QAZI MUHAMMAD AMIN AHMED, J:- Dera Asian Gajjowal, a rural neighbourhood, within the remit of Police Station Noshra Virkan Gujranwala was rocked with indiscriminate firing at 6:30 a.m. on 18-11-2009; as the guns went silent, family head Muhabbat Ali, 60/62, his wife Bashiran Bibi, 54/55, sons Allah Ditta, 28/29, Basharat Ali, 24/25 and Noor Muhammad 20/22, riddled with bullets had breathed their last inside their home. Zohran Bibi daughter of Mohabbat Ali deceased married in the village, stayed per chance overnight in the parental home, miraculously escaped assailants' wrath; she moved application (Ex.P A), received at the police station at 8:30 a.m. by Akhtar Mehmood SI (PW-10); it details the occurrence. Ijaz Ahmad, Javed Iqbal, Haji Muhammad Ashraf, Mudassar Iqbal, Muhammad Aslam, Imran, Shahnawaz, Falak Sher, Liaqat Ali, armed with Kalashnikovs, .222 caliber rifle, .30 caliber pistol, .12 caliber shotguns alongside three unknown accomplices had been named as the assailants whereas Iftikhar Ahmad and Muhammad Yar were arrayed as instigators for the crime.
According to the complainant, all the assailants surprised Mohabbat Ali and Bashiran Bibi deceased, asleep in veranda with joint firing when Basharat Ali, Noor Muhammad and Razia Bibi, after hearing gun reports, came out of the room to brace a reckless onslaught. Allah Ditta deceased was in a separate room with his wife Nazia Bibi; he bolted the room from inside, however, Ijaz, Javed and Imran accused barged therein to fatally shot him there; his wife saved herself by taking shelter beneath the cot. It is alleged that the accused, in the midst of assault, secured right hand thumb impression of Allah Ditta deceased on some paper; the complainant though targeted straight, nonetheless, escaped the shot. Motive for the crime is a dispute long raging between the parties over land.
Allah Ditta deceased was first on the autopsy table examined at 10:20 p.m; he was noted with two entry wounds measuring 3/4 x 3/4 cm on right sides of chest and neck with corresponding exits followed by Basharat Ali at 10:30 p.m. with four entry wounds on chest, left thigh and right shoulder with their respective exits; Bashiran Bibi deceased was examined by a lady medical officer at 10:30 p.m; a lacerated firearm wound with multiple apertures, eight in number , each measuring 0.5 x0.5 cm on the back of her abdomen made three separate exits from the frontal portion, leaving behind massive damage to the vital organs; Noor Muhammad examined at 11:15 p.m. was noted with two entry wounds, respectively measuring 3 cm x 2 /2 cm and 2 /2 cm x 2 /2 cm on both sides of chest; projectile exited from the back; Mohabbat Ali was last to be examined at 11:45 p.m; three entry wounds on both sides of chest and left upper arm were connected with their exits; in each case fire shots caused massive damage to vital organs, resulting into immediate death within preceding 12 to 16 hours; postmortem staining and rigor mortis was found fully developed on the dead bodies. Surprisingly , Razia Bibi (PW-2) was surprisingly medically examined as late as on 22-1-2010.
Spot inspection includes seizure of bloodstained earth from different points as well as 42 casings of different calibers besides other investigative steps of formal nature; the complainant came up with a supplementary statement to introduced Asghar Ali; as the investigation progressed on 7-12-2009 Muhammad Yar, Iftikhar, Muhammad Aslam, Muhammad Ashraf, Falaksher, Shahnawaz and Mudassar Iqbal came forward to join investigation with plea of innocence; their arrest were held in abeyance. Javed Iqbal and Ijaz Ahmad were arrested on 29-12-2009; pursuant to disclosures they led to the recovery of rifle 222 caliber (P-20) and Kalashnikov P-24; Imran accused stayed away from law and was finally arrested on 28-6-2010; he led to the recovery of pump action on 5-7-2010. Asghar Ali accused was arrested on 12-2-2010. As per forensic report Ex.PWW, casings dispatched prior to the arrest of Javed Iqbal and Ijaz Ahmad accused were found wedded with the weapons recovered at the instance; it is negative qua Muhammad Imran. Indicted on 3-4-2018, the accused claimed trial, pursuant whereto, prosecution produced as many as eighteen witnesses; of them, Zohra Bibi (PW-1)
Razia Bibi (PW-2) and Akbar Ali (PW-3) furnished ocular account, the mainstay of the prosecution case. The accused confronted prosecution evidence with a unanimous denial; the bottom line of defence is that Nafeesa Bibi daughter of Falak Sher appellant married with Javed accused after her divorce from Basharat deceased and this operated as a cause behind their false implication; one of the appellants, namely, Asghar Ali pleaded alibi. The learned trial Judge proceeded to convict all the accused, except for the two indicted for abetment, under section 302(b) of the Pakistan Penal Code 1860 and sentenced them to death with compensation of Rs.400,000/- each to the legal heirs of the deceased, without any reference to the counts; they were additionally convicted under section 324 of the Code ibid and sentenced to ten years RI as well as section 148 of the Code ibid and sentenced to three years RI, vide judgment dated 25-9-2014, vires whereof, are being impu gned vide Crl. Appeal No.501-J of 2014 clubbed with Murder Reference No.346 of 2014, seeking confirmation of death penalty; bearing a common thread, these are being decided through this single judgment.
3. Learned counsel for the appellants contends that occurrence seemingly has not taken place in the manner as alleged in the crime report; while elaborating his position, he has drawn attention to the stated time thereof in the crime report to argue that viewed from any prudent angle, time selected by the assailants was far from being appropriate; omission by the Investigation Officer to secure cots and bedding where the deceased were statedly lying before they met their homicidal death is an argument on the same lines and so are delayed autopsies and presence of rigor mortis noticed by the medical officer. The learned counsel has vehemently argued against the possibility of complainant's presence at the crime scene, as she is married in the same village and according to him, was supposed to stay in her own household, if at all, she visited her parents in preceding evening. Absence of Nazia Bibi from the witness box on the ground of having been won over and belated medical examination conducted on Razia Bibi as well as her statement to the police are also highlighted to argue that prosecution case was fraught with doubts and, thus, it would be unsafe to maintain the convictions. Private complaint by Fatima Bibi daughter of Mohabbat Ali though resulting into failure, nonetheless has been referred to argue that occurrence has been committed by accused nominated in the complaint and not by the appellants. Contrarily, learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment on the ground that the appellants had a motive to mount assault and they were duly identified by the witnesses, natural and truthful and, thus, rightly stood convicted and sentenced on the strength of ocular account duly corroborated by medical evidence. Defection by Nazia Bibi widow of Allah Ditta deceased and private complaint by Fatima Bibi daughter of Mohabbat Ali deceased has been viewed by the learned Law Officer as a division in the family and, thus,1 1 1 inconsequential, as according to him, the case is otherwise firmly structured on ocular evidence, most confidence inspiring; colossal loss of life and brutality inflicted have been pressed into service for confirmation of death penalties, a wage according to the learned Law Officer conscionable in circumstances.
3. Heard. Record perused.
4. Though certainly not constituent of the crime, nonetheless, motive cited in the crime report being a dispute over one and half acre of land does not appear to be a catalyst of propellant behind the assault and it can be so viewed on the basis of position taken by Zohra Bibi (PW-1); she admits her inability to furnish details regarding the alleged motive and even if she being a female is excused, admission by the Investigation Officer Ahsan Ullah SI (PW-17) regarding absence of any documentary proof confirming the dispute goes a long way to add confusion in the circumstances preceding the attack; motive set up in the crime report certainly does not extend structural strength to the prosecution' s edifice.
Time of occurrence as 6:30 a.m. is yet another suspect prosecution position. Razia Bibi (PW-2) was examined by the Investigation Officer on 26-11-2009; even in her belated examination, she described the occurrence to have taken place at midnight; she deviated from her position in the witness box howeve r, duly confronted therewith; this inescapably leads the one to an irresistible conclusion that occurrence did not take place at a point of time suggested in the crime report and once such an hypothesis is reasonably entertained, it would inevitably cast its shadow on the entire prosecution case, requiring a source of light and confirmation of identity of the assailants consequent thereupon. Presence of rigor mortis noted by the medical officer in each case extends timeframe in the reverse. Arrival of Zohra Bibi (PW-1) in her parental house at 9:00 p.m. though may not be viewed as an unusual visit, nonetheless, without any purpose merely to spend a night in preference to her household is certainly an extraordinary choice; her unscathed survival during the assault despite having been fired upon straight, as per her own statement by Ijaz, Javed and Imran appellants cannot be believed without being imprudent. Yet another intriguing circumstance is belated statement of Razia Bibi (PW-2) apparently with no explanation; she was not even medically examined on the day of occurrence despite there being an injury statement of even date on the record; it is her own position that she was shifted to the hospital in injured condition; prosecution's failure to arrange her medical examination on the fateful day, her indecision and hesitance to undergo medical examination, are mindboggling, viewed in retrospect with diametrically different positions taken by Fatima Bibi daughter of Mohabbat Ali deceased as well as defection of Nazia Bibi widow of Allah Ditta deceased heavily reflect upon the veracity of prosecution case, set up by the complainant, otherwise found present per chance; both Fatima Bibi as well as Nazia Bibi being directly related with the deceased are no less incisively grieved and thus, cannot be expected to swap the assassins with the innocent.
Autopsies are delayed as these commenced as late as at 10:20 p.m, almost after sixteen hours of the occurrence; the incident was statedly reported straight at the Police Station located 11 miles from the venue at 8:30 a.m. It did not require the time consumed in the process and, thus, argument that crime report was prepared after preliminary investigation as a result of consultation is a possibility that cannot be viewed as unrealistic.
Induction of Asghar Ali appellant throu gh supplementary statement is yet another dilemma confronting the prosecution; complainant' s omission to nominate him on the day one will have inescapable repercussions upon the whole case. Given inter se relationship between the appellants, seemingly the complainant was not supposed to leave him over in her otherwise comprehensive written complaint, if at all, she had the opportunity to witness the occurrence.
In the face of suspect ocular account, compounded by inherent flaws, positive forensic report qua Javed Iqbal and Ijaz Ahmad appellants would not advance prosecution case to their extent either; even sifting of grain from chaff cannot rescue the charge as there is chaff all around. Meticulous identification by the female illiterate witnesses from a rural neighbourhood about the types and kinds of weapons used, that too, in an extreme crisis situation engulfed by dark is a story that one would certainly find hard to buy.
Massive loss of life notwithstanding, prosecution' s case on the whole is not free from doubts, doubts deducible from stated positions. Given the suspect prosecution positions and large numbe r of accused arrayed therein, it would be perilous to maintain the convictions without incurring potential risk of error, therefore, by extending benefit of the doubt, Crl. Appeal No.501-J of 2014 is allowed ; the appellants are acquitted from the charge; they shall be released forthwith, if not required in any other case. Murder Reference No.346 of 2014 is answered in the NEGA TIVE and death sentence is NOT CONFIRMED .