Qazi Muhammad Amin Ahmed, J.--Shozab Shah, Sakhi, Shahadat Ali, Altaf Raza, Saleem Raza and Akhtar-ul- Islam, appellants herein, are in receipt of a guilty verdict, returned by a learned Additional Sessions Judge at Sheikhupura in a private complaint, vide impugned judgment dated 10-12-201 1; they stand convicted under Section 302(b) of the Pakistan Penal Code, 1860 for committing Qatl-e-Amd of Shujaat Ullah, 32, & Saif-Ullah, 35, real brothers interse henceforth referred to as the deceased, at 12:00 p.m. on 2-1-2008 within the area of Dera Haider Shah, situating at a distance of 13-Kilometers from Police Station Saddar Sheikhupura; they have been sentenced to death on both counts with direction to pay compensation in the sum of Rs.200,000I- on each counts or to suffer one year simple imprisonment in default of payment thereof; Aman Ullah and Farasat Ullah, co-accused stand acquitted from the charge of abetment whereas Tajasar and co-accused Nasir assigned similar role are still away from law. Crl. Appeals No.2216 and 2217 of 2011 filed by the convicts, dispute vires of the impugned judgment; complainant seeks reversal of acquittal through Petition for Special Leav e to Appeal No. 349 of 2011 as well as enhancement of compensation vide Criminal Revision No. 1261 of 2011; the State seeks confirmation of death penalty with Murder Reference No.544 of 2011 bearing a common thread, these are being decided through this single judgment.
2. Prosecution case is structured upon statement (Ex.PO) of Noor Habib (PW-3), sister of the deceased, recorded by Muhammad Yaqoob, S.I (CW-1), 1:00 p.m. at the spot. According to the compl ainant on the fateful day at 8.00 a.m, she accompanied the deceased alongwith Asghar Ali and Tanveer Haider , PWs in a vehicle to visit their land where Shozab Shah accused were sent for to negotiate deal for a piece of land; they reached at the scene at about 12:00 hours; deceased a head of the PWs after parking their vehicle when Altaf Raza, Saleem Raza, Sakhi, Shahadat Ali, Akhtar-ul-Islam, Shozab Shah accompanied by 3/4 unknown persons, variously armed, confronted the entourage, they jointly took upon the deceased with indiscriminate firing, who succumbed to the injuries within witnesses' view; the accused danced at the scene to exclaim vengeance of previous enmity and decamped from the scene with license pistol of Saif Ullah deceased. The witnesses took refuge behind fields banks.
Complainant's real paternal uncle Zafar Ullah statedly resided in the. United States; he had deputed Aman Ullah and his son Tajasar to look after his agriculture land, however , the assignment was recalled on breach of trust, with substitution of the deceased and this according to the complainant served as motive, for the crime.
Dr. Iftikhar Hussain (PW-9) conducted autopsy of Saif Ullah at 8:00 p.m; he noted 8 firearm entry wounds on chin, chest and abdomen; injuries No. 2 to 9 were blamed as cause of immediate death on account of damage to viscera within 10 hours preceding examination. Shujat Ullah examined at 9:30 p.m was noted with 8 entry wounds with corresponding exits on head, chin, front and back of chest, left arm, left thigh & abdomen; severe damage to viscera resulted into immediate death; duration between death and postmortem was estimated as 10 hours.
Bashir Ahmad, S.I (CW-11) carried out spot inspection; he secured bloodstained earth, empty magazine, holster with ten bullets of 9 M.M and 52 casings of Kalashnikov , vide Inventories; subsequently , investigation Was taken over by Muhammad Wakil Inspector (CW-2); he arrested Aman Ullah, Saleem Raza, Akhtar Islam and , Shahadat Ali on 09-2-2008; Farasat Ullah joined police investigation on 3-3-2.009; Altaf Raza and Shozab Shah, accused were arrested on 29-10-2009 followed by Shakhi Muhammad on 12-11-2009. Dissatisfied with the police investigation, the complainant instituted a private complaint on 28-3-2008 wherein he disputed exoneration of Aman Ullah, Salam Raza, Akhtar Islam and Shahadat Ali. In the wake of issuance of process, the appellants and co-accused were indicted by a learned Addl. Sessions Judge at Sheikhupura; on 01.02-2010, they claimed trial, pursuant whereto, prosecution in order to bring home their guilt, besides relying upon forensic reports, produced as many as 15 witnesses; official witnesses 0 in numbers, were examined as Court Witnesses; Noor Habib (PW-3) and Asghar Ali (PW-4) furnished ocular account; it constitutes the mainstay of the prosecution case; on forensic side, earth secured from the spot was found stained with blood of human origin; prosecution Had no occasion for comparison of casings secured from the spot as weapons were not recovered during the investigation; the appellants confronted prosecution eviden ce with a unanimous denial, citing political rivalry as reason behind their false implication in an un-witnessed occurrence, however , unimpressed by the plea, the learned trial Judge proceeded to convict and sentence them as referred to above.
3. Learned counsel for the appellants contends that prosecution case is full of doubts, contradictions and improvements and as such reliance cannot be placed on the inherently flawed statements of the witnesses being otherwise inimically disposed towards the appellants; that presence of Mst. Noor Habib PW to accompany the male members for the stated purpose is highly improbable and unnatural; that otherwise prosecution case appears to be hugely exaggerated as seemingly there was no earthly reason for the appellants 6 in numbers, to jointly undertake the exercise when every single of them could have conveniently target the deceased, surprised all of a sudden as per prosecution own case; that the alleged motive does not provide structural strength to the charge inasmuch as if a deal for the land was to have been struck by Shozab appellant he had no occasion to gun down the prospective buyers of his land; that conclusion drawn by the Investigating Officer and absence of recoveries despite rigors of physical custody go long away to reflect upon the veracity of prosecution's case; the bottom line is that prosecution's case is not free from doubt and thus, it would perilously unsafe to maintain the convictions. Contrarily , the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment on the ground that prosecution successfully drove home the charge with the assistance of natural and truthful witnesses having no axe to grind against the appellants; that occurrence being a daylight affair, there could be no occasion for mistaken identity or substitu tion; that case being firmly structured on ocular account, Investigating Officer failure to effect recoveries could not adversely impact upon the fate of prosecution. Magnitude of violence and loss of life has been pressed into service for confirmation of death penalties. Learned counsel for the complainant argued for grant of Special Leave against acquittal of co-accused by arguing that there was no occasion for respondent's acquittal on a speculative premise and thus, according to him, interference was most called for .
4. Heard, Record perused.
5. Aman Ullah alongside his sons Tajasar Ullah, Farasat Ullah and Nasir Ullah, figure behind the motive; according to the complainant, his uncle Zafar Ullah, a U,S resident, assigned management of his landed property , to the above named accused, recalled on accou nt of alleged fraud whereafter , reassigned to the deceased and it is in this backdrop, that the family instigated the appellants to eliminate the deceased. In the witness box complainant introduced an additional factor behind the occurrence and that is handing over a property of her uncle Nasrullah to the deceased that constituted motive as well; none from amongst them, came forward to confirm the transactions; it is in evidence that Zafar Ullah visited Pakistan soon after the occurrence; though certainly not a constituent of the crime, nonetheless, motive alleged in the crime report and reiterated through a private complaint sans foundational basis, additionally for the reason that it is more incisively pointed upon Zafar Ullah and Nasrullah on the one hand and family of Aman Ullah on the other . The motive does not synchronize with the main theme of; prosecution case for yet another reason and that is active participation of 3/4 unknown persons in the occurrence, in whose presence, there was no real necessity for the appellants to incur avoidable consequences particularly for Shozab Shah appellant, who had statedly invited the deceased to strike a deal in order to sell out his land, if at all, it was being contemplated; script is far from being plausible as seemingly there was no urgency to do away with the prospective buyers. Complainant's presence with the deceased for the stated purpose is equally mind boggling; it is not customary in the rural neighbourhoods, even for women with dominant roles to be part of male assembly particularly in a situation that hardly warranted presence. The family set out at 8.00 am and reached the venue at 12.00 noon on a vehicle, it was quite a journey with considerable distance inter se; the vehicle statedly used by the deceased as well as the witnesses does not find mention in the statement of Muha mmad Yaqoob, S.I (CW-1) who first reached the spot and dispatched dead bodies to the mortuary in a trolley moved by a tractor it does not figure in' any of the site-plans or inquest report as well and thus, it is left to ones imagination as to how the deceased covered a distance involving 4-hours journey; once the very purpose of the detour and means whereby it was undertaken, turn out as suspect, it would inevitably cast its shadow upon the presence of the witnesses as well, who otherwise had no occasion to be at a distant location. Position taken in the crime report that vehicle was parked at some distance whereafter the deceased and the PWs set out on foot appears before they came across the assailants appears to be a deliberate attempt, calculated to bring the vehicle off the scene; the hypothesis is further reinforced by miraculous unscathed survival of the witnesses, notwithstanding well within the view of the assailants in broad daylight. Argument that the deceased were done to death in an unwitnessed episode cannot be dismissed out of hand. Fifty two casings of Kalashnikov were secured during spot inspection, these do 4..) not advance prosecution case qua the appellants inasmuch as disclosures before the C.W.4/Muhammad Akbar , S.I attributed to Altaf Raza, Sakhi and Shozab Shah appellants that they had thrown the weapons in a canal pointed out during the course of investigation, do not constitute 'information' in terms of Article-40 of the Qanun-e-Shahadat Order , 1984. On the contrary , since no forensic comparison of the casings was undertaken to determine use of multiple weapons, statutory presumption within the contemplation of Article-129(g) of I the Order ibid can be validly relied upon by the defence; the scene becomes hazier after recovery of a holster , empty magazine and 10 live bullets of 9 M.M. caliber , a weapon state dly. carried by one of the deceased. Autopsies started at 8:00 pm, when the Medical Officer found rigor mortis fully developed on both the dead bodies with estimated time between death and examination as 10-hours; the interre gnum spaced possibility of speculative deliberations, not that unrare a phenomena to array adversaries in a blind alley. Prosecution case is fraught with doubts, patently embedded in stated positions, and thus, it would be grievously unsafe to maintain the convictions 'or attempt to figure out the actual culprit/culprits, through any contemplative mode of appraisal or analysis, without incurring potential risk of error. Consequently , by extending benefit of doubt to the appellants, Crl. Appeals Nos. 2216 & 2217 of 2011 are allowed ; impugned judgment dated 10-12-201 1 is set-aside; they are acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No.544 of 2011 is answered in the NEGA TIVE and death sentence is NOT CONFIRMED .
As a natural corollary , Crl. P .S.L.A No.349 of 201 1 and Crl. Revision No. 1261 of 2011 stand dismissed.