QAZI MUHAMMAD AMIN AHMED, J:-. Yasir, appellant herein, is in receipt of a guilty verdict on three counts of homicide, returned by a learned Additional Sessions Judge at Faisalabad vide impugned judgment dated 07-12- 2011 for committing Qatl-e-Amd of Zubaida Khatoon, 42/43, Sana Batoo l, 22/24 and Muhammad Rashid, 19, hereinafter referred to as the deceased, on 04.05.2008 at 11:30 p.m. within the area of Chak No.78/JB, situating at 24 kilometers from Police Station Saddar , Faisalabad; convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860, he is sentenced to death on each count with payment of compensation of Rs.200,000/- or two months simple imprisonment in the event of default; additionally convicted under Section 324 of the Code ibid, he is sentenced to seven years rigorous impri sonment with fine of Rs.20,000/- or two months simple imprisonment in default of payment thereof; Azhar co-accused was acquitted from the charge vide the same judgment; Javed and Afsar co-accused are still away from the law .
Prosecution case is founded upon statem ent (Ex.PY) of Tayyab Qasim, (PW-16) recorded by Shafqat Hussain, SI (PW-18) 12:15 p.m. at the spot; according to him, on leave from Artillery Signal Core, he along with his father Abdul Haq (PW-17), mother Zubaida Khatoon, brother Muhammad Rashid and sister Sana Batool was asleep on cots in the courtyard; electric bulbs on the outer gate and veranda were glowing when at about 11:30 p.m. Abdul Haq PW was awakened by the sound of steps to see three persons descending staircase; of them appellant was identified with a repeater shotgun; it is alleged that the assailants jointly started firing upon the inmates; fire shot by the appellant hit Zubaida Khatoon and Muha mmad Rashid while the remainder targe ted Sana Batool, deceased; as the complainant raised alarm, the appella nt fired at him on his right arm. The dece ased succumbed to the injuries at the spot. According to the complainant, the appellant wanted to marry Hina Batool, complainant' s another sister and the deceased did not approve the proposal; Hina Batool subsequently contracted marriage with one Adnan Arshad and it is for this grudge, the appellant allegedly committed the crime alongside two unknown culprits.
Dr. Bashir Ahmed (PW-9) conducted autopsy on the dead body of Muhammad Rashid at 8:45 a.m. on the following day; he noted 10 firearm injuries on chest, forearm, left leg and right knee; left lung and blood vessels were ruptured; hemorrhagic shock was blamed for immediate death while time between autopsy and death was estimated as 12 hours. Sana Batool died instantaneously by hemorrhagic shock as well generated by injuries on her chest, right shoulder, thigh, buttock and right hand and same is the case with Zubaida Khatoon due to injuries on her face, chest, left clavicle and abdomen; in both cases time between death and postmortem was reckoned as 12 hours. Tayyab Qasim (PW-16) was medically examined at 2:00 a.m. on 4-5-2008; medical officer noted a firearm entry wound on his right wrist joint with a corresponding exit behind accompanied by a lacerated wound on right wrist.
Shafqat Hussain, SI (PW-18) carried out initial investigation; during spot inspection, he collected cots (P-17 to P- 19), bloodstained clothes (P-20, 21) and 10 casings of 12-caliber (P-23/1-10), secured vide inventory; as the investigation progressed, the complainant improved upon his case through application dated 25-5-2008 wherein he graduated the number of accused from three to four and also introduced three unknown culprits as Javed, Afsar Ali and Azhar. The appellant was arrested on 5-6-2008 and pursuant to a disclosure, led to the recovery of 12- caliber gun (P-20). Investigation was taken over by Muhammad Aslam, S.I; he arrested Azhar Shah alias Panuu co-accused on 7-3-2009 and recovered 12-caliber Repeater (P-16). After completion of investigation, both the accused were sent to face trial before a learned Addl. Sessions Judge at Faisalabad; when indicted on 26-6-2009 they claimed trial, pursuant whereto, prosecution produced as many as 19 witnesses to drive home the charge.
Ocular account furnished by Tayyab Qasim (PW-16) and Abdul Haq (PW-17) constitute the mainstay. On forensic side reports (Ex.PQQ & Ex.PRR) are in the negative. The appellant confronted prosecution evidence with a denial. The learned trial Judge, however, proceeded to convict and sentence the appellant as referred to above vide the impugned judgment, vires whereof, are being assailed through Crl. Appeal No. 154-J of 2012; State seeks confirmation of death penalty vide Murder Reference No.250 of 2012; there being a common thread, these are being decided through this single judgment.
2. Learned counsel for the appellant contends that occurrence being a night affair, appellant' s conviction after acquittal of identically placed co-accused is not sustainable; that there was no necessity or occasion for the assailants to come down from the rooftop to accomplish the task when they could conveniently carry out the exercise from a safe distance without exposing themselves to the witnesses; that complainant' s initial silence to name the co-accused and their subsequent nomination in the absence of any reference to the source that improved upon his knowledge heavily reflects on the prosecution case; that First Information Report was not recorded at a point of time stated there in, as it was humanly not possible for the witnesses to capture minute details of the occurrence in an extreme crisis situation and as such, various attributions merit outright rejection; that graduation of number of accused raises the prosecution case to the ground; that a negative forensic report as well as motive alleged in the crime report do not extend structural strength to the prosecution case either; the bottom line is that prosecution case is fraught with doubts and it would be extremely unsafe to maintain the conviction.
Contrarily , the learned Law Officer has defended the impugned judgment on the ground that prosecution has successfully driven home the charge beyond a reasonable doubt with the assis tance of natural witnesses i.e. inmates of the house, whose presence cannot be doubted, particularly in view of receipt of injuries by the complainant; that a source of light duly mentioned in the crime report, there is no case of mistaken identity nor there is any basis to entertain any hypothesis of substitution. It is argued that since the appellant was arrayed by his name in the crime report on the day one, acquittal of co-accused out of abund ant caution would not adversely impact upon the prosecution case. It is concluded that the ocular account in itself excludes every hypothesis of appellant' s innocence and he cannot escape consequences of his crime merely on the basis of negative forensic report; enormous loss of life inside the safety of a dwelling has been pressed for confirmation of death penalty .
3. Heard. Record perused.
4. Syed Tayyab Qasim (PW-16) is prosecution's star witness; he sustained a pallet injury accompanied by a lacerated wound during the occurrence; being an inmate as well as the injured, albeit with possibility of self- infliction, his presence at the spot may not be possibly doubted, however, whether he is telling the whole truth and that he was in a position to identify the assailants are entirely different issues; he nominated the appellant alone by name in the crime report and subsequently pointed his finger upon Azhar Mehmood and Muhammad Javed as well; he distinctly assigned the last two accused fire shots to the deceased; his improved version includes presence of two more accused on the rooftop that include Afsar Ali (PO) by his name; these two accused are conspicuously missing in the crime report; the witness does not refer to any subsequent disclosure by the deceased, however, the defence brought on record application dated 25-5-2008 (Ex.DA) wherein source of information is cited as Muhammad Akram and Abdul Majeed, real brothers of Syed Abdul Haq Shah (PW-17), to share information about the accused with the complainant. It is mentioned in Ex.DA that the said witnesses had viewed the occurrence from beneath the outer gate; these witnesses have been produced by the prosecution and, thus, complainant's improved version cannot be credibly received. It otherwise impacts negatively for the reason that Azhar acquitted co-accused is inexorably placed in an identical position with the appellant; his acquittal has not been challenged either by the State or the complainant. Though there is a reference to electric bulbs, however, the prosecution is discrepant upon this aspect of the case as well; in the crime report, two bulbs find mentioned, one on the outer gate and other in the veranda, however, according to the complainant, three bulbs were illuminating, enabling the witnesses to identify the culprits; none has been taken into possession and in the site plan, these are shown at point No.7 alone. It is in the statement of Syed Abdul Haq (PW-17) that occurrence took few seconds whereafter the assailants decamped from the scene. With a suspect source of light, momentary glance of the accused inescapably hovers upon question of identity of the assailants whereas according to the complainant (PW-16), the accused kept on firing continuously for about five minutes; though in an extreme crisis situation like one in hand, time durations cannot be expected with exactitude, nonetheless, these are two positions poles apart. According to the complainant, Abdul Haq (PW-17) woke up on the sounds of footsteps while the accused were coming down from the staircase, however, this is not the case with the witness who stated to have awoken upon hearing the report of first fire shot. According to Syed Tayyab Qasim (PW-16), the assailants made fire shot straight while standing in front of the victims, however, some of the casings were secured by the Investigating Officer from the staircase, suggestive of fire shots therefrom.
According to site plan (Ex.PM), the house of occurrence is surrounded by adjoining houses except for a vacant plot on northern side and a lane in the east with its main gate; it is mind boggling as to how the assailants, five in number, reached the rooftop without being noticed by the neighbours in a summer night and same goes for their subsequent departure from the crime scene again from the rooftop instead of adopting a convenient exit through the main door. Notwithstanding colossal loss of life, that too, inside the safety of a home after sunset, appellant's culpability is not free from doubt, as both the witnesses massively improved upon their previous statements not only in terms of identification of the assailants with their respective roles as well as specification of weapons used but also graduation of their number from three to five. Recoveries with a negative forensic report as well as motive revolving around Sana Batool and her choice husband, do not advance prosecution case either.
Prosecution case far from evidentiary certainty is fraught with doubts and thus, it would be unsafe to maintain the conviction. Consequently, by extending benefit of doubt to the appellant, Crl. Appeal No. 154-J of 2012 is allowed; impugned judgment dated 7-12-2011 is set-aside; he is acquitted from the charge and shall be released forthwith, if not required in any other case. MURDER REFERENCE No.250 of 2012 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.