QAZI MUHAMMAD AMIN AHMED, J:-Abdul Raheem, 70, henceforth referred to as the deceased, was running mate alongside Malik Abbas aspiring return from Union Council Bagga Sheikhan as Vice Chairman; on the fateful day i.e. 11-1-2014, he was campaigning with Malik Shoukat (PW-2), younger brother Azhar Hussain (PW-3), Kamran Raheem nephew and Aamir Shahzad (given up PWs) in vehicle bearing registration Peshawar-N/1921, when they received information about attempts by the appellant and his companion to take over possession of a plot, statedly owned by Shoukat PW; as they reached the venue at 4:45 p.m. they saw the appellant, Javed son of Zahoor , Fayyaz son of Arif, Ghulam Hussain son of Gulab and Sajid son of Mehb oob, armed with rifles and pistol with one Mazhar while unloading cement blocks. As the deceased de-boarded the vehicle, upon exhortation by Javed accused, the appellant hit the deceased with a straight fire shot on his left flank; remainder of the accused fired upon the vehicles. According to the complainant, Shoukat and Kamran PWs wanted to de-board the vehicle, however , he sped away from the scene; the firing from the accused smashed the window panes; gun reports attracted the neighbourhood whereupon the accused took to the heels; the deceased in injured condition was being shifted to the hospital, however , succumbed to the injuries. A previous altercation over the plot between Shoukat PW and the appellant as well as attempt to take forcible possession are cited as motive for the crime. Written application Ex.PD/1 by the complainant was received at 7:45 p.m. by Aslam Shahzad SI (CW-2) at D.H.Q. Hospital Rawalpindi to commence investigation.
Site inspection includes seizure of bloodstained earth, 19 casings (P-1/1-19), tractor (P-5), trolley (P-6), Prado (P-2), secured vide inventories, besides preparation of site plan without scale (Ex.CW-2/A).
Autopsy is conducted at 11:56 p.m. by Dr. Adnan Zahid (PW-1) who noted solitary fire shot 1 x 1 cm on left lumber region with burnt margins, above iliac spine, exiting from hypochondriam below right axilla, after rupturing liver, left kidney , small intestine and omentum; injury was blamed to have generated hypovolemic shock due to major blood loss on account of damage to liver/kidney , within 15 to 45 minutes; time betwe en death and postmortem was estimated as 6 to 10 hours.
Upon transfer of Aslam Shahzad SI (CW-2), the investigation was taken over by Saeed Akbar (CW-9); he arrested Mazhar , Fayyaz, Sajid and Javed on 22-2-2014 followed by the appellant on 4-3-2014; he exonerated the accused, arrayed in the crime report and instead blamed Ghulam Hussain, Tahir alias Doodi, Asif, Khubsoorat driver , Umair and Mazhar for their presence at the crime scene; he proceeded against them under section 512 of the Code of Criminal Procedure 1898 and it was in this backdrop that the complainant instituted a private complaint wherein process as issued against the accused originally named by the complainant. Substituted set of accused was let off; indicted on 10-12-2015, the accused claimed trial before a learned Addl. Sessions Judge at Rawalpindi, pursuant whereto, fifteen witnesses were examined; of them five for the prosecution. Prosecution edifice is structured upon ocular account furnished by Azhar Hussain (PW-2) and Shoukat (PW-3); former is brother of the deceased as well as architect of the case. On forensic side, blood secured from the spot was found that of human origin; there are no recoveries from the accused; a gun was secured from Tahir alias Doodi, as such inconsequential. Confronted with prosecution evidence the accused rallied behind a unanimous denial. The learned Addl. Sessions Judge proceeded to acquit Javed, Sajid, Fayyaz and Mazhar from the charge however convicted the appellant under clause (b) of Section 302 of the Pakistan Penal Code, 1860; he is sentenced to imprisonment for life with compensation in the sum of Rs.200,000/- or six months simple imprisonment in the event of default with benefit of section 382-B of the Code of Criminal Procedure, 1898, vires whereof, are being challenged through Crl. Appeal No.476 of 2017; the complainant has prayed for reversal of acquittal through petition for special leave to appeal No.17 of 2017 and enhancement of sentence vide Crl. Revision No.145 of 2017; bound by a common thread, these are being decided through this single judgment.
2. Learned counsel for the appellant contends that prosecution case is fraught with doubts, inconsistencies and improbabilities; he has referred to investigation conducted by Saeed Akbar SI (CW-9) wherein a different set of accused was found to have participated in the occurrence, involving a cross fire between the two sides; according to him, conclusions drawn by the Investigating Officer find support from the recovery of a rifle on the disclosure of Tahir alias Doodi, a weapon consistent with the injuries sustained by the deceased. Improbability of complainant's conduct to abandon his real brother in a crisis is vehemently argued to suggest that he was not present at the crime scene; according to the learned counsel, the same goes for the motive inasmuch as on prosecution's own showing, there was no occasion for the appellant to target the deceased while sparing Shoukat PW, with whom he was locked in a dispute over the land. Acquittal of co-accused albeit with different roles, inconsequential in nature, nonetheless, it is argued, warranted independent corroboration in absence whereof, statements of the eye witnesses were liable to be excluded from consideration; the bottom line is that prosecution hopelessly failed to prove its case beyond reasonable doubt. Contrarily, the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment; it is argued that incident being a daylight affair, there was no earthly reason for Azhar Hussain, (PW-2) a real brother and Shoukat (PW-3), a political ally to falsely implicate the appellant and co-accused; according to the learned counsel, the complainant came up faithfully with the details of the incident, duly corroborated by medical evidence and, thus, learned trial Court rightly convicted the appellant, calling for no interference. According to the learned counsel, the acquitted accused, squarely within the community of intention, deserve no leniency as they came all the way to the crime scene, duly armed in furtherance of a common object and, thus, were vicariously liable for participation in the crime, notwithstanding different roles and, therefore, according to him, there was no occasion for the learned trial Judge to acquit them from the charge, merely because they inflicted no harm upon the deceased; smashed window panes and bullet marks on the vehicle have been pointed out to suggest that the respondents were equal privies to the crime; he has lastly prayed for enhancement of sentence being a normal wage for the crime.
3. Heard. Record perused.
4. Prosecution entourage, on an election campaign, was interjected by an information about attempts for possession over a piece of land claimed by Shoukat PW; according to him, the information was conveyed by his unnamed maternal nephew , never produced before the Court or during investigation and, thus, what brought the deceased and the appellant face to face is left to one's imagination with no option except to take Shoukat PW at his words, nonetheless, not without reservation inasmuch as, none was present at the crime scene except the accused when the deceased confronted them. Complainant was on the wheel when he saw the deceased, no other than his real brother , being hit with a gunshot; he prefers to flee from the scene by speeding away the vehicle, leaving his real brother in a most critical lurch, particularly when according to him, two other witnesses were inclined to de- board the vehicle, possibly to rescue the deceased; his disclosure in the cross-examination further confounds the scene; while on the one hand, he stated that "on firing my vehicle, I drove my car rashly towards the door. I went to the Dera of Malik Shoukat from place of occurrence. The Dera of Malik Shoukat is at a distance of almost two kilometers from the place of occurrence I remained at Dera for 15/20 minutes. I heard the firing during all the period I remained at Dera. I returned from Dera on the same vehicle...... I returned to the place of occurrence from Dera of Malik Sakhawat . However , in the same breath, he stated that "After the occurrence, I drove the vehicle for a short while and then turned from "U" turn and went to home. My house is situated at a distance of one kilometer from the place of occurrence. I have not measured the correct distance. I have no idea that how much time I stayed at the house. It may be in some minutes but I cannot say that how many minutes I remained at my house. I then returned to the place of occurrence and parked my vehicle at a distance of 10 to 15 feet from the dead body" .
Positions taken by the witness are mutually destructive, besides being in diame trical conflict with the narrative offered by Shoukat Ali (PW -3) in his examination-in-chief, as under:- "We went towards my house while driving the vehicle rashly where we arrived in the front of plot of my house. The accused continued firing for 5/10 minut es at the spot and then flee away . We then returned to the place of occurrence and hold the Subedar Abdul Raheem and then took him to the hospital. "
The statements pertain to the very genesis of the incident and, thus, must be viewed as material, nonetheless, so contradictory that one witness cannot be believed without first excluding the testimony of the other and vice versa.
Witnesses are also discrepant on as to how the deceased was shifted from the venue to the hospital. According to the complainant, "the body was not taken to the house of Malik Shoukat but came straight to hospital. We removed the dead body from place of occurrence after 20 minutes of firing. I also acco mpanied the dead body to the hospital. " However , Shoukat Ali PW-3 stated that "first we took the deceased to R.H.C. Bagga Sheikhan. We remained at R.H.C. Bagga Sheikhan for about half hour to one hour. We reached at Civil Hospital Rawalpindi almost at 8:00 p.m.......the police had reached at R.H.C. Bagga Sheikhan. The doctor at R.H.C. Bagga Sheikhan told us that Abdul Raheem had died. " Complaint Ex.PD/1 spells out a scenario altogether different, as information is conveyed through telephone, pursuant whereto, Aslam Shahzad SI (CW-2) arrive d at D.H.Q. Hospital Rawalpindi to receive the complaint at 7:45 p.m. Positions taken are irreconcilable.
Bracing irreversible corporal consequenc es, an accused cannot be convicted merely on the basis of allegations alone, no matter how well articulated or on the touchstone of dogmatic and moralistic presumptions, unless the charge fits within the ambit of probability of events alleged by the prosecution. There is no clue as to how the deceased arrived at the crime scene to meet his homicidal death except for an unverifiable piece of information from an obscure source; despite receipt of information well in advance, arrival of the witnesses and the deceased before arch rivals without any precaution is mind boggling. While human responses in a crisis situation cannot be viewed with an empirical exactitude, nonetheless, complainant's preference for safety while two others, distantly related with the deceased, attempted to offer resistance, admit the hypothesis that the former was not present at the crime scene, inducted subsequently to set up the case being more trust-worthy reliable complainant, as a real brother; with his departure from the scene, the entire case is cast away, particularly in the face of adverse investigative conclusions. On the whole, prosecution case is not fee from doubts and, thus, it would be unsafe to maintain the conviction without potential risk of error. Consequently, Criminal Appeal No.476 of 2017 is allowed; the appellant is acquitted from the charge and shall be released forthwith, if not required in any other case.
As a natural corollary , P.S.L.A. No.17 of 2017 as well as Criminal Revision No.145 of 2017 stand dismissed .