2017 PLP 115 (YLRN)

QAZI MUHAMMAD AMIN AHMED, J.

Iftikhar, 20, and Barkat, 50, hereinafter referred to as the deceased, were gunned down on 26-06-2003 at about 1:30 a.m. within the area of Bhaini Barkat Ali Kot Gujjran Mouza Kothey Wala, situating at a distance of six miles from Police Station Budhla Santt, District Multan; Muhammad Arif (PW-9) and Mst. Saima Bibi (PW-10) also sustained injuries during the occurrence; incident was reported by Mst. Sughran Bibi (PW-8) through complaint Ex.PH, recorded by Muhammad Rashid Malik, SI (PW-19), 6:00 p.m. at the spot alleged wherein is that during the night of occurrence at about 1:30 a.m. her son Iftikhar Ahmad deceased and daughter Sheema were asleep in front of their house while her brother-in-law Barkat deceased along with his son Arif (PW-9) and daughter Mst. Saima Bibi (PW-10) slept in the courtyard of their house when she got awakened to see Allah Ditta accused armed with a 30-caliber pistol by the cot of Iftikhar deceased whereas Khalil Ahmad appellant holding a pistol stood near the cot of Barkat deceased, Muhammad Hanif accused holding a pistol as well was accompanying them and raised Lalkara that they be taught a lesson for the murder of Wali Muhammad whereupon Allah Ditta dealt a fire shot hitting Iftikhar deceased near his left ear followed by a fire shot by Khalil Ahmad appellant landing on the left eye of Barkat deceased; Muhammad Hanif hit Arif (PW-9) on his flank followed by another fire shot hitting Saima Bibi (PW-10) on her hand. Gun reports and commotion attracted Muhammad Anwar and Bagh Ali, PWs, who identified the assailants in electricity light. The accused decamped from the spot. Motive for the crime is cited an earlier murder of one Wali Muhammad wherein Niamat, Barkat, Younas and Fatima were arrayed as accused and the trial culminated into conviction of Barkat alone and it was to avenge the said incident that the accused mounted the assault. Dr. Tariq Nawaz Babar (PW-15) conducted autopsy on the dead body of Iftikhar, deceased on 26-6-2003 at 4:00 p.m. and observed a lacerated wound with blackish burnt inverted margins along with singeing of hairs measuring 4 cm x 3 cm just above the pinna of right ear on right temporal area, going deep into skull cavity. The injury after making a hole through right temporal area damaged the brain matter from right to left downward and fractured the right parietal area; a plastic wad along with nine pellets were retrieved from the base of skull; this solitary injury caused massive damage to the brain and was held as cause of death, in the ordinary course of nature; death occurred instantaneously and probable time between death and postmortem was estimated as 9 to 12 hours. Dr. Waseem Sarwar (PW-6) conducted autopsy on the dead body of Barkat, deceased on the following day at 2:05 p.m. and noted as many as five entry wounds of different dimensions along with two exits on left side of forehead, left ala of nose, on right and left palms as well as on the right wrist joint, right thigh above the knee joint. Another injury was noted on the left hand medial to metacarpophalangeal joint with fracture of proximal phalanx of middle finger as well as dorsum of right hand. Injury No.1 damaged the brain and was blamed as cause of death; probable duration between injuries and death was 12 to 16 hours and that of death and postmortem 12 to 24 hours. Mst. Saima Bibi (PW-10) was medically examined on 26-6-2003 without a police docket whereas Arif (PW-9) was medically examined on 6-10-2003 vide medico legal certificate Ex.PM and Ex.PG respectively. The medical officer noted a lacerated wound of entry 1/2 cm x 1/2 cm on right forearm with its corresponding exit; it was caused by firearm within a duration of 2 to 4 hours whereas a healed mark was noted on the back of chest lateral to midline on the person of Arif (PW-9) without any reference to duration of injury or weapon used. Muhammad Rashid Malik (PW-19) Investigating Officer carried out initial investigation; during spot inspection, he secured earth from the venue from two points as well as nine casings of 30-caliber (P-4/1-9), secured vide inventories. Khalil Ahmad appellant was arrested by Zafar Iqbal, SI (PW-12) followed by Allah Ditta alias Ghafoor accused; both of them were already in custody in some other criminal case; Allah Ditta appellant pursuant to a disclosure led to the recovery of 12-caliber pistol (P-4); Muhammad Hanif appellant was arrested on 14-12-2009 by Muhammad Hayat SI (PW-18) and pursuant to a disclosure got recovered a 30-caliber pistol on 24-12-2009. Multiple reports under Section 173 of the Code of Criminal Procedure, 1898 in the wake of piecemeal arrest were sent to the Court and the appellants were finally indicted by a learned Addl. Sessions Judge at Multan on 1-3-2010 when they claimed trial, pursuant whereto, prosecution in order to bring home charge against them, besides relying upon forensic reports, produced as many as nineteen witnesses; of them, Sughran Bibi (PW-8), Muhammad Arif (PW-9) and Mst. Saima (PW-10) furnished ocular account; the latter two are injured as well; they constitute the mainstay of the prosecution case. According to forensic reports, earth secured from the spot was found stained with blood of human origin and weapon recovered at the instance of Muhammad Hanif, appellant was merely opined as being in working order. The appellants confronted prosecution evidence with the following unanimous plea:-- "It is a false case. I was not aware with regard to the present occurrence as I am resident of Gujranwala District and I have no enmity with the complainant party who are my relatives. I was not aware that any case was registered against me or I was declared P.O. In fact the record of the case shows that the present case was registered after postmortem examination of the deceased which is after passing many hours from the occurrence and the main reason for late registration of the case was that the complainant party was not aware about and after thinking, consultation the story of the FIR was fabricated. I came to know about this case when I was arrested but no recovery of pistol was effected from my possession and the recovery shown is fabricated. All the witnesses are related inter se and no independent witness from the locality has supported the version of the complainant party. I am innocent and the case is false." The learned Additional Sessions Judge vide judgment dated 10-07-2010 proceeded to convict the appellants under section 452 read with Section 34 of the Pakistan Penal Code, 1860 and sentenced them to seven years RI with fine of Rs.50000/- each; they were convicted under Section 302 (b) read with section 34 of the Code ibid and sentenced to death on two counts along with payment of compensation of Rs.200,000/- each or six months SI in the event of default; they were also convicted under Section 324 read with Section 34 for causing injuries to Muhammad Arif and sentenced to 10-years R.I along with fine of Rs. 50,000/- each accompanied by payment of Arsh amounting to Rs. 200,000/- to be equally paid by the convicts; they were also convicted under Section 337-A(i), for causing injuries to Mst. Saima Bibi PW and sentenced to pay Rs. 10,000/- as Daman and suffer 2-years R.I; sentences were ordered to run concurrently with benefit of Section 382-B of the Code of Criminal Procedure, 1898, vires whereof, are being challenged by the appellants vide Crl. Appeal No.883 of 2010 whereas Murder Reference No.72 of 2013 seeks confirmation of death penalty; these are being decided through this single judgment.

2. Learned counsel for the appellants contends that the case of the prosecution is fraught with contradictions, inconsistencies and improbabilities and as such the learned Court below erred in placing implicit reliance thereon in a case involving capital charge; that there is glaring conflict between ocular account and medical evidence; that occurrence being a night affair, issue of identification of the assailants has not been properly attended to; the bottom line of the arguments is that prosecution case is not free from doubts and the learned trial Judge failed to extend benefit thereof to the appellants. 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 two innocent persons were done to death inside the safety of their home and that occurrence was witnessed by no less than two eye-witnesses with the stamp of injuries on their persons in the backdrop of a motive which is an inter se common ground. Lastly it is argued that substitution is a rare phenomenon and thus the appellants have been rightly convicted and sentenced.

3. Heard. Record perused.

4. Prosecution case is founded upon ocular account furnished by two injured witnesses, both inmates of the house where occurrence took place; both of them with one voice accused the appellants for the crime. Murder of Wali Muhammad for which Barkat deceased served out a sentence is not a seriously disputed motive. These aspects of the prosecution case, at first sight, are found not far from being confidence inspiring, however, on a closer scrutiny and appraisal of prosecution evidence, merits of the prosecution case warrant a serious reconsideration; of them, first and foremost is question of identification of the assailants; the occurrence took place at 1:30 a.m. after midnight in their Bhaini, the complainant as well as the witnesses claimed to have identified the appellants in electric light glowing during the night. It is month of June and the family was asleep in the courtyard in a rural neighborhood. Though no hard and fast rule can be laid down or applied with empirical exactitude, nonetheless, ordinarily lights are put off before the family members go asleep in such joint rural dwellings as the entire family, including the married members thereof, spent night together at close distances. There is yet another reason to seriously question, prosecution's claim about the electric light, as Sughran Bibi (PW-8) admitted in her cross-examination that there was no electricity connection in her house; she, however, promptly volunteered to mention an electric connection through a wire, taken from the house of her relative Ahmad Din situated at a distance of 2/3 Bighas. The promptitude and eagerness of Sughran Bibi (PW-8) to introduce unsolicited explanation evinces a response to an anticipated query. There is nothing on record to suggest physical presence of any electric wire or bulb nor the said Ahmad Din ever so stated before the Investigating Officer or the Court. In the unscaled site plan Ex.PR and scaled site plan Ex.PA prepared respectively on 26-6-2003 and 30-12-2003 point No.9, depicting the electric bulb is shown to have been inserted subsequently. The source of light, as asserted by the prosecution, taken from any angle, is a suspect position. Muhammad Arif (PW-9) and Saima Bibi (PW-10) are injured witnesses; Sughran Bibi (PW-8) undoubtedly is an inmate of the house. According to Dr. Waseem Sarwar (PW-6), he medically examined Arif PW on 6-10-2003 whereas the occurrence took place between 25/26-6-2003; medico legal certificate Ex.PG confirms this position without any reference to the duration of injuries or weapon used. Saima Bibi PW is medically examined on 26-6-2003 at 4:45 a.m. apparently under a Magisterial direction as is mentioned in medico legal certificate Ex.PM when she was found to have a lacerated wound of entry measuring 1/2 cm x 1/2 cm on the inner side of right forearm with an exit on the medial side of the wound. Difference of time between two medical examinations no less than four months is an irreconcilable discrepancy and this aspect of the prosecution case has escaped the notice of the learned trial Judge. According to Sughran Bibi (PW-8), Iftikhar deceased breathed her last at the spot whereas Barkat succumbed to his injuries in the hospital where she had also taken the injured; it is her case that police came thereafter and she recorded statement Ex.PH there, however, according to Muhammad Rashid (PW-19), he recorded statement Ex.PH at the spot and thereafter transmitted the injured and the deceased to Nishtar Hospital Multan. Medico legal certificates referred to above contradict that position, as Sughran Bibi (PW-8) is noted therein to have brought the injured to the hospital. This admits a reasonable possibility to entertain the defence plea that neither the occurrence took place in the manner as alleged nor the complaint was so drafted. Taken by surprise, all of a sudden, in the midst of night, in an extreme crisis situation, nonetheless, precision and exactitude of Sughran Bibi (PW-8) in assigning different roles to the appellants vis-a-vis the dead and the injured is mindboggling, as it is rather difficult even for the most brilliant to capture such minute details of events, coming about in quick succession at a small span of time. All the witnesses are unanimous in use of pistols during the occurrence; one of the assailants is specifically alleged to have carried a 30-caliber pistol. According to Dr. Waseem Sarwar (PW-6), lead pellets were recovered from the dead body of Barkat deceased. Dr. Tariq Nawaz Babar (PW-15) who conducted autopsy on the dead body of Iftikhar deceased, retrieved a plastic wad along with nine pallets from left side of the base of skull; the wound carried blackish burnt inverted margins with singed hairs. These findings are incompatible with the weapons allegedly used by the assailants and consistently referred to by the witnesses in their narrative as well as in the site plans and so is inter se distance between the deceased and Khalil Ahmad appellant shown as 25 feet in site plan Ex.PA. Forensic Science Laboratory Report Ex.PR, in the absence of a matching empty, is of no help to the prosecution. Argument that substitution is a rare phenomena and that the complainant and the PWs had no occasion to swap the real offenders with the present appellants, who had a motive to avenge an earlier incident is also beside the point for the reason that at times arch rivals are implicated in the absence of positive proof, however, under the belief of their having committed the crime in the backdrop of previous enmity; the case in hand is akin to those situations and possibility cannot be ruled out altogether. Yet another reason that puts one on guard is active participation of no less than three persons to undertake the assignment where any one of them could accomplish the task, particularly in a carefully carved out scheme to mount assault on unsuspecting victims in an opportune situation and as such hypothesis of casting of wider net is not seemingly beside the mark and given the role assigned to each appellant, it would be rather impossible to single out the real culprit, if any. On an overall analysis of prosecution evidence, the case of prosecution is found fraught with doubts, doubts embedded in stated prosecution's position, therefore, it would be unsafe to maintain the convictions. Consequently, while extending benefit of the doubt to the appellants, Crl. Appeal No.883 of 2010 is allowed; they are acquitted from the charge and shall be released if not required in any other case. Murder Reference No.72 of 2013 is answered in NEGATIVE and death sentence is NOT CONFIRMED. WA/K-29/L Appeal allowed.