SARDAR Versus State
QAZI MUHAMMAD AMIN AHMED, J .---Muhammad Jameel, 30, hereinafter referred to as the deceased, was shot dead on 04-8-2014 at 12.05 a.m. within the area of Massa Kotha, situating at a distance of 7-miles from Police Station Saddar Kehror Pacca, District Lodhran; incident was reported by Muhammad Ismail (PW-1) through application (Ex.PA) recorded by Muhammad Bakhsh, S.I (PW-13), 1:15 a.m. at the spot. According to the complainant, during the fateful night i.e. 3/4-8-2014, he was asleep in his house along with Muhammad Iqbal, Muhammad Maqbool and other family members when surprised at 12:05 a.m. by Sardar Muhammad, henceforth referred to as the appellant, accompanied by three unknown persons, each armed with .30 caliber pistols. The appellant fired upon the deceased whereas one from amongst the unknown assailants targeted Mst. Kalsoom (CW-1); upon resistance, the assailants took to the heels. It is alleged that Kalsoom Mai (CW-1) was abducted by the appellant and a case with Police Station Karor Pacca was registered, however, she subsequently rejoined her husband Haji Muhammad and it is in this backdrop that the appellant committed murder of the deceased and injured the lady.
Dr. Muhammad Rafique (PW-6) conducted autopsy at 11:00 a.m. on 4-8-2014 and observed solitary entry wound on the chest with corresponding exit accompanied by multiple bruises on right shoulder; bullet exited by damaging ribs, pleura and left lung generating hemorrhagic shock leading to death within half hour; interregnum between death and autopsy was estimated as ten hours. Mst. Kalsoom Mai, examined at 11:30 a.m. same day, was noted with a lacerated wound on right ear pinna.
Spot inspection by Muhammad Bakhsh, S.I (PW-13) includes seizure of blood, bedding and 4-casings of .30-caliber (P-10, P-11, P-12 and P-13 to P-16) respectively; through application Ex.PB, purportedly of even date, the complainant nominated unknown accomplices as Shan, Jamshed and Jaffar. The accused were arrested on 21-9-2014 and put to test identification parade on 20-9-2014 when identified by the witnesses under magisterial supervision; as the investigation progressed, on 01-10-2014, the accused led to the recovery of .30-caliber pistols (P-6, P-7, P-8 and P-9), indicted on 14.11.2014 by a learned Addl. Sessions Judge at Kehror Pacca, the accused claimed trial, pursuant whereto, prosecution produced as many as fourteen witnesses; Kalsoom Mai was examined as court witness; Ismail (PW-1) and Iqbal (PW-2) furnished ocular account; both of them unanimously supported prosecution case set up in the crime report; Muhammad Qasim (PW-3) is witness of Wajtakkar; he too is in a unison with the prosecution, however, Kalsoom Mai blamed unknown robbers for the crime. On forensic side, blood secured from the spot was opined as that of human origin whereas pistol (P-6) recovered from the appellant tallied with single casing dispatched for analysis. The accused confronted prosecution evidence with a unanimous denial; according to them, the deceased was done to death in an unwitnessed occurrence during the dark hours; misplaced and ill-conceived suspicion was blamed as cause behind their false implication.
The learned Additional Sessions Judge vide impugned judgment dated 19-3-2016 acquitted Shan, Jaffar and Jamshed, co-accused, however, proceeded to convict the appellant under clause (b) of section 302 of the Pakistan Penal Code, 1860 and sentenced him to death with a direction to pay compensation in the sum of Rs.500,000/- or to undergo six months simple imprisonment in the event of default, vires whereof, are being challenged through Crl. Appeal No.834 of 2016 clubbed with Murder Reference No.77 of 2016 seeking confirmation of death penalty; Criminal Appeal No.356 of 2016 by Muhammad Ismail complainant is aimed at reversal of acquittal; bound by a common thread, these are being decided through this single judgment.
2. Learned counsel for the appellant contends that prosecution case is not free from doubt inasmuch as in the backdrop of motive alleged in the crime report, there was no occasion for the appellant to target the deceased; that occurrence being a night affair, in the absence of any source of light, the question of identity of the assailants is lurking behind the prosecution case; that acquittal of co-accused though not assigned any effective role qua the deceased nonetheless, inexorably situated with the appellant during the occurrence heavily militates against the veracity of statements of the same set of witnesses; that defection of Kalsoom Mai (CW-1) who sustained injury during the occurrence goes a long way to cast a shadow of doubt upon the story related in the crime report; solitary casing dispatched for forensic analysis with the weapon, according to the learned counsel, does not support prosecution case either; the bottom line is that prosecution case fraught with doubts, it would be unsafe to maintain the conviction. Contrarily, the learned Law Officer assisted by counsel for the complainant has defended the impugned judgment on the ground that natural witnesses unambiguously blamed the appellant with solitary fire shot, awfully fatal and, thus, in the background of motive alleged, the learned trial Judge rightly convicted and sentenced the appellant. Confirmation of death penalty has been prayed for. Learned counsel for the complainant while arguing Crl. Appeal No.356 of 2016 contends that there was no occasion for the learned trial Judge to acquit the respondents from the charge inasmuch as they consciously participated in the crime and as such were liable to be convicted and sentenced.
3. Heard. Record perused.
4. According to Muhammad Bukhsh, SI (PW-13), Mst. Kalsoom Mai (CW-1) was examined on the very first day of the occurrence; she was given up by the complainant for having connived with the accused through application dated 13-6-2015; it is part of the file and according to paragraph 4 thereof, she had left home, however, it is unclear whether she deserted her husband Haji Muhammad prior to the present occurrence; her defection is not an unusual phenomena, nonetheless, it left the prosecution in a lurch, as she declined to come forward to support its case; when summoned by the court as a court witness, her disclosure was last straw on camel's back. Leaving aside Kalsoom Mai's treachery, there are additional circumstances suspiciously surrounding prosecution case that warrant serious consideration. Muhammad Qasim (PW-3) along side Muhammad Shabbir claims to have seen the appellant along with Shan, Jamshed and Jafar soon after the occurrence; according to him, each was carrying a .30 caliber pistol and overheard them saying that they had gone to abduct Kalsoom Mai, however, they failed in their mission and instead murdered the deceased; they were statedly irrigating their land at that point of time. Muhammad Qasim (PW-3) admits in his cross-examination that he is first cousin of Muhammad Ismail (PW-1), however, does not find mentioned in the crime report nor shared this information till 9:00 a.m. despite knowledge about the murder; as to why he withheld this most vital information is mind boggling. The only irresistible conclusion is that his evidence has been contrived to pave way for a supplementary statement wherein the unknown accused were identified by their names. Even supplementary statement is not of much help to the prosecution as being essentially a statement under section 161 of the Code of Criminal Procedure, 1898, it can neither be equated with first information report nor read in extension thereof; on the contrary, it would cast away evidentiary value of test identification parade; the move is self-destructive.
Though the complainant in crime report Ex.PA is relying upon an electric bulb as source of light to identify the intruders, however, it is conspicuously omitted in the site plan nor taken into possession by the Investigating Officer on his first visit. Availability of an illuminating electric bulb, in a rural neighbourhood where people sleep in courtyards and on rooftops, particularly in summer season, is otherwise far from being confidence inspiring, as it would expose the household with female folks lying inattentively to the neighbouring view as well as the family itself.
Motive alleged, notwithstanding, apparently the appellant had no motive against the deceased nor there was any reason for him to target Kalsoom Mai who according to the complainant had withdrawn her suit for jactitation of marriage filed against him and had also left home. It is also intriguing as to how the appellant distinguished the deceased from amongst the inmates while the latter was asleep on a cot. Why the deceased was targeted and how he was located by his assassin are questions, left to imagination. Assembly of witnesses during the fateful night in the house of occurrence in preference to their own abodes without there being any special occasion is intriguing to say the least. Post mortem examination is delayed with no explanation; though omitted in his statement, nonetheless, Dr. Muhammad Rafique (PW-6) who conducted autopsy at 10:00 a.m. mentioned presence of rigor mortis in autopsy report Ex.PH; in hot summer weather, development of rigor mortis suggests death at a point of time vastly preceding the one, suggested in the crime report.
The Investigating Officer collected four casings of .30 caliber; according to forensic report Ex.PQ, one out of those was received through Muhammad Imran (PW-7) and matched with pistol (P-6); it is inconceivable as to how the Investigating Officer was able to pick the single casing out of four that tallied the weapon; fabrication is self-evident. On the whole, prosecution case is not free from doubt and thus, it would be perilously unsafe to maintain the convictions without potential risk of error. Consequently, by extending benefit of doubt to the appellant, Crl. Appeal No.834 of 2016 is allowed; he is acquitted from the charge and shall be released forthwith, if not required in any other case. Murder Reference No.77 of 2016 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.
5. As a natural corollary, Crl. Appeal No.356 of 2016 stands dismissed.
HBT/S-48/L Appeal allowed.