QAZI MUHAMMAD AMIN AHMED, J.---Impugned herein is judgment dated 31-10-2013 by a learned Addl. Sessions Judge at Jhelum whereby Muharmnad Ishtiaq and Nasir Abbas, real brothers inter se, stand convicted for committing Qatl-i-amd of Muhammad Amjad, 30/35, hereinafter referred to as the deceased, at 7:00 p.m. on 4-11-2011 within the area of Banth, at a distance of 15-kilometers from Police Station Sohawa District Jhelum; the incident was reported by Faisal Shahzad (PW-10) through statement Ex.PC recorded by Abdul Bari, SI (PW-14) at 8:25 p.m. at T.H.Q. Hospital Sohawa.
According to the complainant, on the fateful day, he along with his brother Rashid Mehmood (PW- 11) was present on the roadside when the deceased on a tractor went to his field to sow wheat crop; he had just started the process when both the appellants accompanied by their brother Muhammad Mushtaq and one Aamir Hussain armed with 30-caliber pistols and a 12-caliber repeater arrived at the scene; soon after exhortation by Muhammad Mushtaq and Aamir Hussain, Muhammad Ishtiaq appellant fired straight upon the deceased hitting him on left side of neck; a fire shot by Nasir Abbas landed on the chin; the deceased felled on the ground; while firing in the air, the accused decamped from the scene. Previous enmity over dispute of land is cited as the motive for the crime.
Dr. Akhlaq Hussain Shah (PW-9) conducted autopsy at 11:30 p.m. and noted two firearm entry wounds, on left side of neck and chin with their exits, generating haemorrhagic shock leading to respiratory distress; the injuries were blamed as cause of death, occurred within 15 minutes while the time between death and postmortem was estimated about 6 hours.
Abdul Bari, SI (PW-14) carried out initial investigation; he collected bloodstained earth and a casing (P-10) secured vide inventory besides taking other investigative steps of formal nature; Aamir Hussain, Mushtaq Ahmad and Nasir Abbas, appellants were arrested on 7-12-2011 and pursuant to their disclosures, led to the recovery of pistol (P-1), gun (P-8) and pistol (P-6), respectively, secured vide inventory; Muhammad Ishtiaq, appellant joined investigation being on pre-arrest bail on 11-1- 2012; he was exonerated by the Investigating Officer. Dissatisfied with the investigation, the complainant instituted a private complaint on 12-10-2012 wherein process was issued against all the accused. Muhammad Ishtiaq, Nasir Abbas and Aamir Hussain were indicted by a learned Additional Sessions Judge at Jhelum on 18-1-2013 when they claimed trial, however, Mushtaq co- accused stayed away from law; he stands proceeded against accordingly. The prosecution in order to drive home the charge produced as many as fourteen witnesses, besides placing reliance upon forensic reports. The case is structured upon ocular account furnished by Faisal Shahzad (PW-10) and Rashid Mehmood (PW-11); they are real brothers of the deceased and with one voice reiterated the case set up in crime report Ex.PC, prosecuted through private complaint Ex.PK; the accused confronted prosecution evidence with a unanimous denial; they blamed misplaced suspicion and previous enmity behind their implication as accused in an occurrence that, according to them, took place in the darkness. Unimpressed by the position taken, the learned trial Judge vide impugned judgment dated 23-10-2013 proceeded to convict the appellants under section 302(b) read with section 34 of the Pakistan Penal Code, 1860 and sentenced them to death with payment of compensation in the sum of Rs.200,000/- each or to undergo six months' simple imprisonment in the event of default, however, acquitted Aamir Hussain, co-accused from the charge, vires whereof, are being challenged through Crl. Appeal No.471 of 2013 whereas the State seeks confirmation of death penalty vide Murder Reference No.71 of 2013; these are being decided through this single judgment.
'2. Learned counsel for the appellants contends that occurrence took place in the dark hours of night without there being any source of light and as such the identity of the assailants was a question mark; that there was no occasion for no less than four 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 wider net; that during investigation, Muhammad Ishtiaq appellant was exonerated, a circumstance that shook the prosecution case to its foundation, as he is identically placed with Nasir Abbas appellant. Though assigned a proverbial Lalkara, acquittal of Aamir Hussain co-accused has been pressed into service to argue that evidence disbelieved qua the said accused cannot be pressed into service to sustain the charge in the absence of independent corroboration, hopelessly lacking; absence of Muhammad Arshad PW has also been urged to seek acquittal on the ground that he had been given up to suppress the real facts; the bottom line is that prosecution has not been able to prove the charge beyond reasonable doubt. Contrarily, the learned Law Officer assisted by learned counsel for the complainant 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; according to him, they were natural witnesses with no motive to substitute the real offenders; confirmation of death penalty has been prayed for.
3. Heard. Record perused.
4. Though it is not unseasonable in the area to sow wheat crop in the month of November, nonetheless, time selected for the exercise is somewhat unusual, particularly in the absence of any specific explanation; presence of all the available family members to accompany the deceased for the task, without any specific purpose, is far from being rational. There is no source .of light and it is admitted by no other than Draftsman Mehmood Shahzad (PW-5). The dead body sans any reference in Column 24 of the Inquest report Ex. PJ nor there is any reference by the Investigating Officer to any ploughing activity in the brief notes of the case. First Information Report eludes arrival of the deceased at the scene on a tractor driven by himself; during investigation, Muhammad Arshad, PW was introduced as the owner of the tractor, who had actually ploughed the land; he is conspicuously missing in crime report Ex.PC and given up as being unnecessary; his statement was recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure, 1898 wherein he related an entirely different story. Abdul Bari, SI. (PW-14) admitted in cross-examination as under:- "it is correct that Arshad Mehmood was the tractor driver who was ploughing the land at the time of occurrence with Muhammad Amjad deceased. In my investigation, it came to my knowledge that Arshad Mehmood was the person who had gone for ploughing the land along with Amjad deceased. Case diary No.4 dated 10-11-2011 is before me. It is correct that Muhammad Arshad driver of tractor No.3817 had told me during investigation that at 4:45 p.m. he along with Muhammad Amjad son of Inayat had gone for sowing the land near graveyard of village Banth, at 7:00 p.m. he dropped Muhammad Amjad deceased near the house of Muhammad Akram and he himself went towards village Amral and that he had walked few paces when he heard the report of firing, he came back and saw that Amjad had fallen down. He had not seen anybody firing at the deceased."
The disclosure is diametrically incompatible with the case initially set up in crime report Ex. PC and cannot be brushed aside merely on the ground that narrative being hearsay is liable to be excluded from consideration, particularly in the backdrop that the said witness was given up as being unnecessary when in circumstances, his evidence was most crucial to drive home the charge; the admission by the Investigating Officer read in conjunction with Article 129(g) of the Qanun-e-Shahadat Order, 1984, reinforces statutory presumption that certainly benefits the appellants. Exoneration of Muhammad Ishtiaq appellant, though based upon ipse dixit of police, nonetheless, in the totality of above circumstances warrants a serious consideration, as he has been sentenced to irreversible penalty of death. There was apparently no compelling reason for the three real brothers to embroil one another in a horrendous but avoidable pursuit and for this reason the hypothesis of Muhammad Ishtiaq's innocence is not entirely beside the mark and as such merits approval. After Muhammad Ishtiaq's departure from the scene, the case against Nasir Abbas appellant is also cast away, as both of them are inexorably placed in an identical position.
Recovery of pistol (P-6) with positive forensic report Ex.PCC cannot furnish requisite corroboration as only one empty was secured by the Investigating Officer. Principle of sifting, with its inherent limitations, cannot bail out the prosecution after massive failure on its substantive side. The above circumstances cast a dark shadow of doubt, a doubt embedded in prosecution's stated positions, benefit whereof, cannot be denied to the appellants. Consequently, by extending benefit of doubt to the appellants, Crl. Appeal No. 471 of 2013 is allowed; impugned judgment dated 31.10.2013 is set- aside; they are acquitted from the charge and shall be released forthwith, if not required in any other case. MURDER REFERENCE No.71 of 2013 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.