1. QAZI MUHAMMAD AMIN AHMED, J.---Murder Reference No,280 of 2011 seeks confirmation of death penalty awarded to Liaqat, Maqbool, Sarfraz, Boota, Yousaf and Javed, appellants; they have challenged their conviction through Crl. Appeal No,859 of 2011 and Crl. Appeal No,340 of 2015; Rana Muhammad Naeem, complainant through Crl. Appeal No,2281 of 2014 seeks reversal of acquittal granted to the acquitted accused, sixteen in number, still at the threshold awaiting admission; these are being decided through this single judgment.
2. Prosecution case is structured upon application (Ex.PB) by Rana Muhammad Naeem (PW-3) regarding an incident, occurred within the area of Behram-ke, situating at a distance of 4-1/2 kilometers from Police Station Phoolnagar, alleged wherein is that his father. Rana Nisar Ahmad acquired a piece of land measuring 2-1/2 acres for excavation of earth to run a brick kiln from Muhammad Bukhsh, a co-villager; the agreement was struck on 2-8-2003 and it was on 5-5-2006 when Tariq son of Ahmad Din, absconder, accompanied by his co-accused forcibly occupied the land and a report was lodged with the police, pursuant whereto, a police party headed by Muhammad Rafique Bhatti, Inspector (PW-12) arrived at the scene for inspection; Javed Iqbal alias Babar, Rashid, Imran, Shoukat Ali and Munshi Riasat accompanied the complainant at the spot.
2. Given the gravity of situation, reinforcement was sent for when Javed Iqbal, Liaqat, Tariq, Maqbool, Sarfraz, Boota and Yousaf armed with 12 caliber shotguns along with 15/16 unknown persons mounted the assault; Javed Iqbal, appellant hit his namesake Javed Iqbal, hereinafter referred to as the deceased, with a fire shot on his right hand; the PWs ran into safety in a nearby Haveli, subsequently encircled by the assailants; Liaqat hit the deceased on his right arm, followed by Javed appellant with fire shots on his head and chest; Maqbool is assigned a fire shot on the right arm of the deceased followed by two fire shots by Sarfraz landing on the right and left arm, whereafter, Tariq and Boota attempted fire shots hitting the deceased on his right shoulder and back of neck respectively; Yousaf accused made a fire shot hitting Munshi Riasat Ali on his chin, forehead and chest. The accused decamped while brandishing their weapons. The deceased in injured condition was rushed to Civil Hospital Phoolnagar where he was examined at 10:40 a.m. with the name of Rana Babar subsequently rectified as Javed Iqbal; his identity, initial error notwithstanding, is not in dispute; he was referred to Jinah Hospital Lahore where he succumbed to his injuries. Motive for the occurrence was forcible possession taken by the accused over the leased land. Through a supplementary statement dated 10-6-2006, unknown persons were identified by their names. Formal First Information Report is recorded at 10:30 a.m. During spot inspection, bloodstained earth and casings of .12, .7 and .44, sixteen in number, along with some live bullets and cartridges were secured through inventory. Dr. Muhammad Jahangir (PW-10) medically examined the deceased in injured condition at 10:40 a.m. in Rural Health Centre Phoolnagar before his referral to tertiary hospital; eight entry wounds were noted that included bruised upper interior of chest, the remainder comprised of exit injuries with averted margins. Munshi Riasat Ali (PW-4) was also examined; four lacerated wounds were observed on his chin, right forehead and chest, caused by firearm. Autopsy was conducted by Dr. Abdul Majeed (PW-9) on 6-5-2008 at 8:00 p.m.; as many as ten injuries were noted. A result of violence, first and second ribs on front side of chest were fractured with perforation of right lung and right pleura, blood vessels on the right side were also lacerated. Skull was also damaged with eight holes, giving way to brain matter. Head injury was principally blamed for death and according to the witness all the injuries were sufficient to cause death in the ordinary course of nature.
3. Casings were dispatched on 13-5-2006. The accused were arrested on 21-6-2006, of them Tariq jumped the bail; he is still away from law. During the course of investigation, Tariq accused, pursuant to a disclosure, led to the recovery of a .7 mm rifle (P-13), Maqbool a 12 caliber shot gun (P-14), Muhammad Boota, .12 caliber shotgun (P-15), Sarfraz .12 caliber gun (P-16) on 26-6-2006 followed by a .222 caliber gun (P-17) by Fayyaz accused. Forensic Science Laboratory Report Ex.PV is in the positive.
4. After conclusion of investigation, twenty three persons were sent to face trial before a learned Addl.
5. Sessions Judge at Kasur; denying the charge they claimed trial on 22-3-2008, pursuant whereto, the prosecution was called upon to drive home charge against them. As many as fourteen witnesses were produced besides reliance upon forensic reports. Ocular account has been furnished by Rana Muhammad Naeem (PW-3), Munshi Riasat Ali (PW-4) and Rana Imran (PW-5).
6. Muhammad Rafique Bhatti, Inspector (PW-12) also claimed an eye-witness, however, from amongst the accused he only named Javed appellant as being responsible for the fire shot on the deceased. The accused confronted prosecution evidence with a unanimous denial and instead blamed the prosecution as responsible for mishap.
7. While acquitting the accused arrayed through supplementary statement, the learned trial Judge vide judgment dated 28-5-2011, convicted Javed Iqbal alias Dollar, Liaqat Ali, Maqbool Ahmad, Sarfraz, Muhammad Boota and Yousaf under sections 148, 302(b) as well as 324/149 of the Pakistan Penal Code, 1860, sentenced them to death under section 302 (b), P.P.C. with compensation of Rs,1,00,000/-each or further undergo six months' S.I. in the event of default; 3-years' imprisonment under section 148, P.P.C. with fine of Rs,50,000/-each or six months' S.I. in the event of default; five years' imprisonment under sections 324/149, P.P.C. with fine of Rs,30,000/- each or six months' S.I. in the event of default; all the sentences to run concurrently.
8. 3.Learned counsel for the appellants contends that there is a glaring contradiction between ocular account and medical evidence as against three fire shots ascribed to Liaqat, Maqbool and Sarfraz on the right hand of the deceased, the medical officer noted only one injury, designated as injury No,3, whereas injuries assigned to Boota and Yousaf appellants do not find mention in the autopsy report; that it is a case of wider net thrown by the complainant, a person with considerable political clout, implicating no less than 23 persons; that specific attributions qua the appellants, given with a photographic exactitude, is humanly not possible; that the prosecution case is self-destructive as application Ex.PB, on the basis whereof, formal FIR is recorded at 10:30 a.m. under section 302, P.P.C. when, on prosecution's own showing, the deceased was yet alive in injured condition and this according to the learned counsel demonstrates that Ex.PB was not drafted at a point of time given therein; he has also pointed out cuttings and interpolations. Contrarily, the learned Law Officer assisted by the learned counsel for the complainant has defended the impugned judgment on the ground that occurrence is a daylight affair, witnessed by those having noor animus against the appellants and that included an injured as well, whose presence given the receipt of firearm injuries, cannot be doubted at the spot at the relevant time.
9. 4.Heard. Record perused.
5. As many as three eye witnesses, joined by a police officer, with one voice supported the case set up in Ex.PB, one of them is injured. The incident occurred in a broad daylight. Barring few omissions, medical evidence confirms receipt of firearm injuries both by the deceased as well as the injured PW; there are casings secured from the spot and sent to Forensic Science Laboratory prior to the arrest of the appellants, weapons recovered at their instance, dispatched subsequently are wedded with the casings. There is a motive for the crime as well with a police contingent at the spot. At first sight, these are formidable pieces of evidence haunting the appellants, six in number, bracing the gallows. Nonetheless, on a closer scrutiny, this immaculate precision alone, seemingly, falls short of standard of proof, required to visit the appellants with the ultimate corporal penalty, first, for the reason that such precisions can be possibly manipulated and what cannot be humanly manipulated is the happening of events occurring in the natural course of probability.
10. Unless a testimonial rendition qualifies the test of probability, it cannot be allowed to be a basis for conviction. Examined on the touchstone of probability, prosecution case warrants serious consideration for more than one reason. Uninterrupted assault by the appellants in the presence of a heavy police contingent; their encircling the deceased and the PWs with impunity so as to fatally gun down the deceased with subsequent safe conduct is a scenario which requires a pinch of salt.
11. Even a group of most dreaded criminals would not contemplate that. Receipt of multiple pellets injuries only by the deceased and the lone injured witness after taking refuge inside a safety with no harm befalling upon others, is yet another question mark. On a very realistic analysis, it appears that occurrence did not take place in a manner and at the place, unanimously asserted by the PWs. Ex.PB is a computer generated application; it required skill and paraphernalia, not readily available; given the time of occurrence as 10:00 a.m. and registration of formal FIR at 10:30 a.m.; it is complainant's own case that he approached the police after death of the deceased with a computer generated written application; these are the events subsequent to initial medical examination of the deceased in injured condition conducted at 10:40 a.m., it is mind boggling as to how a First Information Report on the charge of homicide was chalked out at a point of time preceding death; the promptitude rather militates against the prosecution itself. The graphic details given in Ex.PB with a meticulous exactitude, in terms of assignment of fire shots to the appellants, in a crisis situation is humanly not possible. Words Najaiz Zabardasti and name of Maqbool are added subsequently; these additions depict a capacity for mischief. The evidence disbelieved qua 17 out of 23 accused requires independent corroboration which is conspicuously missing. Motive does not specifically revolve around the appellants. Recoveries though consequential yet manifest a performance, otherwise seldom observed, in this backdrop, argument that political clout of the complainant side was instrumental in managing the meticulous details of the prosecution case, is seemingly not beside the mark. Given the enormity of sentence to be exacted from the appellants, every hypothesis of their innocence must conclusively be shown to have been excluded, before the noose is cast; the evidence relied upon falls short of that. Taken from any angle, the prosecution case appears to be hugely exaggerated with a possibility of a larger net. It would be thus grievously unsafe to dispatch the appellants, six in number, to the gallows. Presence of an injured witness is not a certification of truth; there are doubts hovering over his testimony, doubts embedded in the stated positions. Consequently, by extending benefit of the doubt, Crl. Appeal No,859 of 2011, Crl. Appeal No,340 of 2015 are 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, 280 of 2011 is answered in NEGATIVE and death sentence awarded to the appellants is NOT CONFIRMED.
12. As a natural corollary of findings above, Crl. Appeal No,2281 of 2014 also stands dismissed.