' QAZI MUHAMMAD AMIN AHMED, J.---Muhammad Ashraf, 16, hereinafter referred to as the deceased, was gunned down on 11-5-2008 at 11:00 a.m. Within the area of Chah Dianwala, situating at a, distance of ten miles from Police Station City Shujabad District Multan. Incident was reported through complaint Ex.PA recorded by Muhammad Arif SI (PW-4), 12:30 p.m. At Thana Chowk on the statement of deceased's maternal uncle Muhammad Aslam (PW-1) wherein Nazar Muhammad, Nawab and Shahbaz, appellants herein, along with Muhammad Sadiq and Liaqat Ali were arrayed as accused; the appellants have been assigned fatal shots to the deceased whereas the remainder of the accused were alleged to have facilitated/instigated the crime. It is complainant's case that Allah Bachaya, father of the deceased was behind the bars for having committed murder of one Zafar Hussain, a close relative of the appellants and in order to avenge the said murder, the appellants targeted the deceased, who was staying with the complainant. Nazar Muhammad appellant armed with a rifle, Nawab armed with a 30-caliber pistol and Shahbaz armed with a carbine, allegedly intercepted the deceased outside complainant's house wherefrom he ran inside the house and bolted himself in a room; the appellants forced their entry in the said room and dragged him out in a nearby field where they fired multiple shots on him within the view of the witnesses, kept at bay on gunpoint.
' Dr. Ghulam Murtaza (PW-3) received the deceased in injured condition under police escort at 12:15 p.m.; as per initial medical examination, multiple firearm wounds were noted on his person. The deceased succumbed to the injuries same day and according to the findings of autopsy, lacerated wounds on the palmar aspect of left hand, distal phalanx of thumb of left hand, right lower thigh, anterolateral aspect of right thigh, front of right leg, posterior aspect of left thigh, posterior aspect of left knee, posterior aspect of left upper leg and on front of left knee were noted; these were accompanied by collar of abrasions as well as their exits; injuries on the right lower thigh, right leg on posterior aspect of left knee and left upper leg had blackening around their margins.
Hypovolemic shock due to excessive bleeding caused by the injuries and fracture was opined as cause of death; injuries were found sufficient to cause death in the ordinary course of nature.
According to autopsy report Ex.PN, time between injuries and death was estimated as 1 1/2 hour whereas between death and postmortem as 45 minutes. Muhammad Nawaz, SI (PW-7) conducted initial investigation; he secured bloodstained earth, casings of 12-caliber, 30-caliber and a rifle, seven in number, from the -spot, secured vide inventory. Investigation was subsequently taken over by Ghulam Rasool Tahir SI (PW-5); he arrested the appellants on 26-5-2008 and pursuant to disclosure, recovered 8-mm rifle from Nazar Muhammad, 30-caliber pistol from Nawab and 12- caliber carbine from Shahbaz on 8-6-2008; according to Forensic Science Laboratory Report Ex.PP, weapons were found wedded with the casings recovered from the spot; Nazar Hussain, Liaqat and Sadiq, co-accused secured bail. All the accused named in the crime report were indicted by a learned Additional Sessions Judge at Shujabad on 13-12-2008 under Sections 452, 302, 109, 148, 149 of the Pakistan Penal Code, 1860; they claimed trial, pursuant whereto, prosecution produced as many as nine witnesses besides placing reliance upon forensic reports in order to bring home charge against them; of them, Muhammad Aslam (PW-1) and Allah Bukhsh (PW-2) furnished ocular account; they also narrated the motive; their narratives are in line with the case. Structured in complaint Ex.PA. The accused confronted prosecution evidence with a unanimous denial; they blamed previous enmity as the cause behind their false implication. The learned trial Judge acquitted Nazar Hussain, Liaqat and Sadiq accused from the charge, however, proceeded to convict the appellants under Section 302(b) of the Code ibid and sentenced them to death along with compensation of Rs,500,000/- each or to undergo six months SI in the event of default; they have also been erroneously fined Rs,50,000/- each or to suffer six months SI in default of payment thereof; it is further ordered that fine be recovered as arrears of land revenue, vide impugned judgment dated 3-7-2010; the appellants were, however, acquitted under Sections 148, 149, 452 of the Code ibid. Cr1. Appeal No,1203 of 2010 by the appellants questions the vires of the impugned judgment whereas M.R. No,124 of 2012 seeks confirmation of death penalty; these are being decided through this single judgment.
2. Learned counsel for the appellants contends that occurrence did not take place in the manner as alleged in complaint Ex.PA nor the witnesses were present at the scene and as such appellants' conviction on a capital charge with ultimate penalty is not sustainable; that motive does not provide structural strength to the prosecution case, as in the backdrop of alleged motive, there was no occasion for the appellants to go for the deceased in lieu of Allah Bachaya, who had in fact committed the earlier murder; that dispatch of the casings subsequent to appellants' arrest renders Forensic Science Laboratory Report Ex.PP as inconsequential; that it is extremely improbable that appellants would have chased the deceased so as to enter the house and thereafter drag him to the field of occurrence to finally gun him down. Contrarily, the learned Law Officer assisted by learned counsel for the complainant contends that prosecution successfully drove home charge against the appellants through ocular account furnished by two natural witnesses, duly corroborated by medical evidence .As well as motive and recoveries; that it is a daylight occurrence and as such there is no question of mistaken identity and that substitution is a rare phenomenon antithetical to retributive human instinct. Lastly, it is argued that given the violence inflicted upon the deceased, who was Masoom-ud-Dam, confirmation of death penalty is called for.
3. Heard. Record perused.
4. No doubt, it is a daylight occurrence and the motive asserted by the prosecution is a common ground, so is awful violence suffered by the deceased. It also goes without saying that both the eye-witnesses are in a unison with each other and weapons recovered are consistent with the injuries noted by the medical officer, nonetheless, certain aspects of the prosecution case warrant serious consideration in order to ensure safe administration of criminal justice, particularly, in a case involving irreversible penalty of death for no less than three persons. The magnitude of violence suffered by the deceased reflects not only the callousness but intensity of vendetta that the assailants sought to quench; in this backdrop, the story of hot pursuit by the appellants compelling the deceased to flee and run into safety without being fired upon by the appellant present in his footsteps is a question mark; if at all, they were behind him, they could have conveniently knocked him down without loss of time outside the house, as apparently there was no point to incur an avoidable risk of entering the house to possibly encounter an 1 unanticipated unfavourable situation and if at all that was done after breaking the door when as per complaint Ex.PA, the witnesses were already staying away out of fear, there is seemingly no point in dragging the deceased to the field of occurrence' situated at some distance from the house when the intended purpose could have been achieved then and there. Another improbable aspect of the case is that in the backdrop of stated motive, the appellants, though highly charged, spared Muhammad Aslam complainant, brother-in-law of Allah Bachaya and Allah Bukhsh, both of age and able-bodied members of the family. Prosecution has brought nothing on the record to prove breaking of the door, as neither the broken latch nor the door is taken into possession nor there is any such reference in the inspection notes. Similarly, there is no sign of dragging noted by the Medical Officer, who examined the deceased twice before and after his death. Even the learned trial Court has acquitted the appellants from the charge of house trespass within the contemplation of Section 452 of the Code ibid; neither the complainant nor the State has challenged acquittal from the said charge. Pursuit by the appellants, criminal trespass and forcible removal of the deceased in the field of occurrence is the mainstay of the prosecution case suspected by no other than the Investigating Officer Ghulam Rasool Tahir, SI himself (PW-5), who admitted in his cross-examination that: "the complainant and the witnesses as per police file had reached the place of occurrence immediately after occurrence. - Admitted that complainant at the time of occurrence was not available at the spot."
' Insofar as the argument that substitution is a rare phenomenon and that there was no earthly reason for the complainant and the PWs to swap the real culprits with the appellants, no doubt, retributive human instinct, ordinarily impels an aggrieved to go for the wrongdoer, however, the possibility cannot be ruled out altogether, particularly, in cases where the complainant and the accused are pitted in long standing enmities and in an unwitnessed occurrence, traditional enemies. Through non-deliberate and conscious substitution are arrayed as accused on the basis of guess-mark; such situations have been aptly illustrated in the case of Muhammad Ramzan alias Boota v. The State (PLD 1999 Lahore 221). Even otherwise, this argument by the learned Law Officer cannot be received with approval in isolation with other aspects of the prosecution case referred to above which when taken together admit a real possibility that occurrence did not take place in the manner it is alleged in complaint Ex.PA. Dispatch of casings subsequent to appellants' arrest does not much support the prosecution on the subject of recoveries.Narrative renditions by the witnesses do not fit within the ambit of probability. Mere accusation, no matter how impressively articulated and supported by investigative details, cannot alone sustain the charge unless upon contemplation it is found confidence inspiring on the touchstone of probability. A single suspicious circumstance lurking behind the prosecution case entitles an accused to claim benefit thereof.
Prosecution case is fraught with improbabilities and doubts, therefore, it would be grievously unsafe to maintain the conviction. Consequently, Crl. Appeal No, 1203 of 2010 is allowed; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case.
' Murder Reference No,124 of 2012 is answered in NEGATIVE and death sentence is NOT CONFIRMED.