Qazi Muhammad Amin Ahmed, J.--Muhammad Ismail, 35/36, hereinafter referred to as the deceased, was gunned down on 25.03.2010 at 4:30 p.m. Within the area of Mouza Kaleeri, situating at a distance of eleven miles from Police Station Tounsa Sharif, District Dera Ghazi Khan; incident was reported by his brother Ghulam Siddiq (PW-6) through complaint Ex.PG recorded by Abdul Rehman, SI (PW8), 05:15 a.m. At Mangrotha Chowk wherein it is alleged that on the fateful day at about 4:30 p.m. He along with Shimla PW was present at a distance of one kilometer from his dwelling when they saw the deceased on way back to home; as he reached at a distance of 10- Karam, the appellant armed with a rifle, all of a sudden, emerged from bushes and exhorted the deceased that he would not be spared followed by two fire shots in quick succession hitting him on his left arm and left back of flank; the appellant also threatened the PWs to stay at bay and decamped from the scene. Motive cited for the crime was suspicion of illicit liaison between the deceased and appellant's sister Jannat Mai. Muhammad Eisa, co-accused was arrayed as an abettor of the crime.
Dr. Najeeb Ullah (PW-4) conducted autopsy at 7:30 p.m. And observed two entry wounds of different dimensions on dorsal aspect of middle of left fore-arm as well as left flank 7 cm above left iliac crest accompanied by an exit on ventral aspect of middle of left fore-arm; blackening and burning were present around Injury No, 1; bullet recovered subcutaneously from right hypondium about 3 cm below costal margin; it perforated left kidney, large and small gut, mesenteric blood vessels, pancreas as well as right lobe of liver; Injury No, 2 led to hemorrhagic shock and was declared sufficient to cause death in the ordinary course of nature, occurred within half hour; probable time between death and post-mortem was estimated as within 2 to 4 hours.
Abdul Rehman, SI (PW-8) carried out initial -investigation; during spot inspection, he secured blood-stained earth and one crime empty; he arrested Bashir Ahmad appellant on 16-04-2010; pursuant to a disclosure, he led to the recovery of rifle (P-5) along with live bullet (P-6), secured vide inventories; Eisa, co-accused joined investigation while being on pre-arrest bail, however, was exonerated; after completion of investigation, the accused were sent to face trial before a learned Additional Sessions Judge at Taunsa; they were indicted on 30-5-2011, when they claimed trial, pursuant whereto, prosecution in order to bring home charge against them, besides relying upon forensic reports, produced as many as 13 witnesses; of them, Ghulam Siddiq (PW-6) and Khuda Bukhsh (PW-7) furnished ocular account, the mainstay of the prosecution case; the former is architect of the case as well. According to forensic report, earth secured from the spot was found stained with blood of human origin. Report of Forensic Science Laboratory is in the positive. The appellant as well as co-accused confronted prosecution evidence with a unanimous denial.
The learned trial Judge vide judgment dated 22-02-2012 acquitted Eisa co-accused, however, proceeded to convict Bashir Ahmad 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, 100,000i- or six months S.I. In the event of default, wires whereof, are being challenged by the appellant through Crl. Appeal No, 190 of 2012; Murder Reference No, 29 of 2012 seeks confirmation of death penalty awarded to Bashir Ahmad, appellant; these are being decided through this single judgment.
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 is highly improbable; that evidence disbelieved qua co-accused cannot be pressed into service against the appellant in the absence of independent corroboration, hopelessly lacking in the case; that ocular account is contradicted by medical evidence. The bottom line of the argument addressed by the learned counsel for the appellant is that presence of the witnesses at the scene was highly improbable and as such it was unsafe to place implicit reliance thereon. 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 a real brother would not substitute the real culprits with the innocent and that his testimony, duly supported by medical evidence and recovery of weapon excluded every hypothesis of appellant's innocence.
3. Heard. Record perused.
4. According to medical evidence furnished by Dr. Najeeb Ullah (PW-4), a circular wound with inverted margins of about 1 cm x 3/4 cm on the dorsal aspect of middle 1/3rd of left fore-arm was noted with its margins surrounded by blackening and burning; it exited on the ventral aspect of middle 1/3rd of left fore-arm; it is designated as Injury No, 1; Injury No, 2 is again an entry wound with inverted margins; it is 7 cm above left iliac crest on the left flank 12 cm from midline; no burning or blackening was found around; these injuries when examined with the assistance of pictorial diagram Ex.PE, the locales of entry wounds is found though obliquely, nonetheless, in somewhat straight trajectory possibly making a re-entry on the left flank and this negates the story of two fire shots. The hypothesis is strengthened by the absence of any burning or blackening around Injury No 2, particularly when according to the witnesses, both shots were made in quick succession, leaving little space for the target to move around. Presence of bullet lying subcutaneously in left hyphondium is also pointed on the same conclusion and so is seizure of single casing during spot inspection and in this backdrop argument that ocular account is not inconsonance with medical evidence is not beside the mark and this in retrospect would heavily reflect upon the presence of witnesses at the scene.
It is complainant's avowed position that he along with Khuda Bukhsh (PW-7) was at a distance of one kilometer from his village when he witnessed the occurrence; he has cited no reason for his presence at the scene, however, improved upon his previous statement by citing a purpose, duly confronted to him during the cross-examination; he has also admitted that Khuda Bukhsh (PW-7) was resident of Bait Sewai Tehsil Tounsa located at a distance of 6/7 kilometers from the place of occurrence; this being so, presence of both the witnesses at the crime scene at the relevant time sans any justification; they are discrepant on the proclaimed purpose of their presence as well; as according to Ghulam Siddiq (PW-6), the purpose of his detour was journey to Mouza Soar where his second home is situated, however, according to Khuda Bukhsh (PW-7), he used to cultivate the land of one Siddique and from there he along with Ghulam Siddique was going to their home; he is quite categorical to state that they had just gone there for the supervision of Khala. Purposes cited by both the witnesses at a place where ordinarily they both were not supposed to be present are diametrically different and this additionally impinges upon the probability of their presence. Insofar as argument that a brother would not substitute the real culprit with an innocent person is concerned, no doubt, substitution is a rare phenomena being antithetical to retributive human instinct, nonetheless, it is not an impossible scenario, particularly in situations when a real offender would be swa pped with a suspect likely to have committed the crime in an unseen occurrence owing to an outstanding motive. It is prosecution's own case that the deceased was suspected to have carried on a liaison with appellant's sister. Insofar as recovery of rifle (P-5) and positive Forensic Science Laboratory Report on the basis of dispatch antedated to appellant's arrest is concerned, after appellant's failure on its substantive side, these corroborative planks cannot sustain the charge. Various aspects of the prosecution case referred to above admit a reasonable space to admit the position taken by the appellant. An accused in order to earn acquittal can squarely rely upon a single circumstance reflecting a doubt upon the veracity of prosecution story; a doubt neither illusory nor imaginary rather emanating from stated prosecution position spelling uncertainty upon truth and factuality of charge and narratives in support thereof, therefore, it would be unsafe to maintain the conviction. Consequently, by extending benefit of doubt to the appellant, Crl. Appeal No, 190 of 2012 is allowed; judgment dated 22-02-2012 is set aside; he is acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No, 29 of 2012 is answered in NEGATIVE and death sentence is NOT CONFIRMED.