QAZI MUHAMMAD AMIN AHMED, J:-.Crl.Appeal No.1472 of 2012 by Muhammad Ashraf appellant and Murder Reference No.334 of 2013 arise out of judgment dated 27-6-2012 by a learned Addl. Sessions Judge at Sargodha; bearing a common thread, these are being decided through this single judgment.
2. Prosecution case is structured upon complaint (Ex.PB) recorded by Muhammad Akhtar SI (CW-1) at Police Station Shah Nakddar , 7:30 a.m. on 09-7-2010 on the statement of Falak Sher (PW-2). According to the complainant, his sister Parveen Akhtar , henceforth referred to as the deceased, along with her children Namra and Ali Hasnain was residing with him after her divorce. On the fateful day i.e. 8-7-2010, the complainant along with the deceased, after fetching grocery items was on way to Chak No.135 Shumali to visit sister Naziran Bibi when at 7:30 p.m. the appellant accompanied by Muhammad Akram and an unknown co-accused intercepted them on a car and took away the deceased on gunpoint; the complainant informed Naziran Bibi, Bashir Ahmad and Muhammad Riaz PWs and set out in search when at about midnight they spotted the accused; it is alleged that they were persuading the deceased for marriage and as she declined the proposal, Akram co-accused exhorted the appellant, pursuant whereto, the appellant repeatedly fired upon the deceased; Upon PWs intervention, the accused decamped from the scene; occurrence was viewed in the headlights of a vehicle. Deceased succumbed to the injuries at the spot. Motive for the crime is deceased' s refusal for a match. Leav ing Bashir and Riaz PWs at the scene, the complainant went to his relations to share information whereafter returned once again at the spot.
According to the autopsy conducted on the following day at 11:30 a.m, the Medical Officer noted four entry wounds each measuring 1 x 1 cm with their corresponding exits; on probe, right lung, heart and liver were found damaged with injuries in abdominal area rupturing blood vessels of right fore; consequent hemorrhagic shock was blamed as cause of death within 5-10 minutes; duration between death and postmortem was estimated as between 6-10 hours.
Spot inspection by Muhammad Nawaz, S.I (CW-1) includes seizure of bloodstained earth as well as three 30- caliber casings (P-6/1-3); arrested on 28-7-2010, the appellant, pursuant to a disclosure, led to the recovery of 30-caliber pistol (P-5). As the investigation progressed, the complainant improved upon his case through supplementary statement wherein he introduced Ubaid Ullah vice the unknown culprit; co-accused were exonerated during investigation; the complainant instituted private complaint (Ex.PC) wherein all the three accused were summoned to face trial before a learned Addl. Sessions Judge at Sargodha, they claimed trial on 17-6-2011, pursuant whereto, prosecution in order to drive home the charge, produced as many as nine witnesses; Muhammad Akhtar, SI was examined as a court witness. Falak Sher (PW-2) and Bashir Ahmad (PW- 3) furnished ocular account; it is prosecution's main reliance. On forensic side casing secured from the spot did not match with pistol (P-5). Confronted with prosecution evidence, the appellant relied upon denial simpliciter.
The learned trial Judge acquitted all the accused from the charge of abduction, however , proceeded to convict the appellant under Section 302(b) of the Pakistan Penal Code, 1860; he is sentenced to death along with payment of compensation in the sum of Rs.100,000/- or to undergo six months simple imprisonment in the event of default.
3. Learned counsel for the appellant contends that prosecution case is fraught with doubts, improbabilities and inconsistencies and as such there was no occasion for the learned trial Judge to convict the appellant so as to visit him with capital sentence, particularly after acquittal of identically placed co-accuse d in the absence of independent corroboration; that arrival of the PWs during odd hours of night at a deserted place is highly improbable in the absence of recovery of any vehicle, the stated source of light withers away as the prosecution is relying upon a motorbike instead; family' s own complicity has been blamed for the crime. The bottom line is that entirely different scenario, diametrically incompatible with the case set up in the crime report, is vividly spelt out and, thus, it would be unsafe to maintain the conviction. Contrarily , the learned Law Officer has defended the impugned judgment on the ground that with the assistance of eye witnesses, having no axe to grind, prosecution has proved its case qua the appellant beyond reasonable doubt; that acquittal of co-accused does not reflect upon appellant' s culpability , otherwise, firmly established through ocular account; it has been argued that principle of sifting is a valid regime to rely upon the testimony of witnesses partially disbelieved qua the co-accused. Massive violence inflicted upon the deceased has been emphasized for confirmation of death penalty .
4. Heard. Record perused.
5. Acquittal of all the co-accused from the charge of abduction has not been challenged either by the State or the complainant and this destroys the very genesis of the prosecution case, as on its own showing, the deceased was forcibly picked by the appellant and his co-accused in a vehicle, never recovered wherein she was taken to the spot; once prosecution is disbelieved on the allegation of abduction, as to how the deceased met homicidal death at the spot, according to site plan Ex.PA, a deserted place nearby a watercourse is left to imagination. In the absence of headlights of the vehicle, there is no source of light; recovery of a motorbike is antithetical to the prosecution case. As to how the appellant and his co-accused anticipated/knew the location of the deceased wherefrom she was allegedly abducted is also far from being clear and so is arrival of the PWs at the place where she was taken in a speeding vehicle, that too, exactly at a point of time when the assault commenced.
Persuasions by the appellant for a matrimonial bond on gunpoint, that too, in the presence of witnesses is a story that one may find hard to buy. Occurrence statedly took place around midnight, however, it is reported at the Police Station located at a distance of 3-k.m. at 7:30 a.m. following morning; complainant's statement that after having seen the occurrence he went to inform his relatives and returned at the crime scene before visit to the Police Station is really mind boggling; it appears as an attempt to hush up the delay. Autopsy is also conducted at 11:30 a.m. (noon) when rigor mortis was found partially developed; deceased's in her prime youth having met homicidal death in a sizzling hot weather, symptoms of rigor mortis suggest an earlier point of time. Recovery of a motorbike and negative forensic report Ex.PT do not advance prosecution case either. Argument that the deceased met her homicidal death under mysterious circumstances overwhelming pointed upon the family itself cannot be dismissed out of hand and warrants serious consideration. Occurrence does not appear to have taken place, as suggested by the witnesses, though they are in a comfortable unison with each other, narrative furnished by them being extremely improbable merits rejection for being far away from evidentiary certainty, thus, it would be perilous to maintain the conviction. Consequently, by extending benefit of doubt to the appellant, Crl.
Appeal No. 1472 of 2012 is allowed; he is acquitted from the charge and shall be released forthwith, if not required in any other case. MURDER REFERENCE No.334 of 2013 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.