Qazi Muhammad Amin Ahmed, J.--Basharat Ali, 23/24, and Mst. Shabana Bibi, 22/23, hereinafter referred to as the deceased, were done to death on 10-4-2010 at 9/10:00 p.m. within the area of Basso Kothey, situating at 10-kilometers from Police Station Kot Nainan of District Narowal; incident was reported by Arshad Khan (PW-12) through application (Ex.PN) received by Liaqat Ali, S.I (PW16), 2:30 a.m. same day at the spot; Iqra Bibi, infant baby girl, miraculously survived the assault albeit with injuries. According to the complainant, Kashif Khan appellant accompanied by Muhammad Boota acquitted co-accused visited his home on 10-4-2010 at 9:10 p.m. and took along the deceased; they were on visiting terms, the complainant did not object, however, on account of enmity in the village, he followed them along with his brother Asghar Khan (PW-10); Mehmood Khan and Niaz Khan PWs met them on way and informed that they had seen the deceased talking loudly in the Bhaitak of Muhammad Boota; both the PWs rushed to see the appellant, Muhammad Boota, Ikram Khan and Aslam Khan accompanied by an unknown person, variously armed and it was within their view that the appellant fired on the back of the deceased followed by Boota Khan, Ikram Khan and Aslam Khan with consecutive shots targeting the deceased on different parts of his body, who succumbed to the injuries instantaneously. According to the witnesses, Shabana Bibi daughter of Ghaffar Khan raising alarm within their view was also shot dead while her minor daughter Iqra received injuries as well. No motive for the crime is cited in complaint Ex.PN.
Autopsy on the dead body of Mst. Shabana was conducted following day at 7:30 p.m; multiple fire- arm injuries, on right arm, chest and buttocks were noted with extensive damage to ribs, lungs and heart resulting into immediate death with an estimated time of 16 to 20 hours between death and post-mortem. Basharat Ali, deceased was examined at 8:00 p.m; massive violence comprising of ten injuries on right elbow, chest, right hip, umbilicus and right arm drifted the deceased into comma and shock, generated thereby resulted into his death within minutes; time between death and post-mortem was estimated as within 24 hours. The minor girl was noted to have injuries on left lower leg and thigh.
Spot inspection by Liaqat Ali, S.I. (PW-14) include seizure of blood, casings of 44-caliber as well as Kalashnikov (P-4/1-6 and P-5/12) respectively; the complainant identified the unknown accused through supplementary statement as Azhar Ashfaq; Muhammad Boota, Ikrarn Ullah and Aslam Khan, co-accused joined investigation, their arrest was held in abeyance. The appellant arrested on 30.06.2010, led to the recovery of 244-caliber gun (P-9); Azhar Ashfaq was arrested by Allah Ditta, S.I. on 07.8.2011; notwithstanding conclusions drawn by the Investigating Officer, a learned Addl. Sessions Judge at Shakargarh indicted all the accused named in the crime report on 06.10.2011; they pleaded not guilty and claimed trial, pursuant whereto, prosecution produced as many as sixteen witnesses; of them, Arshad Khan (PW-12) and Asghar Khan (PW-13) furnished ocular account, prosecution's main reliance. The accused rallied behind a unanimous denial; according to them, the deceased, with a formidable past was done to death in an unwitnessed occurrence during the dark hours; misplaced and ill-conceived suspicion was blamed as cause behind their false implication.
The learned Additional Sessions Judge vide impugned judgment dated 19-07-2012 acquitted Azhar Ashfaq, Bottey Khan, Ikram Khan and Aslam, co-accused, however, proceeded to convict the appellant under Section 302(b) of the Pakistan Penal Code, 1860 and sentenced him to death with payment of compensation in the sum of Rs, 300,000/- or to undergo six months simple imprisonment in the event of default as well as imprisonment for life with payment of fine of Rs, 300,000/-or to undergo six months simple imprisonment in the event of default; for murderous assault on Iqra, he was sentenced to 7 years rigorous imprisonment with payment of fine of Rs, 50,000/- or six month SI 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, 279-J of 2012 clubbed with Murder Reference No, 369 of 2012 seeking confirmation of death penalty; Criminal Appeal No, 1584 of 2012 by Arshad Khan complainant is aimed at reversal of acquittal; there being a common thread inter se, these are being decided together through this single judgment.
2. Learned counsel for the appellant contends that prosecution case is fraught with doubts, improbabilities and inconsistencies and as such appellant's conviction with capital punishment is not sustainable; that evidence disbelieved qua majority of the identically placed co-accused cannot be relied upon in the absence of independent corroboration, according to the learned counsel, hopelessly lacking; that positive forensic report Ex.PZ does not provide requisite corroboration in view of dispatch subsequent to appellant's arrest, particularly in the wake of acquittal of co-accused equally blamed to have fired upon the deceased; that murder of Shabana Bibi with injuries to her infant daughter spells out a different scenario altogether; the bottom line is that prosecution miserably failed to prove its case beyond reasonable doubt and it would be perilously unsafe to maintain the conviction. Contrarily, the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment and prayed for confirmation of death penalty on the ground that two innocent persons, in their prime youth, were done to death in a most callous and brutal manner; that prosecution case is firmly structured on ocular account furnished by witnesses, whose presence at the crime scene given the nature and locale of injuries cannot be doubted; there was no occasion for him to take a different view vis--vis the respondents and as such the impugned view being impossible warrants interference, as it has resulted into miscarriage of justice.
3. Heard. Record perused.
4. Arshad Khan (PW-12) father of the deceased remained silent throughout on the motive that possibly actuated the appellant and co-accused to commit gruesome murders wherein an infant was also caught in the line of fire; he refers to the presence of Shabana Bibi at crime scene, a Baithak with opening, according to site-plan Ex.PA, in the lane; this suggests a diametrically different scenario, incompatible with the prosecution case set up in the crime report Ex.PN.
Seemingly, there was no occasion for the accused to assault the deceased in a well-lit room with doors open to public view. The script is tar from being plausible. Complainant himself admits to have 'acute enmity' in the village and a good number of criminal cases against him as well as the deceased; these include a case of homicide as well. Argument that deceased had enemies with motive and designs cannot be dismissed out of hand. Although it is complainant's case that the deceased was taken by the accused within his view, he has not cited any reason as to why former accompanied the latter nor there is any reference to any disclosure suggestive of destination.
Positions that complainant let the deceased accompany the accused without reservation and his concern immediately subsequent thereto are the positions mutually destructive. Pursuit by the witnesses and their arrival at the crime scene exactly at a point of time when the assault commenced is a coincident that seldom occurs. Occurrence statedly took place at 9/10:00 on 10- 4-2010 whereas incident was reported at 2:30 a.m. after midnight however the autopsies were conducted as late as at 7:30 p.m. and 8:00 p.m. respectively; delay is mind boggling and unambiguously suggests that complaint Ex.PN and inquest reports (Ex.P.G and P.Q) were not prepared at points of time mentioned therein. Ocular account disbelieved qua the acquitted accused cannot he pressed into service to maintain conviction against the appellant in the absence of specific motive and an inconsequential forensic report; Shabana's homicidal death is yet another question mark in the company of an infant baby girl. Occurrence does not appear to have taken place in the manner as alleged by the prosecution and thus, it would be grievously unsafe to maintain the convictions. Consequently, by extending benefit of doubt to the appellant, Crl. Appeal No, 2794 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, 369 of 2012 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.
5. As a natural corollary, Crl. Appeal No, 1584 of 2012 stands dismissed.