Qazi Muhammad Amin Ahmed, J.--Sana Arshad, 23, henceforth referred to as the deceased, left home 8:00 a.m. on 30.7.2011 statedly to visit Muhammad Arif, appellant in Al-Bahbood Plaza so as to collect remuneration for a project; her father Muhammad Arshad Naeem (PW-14) attempted to contact her on cell phone at 2:00 p.m. without success and, thus, sent his son Sabih-ulHassan (PW-10) to the center who found the office closed; queries from family members went in vain; the complainant visited Muhammad Arif s residence to learn that he had gone to Kashmir, however, he succeeded to establish a telephonic contact through Muhammad Kashif Farooq (PW-11) who referred the family to contact Muhammad Qadeer appellant to reach out the girl; it is in this backdrop that the complainant along with Sabih-ul-Hassan and Muhammad Kashif PWs approached Muhammad Qadeer appellant at Karachi Cloth Depot; the witnesses were first taken to the house of Muhammad Arif appellant and thereafter led to an under construction house in a narrow lane wherefrom the deceased was found lying dead. Upon arrival of the police contingent, information was laid in statement Ex.PS before Gulzar Ahmad, SI (PW-15) at 12:50 a.m. on 1-8-2011.
Autopsy was conducted by Dr. Tahira Jabeen (PW-7) at 5:30 a.m; two gunshot wounds measuring 2.2cm x 2cm and .6 cm x .5 cm -respectively on right side of skull and left chest near nipple at the level of . 3rd rib, surrounded by blackening and charring with their corresponding exits were noted by the Medical Officer; the injuries caused massive damage to the scalp, fracturing parietal, temporal and occipital bones with concomitant rupture of brain as well as 3rd left rib and left lung, generating hemorrhagic shock, sufficient to cause death in the ordinary course of nature within 20 minutes; time between death and post-mortem was estimated as about 48 hours; vaginal swabs were taken for generation of D.N.A. profile. Dr. Saleem Abbas Malik (PW-3) medically examined Muhammad Arif appellant twice on 7-8-2011 and opined him as a potent male with marks of tooth bites.
Gulzar Ahmad SI (PW-15), during spot inspection secured blood-stained brick (P-6) and two casings of 30-caliber (P-12/1-2) besides taking other investigative steps of formal nature.
Muhammad Arif and Muhammad Qadeer, appellants were arrested on 4-8-2011; while being in custody, they led the police party to the place of occurrence and at their instance memo. Ex.PM was drafted. Upon disclosure, Muhammad Arif appellant led to the recovery of .30-caliber pistol (P- 8) on 10-8-2011; sent to face trial, the appellants contested their indictment on 9-2-2012 before a learned Additional Sessions Judge at Taxila; prosecution produced as many as sixteen witnesses; on forensic side, casings secured from the spot were found to have been fired from pistol P-8; blood was opined as of human origin; DNA report is not on the file. The prosecution case is primarily structured on the evidence of last seen furnished by Rana Muhammad Amin (PW-9), Sabih-ul- Hassan (PW-10), Muhammad Kashif Farooq (PW-11) and Muhammad Arshad (PW-14); the last set of three witnesses related circumstances leading towards disappearance of the deceased and recovery of dead body subsequent thereto from a premises owned by Imran Khan (PW-13) and statedly provided to Muhammad Qadeer appellant as his temporary abode. Medical evidence does not suggest sexual assault nor there is indictment to that effect. The appellants confronted prosecution evidence with a unanimous denial, however, unimpressed by their plea, the learned trial Judge proceeded to convict them under Section 302(b) read with Section 34 of the Pakistan Penal Code, 1860; Muhammad Arif appellant have been sentenced to death with compensation of Rs,200,000/- while Muhammad Qadeer to imprisonment for life along with compensation of Rs,100,000/-, default to be visited with six months simple imprisonment, vide impugned judgment dated 26-11-2014, vires whereof, are being challenged through Crl. Appeal No, 489 and 498 of 2014, clubbed with Murder Reference No, 47 of 2014, seeking confirmation of death penalty; bound by a common thread, these are being decided through this single judgment.
2. Learned counsel for the appellants contends that there is no credible evidence to constitute nexus between the appellants and the crime and as such there was no occasion for the learned trial Judge to return a guilty verdict; that reliance by the trial Court on evidence of pointing out of place of occurrence, that too, jointly by both the appellants carried no evidentiary value and, thus, failed to establish a central link in the chain of circumstances relied upon by the prosecution; that evidence of last seen fails to qualify the test of proximity in terms of time and space; that even date dispatch of pistol P-8 with casings rendered forensic report as inconsequential; the bottom line is that prosecution miserably failed to prove the charge. Contrarily the learned Law Officer faithfully defended the impugned judgment on the ground that various circumstances relied upon by the prosecution established a reliable basis to frame the appellants with the charge; that the place wherefrom the dead body was discovered was within the exclusive knowledge of the appellants, a circumstance inescapably pointed upon their culpability, further corroborated by forensic evidence with regard to the weapon used and, thus, according to him, the learned trial Judge rightly convicted and sentenced the appellants, as every hypothesis of their innocence squarely stood excluded. According to the learned Law Officer, there is no earthly reason for the complainant and the PWs to substitute the real offenders with the appellants against whom they had no axe to grind; confirmation of death penalty has been prayed for.
3. Heard. Record perused.
4. Prosecution case is founded upon various pieces of circumstantial evidence; according to the complainant, the deceased had informed him about the intended purpose and destination of her visit on the fateful day i,e, 30-7-2011 at 8:00 a.m; upon her failure to return, police were not informed and according to complaint Ex.PS, the Investigating Officer reaches spot at 12:50 a.m. There is nothing in the statement of the complainant that may possibly explain as to how police arrived at the crime scene and it is also equally mind boggling as to why Muhammad Qadeer was let off by the witnesses, three in number, particularly when he was not carrying any weapon with him; it is also not understandable as to why Muhammad Qadeer appellant would oblige the witnesses to point out the venue where the deceased was lying dead. Yet another question mark is as to why the witnesses failed to inform the police before they undertook the venture. The very genesis of the prosecution case is inherently suspect. The theory of last seen is not on better footing either. Rana Muhammad Amin (PW-9) does not specify the exact point of time when he saw the deceased in appellants' company near Masha Allah CNG Station where he was waiting for a wagon per chance; the manner in which the deceased informed him about the identity of the appellants, also requires a pinch of salt besides being incompatible with the case set up in the crime report; he admitted in his cross- examination "I had not told to Arshad Naeem on the day of occurrence and on the evening of the said day that I had seen the deceased at Chachi Mohallah. I had also not told him on the next day and on the following day when we came to know about the occurrence at the hospital." He further disclosed that his statement was recorded by the Investigating Officer on 7-1- 2011. On an overall analysis, the account furnished by Rana Muhammad Amin (PW-9) being outside the ambit of proximity in terms of time and space does not qualify as 'last seen'. Statement of Imran Khan (PW-13) does not improve upon the prosecution case as well inasmuch as neither in the note by the Investigating Officer in Ex.PS nor inquest report Ex.PK, suggest even remotely signs of any dwelling. One would also find it hard to believe that Muhammad Arif appellant would risk his neck by providing fatal information to the complainant leading towards discovery of dead body of a woman, he is suspected to have murdered. Visit by both the appellants in custody to point out the crime scene is not information within the contemplation of Article 40 of the Qanun-e-Shahadat Order, 1984 and, thus, memo. Ex.PM and statements of the witnesses in support thereof are liable to be excluded from consideration. Though medical opinion furnished by Dr. Saleem Abbas Malik (PW-3) has been pressed into service to suggest sexual assault, however, none of the appellants has been indicted for the crime. Skin deep tooth bites would not inspire the hypothesis of resistance as the deceased was done to death with repeated shots fired from a close blank.
Prosecution sans proof of sexual assault on the forensic side of its case and what unfortunately befell upon the poor victim is left to our imagination. The foundations supporting the charge are fragile inasmuch the various circumstances, relied upon by the prosecution failed to constitute a continuing nexus between the appellants and the deceased so as to exclude every hypothesis, of innocence. A conviction cannot be based upon moral certainty in the absence of convincing evidence pointed upon the culpability of an accused, thus, it would be grievously unsafe to maintain the convictions. Consequently, by extending benefit of doubt to the appellants, Crl.
Appeals Nos,489 and 498 of 2014 are allowed; they are acquitted from 'the charge and shall be released forthwith, if not required in any other case. Murder Reference No, 47 of 2014 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.