QAZI MUHAMMAD AMIN AHMED, J.---Muhammad Mansha, 71, Ali Sher, 15 and Ali Ahmad, 12, were done to death during the night between 28/29-1-2008 at 1:00 a.m. in a residential house located within the area of Khana-wali District Sheikhupura at a distance of 10-miles from Police Station Sharqpur; incident was reported by Muhammad Mansha's son Ghulam Rasool (PW-14) through application Ex.PF received by Ghulam Abbas SI (PW-9), 2:20 a.m. at the spot. According to the complainant, his father Muhammad Mansha alpng with maternal nephews Ali Sher and Ali Ahmad were sleeping in the Baithak, as per usual routine, when at about 1:00 a.m. the door was knocked; upon inquiry by Mansha deceased, the visitor disclosed his name as Dani, a frequent visitor. As the door was opened, Dani armed with a dagger, Feroz alias Foji with a Kalashnikov, Falak Sher alias Phakku with 223-bore gun, Mukhtar alias Mokhi with a Kalashnikov and Jafar Ali with 223-bore entered the room. Complainant's uncle Riasat Ali (PW-13) sleeping with him in the same room joined him to see in the light of electric bulb, through the door apertures slitting Muhammad Mansha's jugular vein while Feroz alias Foji, Falak Sher alias Phakku, Mukhtar alias Mokhi and Jafar Ali firing indiscriminately upon the deceased while reminding them that they did not desist to follow case of Sher deceased despite advice and decamped from the scene; struck with fear, the witnesses stayed at bay for a while whereafter attended the dead; it is complainant's case that the assailants did not know about their presence in the adjoining room and that assault was carried out on the instigation of Shoukat Ali son of Khushi Muhammad, overheard on 28-1-2008 conversing with Dani accused while hatching the conspiracy. Muhammad Latif son of Talib Hussain is cited as a witness to have seen the above named accused accompanied by two unknown persons standing outside on vigilance.
Muhammad Mansha was examined at 9:10 p.m. followed by Ali Sher at 9:30 p.m. and Ali Ahmad 9:55 p.m. on 29-1-2008, respectively by Dr. Sohail Abid (PW-10). Muhammad Mansha was noted incised wound 15x4 cm on front of neck with ruptured throat, soft tissues, muscles, vessels, trachea and esophagus up to cervical vertebrae accompanied by a penetrating firearm wound on left postrolateral part of chest with its exit, 4 cm above and lateral to left nipple; another penetrating wound measuring 1 x 1 cm was on the right hypochondrial region with a circular shape wound on front of left lower chest, both skin deep and superficial in nature. On probe, ribs on left side, left pleura and lung were found severely damaged; injuries Nos,1, 2, 3 generated irreversible haemorrhagic/hypovolemic shock to cause immediate death. Ali Sher deceased was noted with four entry wounds, three on chest while the fourth on right elbow with corresponding exits, besides a lacerated wound on the abdomen above the left gluteal region in the measurement of 2 x 1.5 cm.
Dissection revealed fracture of 2nd, 5th, 6th and 7th ribs with rupture of pleura, lungs, liver and heart; 10th thoracic vertebra was found fractured as well; hemorrhagic shock resulted into immediate death. Ali Ahmad deceased suffered four entry wounds, on right thigh, leg, left interior knee and right mid-arm with corresponding exits; throat was slit on the frontal side with an incised wound on front of lower chest with fractured sternum and ribs as well as exposed pericardium; injuries generated irreversibly hypovolemic shock with immediate death; duration between death and postmortem was within 24 hours and rigor mortis noticed in each case.
Muhammad Azam Inspector (PW-16) attended the dead bodies and inspected the spot after dispatch to the mortuary; he collected blood from the crime scene as well as 39 casings of Kalashnikov and 223-caliber besides a live bullet as well as four led bullets; he took other investigative steps of formal nature as well. Attempts to arrest the accused remained abortive, however, the appellant was arrested on 18-11-2012; pursuant to a disclosure, he led to the recovery of gun (P-29); remainder of the accused are away from law till date. Indicted on 03-2-2012 by the learned Judge, Anti-Terrorism Court-I Lahore, the appellant claimed trial, pursuant whereto, prosecution produced as many as 19 witnesses besides its reliance upon forensic reports, confronted by him with a denial while blaming Muhammad Mansha deceased to have multiple scores to be settled by his enemies, resulting into his death, during the dark; he claimed that having long standing enmity with tie accused named in the crime report, he had no occasion to join hand with them. Unimpressed by the plea taken, the learned trial Judge proceeded to convict the appellant under sections 302(b)/149 of the Pakistan Penal Code, 1860 read with section 7(a) of the Anti-Terrorism Act, 1997 and sentenced him to death on three counts with payment of compensation of Rs,200,000/- each or six months rigorous imprisonment in the event of default; he was additionally convicted under section 148 of the Pakistan Penal Code, 1860 with sentence of three years rigorous imprisonment; he was also convicted under section 21(L) of the Anti-Terrorism Act, 1997 and sentenced to five year rigorous imprisonment vide impugned judgment dated 20-2- 2013, vires whereof, are being assailed vide Crl. Appeal No,69-J of 2017 clubbed with Capital Sentence Reference No,4-T of 2013; since a common thread binds the both, these are being decided through this single judgment.
2. Learned counsel for the appellant contends that prosecution story is extremely improbable and unnatural on face of it, as according to him, in the given motive, there was no occasion for the assailants to brutally murder two young boys and an old man in preference to the able-bodied targets available at hand; that seemingly there was no earthly reason for the assailants to slit necks of two deceased while they were armed to the tooth with lethal and effective weapons, particularly incised wound suffered by Ali Ahmad deceased, not mentioned in the crime report suggests a scenario inconsistent with the case set up therein; that question of identity of assailants in a dark winter night in the absence of reasonable proof regarding source of light is inescapably pointed upon the prosecution case; that inert conduct of Ghulam Rasool (PW-14) watching his father and a nephew being butchered irresistibly suggests his absence from the scene at the relevant time; that belated autopsies confirmed the hypothesis that neither the inquest reports nor complaint were prepared at points of time mentioned therein and the exercise was carried out subsequent thereto in the wake of consultations and deliberations. The bottom line is that prosecution has not been able to prove the charge beyond reasonable doubt and, thus, it would be unsafe to maintain the convictions. Learned Law Officer assisted by learned counsel for the complainant, contrarily, defended the impugned judgment on the ground that three innocent persons done to death in a most callous and barbaric manner inside the safety of their house, there was no occasion for the witnesses, natural being inmate, to substitute the real offenders; it is argued that gruesome, as it was, the incident struck a debilitating fear to be stunned at bay; that medical evidence confirmed ocular account and, thus, the learned trial Judge rightly placed implicit reliance thereon. Magnitude of violence and colossal loss of life as its aftermath have been pressed into service for confirmation of death penalty with a reference to the absconding accused.
3. Heard. Record perused.
4. Colossal loss of life and horrific magnitude of violence suffered by the deceased, notwithstandidg, the statements of Riasat Ali (PW-13) and Ghulam Rasool (PW-14) warrants cautious scrutiny; both of them claimed to be present in the next room during the fateful moments and to see the occurrence, a mind boggling episode. Cases of multiple homicide between the accused and Ghulam Rasool (PW-14) is a common ground; 'though the crime report Ex.PF suggests him out of assailants view, nonetheless, he in his cross-examination made startling disclosures, "... When the knock was made at door I did not come out. My door was locked from inside. The door of the room of Mansha was also locked from inside. I did not inquire who was at the door. I did not stop my father Mansha from opening the door. I did not inquire from Dani the purpose of his visit at mid night. I did not come to the room of my father prior to his opening the room. I was scared of the accused. Volunteered that I kept on looking from the door. I did not try to escape from my room on seeing the accused entering in the room of my father. Volunteered that the co- accused were also present outside the room..... I did not stop the accused entering the room of my father The distance between myself and the accused at the time of entering the room was only one pace." The above tenor does not synchronize with the narrative related by the witness in the crime report. Though human response in a crisis situation cannot be hypothesized with empirical exactitude, nonetheless, given antecedents, inter se relationship and the duration for which the occurrence lasted, make his presence extremely improbable as being so closely situated, he possibly could not evade notice by the assailants and, thus, being a choice target, escape consequences thereof; this irresistibly suggests that he was not physically present at the crime scene. Taken from another angle, the position A taken by both the witnesses that they mutely witnessed the family members being slaughtered by peeping through door apertures is ludicrous to say the least. Attempts by the complainant to bring his testimony in line with medical evidence through improvement in the witness box, duly confronted, additionally impinge upon his testimony.
Not much better is case of Riasat Ali (PW-13); seemingly there was no occasion for him to stay overnight with the unfortunate family; he admitted that he resided in his house situated in village Khana-wali; his attempt to furnish a comprehensive account of the occurrence despite being confined in the adjoining room in the midst of a winter night cannot be received without suspicion; he has also resorted to improvements to be in a unison with Ghulam Rasool (PW-14) One weak piece of evidence cannot improve upon another of like nature. Both the witnesses failed on the touchstone of probability; a cardinal method for appraisal of evidence in dispensation of criminal justice. Source of light is yet another factor heavily militating against the prosecution case.
Muhammad Azam Inspector (PW-16) admitted that " I did not take bulb or tube from the place of occurrence. I did not note the voltage of the tube or bulb installed at the spot. I have not mentioned existence of any electricity meter. I did not collect any electricity bill from the complainant. I did not confirm the installation of electricity facility from the concerned department.... ". This disclosure becomes extremely relevant in view of statement of Riasat Ali (PW- 13) who stated that house of Mansha was not in the residential area of the village as it was adjacent to the place of occurrence. Even otherwise, lights are put out, more often than not, before people go to bed. Delayed postmortem examinations during the following night commencing from 9:10 p.m. onwards admit enough space to infer that inquest reports as well as the crime report were not prepared at points of time mentioned therein and, thus, deliberations, consultations and guesswo rk could not be ruled out. Insofar as motive is concerned, it cuts both ways; often with greater incision to the accuser than the accused. Two young lads and an aging old man at the fag-end of his life could not be choice targets when the accused had an axe to grind more aptly against the complainant who could have been located by the assailants without much hassle.
With the above circumstances inexorably pointed upon the veracity of prosecution case, appellant's conviction cannot be maintained on the basis of a positive forensic report alone, as it would be perilously unsafe to maintain the conviction. Consequently, Crl. Appeal No,69-J of 2013 is allowed impugned judgment dated 20.02.2013 is set aside; the appellant is acquitted from the charge and shall be released forthwith, if not required in any other case. Capital Sentence Reference No,4-T of 2013 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.