QAZI MUHAMMAD AMIN AHMED, J.---Ishtiaq Khurshid, appellant herein, is in receipt of a guilty verdict, returned by a learned Additional Sessions Judge at Rawalpindi vide judgment dated 07- 06-2013; he stands convicted under section 302(b) of the ,Pakistan Penal Code, 1860 for committing Qatl-i-amd of Muneeb Akram, 19/20, hereinafter referred to as the deceased, within the area of Committee Chowk situating at (1/2) kilometer from Police Station Waris Khan, Rawalpindi.
Sentenced to death with payment of compensation in the sum of Rs.200,000/-, to be recovered as arrears of land revenue or to undergo six months' simple imprisonment in the ,event of default, he disputes wires of the impugned judgment through Crl. Appeal No.257 of 2013 while the State seeks confirmation of death penalty vide Murder Reference No.32 of 2013, being decided together through this single judgment.
2. Prosecution case is founded upon statement (Ex. PQ) of Azhar Iqbal (PW-11), deceased's maternal uncle, recorded by Muhammad Akbar, S.I (PW-12), 3:20 a.m. on 8-6-2011 at Benzir Bhutto Hospital, Rawalpindi. According to the complainant, his brother-in-law passed away 7/8 months before and he used to visit his sister, a mentally retarded woman, off and on along with his cousin Nazim Raza (PW-9). During the fateful night, the complainant, Nazim Raza (PW-9), Munib Akram deceased and his brother Muhammad Rafi (PW-10) were asleep in the same room when, while responding door bell, the deceased went outside; exchange of abuses, a while later, attracted the PWs outside as well to see two youth with whitish complexion and under built, exchanging abuses with the deceased; while the PWs intervened, one of them took out a 30-caliber pistol from his fold and fired upon the deceased hitting him on his right flank; as he felled on the ground, both of them decamped from the scene; it is alleged that they belonged to Dhok Khabba and could be possibly identified. No motive is cited in the crime report.
The deceased, in injured condition, was shifted to Benzir Bhutto Hospital, Rawalpindi; he was attended by Dr. Sher Muhammad (PW-3) at 2:50 a.m. on 08.06.2011 in semiconscious condition with a lacerated wound measuring 1.5 x 1.5 cm on upper part of right chest with inverted margins. The deceased succumbed to his injuries at 9:00 p.m. on 9-6-2011 and his autopsy was conducted at 11:30 p.m. by Dr. Qasim Khan (PW-7); the solitary fire shot with blackening and tattooing around along with its exit, ruptured right lung, pleura and blood vessels with haemorrhage generating hypovolemic shock, opined as sufficient to cause death in the ordinary course of nature; death occurred within 20 hours while duration between death and postmortem was estimated as 3 hours.
Muhammad Akbar, SI (PW-12) carried out initial investigation; during spot inspection, he secured bloodstained earth as well as one empty vide inventory; as the investigation progressed, the complainant improved upon his case through a supplementary statement purportedly of even date wherein he introduced the appellant as the culprit, responsible for the death; he was taken into custody by Muhammad Akbar, S.I (PW-12) on 15-6-2009 under section 54 of the Code of Criminal Procedure, 1898 and put to test identification parade on 16-7-2011, to be rightly picked by the witnesses; formal arrest is shown as on 27-07-2011 when pursuant to a disclosure, he led to the recovery of pistol (P-5), secured vide inventory; after completion of investigation, he was sent to face trial; on 26-10-2011 he claimed trial, pursuant whereto, prosecution in order to bring home the charge, besides relying upon forensic reports, produced as many as twelve witnesses; of them, Nazim Raza (PW-9) and Muhammad Rafi (PW-10) furnished ocular account; it constitutes the mainstay of the prosecution case. According to forensic reports, earth secured from the spot was found stained with blood of human origin. Report of Forensic Science Laboratory (Ex.PGG) is in the negative as casing secured from the spot was not found wedded with pistol (P-5). The appellant confronted prosecution evidence with a detailed reply; the bottom line of his position is that he was picked up on account of mistaken identity and misplaced suspicion; alleging his exposure to the PWs before he faced them in the test identification parade. Unimpressed by the position taken, the learned trial Judge proceeded to convict and sentence the appellant as referred to above.
3. Learned counsel for the appellant contends that the appellant is not named in the crime report and was arrayed as one of the accused through a supplementary statement recorded much later than the point of time mentioned therein; that after appellant's nomination through a supplementary statement and in statement of eye-witnesses under section 161 of the Code of Criminal Procedure, 1898, there was no occasion to undertake the exercise of test identification parade and for the same reason, his involvement in the case on the basis thereof is beside the mark; that a negative forensic report goes a long way to adversely reflect upon the veracity of prosecution case; that subsequently introduced motive does not provide structural strength to the prosecution case. Contrarily, the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment on the ground that soon after recording of crime report Ex. PA, the name of appellant was mentioned before the Investigating Officer, rightly identified in a test identification parade and as he is assigned a solitary fire shot to the deceased, every hypothesis of his innocence stands excluded, notwithstanding, an inconsequential recovery without adversely impinging upon the prosecution case, otherwise being firmly founded on ocular account furnished by natural witnesses, confirmation of death penalty has been prayed for.
3(sic.) Heard. Record perused.
4. Muhammad Akbar, SI (PW-12) first attended the deceased in injured condition in the hospital; the first step taken by him was application Ex.PE addressed to the Medical Officer soliciting opinion about injured's capacity to make a statement; according to the Medical Officer, he was unable to make statement; it is subsequent thereto that complaint Ex.PQ by Azhar Iqbal (PW-11) is recorded wherein appellant's name is conspicuously missing and so the motive; the appellant's name as well as the motive have been introduced subsequently through a supplementary statement as well as in the statements of the witnesses recorded under section 161 of the Code of Criminal Procedure, 1898, purportedly of even date. In this backdrop, the central issue is as to at what point of time, the witnesses raised their finger upon the appellant by taking his name before the Investigating Officer.
Azhar Iqbal complainant (PW-11) in his examination-in-chief named the appellant as the one who fired fatal shot on the deceased within his view, when confronted by the defence, he admitted that at the time of recording of complaint Ex.PQ, he was not aware of appellant's name. Nazim Raza (PW-9) admitted in his cross-examination, "I had not met accused Rao Ishtiaq before occurrence nor seen Ishtiaq before occurrence. Rafi and Azhar were also not acquainted with accused Ishtiaq before occurrence". Next in line is Muhammad Rafi (PW-10); he unambiguously named the appellant in his examination-in-chief while relating graphic details of the incident; in his response during the cross-examination, he stated, "I had seen accused Rao Ishtiaq before occurrence but I had not met him. I had seen accused Ishtiaq at the time of previous altercation of the accused and deceased. During that altercation my brother had telephonically called me. The altercation took place in Committee Chowk near Snooker Club. When I had reached at the place, the people had intervened." He disclosed in his cross-examination that all the three witnesses accompanied the injured to the hospital. It is prosecution's case Muhammad Rafi (PW-10), real brother of the deceased, could not share appellant's name with the complainant for being in a different vehicle and subsequently pre-occupied to manage blood, etc. and by that time he had the opportunity to inform the complainant; complaint Ex.PQ was also already chalked out. One may find it hard to buy the story and for a Variety of reasons as well. All the three eye-witnesses, unanimously claimed to have witnessed the occurrence and that being so, a most natural and prompt reaction on part of the complainant was to inquire appellant's name from the injured or Muhammad Rafi (PW-10), if at all, he were present there. Even without such a query, there seems on-earthly reason for Muhammad Rafi (PW-10) to withhold this most vital aspect of the case from other family members.
Even if explanation furnished by Muhammad Rafi (PW-10) for a journey to the hospital in a different vehicle is accepted with a pinch of salt, he could have easily shared this information before the family set out for the hospital, or alternately when they reached there. Position taken by the prosecution is preposterous to say the least. Hypothesis of introduction of appellant's name through a supplementary statement of even date is also far from being real; a supplementary statement is essentially a statement under section 161 of the Code ibid; it cannot be equated with the First Information Report nor read in extension thereof. According to medico legal certificate (Ex.PC), the deceased in injured condition was received in the hospital under a police docket at 2:50 a.m. Dr. Sher Muhammad (PW-3) initially attended the deceased and conducted medical examination at 2:50 a.m.; complaint Ex.PQ is recorded subsequent thereto at 3:20 p.m.; the deceased succumbed to his injury on following day i.e. 9-6-2011 at 9:00 p.m.; in the brief facts of the case annexed with inquest report Ex.PL, there is no reference to the appellant; it was simply not possible if the witnesses had named him in their statements under Section 161 of the Code ibid or the complainant introduced his name in the supplementary statement at the stated point of time.
The exercise was undertaken much late in the day, seemingly, in' the wake of consultation and deliberation. In initial medical examination, duration of injury was estimated as within six preceding hours; this timeframe, though approximate with space of 1 to 2 hours on either side, nonetheless, despite extension of maximum allowance does not coincide with the stated time of assault and it appears that occurrence took place much earlier than 2:00 a.m.
Azhar Iqbal complainant (PW-11) is resident of Mohallah New Parian; same is the case with Nazim Raza (PW-9), a resident of Dhok Thillu Khan Satellite Town; while being relatives they can validly claim to be on visiting terms with the deceased's family, nonetheless, there appears no, special reason for their stay with the deceased in his house located in Committee Chowk, a locality at considerable distance from their respective abodes. This aspect of the case when correlated with the initial investigative steps san reference appellant's name or the alleged motive that makes their presence at the crime scene all the more doubtful.
Muhammad Akbar, SI (PW-12) admitted by a Court bailiff on 15-6-2011, a date that coincides with the purported date of arrest however, denied a suggestion that the appellant was with him under wrongful confinement since 11-6-2011. Though a denied suggestion would not take us anywhere, nonetheless, bailiff's visit at the police station, the same day the appellant was statedly brought therein is mind boggling. It is admitted by the Investigating Officer that the appellant pleaded innocence on the day one and remained adamant on his plea throughout. Negative forensic report Ex.PW is yet another dilemma confronting the prosecution. These drawbacks stand in impediment to prosecution's reliance upon a test identification parade, otherwise, meaningless in view of a fake claim by Muhammad Rafi (PW-10) that he already knew the appellant. The prosecution has not been able to prove its case against the appellant beyond reasonable doubt and the argument that he is being hounded on the basis of a misplaced and misconceived suspicion is not entirely beside the mark, therefore, it would be unsafe to maintain the conviction, thus, by extending benefit of the doubt to the appellant, Cr1. Appeal No. 257 of 2013 is allowed; impugned judgment dated 7- 6-2013 is set aside; he is acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No.32 of 2013 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.