QAZI MUHAMMAD AMIN AHMED, J:- Shamim Akhtar, 28/30, hereinafter referred to as the deceased, was strangulated to death on 18-12-2006 at 2:00 p.m. in Chak No. 106/7-R, situating at a distance of 8-k.m. from Police Station Harrapa District Sahiwal; her husband Umar Daraz, appellant herein, along with his brother Nasir, acquitted co- accused was blamed for homicide. Zulfiqar Ahmad (PW-6) and Mehmood Ahmad (PW-7) claimed to have witnessed the occurrence; incident was reported by deceased's father Jahangir (PW-5) 1:05 p.m. at Hafiz Chowk through complaint Ex.PE recorded by Muhammad Hafeez, SI (PW-9) wherein it is alleged that he was in Lahore on the fateful day when his brother Zulfiqar Ahmad and collateral Mahmood Ahmad, on way back after visiting their crop, saw the appellant while strangulating the deceased with her Dopatta when Nasir co-accused stood by him; the witnesses informed the complainant on telephone. Immoral pursuits by the accused were cited as motive for the crime as the deceased exhorted them restraint. After taking initial investigative steps, the Investigating Officer dispatched the dead body to the mortuary; Dr. Afshan Akram (PW-11) conducted autopsy at 8:30 p.m. and noted a bruise all around the neck 5 cm wide on the middle part of front and back side. On dissection, skull and hyoid bones were found intact; dispatched to the Histopathologist to detect microscopic injury, if any; pleurae, lungs, stomach, large and small intestines, liver, spleen and kidney were congested whereas pericardium and heart were found full of blood. A fetus of seven months was noticed in the womb. Duration between the injury and death was opined as within 30 minutes whereas between death and postmortem within 7 to 8 hours. Report of Chemical Examiner Ex.PG ruled out poison whereas according to Bacteriologist Report Ex.PH, heart sections and coronaries were found patent with an unremarkable myocardium; lung section and brain tissue reflected congestion whereas section of hyoid bone revealed bone entrapped in blood hemorrhage and this suggested ante mortem microscopic injury of the hyoid bone, in view whereof, injury referred to above was opined as cause of death. The appellant was arrested on 4-1-2007 and led to the recovery of a 32-caliber pistol and Dopatta (P-4) secured vide inventory. Nasir co-accused stayed away from law and was finally apprehended on 14-5-2007; both the accused were sent to face trial before a learned Additional Sessions Judge at Sahiwal; they were indicted on 7-9-2007 when they claimed trial, pursuant whereto, prosecution produced as many as 11 witnesses besides placing reliance on forensic reports to drive home the charge; of them, ocular account is furnished by PW-6 and PW-7; it constitutes the mainstay of the prosecution case; the accused confronted prosecution evidence with a unanimous denial and blamed the deceased as being a woman of easy virtue, done to death in an unwitnessed occurrence. The learned trial Judge,acquitted Nasir co-accused from the charge, however, proceeded to convict the appellant under Section 302 (b) of the Pakistan Penal Code, 1860 and sentenced him to death along with compensation of Rs.100,000/- or to undergo six months SI in the event of default, vires whereof, are being challenged through Crl. Appeal No.293 of 2011 clubbed with Murder Reference No.174 of 2010 seeking confirmation of death penalty; these are being decided through this single judgment.
2. Learned counsel for the appellant contends that there was no occasion for Zulfiqar and Mahmood Ahmad, PWs to witness the occurrence which statedly took place at the Dhari of Shabbir Ahmad; that even otherwise, both the accused were empty handed and thus it would not have been very difficult for the witnesses to subdue them, had they really been at the spot; that the complainant as well as the so called eye witnesses massively improved upon their case initially set up before the Investigating Officer; that a vague and non-specific motive does not provide structural strength to the prosecution case, in the absence whereof, there was no earthly reason for the appellant to murder his wife, who was in a family way; lastly , it is argued that in the absence of an appeal against acquittal, evidence disbelieved qua identically placed co-accused cannot be pressed into service to sustain charge vis--vis the appellant. Contrarily , the learned Law Officer has defended the impugned judgment by arguing that prosecution with the help of two eye witne sses proved the charge beyond reasonable doubt against the appellant, who not only brutally murdered his better-half but also caused death of fetus of seven months and as such he deserves no leniency .
3. Heard. Record perused.
4. No doubt, the appellant being in wedlock with the deceased is expected to satisfactorily explain circumstances leading the death of his wife, however , his failure would not absolve the prosecution to indepe ndently and positively bring home charge against him on the strength of confide nce inspiring cogent evidence. The medical evidence is rather inconclusive as opinion regarding the fatality of injury No.1 is based upon forensic report Ex.PH which merely suggests traces of blood entrapped in the section of hyoid bone on account of an ante mortem microscopic injury; this is inconsistent with the position taken by the eye witnesses, who claimed to have seen both the accused constricting deceased' s neck by using her Dopatta as a noose. Similarly , recovery of Dopatta (P 4) is also not confidence inspiring, as there was hardly any occasion for the appellant and his co-accused to take along that piece of cloth when they were surpris ed by the witnesses who followed them. The accusation of strangulation according to complaint Ex.PE is exclusively focused upon the appellant, however , during the trial, Zulfiqar (PW-6) improved upon his previous position and implicated Nasir co-accused with the same role; same is the case with the eye witnesses; though they are not confronted with their previous statements during the trial within the contemplation of Article 140 of the Qanun-e-Shahdat Order , 1984, nonetheless, omission notwithstanding this shift in their respective positions in the wake of acquittal of Nasir co-accused, not questioned through appeal against acquittal assumed legal significance vis--vis the appellant, as rejection of these statements qua Nasir co-accused now warrants independent corroboration for their reliability so as to maintain appellant' s conviction; learned Law Officer has not been able to point out even a single circumstance which may provide such corroboration. Recovery of a 30-caliber revolver is inconsequential and as pointed out above, seemingly there was no point for the appellant to keep Dopatta (P-4) with him.
Examined in this background, the appellant' s culpability is not found entirely free from doubt. Even otherwise, arrival of the witnesses exactly at a point of time when the deceased was being done to death by the appellant and his co-accused, requires a pinch of salt; such coincidences seldom occur . It would be grievously unsafe to maintain appellant' s conviction, merely upon his failure to satisfactorily explain circumstances behind the death. Consequently , by extending benefit of doubt to the appellant, Crl. Appeal No.293 of 2011 is allowed; impugned judgment dated 25-8- 2010 is set aside; the appellant is acquitted from the charge and shall be set at liberty forthwith, if not required. Murder Reference No.174 of 2010 is answered IN NEGA TIVE and death sentence is NOT CONFIRMED.