Qazi Muhammad Amin Ahmed, J.--Muhammad Mushtaq son of Manzoor Ahmad, 30/32, his daughter Rabia Bibi, 7/8 and Muhammad Mushtaq son of Muhammad Iqbal, 20/22, were done to death in the week hours of 17-6-2010 within the area of Mouza Tibbi Arbi, situating 11 kilometers from Police Station Saddar Ahmad Pur East; Muhammad Akram (PW-2) sustained injuries during the occurrence. Incident was reported by Muhammad Sadiq (PW-1) through application (Ex.P A) presented at the police station 9:30 a.m. It is alleged that the deceased were staying in a mosque adjacent to the mausoleum of Mehmood Shaheed for the last eight days, as it was widely believed by the followers that the ritual heals the sufferings and it was so being practiced, particularly by Muhammad Mushtaq deceased, afflicted by some malady . The complainant along with Muhammad Afzal and Muhammad Ashiq came to visit the deceased when during the fateful night, they slept outside the mosque; it was 2:00 a.m. when commotion from inside the mosque awakened the witnesses; in the torch light, they saw four unknown persons with Zahoor Ahmad and Hazoor Ahmad sons of Ghulam Nabi, each carrying fire-arm, taking Rabia Bibi towards the graveyard; they followed the accused, however , stayed at bay when threatened; they returned to the mosque to see Mushtaq Ahmad son of Manzoor Ahmad and Muhshtaq Ahmad son of Muhammad Iqbal with injuries on their heads, when attended they were found dead. Muhammad Akram (PW-1) was lying unconscious. As the neighbourhood attracted, they set out for the accused; at a distance of four acres, they saw Rabia Bibi lying dead, naked with multiple injuries including on genitals. Motive for the crime is an altercation one day before between the male deceased with Hazoor Ahmad; it is alleged that Hazoor Ahmad with the assistance of Zahoor Ahmad and unknown assailants committed the crime.
Autopsies commenced at 3:45 p.m. Muhammad Mushtaq son of Muhammad Iqbal was- noted with five injuries comprising a lacerated wound on left temporal bone, punctured wound on left upper eye lid, circular punctured wound on left side of nose with fractured orbit of left eye as well as fractured nasal bone on midline, caused by both blunt as well as sharp edged weapons, cumulatively leading towards cardiopulmonary arrest within 15 minutes preceding 12 hours of the autopsy . Muhammad Mushtaq son of Manzoor Ahmad examined at 9:30 p.m, suffered apparently an extensive injury with fractured bone on right temporo parietal region ; clotted blood was seen in the nostrils, face, scalp, brain and parenchyma; the Medical Officer noted a large hematoma; death occurred within 20 to 30 minutes after the receipt of injuries caused within 12 hours before the postmortem examination. Injury on the temporo parietal region was blamed as cause of death. Rigor mortis had developed in the corpses. Rabia Bibi suffered no less than 12 injuries comprising multiple bruises, abrasions and lacerations involving upper part of her body as well as left thigh, strangulation was opined as cause of death on the basis of injuries noted on right mandible, upper lip, tip of nose as well as neck; interregnum between injuries was half an hour whereas between death and postmortem 10 to 24 hours; vaginal swabs were taken for forensic analysis through chemical examination as well as D.N.A. profile generation. Muhammad Akram PW was examined at 5:00 p.m. he was received by the Medical Officer well oriented to time, place and person, responding intelligently with a small bleeding from external pinna of right ear , an injury viewed as Shajjah-i-Khafifah .
Niaz Ali SI (PW-7) inspected the spot; he dispatched the dead bodies to the mortuary and secured blood from different points besides taking investigative steps of formal nature that included seizure of Rabia's loincloth from the graveyard. Riaz Ahmad SI (PW-14) recorded complainant's supplementary statement on 23-7-2010 wherein he graduated the number of accused by including Muhammad Sajid, Muhammad Fayyaz co-accused; he procured specimen for D.N.A. profile generation and also mould/footprints of Hazoor Ahmad on 6-8-2010 through the assistance of Zahoor Ahmad, foot tracer (PW-15). On 15-8-2010, Muhammad Sajiad and the appellant led to the recovery of brick (P-4) and awl (P-5) respectively , both bloodstained. On forensic side, blood on the weapons as well as from the spot was opined as that of human origin. For D.N.A. analysis, internal and perianal swabs of Rabia Bibi deceased were sent alongside blood samples of victim's mother for comparison with specimens taken from the persons of Muhammad Fayyaz, Muhammad Sajid, Hazoor Ahmad and Zahoor Ahmad; as per forensic report (Ex.PKK), D.N.A. profile obtained from sperms and E. cell fraction derived from perianal swabs of Rabia Bibi deceased matched with the D.N.A. profile generated from the blood sample of the appellant.
Muhammad Sadiq (PW-1), Muhammad Akram (PW-2) and Muhammad Afzal PW-3 furnished ocular account; they were joined by Zahoor Ahmad (PW-15), foot tracker; he attempted to establish similarity between appellant's footprints with the shoes he was wearing during the occurrence. The accused confronted prosecution evidence with a unanimous denial. The learned trial Judge acquitted Muhammad Sajid co-accused from the charge, however , proceeded to convict the appella nt on three counts under clause (b) of Section 302 of the Pakistan Penal Code 1860 as well as Section 376 of the Code ibid with penalty of death on each; the appellant has also been awarded fine in the sums of Rs.200,000/- on each count of homicide as well as Rs.50,000/- for rape or to undergo six months S.I. in the event of default, vide impugned judgment dated 17-5-2014, vires whereof, are being challenged through Cr1. Appeal No.247 of 2014 clubbed with Murder Refer ence No.30 of 2014, seeking confirmation of death penalty . Neither the State nor complainant opted to challeng e co-accused's acquittal. Bound by a common thread, these are being decided through this single judgment.
2. Learned counsel for the appellant contends that the incident, awfully horrific by all means, nonetheless, is shrouded under a boggling mystery and notwithstanding unanimity of witnesses with forensic support as well, the appellant cannot be held as the one, factually responsible for the crime; in order to qualify the position taken at the bar, the learned counsel has argued improbability of witnesses' presence at the crime scene, a desolate tomb, in the absence of any scheduled occasion; he has also referred to delayed autopsies, unconventional weapons used and suspect forensic reports to argue that various pieces of evidence relied upon by the learned trial Judge merit outright rejection, particularly , in view of acquittal of identically placed co-accused in the absence of independent corroboration; the bottom line is that prosecution hopelessly failed to bring home the charge beyond reasonable doubt and, thus, it would be extremely unsafe to maintain the conviction. Contrarily , the learned Law Officer assisted 'by learned counsel for the complainant, while highlighting the brutality suffered by the deceased, has strenuously stressed upon the ocular account furnished by three witnesses, apparently , with no axe to grind; he has particularly referred to the positive forensic report confirming sexual assault by the appellant on Rabia Bibi, excluding every hypothesis of appellant's innocence, concluded the learned Law Officer while praying for confirmation of death penalty , according to him, a conscionable wage in circumstances.
3. Heard. Record perused.
4. Though mentioned in crime report (Ex.P A), motive for the crime is a trivial brawl between the appellant and the deceased, occurring a day before the incident, however , Muhammad Sadiq (PW-1) while in the witness box, omitted to mention the motive behind the incident and instead blamed Hazoo r Ahmad, Zahoor Ahmad and Muhammad Sajid to have committed the crime; the other witnesses are equally reticent on the motive, an indiscreet reference by the cross-examiner notwithstanding; though certainly not a constituent of the crime, nonetheless, what prompted the accused to unleash formidable violence upon hapless victims in the sanctuary of a mosque is far from being clear .
Next dilemma confronting the prosecution is absence of source of light except for a torch introduced by the complainant to see five unknown persons in addition to the appellant and his brother Zahoor Ahmad. In an extreme crisis situation, cropped up, all of a sudden, the source of light being relied upon by the witnesses, taken aback by the event, to conclusively establish appel lant's identity alongside his companions in crime presents a most difficult choice. The torch was never taken into custody . The scene becomes furthe r confounded by inclusion of Muhammad Sajid in the array of accused as being the one who actively particip ated in the occurrence. Fayyaz Ahmad though not nominated by the witnesses was taken on board as accused by the Investigating Officer, however , let off subsequently it clearly suggests that the prosecution has never been certain about the number and identity of the assailants and in retrospect it goes a long way to reflect upon the possibility of witnesses' presence at the crime scene.
Use of weapons recovered during the investigation does not synchronize with the event. According to the complainant, the assailants were armed with fire-arm weapons and they had come all the way to do away with the deceased and yet their selection for an awl and a brick to accomplish the task is a narrative far from being plausible; more ludicrous is retention of bloodstained brick by the appellant till his disclosure on 15-8-2018; it was not a souvenir worth retention. Silence of Muhammad Akram (PW-2), admittedly for a period of two months cannot be viewed with condonation; he has cited unconsciousness as a reason behind his silence; a position unequivocally contradicted by Dr. Syed Sabir Abbas (PW-8) who found him "well oriented time, place and person, answering the question intelligently" at 5:00 a.m. on 17-6-2010.
Presence of other witnesses at the crime scene is not on better footing as well. According to Muhammad Sadiq (PW-1), "we had gone there to provide meal to the deceased persons at Maghrib time. We sat with them talking.
Being late at night, we stayed with them" . One may find it hard to buy the story as the food is traditionally served to the followers and the attendants at such sites; if at all, the witnesses came all the way to provide the food, they otherwise had no occasion for an inconvenient stay overnight in the absence of adequate arrangements, forgoing comforts of their family life.
The first autopsy was carried out at 3:45 p.m. while Muhammad Akram PW was examined at 5:00 a.m. There is no explanation for delayed autopsies except non-availability of inquest reports to clear ly suggest that complaint Ex.PA was not recorded at a point of time mentioned therein.
Molestation of Rabia Bibi and her subsequent gruesome murder is the most devastating part of this incident; forensic report (Ex.PKK) constitutes nexus between perianal swabs and appellant's blood sample, however , the report relied upon by the prosecution is not per se admissible and as such it cannot be read in evidence to drive home the charge in the absence of its author to prove the report in the witness box. Even Section 9 of the Punjab Forensic Science Agency Act 2007 cann ot indemnify the failure as the report has been prepared by Centre of Excellence in Molecular Biology , a Department of the University of the Punjab and not the Agency designated under the Act. Yet another disquieting aspect of the case is belated dispatch of internal and perianal swabs to the laboratory on 19-7-2010 two days after receipt of blood samples. Internal vaginal swab did not generate compatible D.N.A. profile and, thus, it would be unsafe to view result of perianal swab with any degree of credibility . There is no legal evidence to sustain the charge and,: thus, appellant cannot be convicted and sentenced on moral satisfaction alone, particularly when the evidence adduced by the prosecution has not been believed qua identically placed co- accused. Even otherwise, on the whole, prosecution case is not free from doubts; doubts deducible from its stated positions, therefore, it would be unsafe to maintain the conviction, thus, Crl. Appeal No. 247-J of 2014 is allowed ; the appellant is acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No.30 of 2014 is answered in the NEGA TIVE and death sentence is NOT CONFIRMED .