' SYED SHAHBAZ ALI RIZVI, J.--This judgment shall dispose of Criminal Appeal No,11)68 of 2011 titled as Ghulam Mustafa v. The State filed by the appellant against his conviction and sentence and Murder Reference No,281 of 2011 titled as The State v. Ghulam Mustafa sent by the learned trial court for confirmation or otherwise of sentence of death awarded to Ghulam Mustafa (convict), under Section 374 of the Code of Criminal Procedure, 1898, being originated from the same judgment dated 09.06.2011 passed by the learned Additional Sessions Judge, Khushab in case FIR No,525 dated 26.09.2010, offences under Sections 302, 148 and 149 of Pakistan Penal Code, 1860 registered at Police Station Jauharabad, District Khushab whereby the appellant was convicted under section 302(b) of the Code ibid and sentenced to death for committing the murder of Muhammad Asad and Farhat Sultana on two counts with direction to pay Rs,1,00,000/- as compensation to the legal heirs of each deceased as provided under section 544-A o of the Code of Criminal Procedure, 1898 and in default thereof, to be recovered as arrear of land revenue or to undergo simple imprisonment for six months. However, through the same judgment, learned trial court acquitted the co-accused Muhammad Feroz, Najeeb Ullah, Muhammad Farooq, Muhammad Nasrullah, Khalid Farooq, Muhammad Altaf and Muhammad Umer while extending them the benefit of doubt.
2. Shortly, the facts of the case as uncovered by the complainant Tariq Aziz (PW.8) in the crime report (Exh.PL) are that on 25.09.2010 at about 11:30 p.m. he along with his brother Muhammad Asad (deceased), Ahmad Hakeem (given up PW) and Qasim Umer (PW.9) was returning to home from the house of his paternal cousin Muhammad Chiragh. When they reached in the street in front of the house of Javed where an electric bulb was lit, suddenly Ghulam Mustafa (appellant) armed with .30 bore pistol, Muhammad Feroz, Najeeb Ullah, Farooq, Nasrullah, Muhammad Altaf, Khalid and Umar co-accused (since acquitted) armed with clubs (L r) came there. Ghulam Mustafa (appellant) raised lalkara' that Asad (deceased) had not refrained from passing through the street despite warning. Meanwhile, co-accused Muhammad Feroz, Najeeb Ullah, Farooq and Nasrullah co-accused inflicted `sota' blows on the head of Asad. Khalid, Muhammad Altaf and Umar co- accused dragged Asad holding his legs to the house of Javed Akhtar Bhatti. When complainant along with witnesses tried to rescue his brother, Ghulam Mustafa with his .30-bore pistol made three fire shots which hit Muhammad Asad on left side of front of chest, right side of neck and chin who fell down. Meanwhile the women folk of the family of Muhammad Javed Bhatti also came there. Ghulam Mustafa (appellant) also made fire shots upon Mst. Farhat Sultana which hit on different parts of her body and she fell down. Both Muhammad Asad and Mst. Farhat Sultana succumbed to the injuries at the spot whereas the assailants fled away.
' Motive is that Ghulam Mustafa (appellant) had suspicion of illicit relations between his cousin Farhat Sultana and Muhammad Asad (deceased) and due to this reason, the accused persons committed murder of Asad and Farhat Sultana.
3. After his arrest on 02.11.2010, the appellant got recovered .30 bore pistol (P.5) and three live bullets (P.6/1-3) at his instance which were taken into possession vide recovery memo (Exh.PA) on 08.11.2010. The investigation culminated into submission of report under Section 173 of the Code of Criminal Procedure, 1898 before the learned trial court. Charge was framed against the appellant and his co-accused persons (since acquitted) to which they pleaded not guilty and claimed trial.
4. The prosecution examined in all, eleven witnesses during the trial. Tariq Aziz, complainant (PW.8) and Muhammad Qasim Umer (PW.9) are the eye-witnesses of the incident. Medical evidence was furnished by Dr. Lubna Sadaf (PW.6) and Dr. Muhammad Saleem (PW.7). The former on 26.09.2010 at 04:00 p.m. conducted post mortem examination of Mst. Farhat Sultana and observed three entry and three exit firearm wounds besides a bruise on her dead body. According to her opinion, all the injuries were ante mortem and cause of death was damage to heart, left lung and various parts of the body leading to massive bleeding and shock due to the mentioned injuries which were sufficient to cause death in ordinary course of nature. The probable duration as declared between injury and death was immediate while between death and post mortem examination about fifteen hours. On the same day at 12:30 p.m., Dr. Muhammad Saleem (PW.7) conducted post mortem examination of Muhammad Asad alias Nanha and observed eleven wounds including six firearm (three entry and three exit) injuries. According to his opinion all the injuries were ante mortem and cause of death was damage to heart and lungs leading to bleeding and shock due to injury No,9 which was sufficient to cause death in ordinary course of nature. The probable duration between injury and death was 5 to 15 minutes while between death and post mortem examination 12 to 14 hours. Agha Hussain, Constable No,175 (PW.3) and Khizar Hayat Constable No,378 (PW.5) are the witnesses of recovery of .30 bore pistol (P.5) and three live bullets (P.6/1-3) at the instance of the appellant. Atta Ullah Khan, ASI (PW.11) is the Investigation Officer of this case. Haji Mirza Muhamad Saeed, Draftsman (PW.4) prepared scaled site plan of the place of occurrence (Exh.PE), whereas rest of the witnesses are formal in nature.
5. In his statement recorded under Section 342 of the Code of Criminal Procedure, 1898, though the appellant negated the prosecution evidence/story yet admitted the commission of murder of the deceased persons under sudden and grave provocation on seeing them in compromising (naked) position. His reply. to the question "Have you anything else to say?" reads as under:-- "My Khala and Chachies mother of Farhat Sultana deceased is an old lady of 70 years. Javed Akhtar brother of Farhat is sick person. I: sleep in the house of my Khala on the night between 25/26.09.2010. At about 11:30 p.m. I heard whispering in the adjoining room where Farhat was sleeping. I went to said room and saw Assad and Farhat in compromising naked position and pistol of Assad was lying beside him. After some scuffle I fired at Assad and Farhat under grave and sudden provocation."
' He did not opt to appear as his own witness to make statement on oath as provided.. under Section 340(2) of the Code of Criminal Procedure, 1898, however produced documentary evidence (mark-DA to mark-DA/10) in his defence.
6. The learned trial Court while concluding the trial, found the appellant guilty, convicted and sentenced him as mentioned above.
7. Learned counsel for the appellant contends that there is delay of about one and a half hour in lodging the crime report; that prosecution has cooked up a false story to involve maximum male members of appellant's family; that there are material discrepancies in the statements of eye- witnesses; that the alleged recovery of crime weapon at the instance of the appellant is planted one which in fact belonged to Muhammad Asad (deceased); that the prosecution has failed to prove its case against the appellant beyond shadow of a reasonable doubt and the appellant cannot be convicted only on the basis of his statement under Section 342 of the Code of Criminal Procedure, 1898; that this appeal may be accepted acquitting the appellant of the charge.
8. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the appellant and, inter alia, maintains that there is no deliberate or conscious delay in reporting the matter to the police; that the eye-witnesses have furnished confidence inspiring and trustworthy evidence against the appellant which is fully supported by the medical evidence as well as recovery of crime weapon; that though in a different manner, the appellant has admitted the alleged occurrence during the trial and the inculpatory part of his statement provides corroboration to the evidence produced by the prosecution against the appellant; that the prosecution has proved its case beyond any shadow of a reasonable doubt and finally, craves that this appeal may be dismissed and murder reference be answered in affirmative.
9. We have heard the arguments of learned counsel for the parties as well as learned Deputy Prosecutor General and also scanned the record with their assistance.
10.We have observed that the eye-witnesses Tariq Aziz, complainant (PW.8), Muhammad Qasim Umer (PW.9) and Ahmad Hakeem (since given up being unnecessary) are the chance witnesses being residents of the place admittedly situated at a distance of about one kilometer from the place of occurrence. Moreover, their presence at the place of occurrence at 11:30 p.m. has not satisfactorily been explained by them as the reason given by them is that they along with the deceased were returning to their home from the house of Muhammad Chiragh to whom they went for reconciliation and to ask him to attend the marriage ceremony of deceased Muhammad Asad to be held on 17.10.2010 but the witnesses never disclosed any cause or nature of annoyance of Muhammad Chiragh and even he was never got associated with the proceedings of investigation or the trial to confirm the stance of prosecution, as admitted by the complainant (PW.8) and also maintained by the Investigation Officer (PW.11) during their cross-examination. Moreover, in such like, situation, the practice in the society is that the family elders intervene for such rapprochement between the relatives while the eyewitnesses including the deceased were of young age.
Similarly, none except the eyewitnesses appeared to verify the stated fact of marriage ceremony of Muhammad Asad (deceased) to be held on 17.10.2010. Even per complainant (PW.8) the invitation cards had not been got printed till the day of occurrence. In this view of the matter, we do not find ourselves convinced by the reason furnished by the eye-witnesses for their presence at the place of occurrence at the relevant time. The ocular account, furnished by the prosecution through Tariq Aziz, complainant (PW.8) and Muhammad Qasim Umer (PW.9), being brother and cousin of the deceased, respectively, stands disbelieved by the learned trial court to the extent of all the co- accused of appellant namely Muhammad Feroz, Najeeb Ullah, Muhammad Farooq, Muhammad Nasrullah, Khalid Farooq, Muhammad Altaf and Muhammad Umer, out of whom Muhammad Feroz, Najeeb Ullah, Muhammad Farooq and Nasrullah were assigned the role of causing blunt weapon injuries on the person of deceased Muhammad Asad having support from the medical evidence, i,e, post mortem .examination report (Exh.PJ) and the statement of Dr. Muhammad Saleem (PW.7) and the overt act of dragging the deceased Muhammad Asad by holding his legs from point No,7 of the scaled site plan (Exh.PE) situated in the main street to the place inside the house of Muhammad Javed Bhatti, brother of Mst. Farhat Sultana (deceased) at point No,3 was specifically assigned to Khalid Farooq, Muhammad Altaf and Muhammad Umer co-accused (since acquitted). It is, by now, an established proposition that such testimony of the witnesses. disbelieved against the co-accused, to be reliable against the remaining accused requires corroboration from a strong and independent source which, in our view, is lacking in this case.
' According to the prosecution story canvassed by the eye-witnesses, the deceased at the time of occurrence was accompanying his real brother and two paternal cousins but surprisingly when co accused Muhammad Feroz, Najeeb Ullah, Farooq and Nasrullah (since acquitted) inflicted 'sota' blows to the deceased and even when Khalid, Muhammad Altaf and Muhammad Umer were dragging the deceased in injured condition by holding his legs towards the house of Muhammad Javed Bhatti, the conduct of non-interference by the young relatives emotionally attached with the deceased till the time when Muhammad Asad (deceased) was taken inside the 'hawaili' persuades us to infer against their presence at the time of occurrence. Similarly, it is again not persuasive that the accused persons eight in number let the witnesses enter into their 'hawaili' where their women folk were also present, to watch the murders to be committed by them and to become witness against them. This absolutely unnatural conduct portrayed by the eye-witnesses themselves also repudiates the presence of eye-witnesses at the relevant time. Moreover, the availability of dead bodies inside the residential room of the house of Javed Akhtar Bhatti also belies the prosecution story. The important aspect of this case particularly observed by us, is that Javed Akhtar Bhatti, the only male member of the house where the occurrence took place, has neither been implicated by the prosecution in this case nor the appellant has produced him in his defence.
' The consistent stance of the A prosecution witnesses is that the occurrence started from the main street situated in front of the house of Javed Akhtar Bhatti, brother of Mst. Farhat Sultana deceased, where the deceased in the company of the eyewitnesses was intercepted by eight nominated accused persons but the whole prosecution evidence is devoid of any circumstance reflecting that the accused persons including the appellant were having the knowledge about the arrival of the deceased there at odd hours of the night in a rural area on his way back to home from the house of a relative due to which they were sitting ambushed being armed and similarly though in the scaled and unsealed site plans (Exh.PE & Exh.PQ, respectively) it has been shown that sign of dragging was available in the street yet when we go through the medical evidence furnished by Dr. Muhammad Saleem (PW.7), we find that no such marks on the upper parts including back of chest, arms and hips were available on the body of Muhammad Asad (deceased) despite the alleged fact that a young man was being dragged by the three persons holding his legs to a considerable distance. The blunt weapon injuries available on the skull of Muhammad Asad (deceased) are not of such nature that could be caused by dragging which even otherwise, are specifically assigned to the co-accused (since acquitted) to have been caused by them with clubs 11. Another important aspect observed is that the fateful occurrence of this double murder case took place on 25.09.2010 at 11:30 p.m. in the area of Hadali while the police station concerned and the hospital at Joharabad where the post mortem examinations of the deceased persons were conducted by the respective medical officers (PW.6 & PW.7) is situated at a distance of 10-km from the place of occurrence as per relevant column of the crime report (Exh.PL) but surprisingly the post mortem examination of Muhammad Asad (deceased) was conducted on 26.09.2010 at 12:30 p.m. after about eleven hours of registration of crime report (Exh.PL) at 01:00 a.m. on 26.09.2010 while post mortem examination of Mst. Farhat Sultana (deceased) was conducted at 04:00 p.m. and the prosecution evidence is bereft of any plausible explanation for the mentioned delay in post mortem examinations of the deceased whereas the occurrence allegedly took place in view of the prosecution witnesses and the culprits were known to them which leads us to hold that there is every possibility that the occurrence remained unwitnessed and intervening time was consumed by the complainant party and the police in consultation and preliminary inquiry to fabricate the prosecution story for preparation of police papers required to be handed over to the Medical Officer prior to the post mortem examination that also renders the given time of registration of crime report doubtful.
Reference, in this regard, is made to the cases of Muhammad Riaz v. The State (2009 PCr.LJ 1022 Lahore) Irshad Ahmad v. The State (2011 SCM R 1190).
' We have also observed that no report of Forensic Science Laboratory is available on the record perhaps for the reason that no crime empty could be secured by the police from the scene of occurrence that, in the circumstances makes the alleged recovery of .30 bore pistol (P.5) at the instance of the appellant, inconsequential.
All discussed above has led us to a definite conclusion that the prosecution remained fail to prove its case against the appellant as its infirm and cryptic evidence is not convincing and trustworthy and there is no cavil about the proposition that the prosecution is always burdened to prove its case by standing on its own legs. It is not supposed to get any benefit of the weakness or the dents in the case of defence.
12. So far as the admission of Ghulam Mustafa (appellant) qua the murders of both the deceased persons by him under grave and sudden provocation is concerned we, having guidance from the venerated judgment titled Azhar lqbal v. The State (2013 SCM R 383) are of considered opinion that conviction of the appellant cannot be based solely upon the defence version taken by him in his statement recorded under Section 342 of the Code of Criminal Procedure, 1898 that can only provide corroboration to otherwise convincing and plausible prosecution evidence which requirement is not fulfilled in the instant case. Even otherwise, the stance taken by the appellant in his defence that pistol used in the occurrence was actually of the deceased is neither the case of prosecution nor substantiated through any evidence. The deceased, both, were in clothes when examined by the respective Medical Officers. The natural witnesses, inmates of the house; have neither been produced during the investigation nor before the learned trial court to support the plea of appellant. Even the presence of appellant, not a resident of the place, at the time of occurrence is not appealing having not been plausibly explained by the appellant himself. The reason that Javed Akhtar Bhatti was a sick person due to, which he (appellant) was sleeping in the house, place of occurrence, is not convincing especially when other family members/inmates were available in the house coupled with the fact evident from the site plan (Exh.PE) that other close .relatives of Javed Akhtar Bhatti like Muhammad Altaf (acquitted co-accused) were residing in the same street. Similarly, the result of investigation, except the irrelevant and inadmissible observation of the SHO in report under section 173 of the Code of Criminal Procedure, 1898, disowned by the Investigation Officer (PW.11), does not support the defence story,antroduced by the appellant in the trial as is reflected from the perusal of the statement of Atta Ullah Khan, ASI/ Investigation Officer (PW.11) that reads as under:-- "It is incorrect that only Ghulam Mustafa saw both the deceased persons in objectionable position and under grave and sudden provocation and he killed both the deceased persons."
' Moreover, copies of prescriptions, mark DA to mark DA/10, author of which not produced, besides being not proved, are insufficient to make the story furnished by the appellant, believable.
13. The appraisal of complete evidence available on record as discussed supra persuades us to hold that both, prosecution and the defence, have deliberately suppressed the real facts and circumstances E of the fateful occurrence, which remained veiled throughout. It is an established law that if there is a single circumstance that creates reasonable doubt regarding the prosecution case, the same is sufficient to give benefit to the accused, whereas, the instant case is stuffed with circumstances which have created serious doubts about the prosecution story. In this regard, guidance is solicited from the case of Tariq Pervez v. The State (1995 SCM R 1345), Ayub Masih v.
The State (PLD 2002 SC 1048) and Muhammad Akram v. The State (2009 SCM R 230).
14.In the light of above discussion, we accept Criminal Appeal No,1068 of 2011 filed by Ghulam Mustafa (appellant), set aside his conviction and sentence recorded by, the learned trial court and acquit him of the charge levelled against him by extending him the benefit of doubt. He is in custody, be released forthwith if not required in any other case.
15.Murder Reference No,281 of 2011 is answered in the <u>NEGATIVE</u> and the sentence of death of Ghulam Mustafa (convict) is NOT CONFIRMED.