2016 PLP 2138 (SCMR)

ASIF SAEED KHAN KHOSA, J.

During the night between 15/16.12.2002 a bloodbath took place in the house of Muhammad Ajaib complainant in Dhok Awan within the area of Police Station Chotala, District Jhelum in which the complainant's second wife and her five minor children were done to death. The said incident was reported at the above mentioned Police Station by the complainant at about 01.00 p.m. on the following day, i.e. 16.12.2002 through FIR No.88 wherein the present appellant namely Faisal Mehmood, a son of the complainant from the first wife, was nominated as the accused person. After a full-dressed trial the trial court convicted the appellant on six counts of an offence under section 302(b), P.P.C. and sentenced him to death on each count and to pay compensation which convictions and sentences were subsequently maintained by the High Court. Hence, the present appeal by leave of this Court granted on 19.01.2010.

2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise.

3. It is admitted at all hands that the occurrence in issue had remained unwitnessed and the same had taken place during a night. It had been maintained by the complainant that he was not available at his house during the fateful night between 15/16.12.2002 and that he had become aware of the alleged occurrence at 09.00 A.M. on 16.12.2002. This stance of the complainant was falsified by Muhammad Aslam (PW10) who had stated before the trial court that the complainant was physically present at his house at about 07.00/08.00 A.M. on 16.12.2002. The FIR in this case had been lodged by the complainant at 01.00 P.M. on 16.12.2002 but post-mortem examinations of the deadbodies had been conducted on the following day, i.e. 17.12.2002 and the duration between deaths and post-mortem examinations had been recorded by the doctor to be between 18 to 36 hours. This shows that all was not well with the case of the prosecution and a lot of deliberations had taken place before the FIR had actually been registered. It has been found by us to be rather intriguing that although it had been mentioned in the FIR statedly lodged at 01.00 P.M. on 16.12.2002 that the murders had been committed during the previous night yet in the Post-mortem Examination Reports prepared in this case the time of death of the deceased had been recorded as 10.00 A.M. on 16.12.2002 and that entry was so made as per the police record. This is a clear indication that till conducting of the post-mortem examinations the FIR had not actually been registered and the time of murders having been committed was not readily known.

4. In this unwitnessed occurrence the prosecution had relied upon different pieces of circumstantial evidence and we have attended to each one of such circumstances separately. The last- seen evidence had been furnished before the trial court by Mushtaq Ahmed (PW7) who had claimed to have seen the appellant going towards and then entering into the house of the complainant with a hatchet at about 11.00/11.30 P.M. on 15.12.2002. The said witness had claimed that he had seen the appellant at a time when the said witness had come out of the house of one Haji Lorasib whereat he had slept during the night. The said witness had informed the trial court that his own house was situated about two and a half furlongs away from the house of the said Haji Lorasib and during that night he had not slept at his own house for which he had advanced no reason whatsoever. The said witness had gone on to state before the trial court that in the next morning he had not informed the complainant that he had seen the appellant going into the house of the complainant during the previous night with a hatchet. Even Muhammad Ajaib complainant (PW8) had admitted before the trial court that Mushtaq Ahmed (PW7) had not told him anything about the last seen evidence at the spot. It is, thus, evident that this witness had been procured and planted at some subsequent stage and what he had deposed before the trial court was not the truth.

5. The appellant had allegedly made an extra-judicial confession before Muhammad Aslam (PW10) on 16.12.2002 and it had been maintained by Muhammad Aslam (PW 10) that the said confession had been made by the appellant in the house of one Abdul Karim. The said witness had stated that there was no reason for his presence in the house of Abdul Karim and admittedly the said Abdul Karim had not been produced by the prosecution as a witness. It is important to mention here that the stated availability of this witness in the house of Abdul Karim for hearing the confession of the appellant had not been stated about by this witness in his statement recorded by the police under section 161, Cr.P.C. This witness had waited for 2/3 days before he had informed the local police about the alleged confession having been made by the appellant before him. This witness had claimed that he and Abdul Karim had produced the appellant before the police on 16.12.2002 after the alleged confession having been made by the appellant but the investigating officer of this case (PW14) had stated before the trial court in clear words that the appellant had been arrested by him on 18.12.2002. Muhammad Aslam (PW10) had claimed that he and Abdul Karim had produced the appellant before the police at some given place on 16.12.2002 but Muhammad Ajaib complainant (PW8) had stated before the trial court that the appellant had been arrested on 16.12.2002 from a graveyard and not when he had been produced by Muhammad Aslam (PW10), All this shows that all was not well with the prosecution's case vis-a-vis the alleged extra-judicial confession attributed to the appellant.

6. Another piece of evidence relied upon by the prosecution was recovery of a blood-stained hatchet at the instance of the appellant during the investigation but even this piece of evidence is not free from serious doubts. According to the Memorandum of Recovery the alleged recovery had been effected from a cattleshed of the complainant which showed that the same had not been recovered from an exclusive custody of the appellant. The provisions of section 103, Cr.P.C. had clearly been violated in the matter of the said recovery. The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks.

7. The only remaining piece of evidence produced by the prosecution was in the shape of the alleged motive. Muhammad Ajaib complainant was the only person who had deposed about the motive and according to him the murders in issue had been committed by the appellant because he wanted an undue share of property to the disadvantage of his step siblings. The statement made by the complainant in respect of the motive was completely shorn of any detail and no prior incident had been mentioned by him confirming such a demand attributed to the appellant. Be that as it may the alleged demand was being made from the complainant and if at all such demand was not being met then the target of the appellant ought to have been the complainant and not his step siblings or step mother.

8. For what has been discussed above we have entertained serious doubts about each and every aspect of the prosecution's case and, thus, a conclusion is forgone that in our estimation the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of the appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. MWA/F-10/SC Appeal allowed.