2019 P Cr (PLP)

QAZI MUHAMMAD AMIN AHMED, J.

Mst. Asia, 20, was gunned down on 14-5-2003 at 3:00 p.m. within the area of Chak No.64/4-R, situating at a distance of 6-Kilometers from Police Station Noor Shah, District Sahiwal; the incident was reported by her mother Mst. Makhtoolan Bibi (PW-3) through statement (Ex.PC) recorded by Bashir Ahmad, ASI (PW-14), 5:00 p.m. at the spot; according to the complainant, on the fateful day, she alongside the deceased was present in her Baithak with open doors when all of a sudden, Shah Bahram appellant along with acquitted co-accused Zahoor Ahmad, armed with 12 caliber country made carbines, confronted them; Zahoor Ahmad co-accused exhorted to avenge murder of Talib Hussain followed by a fire shot by the appellant hitting the deceased on her chest; gun report and commotion attracted complainant's husband Ashiq Ali (PW-8) as well as Muhammad Nawaz when the accused fled from the scene on their bicycles. Few months before the occurrence Talib Wattu was murdered for which complainant's son Ali Ahmad was arrayed as accused; it is alleged that in the said backdrop, the deceased was done to death. Autopsy conducted at 10:10 a.m. following day, revealed solitary entry aperture below left nipple with two corresponding exits, on the back; damage to liver, kidney and stomach generated haemorrhagic shock, resulting into death with half an hour with interregnum between death and post mortem as 20 hours. Upon spot inspection, Bashir Ahmad, S.I (PW-14) secured bloodstained earth besides taking other investigative steps of formal nature. Appellant as well as Zahoor Ahmad co-accused were arrested on 2-12-2009; pursuant to disclosures, both of them led to the recovery of .12-caliber carbines/pistols (P-3 and P-4) on 13-12-2009; indicted on 5-6-2010 by a learned Addl: Sessions Judge at Sahiwal, they claimed trial, pursuant whereto, prosecution produced as many as 15 witnesses to drive home the charge; of them, Mst. Makhtoolan Bibi (PW-3) and Ashiq Ali (PW-8) furnished ocular account, it constitutes mainstay of the prosecution case. On forensic side, blood secured from the scene was found that of human origin whereas in the absence of any comparison, pistol (P-4), allegedly recovered at appellant's instance was found in working order; the accused confronted the prosecution evidence with a unanimous denial; their plea in the nutshell was that the lady was murdered by the family itself for family honour. The learned trial Judge, unimpressed by the plea, proceeded to convict the appellant under section 302(b) of the Pakistan Penal Code, 1860 and sentenced him to death along with payment of compensation in the sum of Rs.100,000/- to be recovered as arrears of land revenue or to suffer simple imprisonment for six months in the event of default; Zahoor Ahmad co-accused was, however, acquitted from the charge, vide impugned judgment dated 17.12.2012, vires whereof, are being assailed through Crl. Appeal No. 85-J of 2014; the State seeks confirmation of death penalty vide Murder Reference No.7 of 2013; bound by a common thread, these are being decided through this single judgment.

2. Learned counsel for the appellant contends that prosecution case is fraught with doubts and improbabilities; that given the motive alleged in the crime report, there was no occasion for the appellant or his co-accused to target the deceased in preference to her father, namely, Ashiq Ali (PW-8) who according to prosecution itself, was attracted to the scene; that even otherwise, it is extremely improbable that the family would expose a girl of age to public view in broad daylight with open doors; that inordinately delayed autopsy in itself suggests that First Information Report was recorded after consultations and deliberations. Contrarily, the learned Law Officer has defended the impugned judgment on the ground that an innocent girl has been done to death in broad daylight. It is further argued that ocular account is duly corroborated by medical evidence; recovery of carbine P-4, according to the learned Law Officer, is yet another confirmatory piece of evidence. The bottom line is that substitution being a rare phenomena, appellant's guilt is proved to the hilt and acquittal of co-accused with a vastly distinguishable role does not reflect upon the case; confirmation of death penalty has been prayed.

3. Heard. Record perused.

4. Both sides are at loggerheads in the backdrop of murder of Talib Hussain, brother of acquitted co-accused; with the motive structured in the crime report, going by traditional ethos and practices, the deceased, a girl 20 years of age, could hardly be a choice target, particularly when her father Ashiq Ali (PW-8) aged 60, though wavering in his deposition, nonetheless, insists to be within assailants' view; he has also admitted presence of his other son Hassan Raza at the time of occurrence. Detour by the accused, duly armed, all the way to the crime scene merely to assault a hapless female by sparing other able-bodied to incur the same consequences is mind boggling. Similarly, presence of the deceased with her mother in a Baithak with opening in the lane is something extremely unusual. According to site plan Ex.PB, complainant's house is quite a dwelling and, thus, it is astonishing as to why the deceased and her mother would be idly sitting there at a point of time when ordinarily they would nap in scorching summer afternoon. It is a point of time most inappropriate for Ashiq Ali (PW-8) and Muhammad Nawaz PW to cut fodder, a reason cited by the former for his presence in front of his house. It is incompatible with practice followed in a rural neighbourhood. Even if these multiple unusual factors are overlooked, inordinately delayed postmortem examination cannot be lost sight of. Occurrence took place at 3:00 p.m. with police station at a distance of six kilometers and complaint Ex.PC already recorded at 5:00 p.m., autopsy 10:10 a.m. following day unmistakably suggest that inquest report was not available till much late in the day and Ex.PC was not recorded at a point of time suggested therein. Previous animosity between the two sides would further aggravate the confusion. Acquittal of co-accused, though not assigned any harm to the deceased or any of the PWs, nonetheless, given the motive specifically revolving around him would also heavily reflect upon the case inasmuch as it was his brother's murder that the assailants sought to avenge; with his acquittal, the entire prosecution case is cast away, as there is nothing on the record as to why the appellant would burden himself with a task to be more aptly carried out by Zahoor Ahmad. Except for seizure of blood, nothing was secured from the spot to suggest deceased's presence there before she was fatally shot. Without entertaining defence plea with regard to antecedents of the deceased, it can be safely concluded that occurrence did not take place in the manner as alleged in the crime report as well as for the motive stated therein. Prosecution case is fraught with doubts; doubts that cannot be viewed as speculative or conjectural, on the contrary deducible on the basis of circumstances, structured in prosecution's stated positions, thus, it would be grievously unsafe to maintain the conviction. Consequently, by extending benefit of doubt to the appellant, Crl. Appeal No.85-J of 2014 is allowed; he is acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No.7 of 2013 is answered in the NEGATIVE and death sentence is NOT CONFIRMED. HBT/S-49/L Appeal allowed.