QAZI MUHAMMAD AMIN AHMED, J:-. Shakeel Ahmad, appellant herein, is in receipt of a guilty verdict, returned by a learned Additional Sessions Judge at Sheikhupura vide impugned judgment dated 29-06-2012; he stands convicted under Section 302 (b) of the Pakistan Penal Code, 1860 for committing Qatl-e-Amd of Sana Ullah, 48/50, hereinafter referred to as the deceased, on 9-8-2009 within the area of Purani Bhakhi Tibba, Sheikhupura, situating at one kilometer from Police Station Bhakkhi; he is sentenced to death with payment of compensation of Rs.150,000/- or six months simple impri sonment in the event of default; Safdar and Shafqat, co-accused were acquitted from the charge so was Umair Amjad tried separately being juvenile.
2. Prosecution case is founded upon application (Ex.P A) of Munawar Hussain (PW-1) received by Muhammad Nawaz, S.I (CW-4), 6:05 p.m. on 09-8-2009 at Tibba Bhikhi . According to the complainant, on the fateful day at about 4:00 p.m. he visited the deceased at his residence to consult him about a criminal case; Falak Sher and Hafeez Ullah, PWs were also present there; at about 5:00 p.m. the appellant knocked at the door and within their view, the deceased accompanied him so as to return a while later; as the witnesse s suspected a possible foul play, they hurriedly went to appellant' s home and while entering therein saw Safdar Musa, Shafqat Musa, Umair Amjad and the appellant, respectively armed with hatchet, pistols and dagger; Shafqat Musa made a burst shot hitting the deceased on his left shoulder followed by a shot by Umair Amjad on his right hand; the witnesses attempted to intervene but were kept at bay under threat. It is alleged that Safdar Musa dealt multiple hatchet blows on left knee and upper part of head while Shakil dealt a dagger blow on the flank. The deceas ed succumbed to his injuries at the spot. Motive for the crime is previous enmity of murders.
Autopsy was conducted following day by Dr. Zahoor Ahmad (CW-2); he noted eight injuries comprising of five firearm entry wounds with their exits accompanied by three incised wounds on different parts of the body; injury on the head severed its upper portion and was blamed as cause of death, occurred immediately with probable duration vis--vis the postmortem examination within 12 to 18 hours.
During spot inspection, Muhammad Nawaz, S.I (CW-4), beside taking other investigative steps of formal nature, collected bloodstained earth as well as 12-casings of 30-caliber (P-6/1-13). Safdar , Shafqat and Umair Amjad, co- accused were exonerated by the Investigating Officer. The appellant arrested on 23-08-2009, pursuant to a disclosure, led to the recovery of 30-caliber pistol (P-4) and sickle (P-5). Forensic report (Ex.PF) is in the negative.
Dissatisfied with the investigation, complainant preferred to institute a private complaint (Ex.PB) wherein all the accused nominated in the crime report were sent for by a learned Addl. Sessions Judge at Sheikhupura; they claimed trial on 29-6-2012, pursuant whereto, prosecution in order to drive home the charge produced as many as ten witnesses; they included five court witness; of them, Munawar Hussain (PW-1) and Hafeez Ullah (PW-2) furnished ocular account; it is prosecution' s main reliance. The accused confronted prosecution evidence with a unanimous denial. The learned trial Judge vide the impugned judgment acquitted Safdar and Shafqat co-accused from the charge, however , proceeded to convict and sentence the appellant as referred to above. Crl. Appeal No.323-J of 2012 disputes the vires of the impugned judgment whereas the State seeks confirmation of death penalty vide Murder Reference No.392 of 2012; these are being decided through this single judgment.
2. Learned counsel for the appellant contend that prosecution case is fraught with inconsistencies, improbabilities and contradictions and as such unworthy of reliance; that motive set up by the prosecution is fake, even not proved, as such does not extend structural strength to the prosecution case; that evidence disbelieved qua majority of the identically placed co-accused cann ot furnish basis for appellant' s conviction in the absence of independent corroboration, hopelessly lack in the case; that presence of the witnesses at the crime scene, in the manner and background they claimed to have viewed the crime being highly unnatural and improbable, merits outright rejection; the bottom-line is that prosecution miserably failed to prove the charge beyond reasonable doubt. Contrarily , the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment on the ground that with the assistance of eye witnesses, prosecution proved the 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 the witnesses partially disbelieved qua the co-accused. Massive violence inflicted upon the deceased has been emphasized for confirmation of death penalty .
3. Heard. Record perused.
4. Prosecution narrative, notwithstanding, the very genesis of the case is suspect to say the least. Deceased' s departure with the appellant in the middle of a specially arranged consultation meeting without taking the witnesses into confidence with regard to its purpose and reason is mind boggling; it could have been deferred for a while, as apparently there was no urgency involv ed. Similarly , there is no logical basis as to why the witnesses got concerned so as to follow the deceased, shortly after he left them, particularly when he asked them to await his return so as to conclude the discussion. Witnesses' arrival at the crime scene in the absence of any information shared by the deceased with them about his detour and that too exactly at a point of time when he came under assault is really intriguing; it is a sheer coincidence; such coincidences seldom occur . It is hard to believe that four accused, variously armed and hell-bent upon the deceased, tooth and nail, would keep the outer door opened to allow a smooth entry by the witnesses to view the crime and then return unscathed. The only irresistible conclusion, to be possibly drawn, is that the deceased did not confront his torturous death in the manner as alleged in the crime report. There was no necessity for the accused to undertake such an elaborate exercise, if at all, they had to commit the murder by exposing themselves to the witnesses.
A vaguely formulated non-specific motive is not commensurate with the magnitude of violence inflicted upon the deceased, the Medical Officer noted incised as well as firearm wounds with extensive damage to the head; the same motive was available to them qua the complainant; only role assigned to the appellant is possibly an incised wound inflicted with a dagger on back of left chest, however, the Investigating Officer recovered pistol (P-4) and sickle (P-5) from the appellant; remainder of the injuries are assigned to the co-accused, not only exonerated by the Investigating Officer but acquitted from the charge by the Court as well. Evidence disbelieved qua majority of the accused attributed heavier roles cannot sustain the charge against the appellant, blamed for solitary dagger blow. No amount of corroboration can fill up the void created by the departure of co-accused from the scene; with them case against the appellant is also cast away. It has been pointed out by the learned counsel for the complainant that a petition seeking Special Leave to Appeal against the acquittal of co-accused has since been dismissed by a learned Judge in Chamber for want of prosecution way back on 11-4-2014; learned counsel's reliance upon Criminal Miscellaneous No. 1539-M/2017 ,still at the threshold, seeking revival thereof, is beside the mark; much water has flown under the bridge and delay in attempts against acquittal is seldom condoned.
Prosecution case is fraught with doubts; doubts neither illusory nor imaginary rather patent in stated positions, thus, it would be grievously unsafe to maintain the conviction. Consequently, by extending benefit of doubt to the appellant, Crl. Appeal No. 323-J 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.392 of 2012 is answered in the NEGATIVE and death sentence is NOT CONFIRMED