QAZI MUHAMMAD AMIN AHMED, J.---Muhammad Farooq, 25, hereinafter referred to as the deceased, was done to death on 9-3-2010 at about 4/5:00 p.m. within the area of Thaing Chak No,7 District Kasen Muhammad Aslam (PW-2) and Rasheed (PW-3) sustained injuries during the occurrence. The incident was reported through application (Ex.PA) presented by Matloob Hussain (PW-1) at Police Station Saddar Pattoki, 5:45 p.m. The distance between the venue and the police station is 7-k.m. Abdul Majeed, Ahmad Khan, Muhammad Shakil, Talib Hussain, Muhammad Shafique and Muhammad Amin, appellants herein, were arrayed as accused.
It is a case of two versions by the prosecution itself; first narrative attributed to the complainant finds mention in application (Ex.DA), purportedly moved, thumb-marked and signed by him. According to application Ex.DA, the deceased visited horticulture nursery of Abdul Rasheed (PW-3) where Muhammad Aslam (PW-2) was already present when the accused named above armed with 30-caliber pistol, 12-caliber shotgun, daggers as well as Churn arrived at the scene and assaulted Abdul Rasheed (PW-3); as Muhammad Aslam (PW-2) came forward, Shakil appellant dealt a Churri blow on left side of his abdomen followed by blows by Shafique and Amin accused on his head, as a result whereof, he felled on the ground; as the deceased came forward to rescue him, Shafique appellant dealt him a dagger blow on right side of his abdomen followed by a pistol fire shot by Abdul Majeed appellant on his chest, who too, fell on the ground when Ahmad Khan and Talib appellants made repeated fire shot on the back of his head, as a result whereof, he succumbed to the injuries at the spot. Talib Hussain, Abdul Rasheed arid Manam Khan PWs witnessed the occurrence. Motive for the crime is a month old previous quarrel. According to the complainant, he never authored Ex. DA nor was signatory thereto and instead relied upon the contents of Ex. PA dated 8-4-2010 which is in diametrical contrast with the above story.
According to application (Ex.PA), on the fateful day, the deceased after visiting his field came at the horticulture nursery of Abdul Rasheed (PW-3) where Muhammad Aslam (PW-2) was busy in his usual pursuits; it was a short while later that Abdul Majeed appellant armed with a pierce, Ahmad Khan and Talib Hussain with daggers, Shakil with an awl, Shafique and Amin with Kandhala arrived at the venue. Abdul Majeed and Shakil appellants exhorted to eliminate the deceased as well as Aslam and Rasheed PWs whereupon Abdul Majeed appellant dealt a pierce blow on deceased's head followed by a blow by Shakil with awl again on the head; Shafique dealt two blows with Khandhala hitting the deceased on the back side of his head; Muhammad Amin hit the deceased on his head as well; as Muhammad Aslam and Rasheed PWs attempted to intervene, Muhammad Amin repeated his blow on right leg of the deceased by exclaiming that he had not still fallen; Ahmad Khan appellant selected deceased's chest for repeated dagger blows while Talib pierced his dagger into deceased's abdomen. Abdul Majeed dealt a blow with his pierce from its blunt side hitting Muhammad Aslam (PW-2) in his head followed by a blow with wrong side of Khandhala on the same locale by Shafique accused. As Muhammad Aslam (PW-2) felled on the ground, Amin dealt him another blow in his head followed by a blow with awl by Shakil into his ribs; Ahmad Khan attacked Aslam (PW-2) with his dagger on his left flank; all the accused belaboured Rasheed (PW- 3) as well. The complainant along with his brother Talib Hussain took refuge behind a heap of soil collected at the scene. It is alleged that the assailants kept on calling them to come forward, however, they out of fear stayed at bay. The assailants left the crime scene after about 1/2 minutes whereafter the witnesses attended the deceased as well as the injured. It is complainant's case that he brought a trolley moved by a tractor to shift the deceased and the injured to the hospital.
Motive for the crime is a dispute going on intermittently for preceding 2/3 days; the notables managed a compromise but the assailants harboured the grudge. It is added by the complainant that two unknown persons . with muffled faces resorted to firing with a 12-caliber shotgun and a 30-caliber pistol. It is lastly alleged that initial report was not faithfully recorded by the police.
The appellants' side also came up with a cross-version albeit with its failure before the Court.
Dr. Abdul Hameed (PW-4) medically examined Rasheed (PW-3) at 10:00 p.m. on 9-3-2010 and noted two contusions on the left side of chest and left knee joint. Dr. Kanwar Afzal Bashir (PW-5) conducted medical examination of Muhammad Aslam (PW-2) at 5:45 p.m. on 9-3-2010 and noted four lacerated wounds with exposed bone and lacerated muscles on left and right side of head as well as, on left hypochondrium accompanied by an incised wound below left lower ribs. The same Medical Officer conducted autopsy at 8:00 a.m. on 10-3-2010; the deceased was noted to have sustained seven injuries; these comprises of two stab wounds on left side of chest and right side of abdomen near umbilicus; lacerated wounds on right side of head and back thereof were accompanied by exposed bone with another lacerated wound on the same area; two more lacerated wounds with exposed bone were noted on the top of head on its posterior half, the last lacerated wound with exposed bone was observed in the middle 1/3rd of front of right leg. Upon dissection, chest cavity was found full of blood with damage to intercostal space, left lung and upper part of heart; abdominal cavity also contained blood; large and small intestine and walls of stomach were ruptured; injuries on left side of chest and right side of abdomen were blamed as the cause of death, as a result of hemorrhagic shock, opined as sufficient to cause death in the ordinary course of nature; the death occurred within half an hour and time between death and postmortem was estimated as within 12 to 20 hours.
Abdul Rehman, SI (CW-10) conducted initial investigation besides taking other investigative steps; he secured earth from the spot; it was taken over by Muhammad Rafique SI (CW-8) who arrested Talib, Shabil and Muhammad Amin appellant and recovered Kandhala (P-1), awl (P-2) and Churri (P-3). Dissatisfied with police investigation, the complainant instituted a private complaint as late as on 1-12-2012 wherein process was issued against all the accused; when indicted on 3-5-2011, they claimed trial. Prosecution case is structured upon ocular account furnished by Matloob Hussain (PW-1) Muhammad Aslam (PW-2) and Rasheed (PW-3); they unanimously reiterated the version agitated through Ex.PA; it is complainant's main reliance; all other witnesses, except Khadim Hussain (PW-6) were examined as court witnesses. The appellants brought Arshad Ali SI in their defence as DW-1. The appellants confronted prosecution evidence with a denial citing previous enmity as a motive behind their false implication. Talib Hussain came up with a more specific stance and in that he is joined by Muhammad Shakil, Muhammad Shafique and Muhammad Amin appellants; for convenience of reference, relevant portion is reproduced below:- "...The all accused persons of cross-version on the instigation of Abdul Rashid, accused of cross- version (since dead), attacked on my paternal uncle Muhammad Amin and my paternal cousin Muhammad Jamil. When I, my paternal Muhammad Amin and other PWs of cross-version went to rescue Muhammad Jamil from the clutches of accused persons, Abdul Rashid accused of cross- version (since dead), fired at me with his gun 12-bore, which landed on my left leg while Shabbir Hussain accused of cross-version fired with his pump action at me which hit on my right leg. I and Muhammad Amin after receiving these injuries fell down at the spot and were shifted to THQ Hospital Pattoki, in severe injured condition. It was -later on transpired that the accused persons of cross-version just to involve the PWs of cross-version and their family members, themselves injured Farooq but he later on succumbed to the injuries....".
Unimpressed by appellants' position, the learned trial Judge proceeded to convict the appellants under section 302(b) of the Pakistan Penal Code, 1860; Abdul Majeed, Ahmad Khan, Muhammad Shakil and Talib Hussain were sentenced to death whereas Muhammad Shafique and Muhammad Amin have been sentenced to imprisonment for life; all the appellants have been ordered to pay compensation in the sum of Rs,300,000/- each to be recovered as arrears of land revenue or to undergo six months simple imprisonment in the event of default; they have also been convicted under section 337 A(ii), F(ii) of the Code ibid and sentenced three years RI along with payment of Rs,30,000/- each as Daman and Arsh vide impugned judgment dated 30-6-2014, vires whereof, are being challenged through Crl. Appeal No,1288 of 2014; the State seeks confirmation of death penalty vide Murder Reference No,317 of 2014; these arc being decided through this single judgment.
2. Learned counsel for the appellants contend that prosecution case is self-destructive as two diametrically opposite narratives cannot peacefully coexist; that belatedly moved application Ex.PA cannot be taken into account without first excluding Ex.DA, an instrument protected under the statutory presumption arising out of Article 129 (e) of the Qanun-e-Shahadat Order, 1984 which cannot be dislodged merely on the basis of a dishonest and bald assertion; that entire exercise was undertaken by the complainant to bring his case in line with medical evidence that came about subsequent to the registration of the case; that belated autopsy despite corpse's presence in the mortuary clearly suggests that law was set into motion in the wake of consultations and deliberations; that medicai evidence is not in line with the story initially related by the complainant; that even subsequently introduced version was found fake during investigation and this prompted the complainant to institute a private complaint. The bottom line is that there was no occasion for the learned trial Judge to visit four appellants with penalty of death and two with imprisonment for life on the basis of evidence inherently flawed and weak and thus it would be extremely unsafe to maintain the convictions. Contrarily, the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment and in so doing, he has blamed the police for fabricating a lake cast inconsistent with medical evidence and thus prayed for the acceptance of position taken in application Ex.PA in preference to the narrative mentioned in Ex.DA.
3. Heard. Record perused.
4. Admittedly, Matloob Hussain (PW-1), the complainant, is a school teacher with a graduate degree to his credit. Application Ex.DA contains exhaustive detail of the incident wherein the names of all the six accused find mention with their respective roles as well as weapons; there is a reference to a motive as well; at its bottom there are two cell phone numbers, admittedly subscribed by the complainant. In this backdrop, one may find it hard to buy the story that a sub- inspector would subvert a case of homicide committed in broad daylight along with two injured with impunity; state of affairs though tar from being ideal is not so appalling yet. Autopsy as late as at 8:00 a.m. on the following day despite arrival of dead body along with the injured on the preceding evening at 6:45 p.m. would admt the only irresistible conclusion that the matter was not reported to the police at a point of time being suggested by the complainant; he has seemingly attempted, that too after considerable lapse of time, to resurrect his case which was found not in line with the observations recorded by the Medical Officer and in so doing the police were an obvious and convenient target to feign connivance. Subsequent attempt is in an irreconcilable deviation from the initial position, duly mentioned in the brief facts of inquest report Ex.CH; the complainant cannot disown his case by merely pointing his finger on the Investigating Officer by citing opponent's political influence; on the contrary, he appears to have been accommodated by the authorities out of the way. Duly confronted with his first statement during his stay in the witness box, he had nothing to offer except for harping on the hypothesis of a foul play; magnitude of departure from the original position is mind boggling and this can be deciphered not only from a comparison between the two but also confrontations during the course of cross-examination wherein he is duly confronted with his deviations, improvements and omissions. Not only the sequential order of assault is altered, roles allegedly played by the appellants have been massively changed and so are the weapons used. There is no reference to the use of firearms in the occurrence in application Ex. DA, however, it has been detailed in application Ex.PA with introduction of two unknown assailants holding firearm weapons as well as use thereof. Once a witness is found to have deviated from his initial stance in a manner that brought about a change in his position, his evidence cannot be relied upon in the absence of any plausible explanation; deviation is so massive that it changes the entire complexion of the case and cannot be entertained or accommodated without an outright exclusion of application Ex.DA and the reasons cited for that are far from being sufficient. In the absence of consequential recovery, prosecution case is faltering on the forensic side as well. Absence of casings at the crime scene despite accusation of indiscriminate firing is really intriguing. Prosecution case is fraught with doubts and occurrence does not appear to have taken place in the manner as alleged in application Ex.PA, thus it would be grievously unsafe to maintain convictions, therefore, by extending benefit of doubt to the appellants, Crl. Appeal No, 1288 of 2014 is allowed; they are acquitted from the charge.
Abdul Majeed, Ahmad Khan, Muhammad Shakil and Talib Hussain, appellants are in custody and shall be released forthwith, if not required in any other case. Muhammad Shafique and Muhammad Amin, appellants are on bail, they need not to surrender; their bonds are cancelled and sureties discharge. Murder Reference No,317 of 2014 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.