ABDUL SATTAR Versus State

QAZI MUHAMMAD AMIN AHMED, J.--- Abdul Sattar and Imran Sarwar, appellants in Crl. Appeal No. 560 of 2010, are in receipt of a guilty verdict, returned to them by the learned Sessions Judge Vehari vide judgment dated 13-5-2010; they are bracing death penalty, as they stand convicted under section 302(b) of the Pakistan Penal Code, 1860 read with section 34 of the Code ibid with compensation of Rs.100,000/- each or to undergo six months' SI in the event of default, for committing qatl-i-amd of Dr. Nazeer Ahmad alias Mithu, 40, hereinafter referred to as the deceased; the former is also convicted under section 364 of the Code ibid and sentenced to imprisonment for life with a fine of Rs.100,000/- or to undergo two years imprisonment in default thereof with benefit of section 382-B of the Code of Criminal Procedure, 1898. The incident occurred during the night between 30/31-5-2009 within the area of Chak No.257/EB, situating at a distance of 6-miles from Police Station Guggoo District Vehari. Muhammad Sabir, Zahoor Ahmad, Muhammad Ashiq, Bashir Ahmad and Muhammad Daud, acquitted co-accused, are arrayed as respondents in Crl. Appeal No.1014 of 2010 filed by the State as well as in Crl. Appeal No.826 of 2010 filed by Khalil Ahmad complainant/PW-10. Murder Reference No.22 of 2010 seeks confirmation of death penalty; these are being decided through this single judgment.

Prosecution case is founded upon written application Ex.PA, presented at the spot by Khalil Ahmad (PW-10), 1:30 a.m. on 31-5-2009 before Muhammad Rafique, Inspector/SHO (PW-22) wherein he alleged that the deceased, his real brother and a former Member Provincial Assembly, was arrayed as accused for abetment in a case of homicide wherein one Muhammad Nadeem was murdered on 15-12-2008; his real uncle Bashir Ahmad, however, sided with the complainant and few days prior to the present occurrence hurled abuses to Sohrab Sikandar and Khalid Nisar at the banglow of Khushal and threatened that murder of aforesaid Muhammad Nadeem would be avenged by targeting the deceased. It is prosecution's case that Abdul Sattar appellant, husband of real sister of Nadeem deceased visited the complainant and the deceased at latter's bungalow 11:00 p.m. on 30-5-2009 and offered his good offices for a compromise with Sabir and others whom he had sent for at his tube-well, located in Chak No.257/EB. Induced by this offer, the complainant and the deceased along with their nephews Aqeel Ahmad and Taimoor, PWs accompanied Abdul Sattar in his car. At about 12:00 midnight, all of a sudden, Abdul Sattar appellant stopped the vehicle, immediately alighted therefrom and took out a 9-mm pistol from underneath his seat; it was at this point of time that Sabir armed with rifle, Imran with a 12-caliber gun, Zahoor with a 9-mm pistol, Daud with a 12-caliber gun, emerged all of a sudden at the scene; first fire shot is attributed to Abdul Sattar appellant hitting left armpit of the deceased followed by Zahoor Ahmad with a pistol shot landing on the abdomen whereas Sabir hit the deceased with a fire shot on the right side of his neck, followed by a pistol shot by Zahoor again on the abdomen; Imran made a fire shot with his 12-caliber gun landing on right thigh followed by Daud hitting the left thigh whereafter all the accused made indiscriminate firing targeting different parts of his body, the deceased succumbed to the injuries at the spot; the PWs escaped into the safety by taking shelter on the roadside; the assailants put the dead body in the car and decamped from the scene; Abdul Ghaffar and Zulfiqar, PWs joined the complainant at the spot and disclosed that Bashir Ahmad Dogar had told them that they would soon see the end of the deceased as he had assigned the task to Sabir and others. After registration of the case, initial investigation was carried out by Muhammad Ayyaz, SI (PW-21); during spot inspection, he took bloodstained earth and casings from the crime scene, besides taking other investigative steps; pursuant to some information, he searched out the dead body of the deceased, lying unattended in the area of Green View Burewala and dispatched it for autopsy, conducted by Dr. Muhammad Iqbal (PW-3) at 8:30 a.m. on 31-5-2009; he noted as many as 12 firearm injuries, exits inclusive on the dead body, on right shoulder, right axilla, chin, right side of neck, back and lateral side of chest, lower abdominal region, right and left thighs; measurement of the wounds comprises 1 cm x 1 cm, 4 cm x 3 cm and 5 cm x 5 cm; all the injuries were opined as fatal, sufficient to cause death in the ordinary course of nature; time between the injuries and death was reckoned as immediate whereas between death and postmortem 7 to 8 hours. Sabir, Imran Sarwar and Abdul Sattar, accused, were arrested on 16-7-2009, followed by Daud on 4-8-2009 and Muhammad Ashiq on 28-7-2009; Imran Sarwar and Abdul Sattar led to the recovery of weapons (P-1 & P-2), respectively in the wake of their disclosures; car P-6 was also taken into custody. After completion of investigation, all the accused named in the crime report were indicted on 17-4-2010 when they claimed trial, pursuant whereto, prosecution produced as many as 23 witnesses besides relying upon forensic reports to bring home charge against them; of them Khalil Ahmad (PW-10), Aqeel Ahmad (PW-11) furnished ocular account, mainstay of the prosecution case; Abdul Ghaffar (PW-14) entered the witness-box to establish conspiracy hatched by Bashir Ahmad accused shortly before the incident; he is joined by Sabir-ur-Rehman (PW-18). The accused confronted prosecution evidence with a unanimous denial; Abdul Sattar, appellant took the following plea:-

"It is a false case. All the PWs are related inter se and with the deceased and they have made false statements against me due to their close relationship with the deceased and enmity with me. I was pursuing the murder case of Nadeem Ahmad Dogar Advocate bearing FIR No.917/08 registered against Dr. Nazir Ahmad Mithu Dogar deceased and his brother Sikandar Hayat and due to this grievance the complainant party falsely involved me in this false case. I never went to the Dera of the deceased and did not take him towards my Dera on the fateful night. The eye-witnesses namely Khalil Ahmad, Aqeel and Tamur were not present at the time when the deceased sustained the injuries. The dead body of the deceased was discovered on the next morning and thereafter the complainant party built up a case against me by fabricating a false story due to enmity with me."

The learned trial Judge vide the impugned judgment acquitted Muhammad Sabir, Zahoor Ahmad, Muhammad Daud, Bashir Ahmad and Muhammad Ashiq from the charge, however, proceeded to convict and sentence Abdul Sattar and Imran Sarwar, as referred to above.

2. Learned counsel for the appellants contend that evidence disbelieved qua Sabir, Zahoor and Daud, acquitted co-accused, assigned effective shots to the deceased, cannot be pressed into service to sustain charge against the present appellants; that prosecution story, on face of it, is extremely improbable and unnatural; that it was humanly impossible for the witnesses to furnish graphic details of the incident in the absence of any source of light; that ocular account is contradicted by medical evidence as some of the injuries assigned to the appellants were noted as exit wounds. Learned Law Officer supported by the learned counsel for the complainant, contrarily, defended the impugned judgment and prayed for confirmation of death penalty on the ground that in the backdrop of an established motive, the ocular account furnished by two witnesses successfully drove home the charge and that positive Forensic Science Laboratory Report Ex.PS provided independent corroboration vis-a-vis the appellants and as such, to their extent, acquittal of co-accused does not adversely effect prosecution case. Lastly, it has been argued that substitution is a rare phenomena and given the common background, there is no question of mistaken identity. The learned Law Officer has joined the learned counsel for the complainant in seeking reversal of acquittal into conviction on the ground that view taken by the learned trial Court while acquitting the respondents is an impossible view and warrants interference by this Court in order to avoid miscarriage of justice.

3. Heard. Record perused.

4. Bad blood between the deceased and the appellants is owing to an earlier incident of homicide wherein the deceased was arrayed as one of the accused, albeit as an abettor; examined in this backdrop, prosecution case is found fraught with many intriguing aspects; it is mind-boggling that Abdul Sattar appellant, a brother-in law of Muhammad Nadeem, would visit the deceased and the complainant to induce them in order to accompany him while Bashir accused is proclaiming vengeance upon the deceased at 10:00 p.m. Zulfiqar (PW-20), who claims to have overheard the conspiracy along with his brother Ghaffar (given-up PW) stated in his cross-examination that he made statement before the Investigating Officer at 1:00/1:30 a.m. at the place of occurrence. When examined from this angle, the script of arrival of Abdul Sattar at the residence of the deceased and simultaneous preparation of a plan and exhortations for his elimination in public are the positions mutually destructive. The promptitude with which the deceased, an erstwhile member of a Provincial Assembly, and the complainant readily obliged an arch rival to accompany him, at an odd hour of night, without any caution, is a story, one would find rather hard to buy; themselves men of means, the deceased and the complainant would accompany Abdul Sattar appellant in his vehicle is yet another question mark. Arrival of the accused exactly at the place where Abdul Sattar alighted from his car is extremely unnatural to say the least as even on stated prosecution position, success of their plan could not be anticipated and it was certainly not possible for Abdul Sattar appellant to communicate with the co-accused in the presence of the deceased and the PWs. Prosecution case, that accused after having hatched out such an elaborate plan would allow the PWs to stay at the spot unscathed, requires a pinch of salt; specific assignment of multiple fire shots in a crisis situation to the appellants and acquitted co-accused is extremely improbable as well for the simple reason that it was humanly impossible to capture such minute details in a photographic manner, that too, in the absence of any source of light. Removal of dead body from the scene by the accused apparently does not make any sense, particularly when the witnesses were let off with safe conduct, prosecution case on this score is self-destructive, as well. A narrative rendition, no matter how impressively articulated and corroborated by technical evidence, cannot furnish basis for conviction on capital charge unless it is synchronized within the ambit of probability and truthfulness. On this touchstone, evidence furnished by Khalil Ahmad (PW-10) and Aqil Ahmad (PW-11) is far from being confidence inspiring. They have been disbelieved qua majority of the accused. Positive Forensic Science Laboratory Ex.PS does not advance prosecution case as a piece of corroborative evidence, as none of the official witnesses said a word about dispatch of weapons in their statements. Insofar as question of substitution is concerned, no doubt, it is antithetical to retributive human instinct, nonetheless, there are situations where substitution occurs and these situations have aptly been described in the case of Muhammad Ramzan alias Boota v. The State (PLD 1999 Lahore 221), relevant portion whereof is advantageously reproduced:-

"Substitution in criminal law means, replacement of real offender by another person who might be wholly unconnected with crime or might have played a role different than the one assigned to him. Substitution of the real offender by another person is said to be a rare phenomenon. This concept is essentially based on human psychology that retributive instinct of the victim or aggrieved person would prompt him to go only for the blood of the actual perpetrator and not the innocent. The rule has no empirical foundations and the question whether there has been substitution or not, has to be determined on case to case basis because in actual practice substitution has not been found to as rare as one would have you believe. Substitution is of two kinds: Conscious, calculated and well-thought of; and the other kind is non-deliberate. Where parties are not at loggerheads prior to an incident which takes place suddenly or due to an isolated cause or motive, and the complainant party has no time to reflect on the issue and the registration of case is free from extraneous or external influences, there would be little likelihood of substitution. But where deep-rooted enmity exists between the parties and internecine feud is going on between the two for some time, the complainant party would have every desire to see the heads of the mighty roll. In such a situation, persons of the opposite camp who are more influential, more important or more dangerous, are likely to face the brunt of vendetta of the wily and scheming complainant. Considerable substitution in such situations is likely to occur. Another case scenario admitting of such a possibility is where hired assassins are employed to commit a crime. Real culprits or the mafioso are some times let off and instead actual enemies who hire the assassins are assigned the effective roles or roles played by accused are swapped. A large scale substitution is resorted to by the complainant in such cases. This phenomenon is noticeable in North Western part of the Punjab. Non-deliberate substitution on the other hand occurs where the incident is unwitnessed one or is not witnessed by the concerned people and there is no apparent motive for the incident. The accused, in such cases, is picked out or involved on suspicion, guessmark or information provided by others. Choice of the accused being suspicion-based, can be equally wrong or fallacious. The substitution or more correctly, false involvement, in such a case, might not be motivated, but nonetheless is a real possibility but surprising aspect of the matter is that the complainant party would stick with dogmatic rigidity to the ill-conceived story pieced together by it. The reason might be various or diverse, but hard fact and unpalatable reality is that role-swapping and substitution in criminal cases does take place. May be crime culture of the society has undergone a change or the moral fiber of society has decayed. The case in hand appears to fall in the last category of cases where substitution is result of guesswork".

Admittedly, the complainant side and the accused are pitted against each other in a deep rooted enmity; occurrence being a midnight affair, at a deserted place, in a manner inconsistent and incompatible with probability and presence of dead body at a place other than the venue where crime allegedly occurred, admit a real possibility that actual offenders were "swapped" with the appellants as a result of "non-deliberate substitution" on the basis of "guess-mark". On overall analysis of prosecution evidence, it would be unsafe to maintain the convictions, as presence of Khalil Ahmad (PW-10) and Aqil Ahmad (PW-11) at the crime scene is highly doubtful, doubts neither imaginary nor illusory rather patent in the stated positions, therefore, Crl. Appeal No.560 of 2010 is allowed; impugned judgment dated 13-5-2010 is set aside; the appellants are acquitted from the charge and shall be set at liberty forthwith, if not required in any other case.

Criminal Appeals Nos.1014 of 2014 and 826 of 2010 by the State and the complainant being at the threshold, cannot survive in view of findings recorded hereinabove, dismissed.

Murder Reference No.22 of 2010 is answered in NEGATIVE and death sentence is NOT CONFIRMED .

SL/A-73/L Order accordingly.