2018 PLP 53 (YLRN)

QAZI MUHAMMAD AMIN AHMED, J.

Sharyar alias Shari and Azhar, appellants herein, are in receipt of a guilty verdict, returned by a learned Additional Sessions Judge at Chiniot vide impugned judgment dated 13-11-2012; they stand convicted under section 302(b) read with section 34 of the Pakistan Penal Code, 1860 for committing Qatl-i-amd of Umer Draz, 18/20, hereinafter referred to as the deceased, at 7:00 p.m. on 13-10-2010 within the area of Mouza Jatt Gujjar, situating at 14-miles from Police Station Saddar District Chiniot; they are sentenced to death with compensation of Rs.200,000/- each or to undergo six months simple imprisonment in the event of default; Saif Ullah co-accused was, however, acquitted from the charge. Prosecution case is founded upon application (Ex.PA) moved by Sardar Ali (PW-1), father of the deceased, received by Muzaffar Ali, S.I, 7:15 p.m. on 13.10.2012 at Mouza Jatt Gujjar. According to the complainant, on the fateful day, at about 7:00 p.m. he along with other family members was at home when on a knock by an unknown person, the deceased opened the door to see five unknown persons holding firearms; they immediately opened the fire, the complainant hearing gun reports rushed to attend his son to find him in a pool of blood, having already breathed his last. The assailants while firing went across the road. In the meanwhile, Yousaf and Aslam PWs reached the scene and shared details of the occurrence with the complainant; the witnesses claimed to identify the assailants. No motive was cited in the crime report. Dr. Qaisar Abbas (PW-8) conducted autopsy at 9:20 a.m., he noted as many as 24 lacerated wounds of different dimensions on abdomen, left lateral aspect of chest and back of left hand; injuries to vital organs, generating hemorrhagic shock, were blamed as cause of death; probable time between the injuries and death was immediate whereas between death and postmortem it was estimated as 2-3 hours. Muzaffar Ali, SI carried out initial investigation; he secured bloodstained earth and four casings (Ex.P-1) vide inventory besides taking other investigative steps of formal nature. As the investigation progressed, the complainant improved upon his case through supplementary statement dated 25-10-2010, he introduced Saif Ullah, Azhar and Shaharyar, as the culprits. Saif Ullah, co-accused was arrested being a suspect on 24-10-2010; upon his personal search. 30-caliber pistol (P-6) was recovered, followed by Azhar and Shahryar, appellants on 26-10-2010; pursuant to disclosure, they led to the recovery of pump-action gun (P-1) and 12-caliber gun (P-3), respectively; Investigating Officer did not enter the witness box and instead Umar Hayat 542/C appeared as CW-1 to furnish secondary evidence. Dissatisfied with the investigation, complainant instituted a private complaint (Ex.PB) on 8-12-2010 against same set of accused wherein process was issued against all of them; indicted by a learned Addl. Sessions Judge at Chiniot on 7-2-2011 they claimed trial, pursuant whereto, prosecution in order to drive home the charge produced as many as nine witnesses inclusive of a court witness. Prosecution case is a blend of direct and circumstantial evidence. comprising of ocular account, extrajudicial confession and recoveries; these constitute the mainstay. The accused confronted prosecution evidence with a unanimous denial; they blamed previous grudge as a cause behind their false implication; according to them, the deceased was done to death in an unwitnessed occurrence and they were hounded on the basis of a misconceived and misplaced suspicion. Unimpressed by the position taken, the learned trial Judge vide impugned judgment dated 13.11.2012 convicted and sentenced the appellants, as referred to above, however, proceeded to acquit Saifullah co-accused form the charge. Crl. Appeal No.1944 of 2012 disputes the vires of the impugned judgment whereas the State seeks confirmation of death penalty vide Murder Reference No.463 of 2012; there being a common thread in the both, these are being decided through this single judgment.

2. Learned counsel for the appellants contend that the occurrence did not take place in the manner as alleged in application (Ex.PA); that prosecution story is extremely unnatural and improbable and spells out a scenario altogether different than the one mentioned in the crime report; that there was no occasion for no less than five assailants to jointly gun down a single target when the task could have been accomplished by every single of them and, thus, according to the learned counsel, it was a case of casting of a wider net, that too, on the basis of suspicion; that no motive for the crime was initially cited in the crime report and subsequent improvements by the complainant through a private complaint merit outright rejection; that no test identification parade had been held and, thus, it would be unsafe to maintain the convictions; the bottom line is that prosecution has not been able to prove the charge beyond reasonable doubt. Contrarily, the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment on the ground that the 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 nor their evidence can be thrown out on account of incompetence and inaptitude of the Investigating Officer and, thus, according to him. the learned trial Judge rightly placed implicit reliance thereon and as such no interference is called for; given the brutality inflicted upon the deceased in his prime youth, confirmation of death penalty has been prayed for.

3. Heard. Record perused.

4. It is a case wherein the deceased suffered massive violence, succinctly established by three entry wounds with eight apertures each, however, this is not in line with hypothesis of five assailants simultaneously targeting the deceased with their respective weapons. Occurrence, according to crime report Ex.PA, took place at 7:00 p.m, reported just 15 minutes thereafter at the crime scene while the police station was located 14 miles therefrom; there is a reference to the arrival of Yousaf and Aslam PWs at the scene; they claimed to have seen the assailants; all the witnesses are unanimous in a joint firing by all the five, however, assailants are not named nor described by their descriptive features nor any motive cited for the crime. A bulb illuminated at the scene is stated source of light. According to Sardar Ali complainant (PW-1), Ghulam Ali (PW-3) along with Nazeer (given up PW) informed him for the first time about the culprits and motive for the crime on 23-10-2010 and per his statement. they shared the relevant details with him on 22-10-2010; these dates are not in line with the police record where Ghulam Ali is shown to have received this information on 24-10-2010 and passed it on to the complainant on the following day. This dubious disclosure is prosecution's starting point for appellants' indictment in the case. According to Ghulam Ali (PW-3), he along with Nazeer PW was present at his Dera on 22-10-2010 when Azhar, Shehryar alias Sheri and Saifullah accused visited him and made their breasts clean and thereby furnished all the salient aspects of the occurrence as well as details collateral therewith; finally they made a joint request to the witnesses to arrange pardon for them. According to this improved version, Shehryar appellant along with his co-accused murdered the deceased to avenge murder of his maternal grandfather Shandat Ali by Sardar Ali complainant. If this narrative is believed, then one would be at a loss to understand as to why Sardar Ali complainant omitted to name Shehryar appellant in the crime report, if he had really seen him along with the assailants, as unambiguously claimed by him in the crime report; positions taken by Sardar Ali (PW-1) and Ghulam Ali (PW-3) are mutually destructive. Alleged confessional statement being joint in nature and in one sitting otherwise carried little evidentiary value. It has been disbelieved qua Saif Ullah co-accused as well. One may find it hard to buy the story in the absence of any earthly reason as to why the appellants would confess their crime so as to oblige the prosecution with incriminatory details necessary for their prosecution merely to retract therefrom subsequently. It is in evidence that Ghulam Ali is real brother of the complainant and as such paternal uncle of the deceased; even after hearing this gruesome disclosure, being made at a place no other than his own Dena, he was not much perturbed nor attempted to subdue or overpower the murderer of his real nephew and instead let them leave comfortably. The script is poor. Refusal by a Magistrate on 25.10.2010 to decline request for-holding of a test identification parade when Saifullah acquitted co-accused was produced before him without covered face is in line with the procedural safeguards provided for the exercise. In the face of admitted position that Sardar Ali complainant along with his brother Allah Yar, cousin Siddique son of Karmal and brother-in-law Siddique son of Allah Ditta had committed the murder of Shandat Ali, maternal grandfather of Shehryar appellant, there was no occasion for the complainant to withhold at least Shehryar appellant's identity, if at all, he had seen the occurrence as claimed by him in the crime report and reiterated in private complaint. A solitary electric bulb being the only source of light is yet another dark shadow hovering over the prosecution case. Positive forensic report Ex.PM does not much advance the prosecution case in view of dispatch of casings subsequent to appellants' arrest and thus, after rejection of prosecution evidence qua identically placed Saifullah co-accused recovery of guns P-1 and P-3 would not qualify as independent corroboration to rely upon the same set of witnesses. Prosecution case is fraught with doubts; doubts embedded in prosecution's stated positions, benefit whereof, cannot be denied to the appellants. Consequently, by extending benefit of doubt to the appellants, Crl. Appeal No.1944 of 2012 is allowed; they are acquitted from the charge and shall be released forthwith, if not required in any other case. MURDER REFERENCE No.463 of 2012 is answered in the NEGATIVE and death sentence is NOT CONFIRMED. MH/S-50/L Appeal allowed.