Qazi Muhammad Amin Ahmed, J.--Muhammad Ashraf, 45, his sons Thaheem Ashraf, 18, and Faheem Ashraf, 15/16, hereinafter referred to as the deceased, were shot dead on 25-5-2009 at 3:00 a.m. within the area of Gulberg Town, situating at a distance of 10-kilometers from Police Station Civil Line, Mandi Baha-ud-Din; incident was reported by Mst. Manzoor Fatima (PW-12) through complaint (Ex.PA) recorded by Pervez Akhtar, S.I (PW-15), 4:35 am. same day at the spot.
According to the complainant, during the fateful night, the family headed by her husband, an Advocate by profession, was surprised at about 3:00 a.m. by five unknown masked assailants, variously armed, complainant and her son Faheem Ashraf were the first to be confronted and it was on her alarm that her husband, son Faheem Ashraf and father Ghulam Haider were also awakened to join them. The inmates were hauled up in the room -of complainant's daughter Farah Ashraf where three from amongst the assailants fired upon Faheem Ashraf and Taheem Ashraf deceased followed by two assailants hitting Muhammad Ashraf deceased on various parts of his body; they succumbed to the injuries at the spot; occurrence was viewed besides the complainant by her daughter Farah Ashraf and Ghulam Haider PWs; no motive is cited in the crime report, however, occurrence was committed on account of a preconcerted conspiracy.
Autopsies commenced at 11:00 a.m. when the Medical Officer conducted post-mortem examination on the dead body of Faheem Ashraf followed by Muhammad Ashraf, deceased at 12:15 a.m. and Taheem Ashraf at 1:00 a.m. respectively; multiple fire shot injuries sustained by the each deceased in the wake of massive violence; fatally damaged vital organs, resulting into their immediate death; time between death and autopsy was estimated as within 11 hours.
As the investigation progressed, the complainant improved upon her case through application (Ex.PA/2), purportedly of even date, wherein not only she graduated the number of the accused from five to six but also identified them by name; she arrayed Zafar Iqbal, Naseer Shah, Aitezaz Ahsan, Aqeel Shah, Afzaal and Tanveer; she also introduced a motive, as according to her, Zafar Iqbal appellant sold his land for a consideration of Rs, 960,000/- to Muhammad Ashraf deceased so as to arrange funds for his brother's overseas journey; he wanted to take back the land on the same price, however, Muhammad Ashraf deceased declined to oblige him; it is alleged that the occurrence was committed for the above reason.
Spot inspection includes seizure of blood from three points, 15 casings of different calibers i,e, Kalashnikov, 44-guage and 8MM. The appellants as well as co-accused were arrested on 30.06.2010; upon disclosure, Afzaal Asghar and Tanvir Afzal led to the recovery of .12-caliber guns (P-7 and P-9); Aitezaz Ahsan led to the recovery of 30-caliber pistol (P-10), Zafar Iqbal led to the recovery of 44-caliber gun (P-11) on 18-6-2009; a motorbike CD-70 (P-8) was also taken into possession at the instance of Afzal Asghar. Once again the complainant through application (Ex.P- A/3) dated 25-6-2009 nominated Jalal Akbar, Mumraiz and Muhammad Anar, co-accused, as abettors. Investigation ended up with nine accused in the dock; of them, Zafar Iqbal, Naseer Iftikhar, Afzaal Asghar, Aitezaz Ahsan, Jalal Akbar and Muhammad Anar were indicted by the learned Sessions Judge Mandi Bahauddin under multiple counts on 12-4-2010; they pleaded not guilty and claimed trial; of them Jalal Akbar and Muhammad Anar died during the pendency of the case; Mumraiz Iqbal stayed away from the law while Aqeel Abbas and Tanvir Abbas were tried separately as juvenile. Prosecution produced as many as sixteen witnesses, besides relying upon forensic reports; of them, Mst. Manzoor Fatima (PW-12), Mst. Farah Ashraf (PW-13) and Ghulam Haider (PW-14) furnished ocular account, it is prosecution's main reliance. On forensic side, blood secured from the spot was found that of human origin while casings secured from the spot were found to have been fired from the weapons recovered on the disclosure of Aqeel Abbas, Zafar Iqbal and Naseer Iftikhar. Pointing out of the place of occurrence by the appellants and mentioning of their names in the site-plan have been brought on record through various prosecution exhibits. The appellants rallied behind a unanimous denial. Unimpressed by their plea, the learned Sessions Judge Mandi Bahaud Din' vide impugned judgment dated 07-09-2010 proceeded to convict the appellants under Sections 302(b), 460 and 148 of the Pakistan Penal Code, 1860 on three counts and sentenced Zafar Iqbal, Naseer Iftikhar, Afzaal Asghar to death on each count with payment of compensation in the sum of Rs, 100,000/- or to undergo six months simple imprisonment in the event of default under Section 302 of the Code ibid, imprisonment for life with payment of fine of Rs, 50,000/- or to undergo three months simple imprisonment in the event of default on each count of Section 460 of the Code as well as 3 years rigorous imprisonment under Section 148 of the Code; Aitezaz Ahsan, appellant was sentenced to imprisonment for life on three counts with fine of Rs, 50,000/- each or three months simple imprisonment in the event of default under Section 302(b) as well as 10 years rigorous imprisonment under Sections 460 as well as three years rigorous imprisonment under Section 148 of the Code; sentences were ordered to run concurrently with benefit of Section 382-B of the Code of Criminal Procedure, 1898, vires whereof, are being challenged through Crl. Appeal No, 2150 of 2010 clubbed with Murder Reference No, 522 of 2010 seeking confirmation of death penalty; Criminal Revision No, 1251 of 2010 by Mst. Manzoor Fatima complainant is aimed at enhancement of sentence; there being a common thread inter se, these are being decided together through this single judgment.
2. Learned counsel for the appellants contend that the appellants are not named in the crime report; according to them, they were subsequently arrayed with their names on the basis of a misplaced and ill-conceived suspicion through supplementary statements recorded much later than the point of time mentioned thereon; that supplementary statements (Ex.PA/2, Ex.PA/3) cannot be equated with the First Information Report nor can be read in extension thereof and as such statements of the witnesses on the basis thereof were liable to be excluded from consideration and so the memos suggesting pointing out of the place of occurrence by the appellants; that massively improved upon 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 ocular account furnished by the inmates of the house where occurrence took place has rightly been relied upon by the learned trial Judge as they had no axe to grind against the appellants; it is argued that prosecution has satisfactorily explained the circumstances leading to the disclosure of identity of the assailants and, thus, there is no space to entertain any hypothesis of appellant's innocence as their culpability is established to the hilt; enormous loss of life of a family, inside the safety of their home has been .pressed into service for confirmation of death penalty. While arguing Crl. Revision No, 1251/2010, learned counsel for the complainant sought enhancement of imprisonment for life of Aitezaz Ahsan to penalty of death on the ground that no distinction could be drawn to visit him with leniency.
3. Heard. Record perused.
4. It is complainant's own case in complaint Ex.PA/1 that five unknown assailants with masks on their faces played havoc with the family; recorded at 4:00 a.m. and signed by no other than Manzoor Fatima (PW-12) herself in token of its correctness, however, she stated in the witness-box that after recording of complaint Ex.PA/1, her daughter Farah Ashraf (PW-13) and father Ghulam Haider (PW-14) went to bring a doctor when they once again came across the accused without masks along with sixth accused, namely, Aitzaz Ahsan, standing outside with a pistol in the lane; it is inconceivable as to why the two witnesses would go out to fetch a doctor when all the deceased, as per prosecution's own case, had succumbed to their injuries at the spot, particularly after arrival of the police at the crime scene; this is again difficult to believe that even after arrival of police at the spot, 1 Aitzaz Ahsan appellant would have remained present outside in the lane with a pistol in his hand. Reference to the arrival of Nasir Mehmood (PW-11) and Iftikhar (given up PW), per chance, on way back from Lahore at 3:15 a.m. to have seen the assailants, is also beside the mark for more than one reason; their emergence at the crime scene is a coincidence that seldom occur; there was no occasion for the appellants to expose their identity to the witnesses when according to the prosecution, they had committed the crime surreptitiously and thus, claim by Nasir Mehmood (PW- 11) that they had conversation with the accused, requires a pinch of salt; the witness also claims to have heard the hue and cry and, thus, attracted to the crime scene. This witness is related with the complainant as well as her father and the tenor of testimony suggests, if at all, believed that he had seen the accused before arrival of the police, had this been so, he would have disclosed it to Manzoor Fatima (PW-12), as admittedly he was attracted to the crime scene and, thus, it would have found mention in complaint Ex.PA/1. The entire exercise appears to have been carried out much late in the day and this hypothesis is further reinforced by the brief facts of the case recorded in inquest reports i,e, Ex.PD, Ex.PH and Ex.PM. wherein unknown assailants conspicuously appear to have committed the crime.
The entire edifice of appellants' implication is on the basis of supplementary statements (Ex.PA/2, Ex.PA/3); these statements are essentially statements within the contemplation of Section 161 of the Code of Criminal Procedure, 1898 and as such can neither be equated with the First Information Report nor read in extension thereof besides being seemingly recorded not at a point of time mentioned therein as details thereof do not reflect either in the complaint or in the inquest reports prepared on the basis thereof; explanations furnished by Manzoor Fatima (PW-12), Farah Ashraf (PW-13) and Ghulam Haider (PW-14) are far from being plausible and same is the case with the statement of Nasir Mehmood Gondal (PW-11) for the simple reason that appellants, knowing well that they had committed murder of three family members, would not stay outside the venue to present themselves to the witnesses to identify them, once they had accomplished the task, that too, with masked faces; unanimity by the witnesses is beside the point as one weak piece of evidence would not corroborate another weak piece of evidence. Similarly, pointing out of place of occurrence by the appellants while being in police custody is not a disclosure within the contemplation of Article 40 of the Qanun-eShahadat Order, 1984 and thus, cannot be admitted/read in evidence to their detriment. A criminal charge shall only sustain itself on the strength of evidentiary certainty; suspicions and more certainty, no matter howsoever strong or well-placed cannot drive home the charge in the absence of legal evidence. Prosecution case is fraught with doubts, thus, it would be perilous to maintain the convictions. Consequently, by extending benefit of doubt to the appellants, Crl. Appeal No, 2150 of 2010 is allowed; they are acquitted from the charge and shall be released forthwith, if not required in any other case. Aitezaz Ahsan, appellant is on bail; he needs not to surrender; bonds are cancelled and sureties discharged. Murder Reference No, 522 of 2010 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.
5. As a natural corollary, Crl. Revision No, 1251 of 2010 stands dismissed.