' QAZI MUHAMMAD AMIN AHMED, J.---Insaf Ali, aged 45, hereinafter referred to as the deceased, riding a bicycle was on way to attend a Court hearing at Wazirabad on 13-5-2010; at about 7:00 a.m. When he reached near Dera of Muhammad Siddique Cheema, his bike was hit by Saifullah and Shoukat All, accused riding a motorcycle; as a consequence, he felled on the ground; Farhan alias Soni, Liaqat Ali, Rafaqat Ali, Zahid Mehmood, lqbal alias Balu, armed with hatchets and iron rods, already ambushed, emerged all of a sudden. Shoukat Ali raised Lalkara and immediately thereafter he dealt a hatchet blow landing on the right side of head of the deceased followed by a blow by Saifullah on left side of head; Farhan All hit the deceased, with hatchet, on the right leg where after all the assailants dealt multiple blows with their respective weapons, hitting the deceased from toe to head. Ehsan Ali (PW-8), real brother of the deceased and his daughter Mst.
Tasleem Insaf (PW-9) claimed to have witnessed the occurrence; as per prosecution case, Tasleem Insaf (PW-9) was being taken on a motorcycle by Ehsan Ali (PW-8) to Wazirabad so as to undertake her onward journey to Lahore where she studied in the Punjab University. The deceased was rushed to Rural Health Center Ahmad Nagar; he was medically examined under a police docket at 9:50 a.m. By Dr. Salman Raheem (PW-1), who noted as many as 32 injuries comprising of 14 incised wounds accompanied by contused swellings, contusions and abrasions. According to this witness, the deceased was received in a very serious/critical condition at 9:50 a.m. And his condition further deteriorated at 10:25 a.m. When his pulse and blood pressure dropped to nil, with gasping respiration; soon thereafter, he expired at 10:45 a.m. Autopsy was conducted by Dr. Muhammad Akram (PW-2) same day 8:00 p.m. At Civil Hospital Wazirabad. Injuries Nos. 1, 2 and 3, bone deep lacerated wounds measuring 4 x 1 and 5 x 1 cm, on back top of head and forehead, respectively, grievous in nature, are blamed for homicidal death. In autopsy report as many as eight injuries find mention. Injuries No,5, 7 anc1,8 depict multiple abrasions and contused swellings with clinical fracture of both lower legs. Incident is reported through complaint Ex.PD by Mst. Shakila Nargas (PW-7) wife of the deceased, straight at Police Station Ahmad Nagar at 11:10 a.m. Ashraf son of Ghulam Sarwar was arrayed as an abettor and motive for the crime was cited an earlier incident that occurred two years back between the deceased and Liaqat Ali resulting into registration of a criminal case, fixed for hearing on the fateful day. The accused were also alleged to have taken away a 12 caliber gun, carried by the deceased when he confronted the assailants. During spot inspection, Muhammad Ashraf, SI (PW-12) besides taking other investigative steps, took into possession bloodstained earth and a bicycle (P-9), secured through inventory; Liaqat Ali, Rafaqat Ali and Zahid Hussain, appellants were arrested on 4-6-2010 and pursuant to their disclosure, led to recovery of hatchet (P-5), Danda (P-7) and rod (P-8) respectively. Liaqat, appellant also led to the recovery of gun (P-4) carried by the deceased when he confronted the assailants. Motorcycle (P- 6) was also taken into possession; there is no recovery qua the remaining accused as they were exonerated with their names in column No,2 of report under Section 173 of the Code of Criminal Procedure, 1898. A learned Addl. Sessions Judge at Wazirabad sent for all the eight accused nominated in the crime report and indicted them on five counts on 24-1-2011 when they pleaded not guilty and claimed trial, pursuant whereto, prosecution was called upon to bring home charge against them; as many as 12 witnesses were produced besides forensic reports in support thereof.
The accused confronted prosecution evidence with a unanimous denial alleging previous enmity behind their false implication and placed on record copies of a number of First Information Reports to substantiate their position.
' On conclusion of trial, the learned trial Judge vide judgment dated 14-3-2011 acquitted Saifullah, Farhan, Shoukat Ali, Iqbal and Muhammad Ashraf from the charge, however, proceeded to convict Liaqat Ali, Rafaqat Ali and Zahid Hussain, appellants under Section 302(b) read with Section 34 of the Pakistan Penal Code, 1860 and sentenced them to death along with payment of compensation of Rs,100,000/- each or to undergo six months SI in the event of default thereof, vires whereof, are being assailed through Crl. Appeal No,1414 of 2011. Mst. Shakila Nargis, complainant seeks reversal of acquittal through Crl. Appeal No,649 of 2011, still at the threshold, awaiting formal admission. The State seeks confirmation of death penalty through M.R. No,148 of 2011. These are being decided through this single judgment.
2. Learned counsel for the appellants contends that the deceased was done to death in an un- witnessed occurrence and owing to previous enmity, the appellants have been arrayed on the basis of misplaced suspicion; that identically placed co-accused, assigned fatal blows to the deceased, have since been acquitted and the same set of evidence cannot sustain the charge against the appellants without independent corroboration, conspicuously missing; that presence of Ehsan Ali (PW-8) and Tasleem Insaf (PW-9) taken from any angle is improbable and unbelievable; that First Information Report lodged by Shakila Nargas (PW-7) does not provide foundational basis to the prosecution as on her own showing she was not an eyewitness and according to her statement she was shared details of the occurrence by her deceased husband during his last moments when he according to the medical evidence was gasping last breaths. It is lastly argued that deceased had a formidable past record with more than one case of homicide to his discredit and for that he was being hounded by many, other than the appellants. Contrarily, the learned Law Officer assisted by the learned counsel for the complainant has defended the impugned judgment and prayed for confirmation of death penalty on the ground that the deceased was tortured to death in a most callous and gruesome manner, in broad daylight and as such there is no occasion to visit the appellants with leniency and that substitution is a rare phenomenon. In Crl. Appeal No,649 of 2011, reversal of acquittal is prayed for on the ground that view taken by the learned trial Judge qua the acquitted respondents is not a possible view and they could not have been let off merely on account of a favourable police opinion; according to the learned counsel, the impugned acquittal has resulted into miscarriage of justice, warranting interference by this Court.
3. Heard. Record perused.
4. Violence unleashed on the deceased is awful in its magnitude; agonizing pain suffered by him is beyond human endurance, nonetheless, culpability of the appellants and acquitted co-accused, respondents in Crl. Appeal No,649 of 2011, is to be adjudged on the touchstone of positive proof furnished by Ehsan Ali (PW-8) and Tasleem Insaf (PW-9). The deceased was brought in injured condition at Rural Health Center Ahmad Nagar at 9:50 a.m. By Ahsan Ali (PW-8) accompanied by Aftab Ahmad/1692-C, under the police docket, the latter has not been produced; formal case is registered at 11:10 a.m., an exercise undertaken later in a point of time by Shakila Nargas (PW-7), who claims to have received the details relating to occurrence from the deceased while he was struggling for his life; according to medical evidence, he was gasping in an extremely critical condition with pulse and blood pressure as nil. In this backdrop, it was humanely not possible for the deceased to share an exhaustive and detailed account of incident with his better half. The deceased succumbed to his injuries at 10:45 a.m. However, autopsy is A conducted at 8:00 p.m.
After almost nine hours when the dead body was already in the hospital. As Shakila Nargas (PW-7) is not an eye-witness herself, this leaves Ehsan Ali (PW-8) and Tasleem Insaf (PW-9) to sustain the charge. Ehsan Ali (PW-8), aged about 50, is real brother of the deceased; Tasleem Insaf (PW-9) is real daughter aged about 22 years. Certainly, human response in a crisis varies from person to person and it cannot be expected from a witness with empirical exactitude to display or demonstrate an ideal reaction or conduct in a demanding situation. Fear impacts people differently, however, both these witnesses viewed the incident, a time intensive affair, throughout, unscathed. Enormity of violence suffered by the deceased is suggestive of a very high degree of provocation actuating the assault, it is a proverbial quenching of vendetta and yet the assailants spared deceased's young daughter and a real brother; it is a conduct noble indeed, nonetheless, unusual and as such it admits a reasonable possibility that witnesses were not present at the spot.
Asim Raza, aged about 21, is a real brother of Tasleem Insaf (PW-9); he is a person to more appropriately accompany her at a bus stop in Wazirabad. Even otherwise, she was student of Masters in English Literature in the University of the Punjab and claimed to be in the village on account of holidays; occurrence took place in the month of May when there are no holidays; she was a real daughter; her instinctive bond with the deceased would not have allowed her to stay at bay; her departure immediately after the deceased left home, so as to reach the spot exactly at a point of time when the deceased came under attack, requires a pinch of salt; her departure from the scene would concomitantly cast away the testimony of Ehsan Ali, PW as well. Insofar as question of substitution is concerned, no doubt, it is a rare phenomena, antithetical retributive to human instinct, nonetheless, it is not an impossibility; there are situations where real culprits are substituted with scapegoats. The issue came up before this Court in the case of Muhammad Ramzan alias Boota v. The State (PLD 1999 Lahore 221) relevant portion whereof is advantageously reproduced:-- "Substitution in criminal law means, replacement of real offender by another person who might be wholly unconnected with crime or might have played a role different than the one assigned to him. Substitution of the real offender by another person is said to be a rare phenomenon. This concept is essentially based on human psychology that retributive instinct of the victim or aggrieved person would prompt him to go only for the blood of the actual perpetrator and not the innocent. The rule has no empirical foundations and the question whether there has been substitution or not, has to be determined on case to case basis because in actual practice substitution has not been found to as rare as one would have you believe. Substitution is of two kinds: Conscious, calculated and well-thought of; and the other kind is non-deliberate. Where parties are not at loggerheads prior to an incident which takes place suddenly or due to an isolated cause or motive, and the complainant party has no time to reflect on the issue and the registration of case is free from extraneous or external influences, there would be little likelihood of substitution. But where deep-rooted enmity exists between the parties and internecine feud is going on between the two for some time, the complainant party would have every desire to see the heads of the mighty roll. In such a situation, persons of the opposite camp who are more influential, more important or more dangerous, are likely to face the brunt of vendetta of the wily and scheming complainant. Considerable substitution in such situations is likely to occur. Another case scenario admitting of such a possibility is where hired assassins are employed to commit a crime. Real culprits or the Mafioso are some times let off and instead actual enemies who hire the assassins are assigned the effective roles or roles played by accused are swapped. A large scale substitution is resorted to by the complainant in such cases. This phenomenon is noticeable in North Western part of the Punjab. Non-deliberate substitution on the other hand occurs where the incident is unwitnessed one or is not witnessed by the concerned people and there is no apparent motive for the incident. The accused, in such cases, is picked out or involved on suspicion, guess mark or information provided by others. Choice of the accused being suspicion-based, can be equally wrong or fallacious. The substitution or more correctly, false involvement, in such a case, might not be motivated, but nonetheless is a real possibility but surprising aspect of the matter is that the complainant party would stick with dogmatic rigidity to the ill-conceived story pieced together by it. The reason might be various or diverse, but hard fact and unpalatable reality is that role-swapping and substitution in criminal cases does take place. May be crime culture of the society has undergone a change or the moral fiber of society has decayed. The case in hand appears to fall in the last category of cases where substitution is result of guesswork".
Given the admitted past history and alleged motive qua the appellants, their implication as a result of "suspicion, guesswo rk or information provided by others" owing to "non-deliberate substitution" cannot be possibly ruled out.
' There is yet another aspect of the prosecution case that requires a more cautious and careful analysis. Admittedly, the deceased was carrying with him a 12 caliber repeater gun; he could not find a chance to use that gun in a situation where it was most urgently needed; none of the assailant is shown as carrying firearm. After the deceased was hit by a motorcycle and he saw the accused emerging from an ambush, it did not require him much time to resist them with the gun, he carried, a 12 caliber repeater, an effective and lethal weapon; this suggests that occurrence did not take place in a manner as alleged in the complaint Ex.PD. The motive for the crime is a criminal case, in progress for last two years; violence inflicted upon the deceased does not commensurate with the grudge that the appellants would have possibly harboured in that background. Taken together these various aspects of the prosecution case cast a dark shadow of doubt on prosecution case wherein three persons are facing the gallows. It would be grievously unsafe to maintain the conviction. Consequently, by extending benefit of the doubt, Crl. Appeal No,141-J of 2011 is allowed, appellants are acquitted from the charge; they are in custody and shall be released forthwith, if not required in any other case. Murder Reference No, 148 of 2011 is answered in NEGATIVE and death sentence awarded to the appellants is NOT CONFIRMED.
' As a natural corollary of findings above, Crl. Appeal No,649 of 2011 also stands dismissed.