha and Muhammad Riaz, co-accused were arrested on 17-5-2009 by Haqnawaz, SI (PW-13); they led to the recovery of Sota P-8 and P-9 respectively; Sonthar Bibi, co- accused was arrested on 7-2-2010 by Abdul Khali& (PW-14) and led to the recovery of Sota (P-6); Mazhar Khan co-accused was arrested on 7-2-2010 and got recovered Sota (P4); two reports under Section 173 of the Code of Criminal Procedure, 1898 in the wake of piecemeal arrest of the accused were sent to the Court and they were finally indicted by a learned Addl. Sessions Judge at Mailsi on 19-03-2010 when they claimed trial; pursuant whereto, prosecution in order to bring home charge against them, besides relying upon forensic report, produced as many as fifteenwitnesses; of them, Muhammad Qasim (PW-9) and Shahbaz Aslam (PW-10) furnished ocular account, the mainstay of the prosecution case. Report of Serologist is not available on the record. The accused confronted prosecution evidence with a unanimous denial albeit with some variation in their positions and produced two witnesses in defence.
4. ' The learned Additional Sessions Judge vide judgment dated 07-10-2011 acquitted Sanobar Bibi, Mazhar Khan, Riaz and Allah Rakha, co-accused, however, proceeded to convict the 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, 200,000/-or two years R.I. in the event of default, vires whereof, are being challenged by the appellant vide Crl. Appeal No, 909 of 2011; Murder Reference No, 124 of 2011 seeks confirmation of death penalty awarded to the appellant whereas the complainant has prayed for reversal of acquittal of the co-accused vide Cr1. Appeal No, 912 of 2011; 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 inadmissible evidence has been relied upon by the learned trial Judge to convict the appellant; that evidence disbelieved qua majority of identically placed co-accused cannot be pressed into service against the appellant in the absence of independent corroboration, hopelessly lacking in the case; that after acquittal of Sanobar Bibi, her husband Mazhar and brother in the backdrop of failure of motive alleged in the crime report, there was hardly any occasion for the learned trial Judge to return a guilty verdict and this being so, according to the learned counsel, the impugned judgment is self-destructive. Contrarily, the learned Law Officer assisted by the counsel for the complainant has defended the impugned judgment and prayed for confirmation of death penalty on the ground that a father would not substitute the real culprits with the innocent and that his testimony, duly supported by medical evidence and recovery of weapons excluded every hypothesis of appellants' innocence. While arguing Criminal Appeal No, 912 of 2011, learned counsel for the complainant sought reversal of acquittal of co-accused.
6. 3.Heard. Record perused.
7. 4.Five persons contested the indictment, of them, Allah Rakha and Muhammad Riaz were arrayed subsequently as accused by their names; in crime report Ex.PF, they are referred to as unknown assailants, assigned multiple blows to the deceased. Mazhar Hussain and Sanobar Bibi, latter being referred to as former's wife by the prosecution have also been alleged to have thrashed the deceased; they have been acquitted from the charge. However, the learned trial Judge convicted the appellant on the basis of his first version purportedly recorded by the Investigating Officer wherein he admitted to have murdered the deceased after he surprised him while sexual] a assaulting his sister Sanobar Bibi on the fateful day in her ho'use. The learned Judge observed in the impugned judgment that he found first version of the co-accused in line with that of the appellant. The first version of an accused is essentially a statement, hit by Article 39 of the Qanun- e-Shahadat Order 1984; the Court may look into that and can only rely upon it in order to extend a possible benefit to him; under no circumstances or reasons whatsoever, his first version can be mad6, basis for conviction being inadmissible in evidence. The first version, attributed to the appellant is incompatible with suggestions given on his behalf to the witnesses as well as plea taken by him under Section 342 of the Code of Criminal Procedure, 1898; this being so there was no occasion for the learned Judge to contemplate a situation/scenario of grave and sudden provocation; it is not the case of Sanobar Bibi either that she was assaulted by the deceased; she was the best person to raise such a plea. Even otherwise, prosecution case and statement of witnesses are far from being confidence inspiring. Complainant's claim that deceased left home to meet his homicidal death, within his view, is based upon receipt of a telephone call, whereby according to him, he was sent for by Sanobar Bibi on the asking of her husband Mazhar Khan, however, in his cross-examination, he came up with an entirely different narrative wherein he named his servant Muhammad Nadim to have conveyed him information that he was abducted along with the deceased by the accused. Muhammad Nadim has not been cited as a witness nor produced before the Court. Position taken by Shahbaz A Aslam (PW-10), a real paternal nephew of the complainant, is again diametrically apart from the one taken in crime report Ex.PF by the latter; his case in cross-examination is that he visited the Dera of the complainant, who shared information about the entire incident with him while being on route to the venue; according to this witness, the deceased himself had conveyed to the complainant information about his abduction.
8. These are the positions irreconcilably contradictory. Even otherwise, the script is poor, as the venue is admittedly at a distance of 30 to 40 kilometers from complainant's residence; arrival of the witnesses at the scene exactly at a point of time, when the deceased came under assault, is far from being the whole truth. Though the time of occurrence in complaint Ex.PF is given as 2:00 p.m, it is in evidence that the witnesses arrived at the scene between 4/5:00 p.m. whereas according to crime report Ex.PF, the deceased left home at 2:00 p.m. this difference in terms of time and space is incompatible with ocular rendition. Examined from yet another angle, it is found a extremely improbable that Sanobar Bibi, having betrayed her husband, being herself in liaison with the deceased would participate in a bid to abduct and murder his paramour alongside her husband and a real brother. She has been indicted by the prosecution as being wile of Mazhar Khan and this also is at variance with prosecution position that she was a divorcee. PW-9 admitted in cross- examination that divorce was not confirmed and Sanobar Bibi was living with her Inisband for 12/13 months preceding the occurrence. These various pieces referred to above and relied upon by the prosecution to drive hothe charge against the appellant do not synchronize with one another and, on the contrary, are found incompatible not only with the probability of events alleged but 'with prosecution's stated positions as well and as such it would be unsafe to maintain the conviction.
9. Consequently, by extending benefit of doubt to the appellant, Cr1. Appeal No, 909 of 2011 is allowed; judgment dated 07-10-2011 is set aside; he is acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No 124 of 2011. is answered in NEGATIVE and death sentence is NOT CONFIRMED ' As a natural corollary, Criminal Appeal No, 912 of 2011 stands dismissed.