This appeal is directed against the judgment dated 30.10.2003 passed by the learned Additional Sessions Judge, Sargodha, whereby, after having tried the appellant, alongwith three others, convicted him under Section 302 PPC and sentenced to imprisonment for life with a further direction to pay a compensation of Rs, 1,00,000/- as provided under Section 544-A Cr.P.C. in default whereof to further undergo three months imprisonment. Benefit of Section 382-B Cr.P.C. was extended to the appellant. However, three co-accused of the appellant, namely, Muhammad Iqbal cis Babu, Azhar Abbas son of Abdul Rehman and Mst. Zenab Bibi were acquitted from the case.
2. Brief facts of the case, as explained by Umar Hayat complainant in the FIR are that deceased Muhammad Hussain Cr Tedi was his real brother and was residing with him; that Allah Ditta appellant was on visiting terms with Muhammad Hussain and developed illicit liasion with Muhammad Hussain's wife Zenab; that they were rebuked by the complainant and the deceased; that complainant was away to Bohri Dhudhial in connection with his personal assignment when on the night between 28th/29th.12.2002 Allah Ditta appellant and acquitted accused made a murderous assault on his brother Muhammad Hussain in his house and committed his murder and that the occurrence was witnessed by the prosecution witnesses.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced thirteen witnesses during the trial.
4. Learned counsel for the appellant in support of this appeal submits that it was an un-witnessed occurrence took place during the darks hours of the night; that there is a delay of two days in lodging the FIR; that the complainant is not an eye-witness of the currence; that as far as presence of PW8 Hayat son of Khan and PW9 Muhammad Ramzan at the place of occurrence is concerned, the same is highly doubtful because, after having allegedly seen the occurrence, they went to Bhakkar without having informed the police about the occurrence in question and returned after two days; that the weapon of offence i,e, Kassi was not found to be stained with blood; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court.
5. On the other hand, learned counsel for the State submits that it is a case of capital punishment and the standard of evidence fixed by the Superior Courts in such like cases is non-existent and that he has not been able to controvert the submissions made by learned counsel for the appellant.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. The occurrence in this case had taken place on the night of 28th/29th December, 2002, the matter was reported to the police by Umar Hayat complainant/real brother of deceased Muhammad Hussain on 30.12.2002 at 8.30 a.m. i,e, with a delay of two days while the distance between the place of occurrence and the police station is only fifteen kilometers. He is not an eye- witness of the occurrence. Now this Court is left with the statements of two eye-witnesses namely, PW8 Hayat son of Khan and PW9 Muhammad Ramzan. PW8 has admitted his close relationship with the deceased i,e, he is brother-in-law of the complainant. PW9 is also closely related to the deceased. I have gone through the statements of both the above witnesses with the assistance of the learned counsel for the parties. A bare perusal of their examination-in-chief would show that they were not present at the spot. It is repellent to common sense that after having witnessed such an incident, they would not inform the police about the same, would not take the deceased to the hospital for treatment at the time when he was being given injuries, would straight away go to their house and from there would go to Bhakkar and would return from their after two days thereafter.
8. The other important aspect of the present case is that on the same set of evidence three co- accused of the present appellant, namely, Muhammad Iqbal Babu, Azhar Abbas son of Abdul Rehman and Mst. Zenab Bibi were acquitted from the case. Neither the State nor the complainant assailed their acquittal. It is settled principle of the criminal administration of justice that in such like situation, where ocular account is disbelieved qua some accused and is going to be believed qua other accused, then strong and independent corroboration is required. Such an independent corroboration is very much lacking in this case. In this regard this Court is fortified with a judgment of the August Supreme Court of Pakistan in Iftikhar Hussain and another vs. State (PLJ 2004 SC 552), wherein, at page 563 of the judgment, the Apex Court of county observed as under-- "....it is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follows the principle of appraisal of evidence i,e, sifting of grain out of chaff i,e, if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the Superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and others versus The State "(2000 SCM R 1758)". (emphasis supplied)
In the same judgment Iftikhar Hussain (supra), at page 565, while dilating upon the medical evidence, the Apex Court observed as under: "As far as medical evidence furnished by PWs Dr. Muhammad Sami Tariq and Muhammad Siddique, is concerned, it being in nature of confirmatory evidence cannot be considered corroborative evidence. There is no other incriminating evidence on record sufficient to support both the eye-witnesses Muhammad Faazil and Asghar Ali on material points, therefore, for such reason, it would not be safe to reply on their evidence".
9. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt to sustain conviction. The prosecution case is full of doubts and doubts and on the basis of such a shaky evidence, the conviction and sentence awarded to the appellant cannot be maintained because the same has not come through unimpeacable sources, is untrustworthy, unreliable and cannot stand the test of judicial scrutiny. Resultantly, this appeal is allowed, the impugned judgment is set-aside, the appellant is acquitted from the case and shall be released forthwith if not, required to be detained in any other case.