1. QAZI MUHAMMAD AMIN AHMED, J.---Muhammad Irfan, 20, hereinafter referred to as the deceased, was fatally shot at 11:30 p.m. on 08-02-2009 within the area of Walia Deh, 2-kilometers away from Police Station Rangoo, District Attock; incident was reported by his brother Muhammad Altaf (PW- 13) through statement (Ex.PD) recorded by Muhammad Doraiz, SI (PW-14), 12:45 a.m. at the spot.
2. According to the complainant, the deceased married Alia Bibi daughter of Zaib-ur-Rehman appellant one and a half year before the occurrence; the knot was tied without parental approval; he resided in Rawalpindi and returned home two days before the occurrence; during the fateful night at 11:30 p.m. the deceased was sent for by Muhammad Sohail appellant on phone; the complainant along with Muhammad Nisar PW accompanied the deceased; as they reached outside the appellant's house in Madni Mohallah, Zaibur-Rehman armed with hatchet and Muhammad Shakil (since P.O.) dragged the deceased inside their house. According to the complainant, Muhammad. Sohail appellant made four consecutive shots with a 12-caliber shot gun hitting the deceased on left side of abdomen, left shoulder, and right hand; as he felled on the ground, Zaib-ur-Rehman chopped off his neck. Muhammad Sohail appellant while brandishing gun decamped from the scene with amputated head in his hand. Motive for the crime was deceased's run away marriage with Alia Bibi.
3. Autopsy was conducted by Dr. Muhammad Zaffar (PW-6) at 6:00 a.m. on 09-2-2009; he noted four firearm wounds on shoulder, abdomen, right hand palm accompanied by two incisions on left side of face and rear pinna as well as amputation of head and neck from chest; injury No,1 caused damage to the heart and was blamed as cause of death. Duration between injuries and death was 10 to 15 minutes whereas between death and postmortem about 4 hours.
4. Mohamad Doraiz, SI (PW-14) carried out initial investigation; during spot inspection, he secured blood, four casings of 12-caliber (P-7/1-4) vide memos. Zaibur-Rehman, appellant was arrested on 12.2.2009 and pursuant to a disclosure, he got recovered bloodstained hatchet (P-6) secured vide inventory; subsequently investigation was taken over by Sher Muhammad, S.I (PW-12); Sohail, appellant was arrested on 18-9-2011, pursuant to disclosure, he led to the recovery of 12- caliber gun (P-5), Shakeel co-accused stayed away from law and was proceeded against accordingly.
5. After completion of investigation, the accused were sent to face trial before a learned Additional Sessions Judge at Attock; on 27-10-2011 they contested their indictment and claimed trial, pursuant whereto, prosecution in order to bring home charge against them, besides relying upon forensic reports, produced as many as 14 witnesses; of them, Muhammad Altaf (PW-13) furnished ocular account, it is mainstay of the prosecution case; Nisar PW was given up as being won over. On forensic side, blood collected from the spot and its stains on hatchet (P-6) were found of human origin. Punjab Forensic Science Agency Report (Ex.PCC) is in the negative, as casings did not wed with gun (P-5), allegedly got recovered by Muhammad Sohail, appellant. The appellants confronted the prosecution evidence with the following unanimous plea:-- "The complainant all alone appeared in this court. Nisar, the Phuphizad of complainant alleged eye-witness of the case refused to appear as he was not agreed to give false evidence while toeing down the case of the complainant, though he is still residing in the village. During investigation none from the locality appeared to support the prosecution case as the dead body was recovered from an abandoned place and no occurrence took place at the place as alleged by complainant. After a considerable time it came to the knowledge of the police that the dead body was of Irian and they informed the complainant who arrived there and on the following day in consultation and deliberation the complainant involved us falsely in this case while changing the place of occurrence. As it was an unseen murder so the complainant involved us in this case on account of suspicion."
6. Unimpressed by the plea, the learned Addl. Sessions Judge vide judgment dated 30-08-2013 convicted the appellants under Section 302(b) read with Section 34 of the Pakistan Penal Code, 1860; Muhammad Sohail, appellant was sentenced to death along with payment of compensation in the sum of Rs,200,000/- or six months simple imprisonment in the event of default whereas Zaib- ur-Rehman, appellant was sentenced to imprisonment for life with compensation of Rs,200,000/- or six months simple imprisonment in default of payment thereof with benefit of Section 382-B of the Code of Criminal Procedure, 1898, vires whereof, are being challenged through Crl. Appeals Nos,344 and 382 of 2013; Murder Reference No,53 of 2013 seeks confirmation of death penalty; these are being decided through this single judgment.
2. Learned counsel for the appellants contends that in the face of improbable and unnatural evidence, the learned trial Judge grievously erred in returning a guilty verdict; that absence of Nisar PW, related in second degree both with the deceased as well as the complainant, reflects heavily on the prosecution case; that negative forensic report Ex.PCC is yet another blow to the prosecution; the bottom line is that prosecution has not been able to prove the case beyond reasonable doubt and it would be unsafe to maintain the convictions. Contrarily, the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment on the ground that in the given motive appellants' guilt was fully proved and that solitary statement of Muhammad Altaf (PW-13) was sufficient to sustain the charge inasmuch as Nisar PW was given up for being hand in glove with the appellants; it has been argued that negative forensic report would not adversely impact upon the prosecution case, otherwise firmly structured upon ocular account.
7. Awful violence suffered by the deceased has been argued for confirmation of death penalty.
8. 3.Heard. Record perused.
9. 4.Shockingly violent death is commensurate with grudge concomitant with the motive as deceased's marriage with Alia without parental blessings is not seriously contested and this in retrospect admits a space to entertain hypothesis of appellants' guilt, however, conviction that too involving ultimate penalty cannot be based upon a presumptive or moral satisfaction in the absence of positive proof. The fate of the present case is inescapably hinged upon the testimony of solitary eye-witness, namely, Muhammad Altaf (PW-13) real brother of the deceased, Nisar, PW, the other eye-witness, who according to the complainant, accompanied him to the venue has ditched the family. No doubt, a solitary witness can sustain the charge with capital sentence provided his testimony rings true and found synchronized within the ambit of probability. Muhammad Altaf (PW-13) must qualify this test.
10. Both the families are admittedly at loggerheads; family honour in rural neighbourhoods is taken very seriously and offence thereto seldom condoned; in this backdrop, invitation by hostile in-laws for a visit that too at an odd hour of night in the month of February sounds preposterous; obliging promptitude to accept the call without soliciting purpose thereof is no less mind boggling either; the family could have postponed the visit to a more convenient point of time under safer environment and with appropriate precautions, therefore, the prosecution case from its inception is far from being confidence inspiring. Occurrence being a night affair in a chilled winter night, question of identity of the assailants is yet another dilemma confronting the prosecution; though in site plans Ex.PU and PE, electric bulb is shown being illuminated in the courtyard, however, none was taken into custody and C it is admitted by no other than Bashir Ahmad Awan, Draftsman (PW- 4) that he had not himself seen any bulb and merely mentioned its presence in the site plan on the asking of the complainant and the PWs. Except the bulb mentioned above, there was no other source of light. Mute presence of the witnesses throughout during the occurrence and alarm thereafter is inconceivable to say the least. Complaint Ex.PD and inquest report Ex.PF have been drafted at the spot; in Column 24 of the inquest report, dead body is found lying with the head; it is not in consonance with the narrative furnished by Muhammad Doraiz, SI (PW-14); he claims to have retrieved the head from a deserted well near village Waisa and thereafter deputed Muhammad Ishaq/322-C (PW-5) to escort the dead body; as to how the Investigating Officer reached out to the well and who disclosed its location are the issues left to our imagination. The irresistible inference is that inquest report (Ex.PF) was prepared much later than the time mentioned therein and this admits a real possibility that complaint Ex.PD was recorded subsequent to the point of time mentioned therein after consultation and deliberation. Since Forensic Science Laboratory Report Ex. PL is in the negative, the prosecution case is tumbling on forensic side as well.
11. In a violent crisis situation with witnesses standing next to him, removal of deceased's head by Muhammad Sohail appellant merely to be thrown in a deserted well sans any logical explanation and instead spells out some different scenario. Admission by the Medical Officer in his cross- examination that he conducted autopsy on the dead body without head is a position diametrically inconsistent with the statement of Investigating Officer as well as description given in the inquest report. Statement of Muhammad Ishfaq/C (PW-5) who escorted the dead body is also out of tune.
12. On a careful analysis, evidence presented by the prosecution does not fit within the ambit of probability; no less improbable is presence of the witnesses and it can be held without a demur that occurrence did not take place in the manner as alleged in the crime report; conviction cannot be maintained merely on the premise that appellants harboured the only possible motive against the deceased, for it requires evidentiary certainty to hold the charge, thus, it would be grievously unsafe to maintain the convictions, therefore, by extending benefit of doubt to the appellants, Crl.
13. Appeal No, 344 of 2013 and Crl. Appeal No, 382 of 2013 are allowed; impugned judgment dated 30- 8-2013 is set-aside; they are acquitted from the charge and shall be released forthwith, if not required in any other case. MURDER REFERENCE No,53 of 2013 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.