QAZI MUHAMMAD AMIN AHMED, J.---Sher Baz, 24/25, hereinafter referred to as the deceased, was gunned down at 9:05 p.m. on 15.08.2011 within the area of Khilri, situating at a distance of 29 kilometers from Police Station Chountra District Rawalpindi; incident was reported by his father Shahbaz Khan (PW-1) through complaint (Ex.PA) recorded by Allah Yar, S.I (PW-10) 3:30 a.m. at Civil Hospital, Rawalpindi. According to the complainant, his deceased son ran a grocery outlet with prepaid cellphone cards; his customers included Meena Gul alias Yasmin appellant; she used to avail credit and on the eventful day she visited the shop, however the deceased declined to sell items on credit and this resulted into an altercation between them. It is alleged that while leaving the shop, the appellant asked the deceased that her brother-in-law would visit her in the evening and she would clear the liability; at 9:05 p.m. gun reports from inside the appellant's house attracted Zafar Mehmood (given-up) and Muhammad Bashir (PW-2), who saw the deceased in a pool of blood. The appellant along with Mazhar son of Ghulam Ali and his wife Neelum were present there, the first two with pistols in their hands, the deceased, critically injured informed the PWs that the appellant and Mazhar co-accused fired upon him while Neelum accused dealt her fisty and kick blows; he further disclosed that he was deceitfully sent for to receive amount for credited items. The witnesses rushed the deceased for treatment to Rawalpindi, however, he succumbed to injuries on way.
Dr. Muhammad Asad (PW-9) conducted autopsy on 15.8.2011 at 7:30 a.m.; he observed as many as ten firearm lacerated wounds of different dimensions on umbilicus, right and back of lumber region, hypogastrium, left and right thighs; these includes six entry wounds with their exits accompanied by an abrasion on right thigh; excessive loss of blood leading to hypovolemic shock was blamed as cause of death; probable duration between injuries and death was within one hour and that of death and postmortem it was estimated within 9 to 10 hours.
Allay Yar, SI (PW-10) carried out initial investigation; during spot inspection, he secured bloodstained earth and six casings vide inventories; he arrested the accused on 15.08.2011, pursuant to a disclosure, the appellant led to recovery of a 30-caliber pistol (P-1), secured vide inventory; after completion of investigation, the accused were sent to face trial before the learned Additional Sessions Judge at Rawalpindi; on 1-11-2011 they contested their indictment and claimed trial, pursuant whereto, prosecution in order to bring home -charge, against them, besides relying upon forensic reports, produced as many as eleven witnesses; of them, Shahbaz Khan (PW-1) is architect of the case whereas Muhammad Bashir (PW-2) furnished ocular account; it is the mainstay of the prosecution. According to forensic reports, earth secured. , from the spot was found stained with blood of human origin. Report of Forensic Science Agency (Ex.PK) is in the positive. The appellant confronted prosecution evidence with following plea:- "Deceased Sher Baz came to my residence at about 11;00 p.m. on the day of occurrence with the intention to out-rage my modesty and honour in the odd hours of night while armed with a loaded pistol as it was very much in his knowledge that 1 used to live alone with my minor children. My husband Muhammad Nawaz was working at Lahore for last many years and my father in law Shahbaz was ill on those days and was visiting my husband at Lahore for his treatment. I had requested the deceased not to play with my honour since I am a pious woman but he turned out all my requests. I just to save my honour committed his murder in my bed room and on my bed and no other person including the co-accused Neelum and Mazhar had assisted me and this act was done lonely by myself. The dead body was also lifted from my bed. The cot for this purpose was also provided by myself from my house. All the PWs are closely related with each other and all of them have deposed falsely just to strengthen the prosecution case that is why the material contradictions are there in the prosecution evidence. Police officials also prepared the documents and oral as well as documentary evidence just to strengthen the prosecution case and to show their efficiency before their high-ups".
The learned Addl. Sessions Judge vide impugned judgment dated 11.01.2013 acquitted Mazhar Abbas and Neelum, co-accused from the charge, however, proceeded to convict the appellant under section 302(b) of the Pakistan Penal Code, 1860 and sentenced her to death along with payment of compensation in the sum of Rs.100,000/-or six months' S.I in the event of default; the appellant has challenged the vires of her conviction through Crl. Appeal No.33 of 2013; Murder Reference No.16 of 2013 seeks confirmation of death penalty; the complainant has prayed for reversal of acquittal of Mazhar Abbas and Neelum co-accused vide Crl. Appeal No.51 of 2013; Crl.
Revision No. 26 of 2013 seeks enhancement of compensation; 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 evidence disbelieved qua identically placed co-accused cannot be pressed into service to sustain charge against the appellant without independent corroboration, lacking hopelessly; that position taken by the appellant during the trial is far more confidence inspiring than the narrations rendered by the PWs.. Contrarily, the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment on the ground that the prosecution had been able to bring home charge against the appellant beyond a shadow of doubt; that as the occurrence took place inside the residential premises of the appellant she owes an explanation as to what befell upon the appellant. It is finally argued that the deceased was done to death in a most callous manner with five gun shots on different parts of his body and as such confirmation of death penalty is most called for. Learned counsel for the complainant also prayed for reversal of acquittal on the ground that once the evidence of witnesses was believed by the Court there was no occasion for the learned trial Judge to acquit the identically placed co-accused and as such, according to him the impugned view was an impossible view, warranting interference by this Court.
3. Heard. Record perused.
4. Statement of Shahbaz Khan (PW-1), though graphically detailed, nonetheless, comprises of an hearsay narrative; he admits in his examination-in-chief that "A child told me about the incident."
As he reached the venue he met Muhammad Bashir (PW-2) and Zafar Mebmood (given up); they had the first hand knowledge of the incident; of them, Muhammad Bashir opted to enter the witness box; it is his case that within his view the appellant called the deceased in her house as he walked past the venue, he was attracted back on gun reports to see the deceased lying injured in a pool of blood with all the three accused standing by him on query informed them "as Yasmin has to repay the loan of purchases from the shop and called me for this purpose. Yasmin and Mazhar have fired upon him and Neelum had given her blows and have committed excess to him." One may find it really hard to believe this narrative for more than one reason; it is extremely improbable that the appellant would ask the deceased to enter her house within the view of the witnesses, incidentally related with him, if at all she had to murder him shortly thereafter; time of entry in the house by the deceased for collection of grocery bill from a woman of age living alone with small kids is far from being expedient; Muhammad Bashir (PW-2), the alone eye-witness has admittedly not seen the incidence of firing, he only saw guns with the appellant and Mazhar acquitted co- accused; query by this witness and a detailed response thereto by the deceased lying critically injured with six gunshots hitting almost every vital part of his body is a position that requires a pinch of salt; the accused would not have allowed his exchange of information; the witness is also reticent as to what happened to the assailants subsequent to the incident. These factors admit a real possibility that none was present at the scene except for the deceased and his assassin/assassins. Muhammad Bashir (PW-2) has been disbelieved qua the co-accused, Mazhar placed inexorably in an identical position with the appellant.
Statement of Muhammad Bashir (PW-2) warrants serious consideration; in his cross-examination he admits "police has not recorded my statement. I did not come to Rawalpindi in the pick-up. I also did not come to the hospital. I had forgotten now I have recollected and it is stated that I had went to the hospital in the pick up with injured and Shahbaz. " The narrative is self-destructive.
Seizure of istol (P-1) and positive Forensic Report (Ex.PK) does not much advance prosecution case for even dated dispatch of casings with the weapon.
Prosecution's reliance upon appellant's statement recorded under section 34 of the Code of Criminal Procedure, 1898 is beside the mark; she had contested her indictment by pleading not guilty and claimed trial; she also disputed presence of Muhammad Bashir (PW-2) and as such cannot be convicted for a partial admission made in her statement ibid. Our system of administration of criminal justice is adversarial in nature and it is primary responsibility of the prosecution to bring home charge against an accused beyond reasonable doubt and in the event of its failure it cannot take refuge behind a plea taken by the accused; it is by now well settled that position taken by an accused in his examination under section 342 of the Code ibid is to be accepted or rejected in totality as it cannot be sliced to favorably support the charge. It has been held in the case of "Azhar Iqbal v. The State" (2013 SCM R 383) that once prosecution fails to prove its case; admission by an accused cannot be pressed into service to ,sustain the charge, even if he had admitted killing the deceased; relevant portion is advantageously reproduced as below:- "It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shaukat Ali and others.
(2006 SCMR 1139). The law is equally settled that the statement of an accused person recorded under section 342, Cr. P. C. is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused's person statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad. Tashfeen and others v. The State and others (2006 SCMR 577) and Faqir Muhammad and others v. The State (PLD 2011 SC 796). It is unfortunate that the Lahore High Court, Lahore had failed to apply said settle law to the facts of the case in hand."
Improbability of presence of the solitary eye-witness at the scene, rejection of his statement qua identically placed co-accused; visit by the