QAZI MUHAMMAD AMIN AHMED, J:-. Mazhar and Zafar, appellants herein, are in receipt of a guilty verdict, returned by a learned Additional Sessions Judge at Tandlianwala vide impugned judgment dated 30-09-2013; they stand convicted under Section 302(b) read with Section 34 of the Pakistan Penal Code, 1860 for committing Qatl-e-Amd of Sarfraz, 40/45, hereinafter referred to as the deceased, at 11:30 a.m on 4-9-2010 within the area of Mauza Jalli Tarhana, situating at 4-kilometers from Police Station Garh, District Faisalabad; the former is sentenced to death with compensation of Rs.200,000/- or to undergo six months simple imprisonment in the event of default whereas the latter to imprisonment for life with compensation of Rs.200,000/- or six months simple imprisonment in default of payment thereof with benefit of Section 382-B of the Code of Criminal Procedure, 1898; co-accused, namely, Taj and Ashraf were, however, acquitted. Mustafa, co-accused was tried separately as juvenile.
Prosecution case is founded upon state ment (Ex.DA) of Jewan (PW-1), brother of the deceased, recorded by Liaqat Ali, S.I (CW-1) at 12:00 p.m. on 4-9-2010. According to the complainant, on the fateful day, at about 11:30 a.m. the deceased, his sister Manzooran Bibi (PW-2) along with her son Naseer Ahmad visited him at his tube-well; on their way back home, as they reached near the field of Muhammad Nawaz, the appellants accompanied by Ashraf, Mustafa, Taj and Zainab, variously armed, emerged all of a sudden; Taj accused exhorted that the deceased be not spared; the deceased attempted to run into safety when Mustafa, co-accused made first fire shot hitting on his legs whereupon he felled on the ground followed by fire shots by Ashraf and Zafar hitting him on the backside of his neck. Mazhar accused dealt repeated blows with Toka cutting the skull horizontally. Taj accused concluded the occurrence by exclaiming that he had avenged the murder of his son Jafar. It is alleged that Zainab daughter of Taj accused induced the deceased through a telephone call to visit his children in the house of Manzooran Bibi (PW-2) sister of the complainant but as she as well as her son Munir Ahmad were suspicious about the message, they along with the deceased visited the complainant. Motive for the crime is a previous murder wherein one Jafar son of Taj was murdered; brother of the deceased Muhammad Ali and his nephew Ghulam Qadir were tried in the said case and sentenced to imprisonment for life.
Dr. Muhammad Afzal (PW-3) conducted autopsy at 4:45 p.m and noted as many as 7 injuries of different dimensions on forehead, neck, knee joint and right leg; injury on head damaged the skull, generating hemorrhagic shock resulting into an immediate death; probable time between death and postmortem was estimated as 3-6 hours.
Liaqat Ali, SI (CW-1) carried out initial investigation; he collected bloodstained earth besides taking other investigative steps of formal nature. Mazhar , Taj and Ghulam Mustafa, accused were exonerated while Zafar , Ashraf and Mst. Zainab, were arrested on 25-10-2010; pursuant to their disclosures, Zafar appellant led to the recovery of bloodstained Toka (P-1) whereas Ashraf got recovered gun (P-2); Mst. Zainab passed away during the trial. Dissatisfied with police investigation, the complainant instituted a private complaint on 26-03-201 1 wherein he asserted that his statement (Ex.DA) was not faithfully recorded and that entire exercise was calculated to subvert the prosecution case; while keeping the number of the accused intact, the complainant massively, shifted from his previous position and changed the roles earlier assigned to different accused. In the wake of issuance of process, the accused were indicted by a learned Addl. Sessions Judge at Tandlianwala on 18-4-2012, as they claimed trial, prosecution in order to bring home the charge, besides relying upon forensic reports, produced as many as 9 witnesses inclusive of a court witness; of them, Jeewan (PW-1) and Mst. Manzooran Bibi (PW-2) furnished ocular account; it is prosecution's main reliance. The accused confronted prosecution evidence with a unanimous denial.
Unimpressed by the position taken, the learned trial Judge vide impugned judgment dated 30-09-2013 proceeded to convict and sentence the appellants as referred to above, however, Taj and Ashraf co-accused were acquitted from the charge. Crl. Appeal No.1508 of 2013 disputes the vires of the impugned judgment whereas the State seeks confirmation of death penalty vide Murder Reference No.4 of 2014; since a common thread binds the both, 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 application (Ex.DA); that prosecution story is extremely unnatural and improbable that spells out a scenario altogether different; that there was no occasion for no less than five persons to jointly gun down a single target when the task could have been accomplished by every single of them and thus according to the learned counsel, it was a case of casting of a wider net; that complainant's departure from his previous position and assignment of new roles is suggestive of the fact that he was not present at the crime scene and changed his position so as to be in line with medical evidence; that evidence disbelieved qua identically placed co-accused cannot be relied upon vis--vis the appellants without independent corroboration, according to the learned counsel, hopelessly lacking in the case; the bottom line is that prosecution failed to prove its case beyond reasonable doubt and as such there was no occasion for the learned trial Judge to convict the appellants. Contrarily , the learned Law Officer has defended the impugned judgment on the ground that the witnesses had no axe to grind against the appellants and their testimony could not be discarded merely on account of their relationship with the deceased; as both sides hail from a common background, divided on account of previous murder; that motive was clearly pointed upon the culpability of the appellants and there was seemingly no reason for the complainant and the PWs to swap the real culprits with the innocent; being from the locality , the witnesses were natural; it is lastly concluded by the learned Law Of ficer, who given the brutality inflicted upon the appellants, prayed for confirmation of death penalty .
3. Heard. Record perused.
4. Jeewan (PW-1) is architect of the case; he is real brother of the deceased as well as Manzooran Bibi (PW-2) and admits that he lived in Chak No.488-GB, however , volunteered in next breath that simultaneously he resided in Jally Tarhana as well where the occurrence took place; this conflicting stance militates against the hypothesis of his presence at the crime scene, statedly a tube-well, not a choice point where the deceased and PWs would call upon him unanticipatedly . Zainab co-accused (since dead), admittedly in wedlock with the deceased, had been arrayed to have conspired and accompanied the co-accused in the ambush, a purposeless arrangement hardly necessitated in circumstances.
Complainant' s case, prosecuted through private complaint, is in diametrical conflict with his initial statement related in First Information Report (Ex.PG); he attempted to disown the story by conveniently alleging his thumb impression on a blank paper , manipulated by the Investigating Officer to favour the accused; justification is far from being plausible; duly confronted in the cross-examination, he is found poles apart from his previous position.
According to the First Information Report, Mustafa armed with pistol, Ashraf and Zafar armed with guns hit the deceased on different parts of his body, with multiple gun shots, however, as per medical evidence, furnished by Dr. Muhammad Afzal (PW-3), there is no firearm injury noted by him on the dead body; it is hard to conceive that a witness, that too, in broad daylight would run into such a grievous error in his observations regarding the weapons used and impact thereof on the deceased. Both sides, hailing from the same modest background, it sounds ludicrous that a sub-inspector, would risk his career by subverting a case of homicide reported just after 30 minutes at the crime scene. Allegation of interpolation merits outright rejection.
Five accused accompanied by an empty handed female are alleged to have participated in the occurrence; weapons assigned to them include firearms as well as hatchet; they are shown in an ambush to surprise the deceased and the witnesses; it is mind boggling as to why all of them, one after another , would come down heavy on the deceased, a solitary target at their mercy , when every single of them could independently accomplish the task without putting the remainders at risk; this unnatural aspect of the case admits space to entertain the hypothesis of casting of a wider net; previous enmity reinforces the apprehension and so is the investigative conclusion whereby all the accused except Zafar , Ashraf and Zainab Bibi (since dead) were issued a clean chit by the Investigating Of ficer.
Prosecution witnesses have been disbelieved qua identically placed co-accused, namely, Ashraf, Mustafa and Taj; they had been assigned effective roles vis--vis the deceased in First Information Report (Ex.PG); blamed again in private complaint Ex.PA/1 albeit with different roles, however, acquitted from the charge; in this backdrop, the same set of witnesses cannot be relied upon to sustain the charge against the appellants in the absence of independent corroboration, all the more necessary as the witnesses as well as the accused shared an inimical past with each other.
Once a witness is found to have deviated from his initial stance in a manner that brings about a change in the entire complexion of the case, his evidence cannot be safely relied upon. Given the previous enmity even a straightforward account would warrant a cautious scrutiny whereas in the present case there are more than one factors, illustrated above which cast a dark shadow of doubt on the veracity of prosecution case; bald allegation of treachery by Liaqat, SI (CW-1) cannot rescue the prosecution for departure from its initial position in order to bring the ocular account in line with medical evidence. Prosecution case is fraught with doubts; doubts that a prudent mind would not decline to entertain being illusory or imaginary and as such the appellants are entitled to benefit thereof; consequently , Crl. Appeal No.1508 of 2013 is allowed ; they are acquitted from the charge and shall be released forthwith, if not required in any other case. MURDER REFERENCE No.4 of 2014 is answered in the NEGA TIVE and death sentence is NOT CONFIRMED.