QAZI MUHAMMAD AMIN AHMED, J:- Zahid Khan, Khurram Abbas and Nazakat Khan, appellants herein, are in receipt of a guilty verdict, returned by a learned Additional Sessions Judge at Gujjar Khan vide impugned judgment dated 25-7-2017; they stand convicted under Section 302(b) of the Pakistan Penal Code, 1860 for committing Qatl e-Amd of Rizwan Ali, 22, hereinafter referred to as the deceased, at 5:15 p.m. on 5-8-2012 within the area of Dhol Gaon, situating at a distance of 12-Kilometers from Police Station Jatili Jhumra, District Rawalpindi; sentenced to imprisonment for life, Zahid Khan is directed to pay compensation in the sum of Rs.100,000/- whereas Khurram Abbas and Nazakat Khan have been burdened, though erroneously, to pay fine in the sum of Rs.50,000/- each or six months simple imprisonment in default of payment thereof with benefit of section 382-B of the Code of Criminal Procedure Code 1898; Muhammad Khan, co-accused was acquitted from the charge vide the same judgment, vires whereof, are being challenged by the appellants vide Crl. Appeal No.790 of 2017.
2. Prosecution case is structured upon dying declaration (Ex.PN) of the deceased, recorded by Ghulam Shabbir SI (PW-16), 7:00 p.m. at RHO Daultala, the factual resume of the case is furnished by Irfan Azeem (PW-13) supported by Muhammad Khan (PW -14), for the convenience of reference, statement of Irfan Azeem (PW -13) is reproduced:- "On 5.8.2012, I alongwith Muhammad Khan son of Ghulam Hassan were proceeding towards Dhoke Haidari on mettled road. When we reached near the houses of Ghalib and Mulazim sons of Ghulam Mustafa, Muhammad Khan empty handed, Zahid Khan armed with 30 bore pistol, Nazakat armed with 30 bore pistol and Khurram Abbas armed with 30 bore pistol were sitting underneath a tree, Rizwan Ali son of Yousaf was coming from Dhoke Haidari side, when he left the metallic road, adopted Kacha path, at about 5:15 p.m reached near the property of Shan Khan. When all the accused saw Rizwan Ali deceased, they all started moving towards him. Muhammad Khan accused had raised lalkaa that Rizwan Ali deceased should not be left alive, upon this Zahid Khan had made a direct fire shot with pistol 30 bore which landed upon abdomen of Rizwan Ali, Nazakat Ali accused made two fire shots with his pistol 30 bore upon Rizwan Ali, one fire hit on left thigh of Rizwan Ai and the other fire was missed.
Rizwan Ai fell down on the ground then Khurram Abbas made three targeted fire shots upon Rizwan Ali, one fire was hit on index finger of left hand of Rizwan Ali whereas two fires were missed . I and Muhammad Khan while seeing the occurrence came forwarded but the accused persons threatened that no one should come forward and fled away from the place of occurrence while brandishing their pistols. I informed father of Rizwan Ali namely Muhammad Yousaf on phone about the occurrence who reached the sot and Rizwan Ali was escorted to Hospital in van. Accused persons with their common intention to kill got injured rizwan Ali and committed excess. I and Muhammad witnessed the occurrence. Rizwan Ai succumbed to the injuries afterwards ."
The deceased, in injured condition, was removed to RHC Daultala, where he was attended by Dr. Muhammad Aslam Bhatti (PW-6) same day at 6:30 p.m and was noted to have six lacerated entry wounds on abdomen, lumber region, left thigh and left finger; he, howe ver, after a brief struggle, succumbed to the injuries at 8:00 p.m; autopsy was conducted at 11:30 p.m. by Dr. Ghulam Murtaza (PW-10); he confirmed receipt and locales of the injuries earlier mentioned in medico legal report (Ex.PF); injuries to the abdomen proved fatal to cause death within 2 hours; interregnum between death and postmortem as 4 hours.
Ghulam Shabbir , SI (PW-16) commenced investigation; during spot inspection, he collected bloodstained earth, six casings of 30-caliber (P-15/1-6) secured vide inventories. Khurram Abbas, Nazakat Khan and Zahid Khan appellants were arrested on 30-8-2012 and pursuant to their disclosures led to the recoveries of .30 caliber pistols (P-1, P-2 & P-3) respectively on different dates. Muhammad Khan co-accuse d appeared as abettor , joined investigation on 25.8.2012, however , was formally arrested on 24.9.2012.
Indicted on 6-11-2012, the accused claimed trial, pursuant whereto, prosecution, besides relying upon forensic reports, produced as many as 18 witnesses; of them, Irfan Azeem (PW-13) and Muhammad Khan (PW-14) furnished ocular account, the mainstay of the prosecution case. On forensic side, earth secured from the spot was found stained with blood of human origin whereas casings dispatched were found wedded with pistols (P-2 & P-3), however , it is negative qua pistol (P-1), statedly recovered from Khuram Abbas appellant. The accused confronted the prosecution case with a unanimous denial and also produced documentary evidence in their defence. Upon conclusion of trial, the learned trial Judge, while acquitting the abettor from the charge, proceeded to convict and sentence the appellants, as referred to above.
3. Learned counsel for the appellants contends that prosecution case is fraught with doubts, contradictions and improvements and as such reliance cannot be placed on the statements of witnesses, being inherently flawed; that evidence disbelieved qua the abettor, though assigned a different role in the occurrence, nonetheless, cannot be unreservedly relied upon against the appellants without independent corroboration, hopelessly lacking; that a vaguely formulated motive does not provide structural strength to the prosecution case; that evidence of dying declaration given the magnitude of violence suffered by the deceased cannot be received without being grievously imprudent; the bottom line is that prosecution has not been able to prove its case beyond reasonable doubt and thus, it would be 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 an innocent youth has been done to death in a brutal and wanton manner; that witnesses had no axe to grind against the appellants and their testimony could not be discarded merely on account of their relationship with the deceased; according to him, they were natural witnesses with no motive to substitute the real offenders.
4. Heard. Record perused.
5. Though Irfan Azeem (PW-13) as well as Muhammad Khan (PW-14) came forward with graphic details of the occurrence; they unanimously claimed to have witnessed the episode from beginning till end and also took responsibility of passing on information to the deceased's father as well; it is so mentioned in the last declaration of the deceased as well. According to Medico Legal Certificate (Ex.PF), the deceased when examined at 6:30 p.m, under a police docket, was oriented in time and space with history of vomiting, nonetheless, he seemingly was not in a position to signify consent for his medical examination, accorded instead by his father Muhammad Yousaf. This is not in line with the details recorded in complaint/dying declaration (Ex.PN) at 7:00 p.m. wherein signatures of the declarant appears to have been inserted after completion of the complaint; though as brief as 30 minutes, nonetheless, lapse of time essentially involving deterioration must have further incapacitated the deceased, either to be expressive or capable to affix signature. Even otherwise, given the magnitude of violence being endured by the deceased at relevant time whether he was still in a position to make a detailed narrative of the events is a question that warrants serious consideration. Genesis of the ocular account is essentially resting in the last statement of the deceased and, thus, clouds on the latter would inevitably reflect upon the former. This aspect of the case when viewed in the totality of circumstances, spells out a scenario, diametrically incompatible with the prosecution case set up in the crime report. Khuram Abbas appellant was also medically examined on the fateful day at 8:00 p.m. under a police docket; he was noted with multiple incised wounds caused by a sharp edged weapon; though possibility of self infliction is mentioned but strangely it is written separately at the bottom of medico legal certificate in disjunction and discontinuation of observations recorded by the medical officer and, thus, suspectingly appears out of place; it is also mind boggling as to why Khuram Abbas once taken into custody was let off later on to be shown arrested at a subsequent date. A dubious observation by the medical officer does not nullify the impact of injuries suffered by Khuram Abbas. Prosecution predicament does not end here, as the investigation was taken over by the Regional Investigation Board, the appellants barring Khuram Abbas were exonerated from the charge of having participated in the crime, tremoring the very foundation of the case. Certainly, ipsi dixit of the police is not binding upon courts and the fate of a criminal case is to be essentially decided on the strength of available/admissible evidence alone, nonetheless, investigative process and conclusions consequent thereupon may not be readily ignored, particularly when in the present case, these are reasonably synchronized with the contextual framework of the case in the face of a trivial motive; full-scale participation by each appellant with a distinct role qua the deceased presents an hypothesis far less credible than the defence positions, verified through investigation. There does not appear any purpose for the appellants to take extra burden for individual participation in targeting the deceased when every single of them could accomplish the task; a wider net appears to have been cast to ensnare a greater number of opponents and, thus, it would not be juridically possible to single out Khuram Abbas or for that matter any other accused to be saddled with the responsibility of the crime without risk of error; exaggerations are invariably fatal to the prosecution, as these cast away the entire case alongside the actual offenders. Case against the appellants fraught with doubts, Crl. Appeal No.790 of 2017 is allowed; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case.