1. QAZI MUHAMMAD AMIN AHMED, J:-. Nasir Khan, 28/29, and Majid Khan, 24, hereinafter referred to as the deceased, were gunned down at 1:30 p.m. on 11.03.2009 within the area of Dhok Jhadha , situating at 21- kilometers from Police Station Pindigheb; incident was reported by their paternal uncle Hasham Khan (PW-3) through complaint (Ex.CW/7A) recorded by Ali Akbar , S.I (CW-8), 3:15 p.m. same day at Civil Hospital Pindigheb.
2. The complainant as well as Muhammad Safdar (PW-4), Haroon ur Rasheed (PW-5) and Arif Khan (PW-6) sustained injuries during the occurrence. Statement (Ex.CW -7/A) is initial foundation of complainant' s case, subsequently abandoned and prosecuted through a private complaint. It is alleged that on the fateful day, the deceased after attending hearing in a case of homicide pending before an Addl. Sessions Judge at Attock along with Hashim Khan (PW-3), Muhammad Safdar (PW-4), Arif (PW-6), Sakhawat and Haroon-ur-Rasheed (PW-5) came at Mathial Chowk wherefrom they boarded on a vehicle and alighted near Dhok Jhamra at 1:30 p.m; they hardly covered few paces when a white car intercepted them wherefrom Tasawar Khan armed with Kalashnikov , Munir Khan and Zulfiqar armed with rifles, Zulfiqar armed with 8-mm rifle de-boarded; they were joined by Khizar armed with 12-caliber gun, Shahzad with rifle and Fayyaz with a 12-caliber already ambushed besides wheat crop.
3. Tasawar Khan exhorted that they would be taught a lesson for murder of Fida, immediately whereafter , Tasawar Khan started straight firing with his Kalashnikov hitting Nasir Khan deceased on his head, chest and shoulder; he repeated fire shots on Haroon-ur Rasheed (PW-5) in his head; both felled on the ground; Munir Khan tragetted Muhammad Safdar (PW-4) with his rifle on his left leg followed by Zulfiqar with rifle fire shots on Arif (PW-6) landing on his back as well as left thigh; Zulfiqar made rifle shot on the complainant hitting right thigh while Shahzad made rifle shots on Majid Khan deceased on his head; Sakhawat PW saved his life by hiding from the assailants; the assailants decamped from the scene; Nasir Khan succumbed to his injuries at the spot; remainders were rushed to the hospital where Majid Khan also breathed his last. The PWs named above survived the assault. Motive for the crime is enmity on account of murder of one Fida.
4. Dr. Aftab Hussain Shah (PW-1) furnished medical evidence in the case; he attended the injured as well as conducted autopsies. The injured were attended at 2:15 p.m. on 11-3-2009 under police docket. Autopsy on Nasar Khan, deceased was carried out at 1:30 p.m; he suffered massive violence mostly on his face, right shoulder and left chest; in all he received seven injuries; skull bone was smashed with brain matter protruding therefrom; the injuries generated shock resulting into the death which was opined not later than half an hour, after receipt thereof; time between death and postmortem was estimated as 5 to 6 hours. Majid deceased was also medically examined in injured condition; he was noted to have three entry wounds on the top of skull and left thigh with fracture of left femur . Haroon-ur-Rasheed (PW-5) was brought unconscious with bleeding from his both ears with contused wound measuring 7 x 5 cm on right temporal region accompanied by an entry wound measuring 3 x 2 cm on lateral surface of left foot with its exit on the dorsum. Muhammad Safdar (PW-4) sustained a firearm wound 5x3 cm on the lateral surface of light leg with a clinically visible fracture above the ankle.
5. Muhammad Arif PW (PW-6) was noted to have two firearm wounds each measuring 2 x 1 cm on the left buttock as well as lateral surface of right thigh. Hasham Khan (PW-3) received solitary fire shot on the lateral surface of right thigh. Autopsy on Majid Khan deceased confirmed the earlier report with additional surgical stitched wounds.
6. Ali Akbar , S.I (CW-8) carried out initial investigation; during spot inspection, he secured bloodstained earth, twenty two casings of 12-caliber (P-22/1-3 & P-23/1-19) and nineteen casings of Kash nikove (P-24/1-19); he arrested Shahzad and Khizar accused on 13-4-2009; the latter , pursuant to a disclosure, led to the recovery of 12-caliber gun (P-11), secured vide inventory while the former was exonerated; Zulfiqar , appellant arrested on 10-5-2009 led to the recovery of rifle (P-13). The Investig ating Officer arrayed Safi-ud- Din and Rasheed alias Sheeda as accused on the disclosure of Zulfiqar appellant; one of them, namely , Safi-ud-Din got recovered Kalshnikov (P-25); Muhammad Fayyaz, co-accused arrested on 13 5-2009 led to the recovery of 12-caliber gun (P-15); Zulfiqar and Munir sons of Baz Khan co-accused were exonerated during investigation. Casings secured from the spot did not match with the weapons recovered. Tasawwar co-accused is still away from the law; he was proceeded against accordingly . Dissatisfied with the police investigation, the complainant instituted a private complaint on 23-10-2009 wherein he asserted that his statement Ex.CW -7/A was not faithfully recorded and the Investigating Officer on political influence destroyed his case and even inducted the accused of his own choice; it is alleged that entire exercise was undertaken to subvert the prosecution case. The complainant while keeping the number of the accused same in the private complaint, however , shifted from his previous position and changed the locale of injuries sustained by Arif PW; in his improved version injuries on the back were substituted with injuries on the iliac crest; Fayyaz accused who was earlier assigned aerial firing was shown to have hit Majid Khan deceased on his left thigh with a 12-caliber gun; Khizar accused with an identical previous role was assigned effective shot with a 12-caliber gun to Haroon-ur-Rasheed (PW-5); role of fire shots assigned to Tasawar Khan accused hitting Haroon- ur-Rasheed PW was substituted with butt blows.
7. In the wake of issuance of process, the appellants and co-accused were indicted by a learned Addl. Sessions Judge at Attock; on 10-5-2010, they claimed trial, pursuant whereto, prosecution in order to bring home the charge, besides relying upon forensic reports, produced as many as sixteen witnesses inclusive of eight Court witnesses; of them, Hasham (PW-3), Muhammad Safdar (PW-4), Haroon-ur-Rasheed (PW-5) and Arif (PW-6) furnished ocular account; it is prosecution's main reliance. The accused confronted prosecution evidence with a unanimous denial albeit with some variations in their positions.
8. The learned Additional Sessions Judge vide impugned judgment dated 28-11-201 3 acquitted Munir , Zulfiqar sons of Baz Khan and Khizer , co-accused, however , proceeded to convict Zulfiqar son of Abdul Sattar , Shahzad Hussain and Fayyaz, appellants under Section 302(b) read with Section 34 of the Pakistan Penal Code, 1860 and sentenced Shahzad Hussain to death along with payment of compensation in the sum of Rs.500,000/- or to undergo six months simple imprisonment in the event of default as well as sentenced to imprisonment for life with payment of fine of Rs.50,000/-or three months simple imprisonment in the event of default; for murderous assault on Hasham, Safdar, Arif and Haroon ur-Rasheed, PWs, he was sentenced to 7 years rigorous imprisonment on four counts with payment of fine of Rs.10,000/- or one month SI in the event of default each, Zulfiqar son of Abdul Sattar and Fayyaz son of Gul Baz, appellants were sentenced to imprisonment for life on two counts with payment of compensation of Rs.50,000/- each or two months simple imprisonment in the event of default; they were additionally sentenced to 7-years rigorous imprisonment on four counts with payment of fine of Rs. 10000/- each count or to further undergo one month simple imprisonment of default of payment thereof, vires whereof, are being challenged by the appellants vide Crl. Appeal No.520 of 2013, Murder Reference No.73 of 2013 seeks confirmation of death penalty awarded to Shahzad Hussain; P.S.L.A No.43 of 2013 filed by the complainant seeks leave to appeal for reversal of acquittal; these are being decided through this single judgment.
2. Learned counsel for the appellants 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 it is a case of casting of wider net in the backdrop of enmity and this is so observed by the learned trial Court as it acquitted no less than three accused assigned effective roles in the occurrence; that evidence disbelieved qua acquitted co-accused cannot be pressed into service against the appellants in the absence of independent corroboration, hopelessly lacking; the bottom line is that prosecution miserably failed to prove its case beyond reasonable doubt and it would be grievously unsafe to maintain the conviction, once it has been found that the complainant hugely exaggerated the incident. Contrarily , the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment and prayed for confirmation of death penalty on the ground that two innocent persons, in their prime youth, were done to death in a most callous and brutal manner; that prosecution case is firmly structured on ocular account furnish ed by no less than four injured witnesses, whose presence at the crime scene given the nature and locale of injuries cannot be doubted; that a local MPA, namely , Malik Khuram due to factionalism attempted to destroy the case being in connivance with the Investigating Officer; leave to appeal is prayed for conversion of acquittal into conviction on the ground that once the learned trial Judge wholeheartedly believed the witnesses qua the convicts, there was no occasion for him to take a different view vis--vis the respondents and as such the impugned view being impossible warrants interference, as it has resulted into miscarriage of justice.
3. Heard. Record perused.
4. A blood feud is raging between the parties since March,2008 when one Fida Hussain was murdered; he was real brother of Tasawar Hussain (PO).Given this background and number of accused allegedly involved in the occurrence prosecution evidence warrants a more cautious and careful scrutiny. It is not disputed at the bar that the said case was posted for hearing on the fateful day, however, appellants' convergence alongwith their co- accused in two groups at the crime scene is really mind boggling, Khizar, Shahzad and Fayyaz Khan accused were already present at the scene whereas the appellants alongwith remainder of the accused joined them at the venue soon after the deceased and the injured de-boarded the van; seemingly there is no apparent reason to contrive the alleged strategy of assault as it was humanly not possible for both groups of assailants, located differently, to anticipate arrival of the deceased and the injured at the place, they coordinated the attack; a joint encounter to confront them was a more feasible and surer method to carry out the task; in retrospect it admits a space to entertain the hypothesis of casting of a wider net; subsequent events confirm this position. As the investigation progressed, Hasham Khan (PW-3) massively deviated from his initial position; though, he acknowledged statement Exh: (CW-7/A) and his signature in token of its correctne ss and also admitted that it was read over to him before he signed the same, he alleged omissions and interpolat ions therein by the Investigating Officer under political influence in a belatedly instituted private complaint; in the witness box, he was duly confronted therewith. Another intriguing aspect of the prosecution case is the precision whereby the witnesses captured the occurrence in an extreme crisis situation so as to furnish graphic details thereof, subsequently in the witness box; it is prosecution' s own case that they were taken by surprise when came under assault all of a sudden; even the best of human faculties may not observe and recapitulate such details so comprehensively with distinct roles played by no less than seven persons; human instinct of self-protection would not permit a person to watch surroundings in preference to his personal safety . The only inference irresistibly drawn is that the exercise was undertaken after a meticulous homework.
9. In the private complaint Hashim Khan (PW-3) not only accused the Investigating Officer as being guilty of having sided with the accused but also diametrically changed the role played by Tasawar (PO) whom he had earlier assigned fire shots to Haroon-ur Rasheed (PW-5) with butt blows; this has been attempted to bring his narrative in- line with medical evidence substituting blunt weapons injuries instead of fire shot wounds earlier mentioned in the crime report.Another startling disclosure during the investigation is participation of Safi-ud-Din and Rasheed accused having committed the occurrence, they were not named in the crime report; Munir , Zulfiqar and Khizer Hussain accused assigned affective roles during the occurrence were exonerate d and thus acquitted from the charge; casings secured from the spot when compared with the weapons recovered did not constitute any nexus therewith as Forensic Science Laboratory Report (Ex.PKK) is in the negative.
10. Yet another question mark focused upon the prosecution is that as to why all the accused would incur an avoidable risk of participation in a joint assault when every single of them could have accomplished the task given the weapons they allegedly carried; this hypothesis is reinforced by the motive heavily revolving around Tasawar (PO) as his brother Fida was murdered in the said case, as well as by exoneration of Munir , Zulfiqar and Khizar Hayat co-accused, besides a negative forensic report; circumstances suggestive of a wider net.
11. Presence of four injured eye witnesses, argued with vehemence in support of the charge, is beside the mark.
12. There is a continued judicial consensus that injuries on the persons of witnesses, regardless of their numbers and intensity, by themselves do not sanctify their statements as essentially being truthful; like any other witness, they also must qualify on the touchstone of probability with the ring of truth in their depositions. The witnesses seemingly are part of an unholy alliance, manipulating the incidence to wipe out all their adversaries, both present as well as away from the scene.
13. In the above backdrop, the learned trial Judge while acquitting three out of six accused, convicted the appellants through sifting of prosecution' s evidence, an exercise defended by the learned Law Officer. Principle of sifting, can be applied in an appropriate case in the face of prosecution' s partial failure qua some of the accused, without impairing the mainstay of the case, in order to convict an identically placed co-accused after exclusion of every hypothesis of his innocence with the assistance of independent corroboration; it is essentially based upon a bonafide judicial concern that a criminal must not escape justice if otherwise his guilt is positively established; it can be relied upon in aid of justice, however, the principle has its inherent limitations and certainly cannot be invoked in situations where witnesses are found hell-bent to implicate every able bodied opponent, assigned with indivisible roles nor the principle can be applied to blanket perjury and patent falsary or condone attempts aimed at hounding the innocent through abuse of process of law. In the present case, assignment of roles to the appellants as discussed above, is suspect to say the least, there is no independent corroboration except for the motive primarily focused upon the absconder; the complainant has deviated from his initial position; recoveries being inconsequential do not advance prosecution case, therefore, implicit reliance upon the statements of inimical witnesses through sifting of prosecution evidence on the basis of analysis, wildly imaginative, would be grievously unsafe, as it is not humanly possible with any degree of certainty to draw any distinction between the guilty and the innocent. The case is fraught with doubts and risks, brought about by no other than the complainant and his associates themselves, thus by extending benefit of doubt, Crl. Appeal No.520 of 2013 is allowed; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No.73 of 2013 is answered in the NEGATIVE and death sentence is NOT CONFIRMED .
14. As a natural corollary of findings above, Crl. P .S.L.A. No.43 of 2013 stands dismissed.