QAZI MUHAMMAD AMIN AHMED, J:-Mirza Waris Baig, 35, henceforth referred to as the deceased, was spotted dead on 24-8-2012 within the precincts of Police Station Mangla Cantt. District Jhelum; incident was reported by his father Muhammad Arif (PW-14) through complaint (Ex.P A/1) recorded by Usman Ghani SI, 4:30 p.m. at D.H.Q.
Hospital Jhelum. According to the complainant, the deceased left home 2:30 p.m. on motorbike to fetch oil cake (Khul); upon receipt of information, he rushed to the spot along with Khizar Hussain and Jehagir Khan; deceased was lying on roadside, his body riddled with bullets; suspicion was laid against Daud Baig and Mst. Shahnaz Begum, as they extended threats to the deceased on account of murder of Mazhar Hussain and Azra Begum, deceased' s collateral, in the year 2008 wherein Daud Baig, Zaheer-ud-Din Babar , Sabir Hussain and Irshad Qureshi along with others were arrayed as accused by the deceased; deceased was done to death through hired assassins, reads the complaint.
Autopsy conducted at 9:30 p.m. reveale d five entry wounds, on the skull, left shoulder , left lower back and left forearm with corresponding exits; skull bones were fractured while left eye ball was missing; injury on left middle back was surrounded by blackening; massive violence caused extensive dama ge to the brain and lungs and caused death at the spot whereas time between death and postmortem was estimated as six hours.
Spot inspection by Usman Ghani, S.I (PW-15) includes seizure of blood, three crime empties of .30 caliber , deceased' s motorbike and Chappal . The complainant improved upon his case vide supplementary statements dated 2-9-2012 and 7-9-2012 and introduced Ansar Ali Qureshi, Muhammad Waqas as well as the appellant being culprits for the crime. Ansar Ali Qureshi was exonerated during the investigation whereas Muhammad Waqas died in a police encounter . Mst. Shahnaz Begum was arrested on 9-9-2013 followed by the appellant on 20-4-2014; the latter led to the recovery of .30 caliber pistol (P-4) and motorbike (P-10). Indicted on 02-06-2014, the accused claimed trial, pursuant whereto, prosecution produced as many as sixteen witnesses; of them Mirza Ali Raza (PW- 12) furnished ocular account whereas Muhammad Arif (PW-14), architect of the case, reiterated the prosecution case initially set up in the crime report. On forensic side, earth secured from the spot was found stained with blood of human origin whereas the casings did not tally with the pistol recovered at appellant' s disclosure. Both the accused confronted the prosecution evidence with a unanimous denial. The learned Sessions Judge, however , vide impugned judgment dated 15-1-2016 acquitted Mst. Shanaz Begum, co-accused and proceeded to convict the appellant under clause (b) of section 302 of the Pakistan Penal Code, 1860 and sentenced him to imprisonment for life alongwith compensation in the sum of Rs.200,000/- or to undergo six months simple imprisonment in the event of default, vires whereof, are being challenged by the convict through Crl. Appeal No.24 of 2016.
2. Learned counsel for the appellant contends that the appellant is not named in the crime report; according to him, he was subsequently arrayed with his name on the basis of a misplaced and ill-conceived suspicion through supplementary statement recorded much late in the day; that presence of the eye witnesses at the crime scene being highly improbable and unnatural, their evidence merited outright rejection; that acquittal of co-accused goes a long way to reflect upon the prosecution case, benefit whereof cannot be withheld; that occurrence did not take place in the manner as alleged in the crime report; that massively improved case with hugely graduated number of accused was fraught with doubts and that it would be extremely unsafe to maintain the conviction Contrarily, the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment on the ground that prosecution successfully drove home the charge with the assistance of natural and truthful witnesses having no axe to grind against the appellant; that First Information Report is not last word of the prosecution and the witnesses joined investigation in due course to truthfully narrate the events viewed by them and, thus, no hypothesis for substitution can be entertained.
3. Heard. Record perused.
4. The incident is sequel of earlier murders, reported by the deceased wherein Daud Baig, Zaheer-ud-Din Babar , Sabir Hussain and Irshad Qurshi alongwith others were differently convicted and sentenced; according to the complainant, Shahnez Begum acquitted co-accused extended threats to the deceased, either to settle the issue or face the consequences. In this backdrop, it was suspected that unknown assailants were employed to quench the vendetta; initial case thus is structured upon a suspicion expressed before the Investigating Officer at 4:30 p.m. On 2-9-2012 the complainant pointed his finger upon Ansar Ali Qureshi for having committed the crime; he was exonerated and never tried; the complainant once again came up with a different story on 7-9-2012 when he accused the appellant and Waqas being responsible for the crime; the latter was done away in an 'encounter ' while the former alongside Shahnaz Begum contested the charge on judicial side. Astonishingly prosecution case is based upon statement of Mirza Ali Raza (PW-12); he being Mamoonzad is first cousin of the deceased and claims to have joined investigation on the fateful day at 9:30 p.m. wherein he shared information of having seen the occurrence alongside Qamar Hussain (given up PW); according to his account, he saw Shahnaz Begum on a motorbike sitting with an unknown person side by side the appellant on a different bike, intercepting the deceased, who was shot by him after exhortation by the lady. Position initially taken in the crime report and the story related by Mirza Ali Raza (PW-12) are mutually destructive; if at all, the latte had witness ed the incident, he would have been the first person to inform Muhammad Arif (PW-14), no other than his maternal uncle. Complaint Ex.PA/1 recorded at 4:30 p.m. in D.H.Q. hospital does not space any hypothesis to accommodate position taken by Mirza Ali Raza (PW-12); he cannot take refuge behind his disclosure at 9:30 p.m. as the inquest report Ex.PQ in brief notes reflects the case set up in the complaint; same is the case with the site plan without scale dated 24-8-012 (Ex.PS) and with scale dated 26-2-2013 (Ex.PG) wherein the appellant and co-acc used are conspicuously missing; same is the case with scaled site plan dated 26-2-2013 Ex.PG. These aspects of the prosecution case unambiguously suggest that the appellant and his co-accused were brought in the array much late in the day, seemingly either on information received belatedly or most probably under a belief grounded into suspicion on account of previous enmity , therefore, supplementary statements, otherwise contradictory essentially being statements under sections 161 of the Code of Criminal Procedure, 1898 cannot be equated with the First Information Report nor read in extension thereof. Forensic comparison of the weapon and the casings also recoiled upon the case. Yet another unnatural aspect of the prosecution case is participation by Mst. Shahnaz Begum in the hot pursuit; in rural neighbourhood more often than not, women are kept at bay. Argument that the appellant has been substituted for the real culprits cannot be viewed unrealistic, particularly in view of the position taken in the crime report. Substitution is not that rare a phenomena; there are situations when the offenders are swapped to settle earlier scores; such situations are most aptly described in the case of Muhammad Ramzan alias Boota Vs. The State (PLD 1999 Lahore 221 ), relevant portion whereof is advantageously reproduced:- "Substitution in criminal law means, replacement of real offender by another person who might be wholly unconnected with crime or might have played a role different than the one assigned to him. Substitution of the real offender by another person is said to be a rare phenomenon. This concept is essentially based on human psychology that retributive instinct of the victim or aggrieved person would prompt him to go only for the blood of the actual perpetrator and not the innocent. The rule has no empirical foundations and the question whether there has been substitution or not, has to be determined on case to case basis because in actual practice substitution has not been found to as rare as one would have you believe. Substitution is of two kinds: Conscious, calculated and well-thought of; and the other kind is non-deliberate. Where parties are not at loggerheads prior to an incident which takes place suddenly or due to an isolated cause or motive, and the complainant party has no time to reflect on the issue and the registration of case is free from extraneous or external influences, there would be little likelihood of substitution. But where deep-rooted enmity exists between the parties and internecine feud is going on between the two for some time, the complainant party would have every desire to see the heads of the mighty roll. In such a situation, persons of the opposite camp who are more influential, more important or more dangerous, are likely to face the brunt of vendetta of the wily and scheming complainant. Considerable substitution in such situations is likely to occur. Another case scenario admitting of such a possibility is where hired assassins are employed to commit a crime. Real culprits or the mafioso are some times let off and instead actual enemies who hire the assassins are assigned the effective roles or roles played by accused are swapped. A large scale substitution is resorted to by the complainant in such cases. This phenomenon is noticeable in North Western part of the Punjab. Non-deliberate substitution on the other hand occurs where the incident is unwitnesse d one or is not witnessed by the concerned people and there is no apparent motive for the incident. The accused, in such cases, is picked out or involved on suspicion, guessmark or information provided by others. Choice of the accused being suspicion-based, can be equally wrong or fallacious.
The substitution or more correctly , false involvement, in such a case, might not be motivated, but nonetheless is a real possibility but surprising aspect of the matter is that the complainant party would stick with dogmatic rigidity to the ill-conceived story pieced together by it. The reason might be various or diverse, but hard fact and unpalatable reality is that role-swapping and substituti on in criminal cases does take place. May be crime culture of the society has undergone a change or the moral fiber of society has decayed. The case in hand appears to fall in the last category of cases where substitution is result of guesswork".
It would be less than prudent to rely upon the statement of Mirza Ali Raza (PW-12) to maintain the conviction; he has already been disbelieved qua Mst. Shahnaz Begum by the trial Court. Consequently , Crl. Appeal No.24 of 2016 is allowed and the appellant is acquitted from the charge and shall be released forthwith if not required in any other case.