QAZI MUHAMMAD AMIN AHMED, J.---Muhammad Fayyaz 55, Naseem Bibi,40, Tanvir Bibi,45 and Shabana, 18, henceforth referred to as the deceased, were done to death at 1:00 a.m. on 16-9-2009 within the area of village Sardareywala situating at a distance of 12-kilometers from Police Station Barrana, District Chiniot while they were present alongside Jahangir Abbas (PW-2) and Rehana (given up PW) in the courtyard; of them, Tanvir Bibi accompanied by her daughters Shabana and Rehana had come from Ahmadpur District Sargodha to visit the family as guests, 4/5 days before the occurrence. According to crime report (Ex.PA) recorded on the statement of Abu Basir (PW-1) at 1:55 a.m. near Darbar Shadi Sheikhan, the inmates were busy in gossip when all of a sudden, Asad Ullah, Zaheer Abbas, Shahid Abbas sons of Mulazim Hussain, Muhammad Imran son of Ahmad Shafi, Qalab Abbas and Fazal Abbas sons of Muhammad Zafar accompanied by three unknown assailants, variously armed, arrived at the scene on motorbikes. Asad Ullah accused made fire shots hitting Nasim Bibi on her left knee, thigh and right arm followed by a fire shot by Zaheer Abbas piercing through Shabana's head; as Muhammad Fayyaz came forward, he was shot by Fazal Abbas with a rifle on his chest; Imran accused made fire shots hitting Tanvir Bibi on both thighs, chest, chin and left arm; Shahid Abbas and Qalab-i-Abbas targeted Jahangir Abbas (PW- 2) and Rehana Bibi; shots landed on their left leg and thigh respectively; the deceased succumbed to their injuries at the spot while Jahangir Abbas and Rehana Bibi, PWs were rushed to hospital Lalian. Ghulam Shabbir and Munir Hussain witnessed the occurrence in the light of a lantern.
Munawar Sultana, daughter of Muhammad Zafar accused, had contracted marriage with Abu Basir (PW-1) without family approval and this is cited as a motive behind the crime, instigated by Muhammad Zafar and Parveen Bibi, co-accused.
Dr. Malik Naseem Ullah Khan (PW-4) medically examined Rehana Bibi at 6:05 a.m.; he noted two holes on the left abdomen both skin deep with inverted margins; a lacerated entry wound near left pubic accompanied by one on front of left thigh with an exit on its back; he also examined Jahangir Abbas (PW-2) and noted a lacerated firearm entry wound measuring 3.5 x 2.5 c.m. on left knee joint with its corresponding exit. Postmortem examination of Fayyaz Ahmad deceased was conducted same day at 3:30 p.m; a rounded wound of 2 cm in diameter was noted in front of left chest, 5 cm below left nipple; the projectiles fractured 3rd rib with injuries to left pleura, lung and aorta. Multiple small pellets were recovered from beneath the wounds; injuries to heart and lung generated haemorrhagic shock, resulting into immediate death; time between death and postmortem was estimated as 12 to 20 hours. Dr. Fouzia Yaqoob (PW-11) conducted autopsy on the dead body of Tanvir Bibi at 6:00 p.m; six entry wounds on left upper arm, chest, right thigh, left leg, right ankle joint and left thigh along with a gutter wound behind right leg accompanied by a skin deep laceration on the chin with respective exits were noted. Underneath bones were fractured; injury to left lung, multiple fractures involving left humorous, tibia and right ankle, generated haemorrhagic shock with resultant immediate death; time between death and postmortem being within 14 to 20 hours. Naseem Bibi, examined at 6:30 p.m. suffered three entry wounds on right thigh, left buttock and knee joint with solitary exit on the left lower thigh; hemorrhagic shock led to cardiopulmonary arrest, resulting into immediate death; time between death and postmortem was estimated as 14 to 20 hours. Shabana Bibi was examined at 7:00 p.m; solitary fire shot on the right side of head fractured underlying bone with outpouring of brain matter through an exit on the right side generating hemorrhagic shock with immediate death; time between death and postmortem was reckoned as 12 to 20 hours.
Muhammad Riaz, Inspector (PW-13) conducted initial investigation, after dispatch of the injured and dead, he inspected the spot wherefrom blood was secured along with 13 casings of 222- caliber, secured vide inventory; Parveen Bibi accused was arrested on 28-9-2009, while Asad Ullah, Zaheer Abbas, Shahid abbas, Imran, Qalb-i-Abbas and Zafar accused were proceeded against through issuance of proclamations. Ghulam Farid, SI (PW-16) arrested Qalab-i-Abbas and Muhammad Asif accused on 20-7-2010 followed by Zaheer Abbas and Shahibd Abbas on 5-5-2010 by Muhammad Ishaq, SI (PW-15); they were remitted into judicial custody without any recovery.
Zafar Abbas, Imran, Asad Ullah and Fazal Abbas stayed away from the law; they were proceeded accordingly the appellants were indicted by a learned Addl. Sessions Judge at Chiniot on multiple counts on 10-12-2010; as they claimed trial, prosecution produced as many as 17 witnesses to drive home the charge. Prosecution case is resting upon ocular account furnished by Abu Basir (PW-1) and Jahangir Abbas (PW-2); former while relating the events of fateful night, reiterated the case set up in crime report Ex. PA; he explained that conversation between the inmates was with regard to matrimonial proposals and identified Muhammad Asif as one amongst the unknown culprits and further elaborated the motive as follow:-- "Munawar Sultana was engaged to me four years prior to the occurrence in exchange of Firdos Bibi my sister. Thereafter Parveen Bibi accused demanded the hand of Munawar Sultana but said Munawar Sultana married me against the will of her parents due to this reason the occurrence took place."
Besides inter se relationship between Zafar accused and Munawar Sultana, the witness asserted that remainder of the accused were also related with the lady as well. Jahangir Abbas (PW-2) is in a comfortable unison. On forensic side, there is nothing to improve upon the ocular account, except autopsy reports accompanied by reports of Chemical Examiner and those of Serologist. The accused confronted prosecution evidence with a denial and blamed the alleged motive as a cause behind their false implication. Unimpressed by the explanation furnished, the learned Addl.
Sessions Judge while acquitting Parveen Bibi, Shahid Abbas and Asif, co-accused proceeded to convict Zaheer Abbas appellant on four counts of homicide under Section 302(b) of the Pakistan Penal Code, 1860; he is sentenced to death for committing Qatl-i-Amd of Shabana with payment of compensation of Rs.300,000/- or to undergo six months' simple imprisonment in the event of default; besides being convicted, in furtherance of common object qua the murders of Fayyaz, Naseem Bibi and Tanvir Bibi; sentenced to imprisonment for life on each with payment of compensation in the sum of Rs.300,000/- or to undergo six months simple imprisonment in default of payment thereof; he is additionally convicted under sections 324/149 of the Code ibid for injuries sustained by Jahangir Abbas PW with a sentence of 7-years' rigorous imprisonment along with fine of Rs.10,000/- or three months' simple imprisonment for default with 2-years' rigorous imprisonment under sections 337 F(iv)/149; he is further convicted under section 148 of the Code and sentenced to 3-years' rigorous imprisonment. Qalb-e-Abbas appellant stands convicted on all the counts ibid; he is sentenced to imprisonment for life on each count of homicide with payment of compensation in the sum of Rs.300,000/- on each or to undergo six months' simple imprisonment in default of payment thereof; additionally convicted under Section 324 of the Code, he is sentenced to 7-years' rigorous imprisonment along with fine of Rs.10,000/- or three months' simple imprisonment for default; under section 337 F(iv), he is directed to pay Daman of Rs.20,000/- to Jahangir Abbas PW; for Section 148 of the Code, he is sentenced to 3-years rigorous' imprisonment. Sentences were ordered to run concurrently with benefit of Section 382-B of the Code of Criminal Procedure Code, 1898.
2. Learned counsel for the appellants contend that prosecution case is fraught with doubts and improbabilities inasmuch as it was not humanly possible for the witnesses to capture details of the assault in the thick of night nor there was any occasion for them to assemble at the crime scene in the manner as alleged in complaint Ex.PA; that it is equally improbable, in a sudden crisis situation, so as to still be in a position to meticulously observe and capture minute details of the incident with specific role played by the assailants; that seizure of 13 casings of 222-caliber contradicts medical evidence inasmuch as from some of the wounds, multiple pellets were recovered; that neither the motive nor an inconsequential forensic report improved upon the ocular account, otherwise inherently flawed; that there was no earthly reason for the appellants in the backdrop of the alleged motive to target Tanvir Bibi and her daughters Shabana Bibi and Rehana Bibi in preference to Abu Basir (PW-1), the actual bone of contention; that non-production of Rehana Bibi, an independent witness, heavily reflects upon the credibility of prosecution case; that prosecution evidence cannot be relied upon against the appellants after acquittal of Parveen Bibi, Shahid Abbas and Muhammad Asif co-accused, the last two having actively participated in the occurrence in the absence of independent corroboration, hopelessly lacking; that belated postmortem examinations have been referred to argue that inquest reports as well as the complaint were not recorded at points of time mentioned therein. 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. The learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment on the ground that with the assistance of ocular account, the witnesses successfully drove home the charge against the appellants by excluding every hypothesis of their innocence; being inmates that included an injured as well, their presence at the crime scene could not be doubted and, thus, there was hardly any need to produce Rehana Bibi and as such her absence from the witness box cannot be argued against.
According to the learned Law Officer, prosecution case being firmly structured on ocular account would not require any forensic support through recoveries for the purpose of corroboration, rule of prudence and not that of law. It is lastly argued that there is no foundation to entertain hypothesis of substitution, otherwise, a rare phenomena. Magnitude of violence and consequent loss of life have been pressed into service for confirmation of death penalty.
3. Heard. Record perused.
4. Tanvir Bibi accompanied by her daughters Shabana and Rehana, according to the prosecution, came to visit the family 4/5 days before the occurrence from their village situated in District Sargodha at a distance of 70 kilometers from the venue. Targeted assault on these ladies in the backdrop of alleged motive is inconceivable and so is their presence alongside the others during the fateful moments at an odd point of time during the night to discuss matrimonial proposals at 1:00 a.m, hardly an opportune time to negotiate the subject, that too, in the presence of young girls.
It is admitted by Abu Basir (PW-1), "We used to take our meal at M AGHRAB time and we slept at ESHA time". Visitors being with the family for last 4/5 days, there was ample time for the participants to undertake discussion under more congenial moments; script is far from being plausible. It is prosecution's own case that assault was mounted to avenge insult in the wake of Abu Basir's marriage with Munawar Sultana daughter of Muhammad Zafar accused without family blessings; he survived assault unscathed; it is hard to believe that nine assailants armed to the tooth who came all the way to settle the score would spare the choice target and instead play havoc with the lives of the deceased, with no axe to grind. Arguments that occurrence did not take place in the manner as alleged nor the said witness was present at the crime scene cannot be dismissed out of hand. Lantern, the solitary feeble source of light has not been taken into possession, thus, the question of identity of assailants is inexorably lurking beneath the prosecution case. The Investigating Officer recorded complaint Ex.PA at the spot at 1:55 a.m. while Dr. Malik Nasim Ullah Khan (PW-4) attended Rehana Bibi for medical examination at 6:05 a.m. followed by Jahangir Abbas (PW-2) at 6:15 a.m. It is surprising that first postmortem examination was conducted as late as 3:30 p.m. after more than nine hours. The Medical Officer stated in his cross- examination that he conducted postmortem examination on the dead body of Fayyaz without any delay; same is the case with the other deceased; this delay spaces possibility that inquest reports as well as complaint Ex.PA were recorded subsequent to the point of time mentioned therein, presumably after deliberations and consultations. Night occurrence with scanty source of light reinforces the hypothesis of guesswork by the family in the wake of a sudden surprise assault.
Presence of pellets in some of the wounds suggests use of a shotgun while the prosecution is solely relying upon 222-caliber weapon. In the absence of recoveries, prosecution case sans forensic support as well. Accused Zafar, Asad Ullah, Zaheer Abbas and Shahid Abbas are real brothers inter se whereas Qalb-e-Abbas and Fazal Abbas are sons of Zafar accused; Asif accused subsequently inducted through supplementary statement is nephew of Zafar accused whereas Parveen Bibi co- accused is a sister; entire clan has been roped in; in the presence of unknown assailants, they really did not need to participate in the occurrence themselves, as the needful could be conveniently done by them without corporal consequences for the family. While presence of Jahangir Abbas (PW-2) being an injured cannot be possibly doubted at the spot, however, whether he shared with the court the whole truth is D another issue; injuries are not passport into the realm of truth and, thus, a narrative must rings true to merit reliance. From amongst the acquitted co- accused Shahid Abbas is attributed fire shots to Jahangir Abbas and Rehana Bibi PWs; failure of prosecution witnesses qua Shahid Abbas reflects upon their credibility qua the remainder.
Similarly, prosecution case cannot be accepted in the absence of solid foundations merely on the ground that the family would not substitute the innocent with the real culprits; though a rare phenomena, nonetheless, substitutions do occur in cases between arch rivals, in incidents unwitnessed or situations where scores are settled through hired assassins; it equally applies in surprise attacks with suspect identity; in the aforementioned cases, more often than not, real offenders are swa pped on the basis of guess mark or suspicions. Colossal loss of life, notwithstanding, the case against the appellants is not free from doubt and as such they cannot be visited with ultimate corporal penalty merely on the basis of suspicion or moral satisfaction in the absence of evidentiary certainty and, thus, having found their convictions unsafe, Crl. Appeal No.367-J of 2011 and Crl. Appeal No.1838 of 2011 are allowed; impugned judgment dated 26.09.2011 is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No.442 of 2011 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.