1. Iftikhar Ali, 25, hereinafter referred to as the deceased, was found lying dead, in a pool of blood in a field adjacent to his house situated within the area of Shinka on 2-3-2011, at a distance of 6-k.m. from Police Station Hazru District Attock; dead body was spotted by his father Banaras Khan (PW-12) who reported the incident through statement (Ex.PF) recorded by Muhammad Nawaz, SI (PW-13) 3:00 a.m. at the spot. According to the complainant, during the fateful night, he was asleep inside his home with his family members when at about midnight time his wife informed him that deceased was not on his cot; as during the preceding evening, the deceased was in his Bhaitak along with his collateral Naeem and one Iqbal, he went to see him there, however, the Bhaitak was locked and when he returned near the gate, he saw the dead body. No one is nominated as accused in the crime report nor any motive is cited therefor.
Autopsy was conducted at 5:00 a.m. on 2.3.2011 by Dr. Shafique-ur-Rehman (PW-10), who noted eight firearm wounds, of them four are entry wounds, on the back of right side of neck, left lower abdomen, above umbilicus and right side of back of upper chest with exits thereof; injuries on the lower abdomen and right side of the back are with multiple apertures. Cause of death is opined as shock due to loss of blood; injuries on the abdomen and umbilicus accompanied by injury on the back of upper chest were sufficient to cause death in the ordinary course of nature with inter se duration between death and injuries one hour and postmortem about six hours. During spot inspection, the Investigation Officer collected blood and six casings of 30-caliber secured vide inventories. On 9-3-2011, the appellant and Ahsan, co-accused were arrested followed by Muhammad Naeem on 11-3-2011; the appellant, pursuant to a disclosure, led to the recovery of pistol (P-13) on 13-3-2011. Co-accused Ahsan also got recovered pistol (P-15). The casings were dispatched through Zahid Ali/C (PW-5) on 8-3-2011 followed by weapons on 16-3-2011; as per Forensic Science Laboratory report (Ex.PU) both the pistols were found wedded with the casings. Upon completion of investigation, the appellant accompanied by his co-accused was sent to face trial before a learned Addl. Sessions Judge at Attock when on 14-4-2011 he pleaded guilty to the charge, however, his co-accused contested the indictment; he was afforded an opportunity to reconsider his stance, however, he remained adamant in his position; his statement in reply to show cause notice is reproduced below:
“I myself alone has committed qatal-e-amd of Iftikhar Ali while firing upon him with 30-bore pistol. Five days prior from occurrence I was talking with sister of deceased. He saw me. Thereafter he called me telephonically at 9:30 PM on the night of occurrence I came to deceased. He inquired from me that what I was talking with his sister. I replied that I was not talking any wrong with her nor I had any wrong relations with her. The deceased captured my collar and started beating me. I thought that he would do away with my life so by causing fire with my 30-bore pistol I committed his qatal-e-amd. None else was present with me. My co-accused are innocent. I cannot sleep from last ten days and by the force of my subconscious I have confessed before court without any duress or coercion”.
The above position, notwithstanding, in view of implication of three accused in report under Section 173 of the Code of Criminal Procedure, 1898, the learned trial Judge proceeded to summon the prosecution evidence, pursuant whereto, ten witnesses were produced, besides reliance upon forensic reports; of them Muhammad Khurshid (PW-9) is witness of last seen; his case is that on the night of occurrence at about 10:00 p.m. he was attracted by gun reports and saw three persons identified by him as Muhammad Ahsan, Muhammad Iqbal and Jabbar accused entering the house of Muhammad Ahsan; he expressed a strong belief that they committed murder of Iftikhar Ali deceased; next in line is Banaras (PW-12), who after reiterating contents of complaint Ex.PF improved upon his previous position and claimed to have seen Jabbar, Ahsan and Iqbal sitting in front of his house; he also introduced a motive for the first time not pointed on the appellant; other witnesses deposed about recovery of weapons. The appellant confronted prosecution evidence with the following plea:- “I have committed the murder of deceased Iftikhar Ali and I have got recorded my confessional statement before court on 14.4.2011 and being accused of murder of Iftikhar Ali deceased witnesses have deposed against me to strengthen their version even against my co-accused.” He, however, disputed disclosure and recovery of pistol (P-13) pursuant thereto. The learned trial Judge, on conclusion of trial, vide judgment dated 14-9-2011 proceeded to acquit Muhammad Ahsan and Muhammad Iqbal, co-accused, however, convicted the appellant under Section 302 (a) of the Pakistan Penal Code, 1860 and sentenced him to death as Qisas; he was also directed to pay compensation in the sum of Rs.200,000/- or to undergo six months SI in the event of default, vires whereof, are being challenged through Crl. Appeal No.369 of 2011; the State seeks confirmation of death penalty vide Murder Reference No.68 of 2011; these are being decided together.
2. Learned counsel for the appellant contends that notwithstanding plea taken by the appellant when confronted to indictment, it remains primary responsibility of the prosecution to establish charge against him beyond reasonable doubt and that prosecution’s failure qua identically placed co-accused casts away the case against the appellant as well; that forensic report Ex.PU is antithetical to the position taken by the appellant as casings secured from the spot were found wedded with two weapons, one allegedly recovered at the instance of the appellant and other by Muhammad Ahsan. In order to substantiate his argument, the learned counsel has placed reliance upon the case of Azhar Iqbal Vs. the State (2013 SCMR 383) wherein a conviction based upon position taken by an accused under Section 342 of the Code of Criminal Procedure was set aside as prosecution evidence was found insufficient to sustain the charge. Contrarily, the learned Law Officer has defended the impugned judgment and prayed for confirmation of death penalty on the ground that in the wake of plea taken by the appellant at the time of his indictment, he was rightly convicted and sentenced under Section 302(a) of the Code ibid and that in view of provisions of Section 412 of the Code of Criminal Procedure, 1898 no exception can be taken to the penalty inflicted upon him.
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