' KHAWAJA MUHAMMAD SHARIF, J.---The appellant Noor Muhammad along with his brother Ahmad Khan was tried by the learned Additional Sessions Judge, Attock, in case F.I.R. No,245 registered at P.S. City Attock on 24-12-1997 for offences under section 302/34, P.P.C. Vide judgment dated 7-9- 2001, the learned trial Court, while acquitting Ahmad Khan, convicted the appellant for offence under section 302,. P.P.C. And sentenced him to death plus payment of Rs,50,000 as compensation to the legal heirs of the deceased, in default whereof to undergo S.-I. For six months.
2. Noor Muhammad convict/appellant has challenged his above noted conviction and sentence through, the instant appeal. Murder Reference No,615 of 2001 seeking confirmation or otherwise of death sentence awarded to the appellant has also been placed before us. Both these matters are being decided through this single judgment.
3. Briefly the facts of the case per complaint Exh.PC recorded at the instance of Muhammad Ali, complainant/P.W.11, which based the registration of formal F.I.R. Exh.PC/1, are that on the fateful day the complainant went to Attock city to purchase some house-hold articles. His nephew Sabaz Ali Khan, who was employed in Artillery Centre, met him in the bazaar. After purchasing the household articles in order to go back to their village/house the complainant along with his nephew went to Adda Wagon Shakardara, Attock, at 2-00 p.m. Meanwhile, the appellant and his co-accused Ahmad Khan both armed with pistols came there. They both shot fires one after the other which hit Sabaz Ali on his arms and left flank. Having witnessed the occurrence Muhammad Riaz/P.W.12 and Muhammad Aksar also reached the spot. On catching sight of the P.Ws., the accused fled away from the scene of occurrence.
' The motive behind the occurrence was that Ali Khan father of Sabaz Ali Khan-deceased had murdered the mother and three other close relatives of the accused.
4. On receipt of information about the occurrence, Munawar Khan/S.-I. (since dead), whose writings and signatures were identified by Abdul Hafeez Aulakh, Inspector/P. W.15, went to the Civil Hospital, Attock, recorded the statement of the complainant Exh.PC and sent the same to the police station for registration of formal F.I.R. The deceased S.-I. Also prepared recovery memo. Exh.PE with regard to last worn clothes of the deceased; recovery memo. Exh.PF pertaining to pistol .30 bore; injury statement Exh.PK and inquest report Exh.PL. After completion of investigation, the appellant along with his acquitted co-accused was sent up to face trial.
5. In support of its case the prosecution produced fifteen witnesses. After tendering in evidence the reports of Chemical Examiner Exh.PM, Serologist Exh.PM/1 and Forensic Science Laboratory Exh. PN, the prosecution closed its side. In his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication due to previous enmity. However, neither he appeared as his own witness under section 340(2), Cr.P.C. Nor did he produce any witness in his defence.
6. Learned counsel for the appellant, in support of this appeal submits that on the same evidence, Ahmad Khan/co-accused, real brother of the appellant, has been acquitted by the trial. Court; that the occurrence had taken place at Adda which is heart of the city but no independent witness from that locality was produced; that both the eye-witnesses are closely related to the deceased; Muhammad Ali/P.W.11 is uncle of the deceased and Muhammad Riaz/P.W.12 is first cousin of the deceased; that as far as recovery of pistol, which was got effected by the appellant on the date of arrest i.e, 7-1-1998 is of no consequence in view the report of the Fire-Arms Expert. Submits that the prosecution has failed to prove its case against the appellant and he is entitled to acquittal. Places reliance on Muhammad Fazil v. The State 2004 SCM R 1185, Naik Muhammad alias Noata v. The State 1996 SCM R 317 and Muhammad Ilyas and another v. The State 1993 SCM R 1602.
7. Conversely, the learned Assistant Advocate General submits that the motive has not only been proved by the prosecution but also admitted by the appellant in reply question No,3 of his statement recorded under section 342, Cr.P.C:; that the ocular account is consistent on all material points; that the medical evidence fully corr000rates and supports the. Ocular account; that the recovery was effected only from the present appellant and not from his acquitted co-accused, who, even otherwise was found to be present on his duty in the Unit. Accordingly to the learned A.A- G., the learned trial Court .Has followed the principle of safe administration of justice by sifting the grain from chaff and has given sound reasons for acquitting the co-accused, so no benefit of his acquittal could be given tq the appellant. The learned A.A-G. Has relied upon Farooq alias Farooqay and another v. The State 2003 SCM R 567 to contend that the collective role of firing at the deceased by the accused persons and non-specification of injuries to them would not be a mitigating circumstance in favour of the appellant. Supports the impugned judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties at a great length and have also gone through the record of the case.
10. The occurrence took place on 24-12-1997 at 2-00 p.m. The matter was reported to the police in Civil Hospital on the same date at 3-25 p.m. Formal F.I.R. Was recorded at 3-35 p.m. There were two accused mentioned in the F.I.R., namely, Noor Muhammad appellant and his real brother Ahmad Khan acquitted accused. No appeal either by the State or the complainant has been filed against the acquittal of Ahmad Khan before this Court. Deceased is Sabaz Ali. The motive behind the occurrence was that one year prior to the occurrence, the mother and three other close relatives of the appellant were murdered by the father of Sabaz Ali deceased in this case. The allegation against both Noor Muhammad and Ahmad Khan was that they both fired on the deceased one after the other which hit on the arms and left flank of the deceased. No specific injury was attributed to any of the accused according to F.I.R. P.W.4 Dr. Mansoor Shujah had medically examined the deceased when he was brought .In injured condition to the hospital by the police on 24-12-1997 at 2-35 p.m. We have gone through the original medico-legal report (MLR). Its column of "Name of relative of friend" shows that it was police who had taken the deceased in injured condition to the hospital. Had the eyewitnesses, who are very close relatives of the deceased; one can say the blood relations, been present at the spot, they must have accompanied the deceased in injured condition from Suzuki Adda to the hospital. The duration given by the doctor between injuries and medical examination was one hour. The same doctor had conducted the postmortem examination of the deceased on 25-12-1997 at 10-00 a.m. He has given the duration between injuries and death as 8 to 12 hours, while between death and post-mortem examination from 10 to 12 hours. Some portions of the cross-examination of Dr. Mansoor Shujah are very important. For the just decision of the case, the same are reproduced hereunder:-- ' "At the time of P.M. Examination it was entered in the police papers that dead body was not identified. In the column body identified by it was written that not mentioned by police in their papers. At the time of P.M. Examination inquest report was produced by the police before me. The column No,4 of the inquest report was blank. There was only one column which was column No,4 was blank. The remaining columns were filled. It is correct that I have not signed page No,3 of inquest report. I have signed page No,4 at the bottom. There is some space which is blank. I cannot say whether particulars of the persons those who were present at the time P.M. Examination were filled later on or not."
' The above said answers of the doctor would show that the F.I.R. Was not recorded at the time which the prosecution wants this Court to believe. The allegation against both the accused, i.e, Noor Muhammad appellant and Ahmad Khan- acquitted accused was the same. As far as report of the Fire Arms Expert is concerned, though it is correct that pistol was got recovered by the appellant at the time of his arrest on 7-1-1998 but as per report of the . Expert, since the crime jacketed bullet did not contain identifiable date for comparison with the test bullet prepared from .30 bore pistol, no opinion could be given whether the jacketed bullet was fired from the pistol recovered or not. The law of the land is that if on the same set of evidence, one accused has been acquitted, his co-accused cannot be convicted unless there is some independent corroboration to support the ocular account, especially when the parties were inimical towards each other and the role of the accused was the same. As we have already noted above, there is no independent corroboration to the ocular testimony of two P. Ws. Who are closely related to the deceased and had animus against the appellant and their conduct that they did not take the deceased in injured condition to the hospital for treatment, we disbelieve the presence of the eye-witnesses at the spot.
11. For the foregoing reasons, while granting benefit of doubt to the appellant, we accept this appeal and set aside the conviction and sentence recorded by the learned trial Court through the impugned judgment. The appellant is acquitted of E all the charges and shall be released forthwith if not required in any other case. The death sentence is not confirmed. The Murder Reference is answered in the negative.