QAZI FAEZ ISA, J. ---Through the following order this appeal was allowed earlier today:-- "Criminal Appeal No, 41-L/2012: We have heard the learned counsel for the parties. For the reasons to be recorded later, Criminal Appeal No, 41-L/2012 is allowed. The conviction and sentence of death passed under Section 302(b), P.P.C. by the Trial Court vide its judgments dated 21.04.2005 which was modified by the High Court to that of imprisonment for life are set aside. The appellant is ordered to be acquitted of the charges. He shall be set free from custody if not required in any other case."
2. The appellant was nominated for the murder of Maqsood Ahmed in F.I.R. No, 222/2003 registered on 24th November, 2003 under Section 302 of the Pakistan Penal Code ("PPC") at police station Raja Jang, District Kasur. The F.I.R. was registered at 10.50 p.m. in respect of the crime which was stated to have been committed at 4.30 p.m., that is, after a period of six hours and twenty minutes, and after the Investigating Officer ("I.O.") had already received information about the crime and met with the complainant at Jinnah Hospital, Lahore where Maqsood Ahmed ("the deceased") is stated to have died. The F.I.R. alleged that the appellant fired from a .222 bore rifle and a bullet pierced the right shoulder of the deceased and exited from near his left armpit. The attributed motive for the murder was the property dispute between the complainant side and the mother-in- law of the appellant's brother, and the case that she had lost. The crime is stated to have been witnessed by the complainant Muhammad Yahya (PW-2), his brother Muhammad Yaqub (PW-1) and Muhammad Idrees, who was not produced as a witness.
3. The learned counsel representing the appellant states that it did not stand to reason that the appellant would commit a murder because the mother-in-law of the appellant's brother had lost a case, and that as per the testimony of PW-1 the referred to civil litigation was with Muhammad Yahya, who was not harmed and instead Maqsood Ahmed was shot at, and it is not the case of the prosecution that Maqsood Ahmed was mistakenly shot at and killed. The learned counsel next contends that as per the prosecution evidence Maqsood Ahmed, who had been injured, was not taken to a hospital for an hour and a half which suggests that no one had witnessed the murder.
He further states that the post-mortem of the deceased was not carried out at Jinnah Hospital, Lahore but at District Headquarter Hospital, Kasur by Dr. Ishfaq Muhammad Akhtar, Medical Officer (PW-9) who stated that he had noted two injuries on the body of the deceased as under:--- "A lacerated wound 1/2 x 1/2 c.m. margins inverted, deep going on anterior lateral aspect of right shoulder joint (entry wound)
A lacerated wound 3/4 x 3/4 c.m. margins everted on posterior border of right axillae 4 c.m. below right arm pit. (exit wound)"
The learned counsel states that the injury as ,stated in the F.I.R. by the witnesses was not borne out by the medical record. He further stated that -the brothers of the deceased (PW-1 and PW-2) had testified that the deceased was fasting on the day he was fired upon and that they were accompanying the deceased with food items for breaking fast in the evening (iftari), however, the post-mortem report (Exhibit PL) shows that there was semi digested food in the stomach of the deceased and the PW-9 who had carried out the post-mortem testified that if the deceased had been fasting such food would not have been detected as it would have been digested by 11 a.m. which further erodes the credibility of the purported eye-witness and confirms that they had not witnessed the murder.
4. The learned counsel next refers to the manner in which the three bullet casings were said to have been found, collected and sent to the Forensic Science Laboratory Punjab, Lahore ("FSL"). The JO of the case, Sub-Inspector Muhammad Akram (PW-7), testified that he had gone to the crime scene "at 2.30/3 a.m. (night) [and] as the night was dark and light was not available so I did not inspect the place of occurrence at that time". And though he had an "investigation bag" with him which had a torch in it but it was not working as the battery cells had completely depleted. The crime scene was therefore inspected after break of dawn (without specifying the time) on 25th November, 2003, when three bullet casings and blood-stained earth were found collected by the I.O. The learned counsel states that the crime scene was in the middle of a bazaar and it had not been secured; therefore, it is unbelievable that the blood-stained earth and three bullet casings were found many hours after the crime had been committed and they were secured. He further contends that if the said three bullet casings had been recovered from the crime scene on 25th November, 2003 there was no reason to send them to FSL after a period of one month and around the same time that the crime-weapon was recovered and the bullet casings were obtained after firing from the weapon provided to them by the complainant side. He next referred to the testimony of Head Constable Badar Din (PW-10), who was the police Moharrar, and who testified that the bullet casings were handed over to Constable Muhammad Ismail (PW-5), but did not mention when, though Muhammad Ismail testified that this was done on 24th December, 2003, but neither witness explained why they were sent to FSL after a month.
5. The manner of the appellant's arrest was also disputed. The learned counsel submits that the appellant had surrendered to the police when he learnt that he was required by them and was not arrested as shown by the I.O. In this regard reference has been made to the cross-examination of the PW-7, who had arrested the appellant, who was suggested that the appellant was presented before him replied that, "I do not know". In this regard reference was also made to W.P. No, 12985/2004, filed on behalf of the appellant, wherein the manner of the purported arrest of the appellant was disputed, and it was prayed that a criminal case be registered against the I.O. for creating false evidence. The said petition was disposed of by holding that the matter is still to be determined by the Trial Court.
6. The learned Additional Prosecutor General, Punjab ("APG") whilst opposing the appeal could not controvert the aforesaid facts pointed out by the learned counsel for the appellant.
7. We have heard the learned counsel for the appellant and the learned APG for the State and have examined the record with their able assistance. There are a number of factors in this case which raise serious and unresolved doubts. Maqsood Ahmed was not immediately taken to any hospital and when he was taken it was to a distant one at Lahore where he died. However, the postmortem was not conducted at the said hospital but at District Headquarter Hospital, Kasur. There was also unexplained delay in registering the F.I.R. The deceased was stated to have been fasting but, as noted above, food was found in his stomach, and the Doctor testified that this would not have been possible if he was fasting and if as per the prosecution the crime had been committed at 4:30 p.m. or thereabouts. The motive, as narrated in the F.I.R. and as maintained by the prosecution, would, if at all lay, with the appellant's brother to strike out, since it was his mother-in-law who had lost the case. Moreover, the target of the grievance would be with Muhammad Yahya, who had won the case, however, even though Muhammad Yahya testified that he was present at the crime scene he was not fired upon. The manner in which the crime scene was left unattended and then after many hours blood-stained earth and bullet casings were retrieved there- from despite it being in the middle of a bazaar and trampled upon by a large number of people is yet another aspect of the case which raises doubts. There is also no explanation for not sending the bullet casings to the FSL for a month and only doing so close to when the fire-arm was recovered suggests that they may not have been available when they are said to have been retrieved. Muhammad Idrees, one of the witnesses who was stated to have witnessed the murder and was the maternal cousin of the deceased, did not come to testify and no reason for not doing so was provided.
8. It is also noteworthy that the learned Judges of the High Court had noted many of the discrepancies in the prosecution case in paragraph 17 of the impugned judgment but on account of these they were only persuaded to reduce the sentence of death to one of imprisonment for life without appreciating that if the same are accepted it would result in the acquittal of the appellant, which fact was also noted in the leave granting order of this Court.
9. Therefore, when all the aforesaid factors are taken into account there are considerable unresolved questions and doubts and we are left to conclude that the case against the appellant was not proved beyond reasonable doubt. The aforesaid are the reasons for allowing this appeal earlier today.