P L D 2017 Lahore 731 (PLP)

QAZI MUHAMMAD AMIN AHMED, J.--Adil Hussain, 25, hereinafter referred to as the deceased, was stabbed to death on 05-11-.2006 at 10:00 p.m. within the area of Mohallah Eidgah Roundah Road Basti Shahnawaz, situating at a distance of one kilometer from Police Station City Layyah. Incident was reported by his paternal uncle Muhammad Hussain (PW-9) through complaint Ex.PA recorded by Muhammad Afzal, Inspector/SHO (PW-13), same night, 12:15 a.m. at Jmamia Mosque, Eid Gah Road Layyah, alleged wherein is that on 5-11-2006 at about 9:45 p.m. he was present along with the deceased in latter's Bhaitak situated in Mohallah Faizabad when Muhammad Rafique appellant came there and asked the deceased to accompany him, as he would facilitate his compromise with Musarrat Hussain whereupon the deceased left the scene with him on a motorbike; after about ten minutes, Ghulam Abbas (PW-10), a brother-in-law of the deceased, arrived there and when informed, got concern and set out with the complainant to follow the deceased; at about 10:00 p.m. they reached near the house of Musarrat Hussain and saw in a street light Muhammad Iqbal holding the deceased from behind; he was resorting his companions to kill the deceased; Musarrat Hussain and Zishan appellants armed with daggers within the view of witnesses dealt multiple blows landing on his abdomen, who smeared with blood felled on the ground when Muhammad Iqbal took out a dagger from the fold of his loincloth and slit the throat. The commotion attracted Ghulam Abbas PW; the accused, brandishing daggers, fled from the scene. Motive for the crime is previous litigation and enmity. Dr. Ghulam Mustafa (PW-5) conducted autopsy on 06-11-2006 at 11:45 a.m; it was a case of massive violence, as the Medical Officer observed as many as 23 injuries of different dimensions on dorso medial aspect of left hand, forearm, armpit, front of left chest, abdomen, neck, ruptured trachea/esophagus and 6th cervical vertebral body up to back of neck, front of right chest, back of right lumber region, vertebral column, right thigh and on medial side of left knee; both right and left pleuras as well as trachea were cut; injuries Nos.4, 5, 6, 9, 10, 11, 14, 15, 17 and 20 were declared sufficient to cause death in the ordinary course of nature, however, without any reference to their individual or collective impact; duration between injuries and death was estimated as 5 to 10 minutes whereas between death and postmortem it was reckoned as 14 hours. Muhammad Afzal, Inspector (PW-13) carried out initial investigation; during spot inspection, he secured bloodstained earth, last worn pair of shoes (P-7) and motorcycle (P-6) allegedly used by the deceased on his detour to death. Cycle (P-9) statedly owned by Zishan appellant was also lying at the spot and taken into possession as well. The Investigating Officer arrested Zishan and Rafique, appellants on 22-11-2006; the former, pursuant to a disclosure, led to the recovery of dagger (P-3), secured vide inventory while the latter was exonerated; Musarrat Hussain appellant and Iqbal Qureshi, co-accused joined investigation being on pre-arrest bail; the former was, however, arrested on 19-12-2006 and got recovered dagger (P-6); after completion of investigation, the accused were sent to face trial before the learned Sessions Judge, Lodhran; indicted on 22-12-2008, they claimed trial, pursuant whereto, prosecution in order to bring home charge against them, besides relying upon forensic reports, produced as many as fourteen witnesses; of them, Muhammad Hussain (PW-9) and Ghulam Abbas (PW-10) furnished ocular account which constitutes the mainstay of the prosecution case; the former is informant of the case as well. The accused confronted prosecution evidence with a unanimous denial albeit with some variations in their position; Iqbal co-accused also produced documentary evidence in defence. The learned Additional Sessions Judge vide judgment dated 25-05-2010 acquitted Iqbal Qureshi, co-accused, however, proceeded to convict Zishan, Musarrat Hussain and Muhammad Rafique, appellants under Section 302(b) read with Section 34 of the Pakistan Penal Code, 1860 and sentenced Zishan and Musarrat Hussain to death along with payment of compensation in the sum of Rs.100,000/- each, to be recovered as arrears of land revenue; Muhammad Rafique appellant was sentenced to imprisonment for life with payment of fine of Rs.50,000/- or six months' SI in the event of default, vires whereof, are being challenged by the appellants vide Crl. Appeal No.879-J of 2011 and Crl. Appeal No.711 of 2010; Murder Reference No.34 of 2010 seeks confirmation of death penalty whereas the complainant has prayed for reversal of acquittal of Iqbal Qureshi co-accused vide Crl. Appeal No.741 of 2010; these are being decided through this single judgment.

2. Learned counsel for the appellants contends that the prosecution case is fraught with contradictions, inconsistencies and improbabilities and as such the learned Court below erred in returning a guilty verdict with ultimate penalty; that the occurrence took place in the dark with no source of light to establish appellants' identification; that presence of witnesses at the spot at the relevant time is highly improbable; that evidence disbelieved qua majority of identically placed co-accused cannot be pressed into service against the appellants in the absence of independent corroboration, hopelessly lacking in the case. Lastly, it is argued that deceased had a formidable past and he was done in the dark hour of night in an unwitnessed occurrence. Contrarily, the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment and prayed for confirmation of death penalty on the ground that the deceased, a Masoom-ud-Dam, was brutally murdered in a wanton and merciless manner and as such the appellants deserved no leniency. While arguing Criminal Appeal No.741 of 2010, learned counsel for the complainant seeks reversal of acquittal of Iqbal Qureshi, co-accused by arguing that prosecution successfully proved charge against him as well and there was no occasion for the learned trial Judge to acquit him after he believed prosecution case in its entirety qua the identically placed co-accused.

3. Heard. Record perused.

4. Motive for the crime in complaint Exh.PA is obliquely referred as the prosecution is reticent on salient details thereof, however, its details are furnished by the complainant Muhammad Hussain (PW-9) in his examination-in-chief when he stated, "Motive was not that serious except litigation of criminal nature as mother of Zishan had registered a criminal case of Zina-bil-Jabr upon Adil Hussain which was cancelled by the police as a false case." Though, it is alleged by the complainant that in this backdrop, the deceased and Musarrat Hussain, appellant exchanged hot words, however, this aspect of prosecution case is not confidence inspiring inasmuch as apparently there was no earthly reason for the deceased to readily oblige Muhammad Rafique appellant in a chilled winter night to accompany him to visit his opponent pitted against him in a dispute involving family honour; he could have safely deferred the proposal to some other convenient point of time and at a more safe venue. The narrative is suspicious for yet another reason; if at all Muhammad Hussain (PW-9) were present when the deceased left with Muhammad Rafique appellant for the settlement of a serious dispute, he ought to have accompanied the deceased. Arrival of Ghulam Abbas (PW-10), a driver by profession, at an odd hour of night to join the complainant, in the absence of any specific reason, is also mind boggling. According to the prosecution, occurrence took place at 10:00 p.m. at a place situating at a distance of one kilometer from the police station; incident is reported at 12:30 a.m, however, the autopsy is conducted 11:45 a.m. on the following day; this delay in autopsy admits a real possibility. that complaint Ex.PA was not prepared at a point of time mentioned therein. Argument that the deceased, hounded by an unenviable past with multiple enmities was done to death in the darkness of fateful winter night by unknown assailants in an unwitnessed occurrence cannot be brushed aside out of hand; a good number of First Information Reports registered against the deceased from time to time involving cases of murderous assaults, lurking house trespass, abduction, rape, illicit arms, etc. have been placed on the record; this past in conjunction with the improbability of prosecution case warrants careful appraisal of the prosecution case. At an unearthly hour of chilled winter night, per chance convergence of the prosecution witnesses in the Baithak of the deceased, unanticipated arrival of Muhammad Rafique appellant and indiscreet departure of the deceased in his company, in addition thereto, witnesses reaching the venue exactly at a point of time when the deceased came under assault are the positions that do not fit in comfortably within the ambit of probability, therefore, it can be safely inferred that occurrence did not take place in the manner as alleged in crime report Ex.PA. In criminal dispensation of justice, accusation no matter how impressively articulated, cannot sustain capital charge unless upon contemplation it is found naturally synchronized with the incidence of events alleged by the prosecution; its failure on substantive side in view of improbabilities hovering over it, recoveries of daggers or positive forensic reports would not improve upon on otherwise debilitating charge, structured on flawed foundations, therefore, it would be unsafe to maintain the conviction. Consequently, Cr

1. Appeal No.879-J of 2011 and Crl. Appeal No.711 of 2010 are allowed; impugned judgment dated 25-5-2010 is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No.34 of 2010 is answered in NEGATIVE and death sentence is NOT CONFIRMED. JK/Z-10/L Order accordingly.