' MANZOOR AHMAD MALIK, J.---This single judgment shall dispose of Criminal Appeal No, 774 of 2007 titled Muhammad Iqbal v. Muhammad Irshad alias Ashfaq and 10 others filed by Muhammad Iqbal complainant/appellant against the acquittal of the respondents Nos.1 to 10 and Criminal Appeal No, 775 of 2007 titled Muhammad Sarwar and others v. The State filed by Muhammad Sarwar, Azmat alias Bappi, Faiz Rasool and Muhammad Mansha appellants against their conviction and sentence as both these appeals pertain to the one and same occurrence i,e, case F.I.R. No, 17/2005 dated 2-2-2005 offence under sections 302, 109, 148 and 149, P.P.C. Registered with Police Station Saddar Farooqabad, District Sheikhupura and have arisen out of the same judgment dated 19-4- 2007 passed by the learned Additional Sessions Judge Sheikhupura.
2. As far as Criminal Appeal No,774 of 2007 titled Muhammad Iqbal v. Muhammad Irshad alias Ashfaq and 10 others is concerned, none has appeared on behalf of the appellant to pursue this appeal which has been filed against acquittal of the respondents namely Muhammad Irshad alias Ashfaq, Anwar Hussain alias Asif, Muhammad Anwar, Muhammad Arshad, Muhammad Azam alias Ahman, Muhammad Aslam alias Billo, Nazaar Hussain alias Ranjha, Mushtaq Ahmad, Muhammad Nazim and Asmat Islam (respondents Nos.1 to 10). We have perused the record. The learned Additional Sessions Judge Sheikhupura has given following reasons while acquitting the respondents Nos. 1 to 10:--- "Page 11 Keeping in view the testimony furnished by P.W.2 and P.W.3, regarding motive story seems to be manufactured, concocted as no litigation is proved through any document which may exist between Allah Rakha Vendor and Muhammad Aslam vendee for the denial of alienation of purchased plot. Similarly no rupt or F.I.R. Is lodged in the Police Station by Muhammad Azam alias Aaman for sustaining injuries by the hands of unknown assailants or against Khushi Muhammad deceased. The motive story relied upon by the prosecution do not come on the test of credibility of the witnesses lies in their intrinsic words of the their testimony offered by them and confidence which requires to be invoked by this court. Page 12....... a. During the investigation, Muhammad Aslam alias Billu son of Gulzar Hussain, Muhammad Sarwar son of Gulzar Hussain, Nazzar Hussain alias Ranjha son of Sadiq, Mushtaq son of Mehand Bakhsh Nazim son of Mehand Bakhsh, Asmat Islam son of Muhammad Nazim are declared innocent. The conspiracy evidence of the prosecution do not come on the real test of credibility. As such I have no hesitation to discard their statements to the extent of involvement of Nazim, Azam and Asmat Islam for the conspiracy. Page 17 .It is pertinent to mention that during the course of investigation no recovery was effected from Mushtaq son of Mehand Bakhsh, he was declared innocent. Similarly, no recovery is effected from Nazzar Hussain, he was also declared as innocent, Muhammad Aslam son of Gulzar Hussain is also declared innocent and no recovery is effected from his possession. Muhammad Sarwar alias Saroo son of Gulzar Hussain implicated for causing firearm injury on the chest of deceased having armed with .30 bore Pistol. No recovery is effected from his possession. Only the recovery is effected from Muhammad Asif alias Anwar Hussain son of Gulzar Hussain, Muhammad Arshad son of Ashiq, Muhammad Anwar son of Muhammad Azam, Muhammad Mansha son of Muhammad Azam, Ashfaq alias Fazal-e-Rasool son of Ghulam Rasool, and Muhammad Ashfaq alias Muhammad Irshad son of Hameed. Except the above said accused, no other accused got recovered weapon of offence allegedly used by them at the time of occurrence. No doubt the opinion of the police is not binding upon this court when especially it is contradicted on the basis of ipse dixit opinion of Investigating Officer, therefore, the roles of the accused along with weapon of offence etc. Shall be corroborated with medical account. In case medical account affirm to the basic role of the accused as gleaned in Fard Bian and F.I.R. And subsequently supported by P.Ws.2 and P.W.3 shall be adopted as intrinsically rings truth for the decision of this murder case. The ocular account with utmost care and caution is partially accepted and partially discarded as to the extent of improvements and addition in the statements of P.Ws. Before this court. Page 23..After going through the ocular account, motive, medical evidence and recoveries and investigation opinion with high care and caution only those accused should be convicted who are initially implicated in the F.I.R. With their specific roles or their roles are corroborated with medical evidence and recoveries etc. In my preceding observations paras. I affirm myself that it is a fit case where sift of grain out of chaff is inevitable for the furtherance of equitable justice. Presence of Mushtaq Ahmad son of Mehand Bakhsh is not proved, Muhammad Asif son of Gulzar Hussain, Muhammad Arshad son of Ashiq, their roles are not corroborated with medical evidence. As such their presence at the spot is not proved. Similarly role of Muhammad Anwar son of Muhammad Azam is not proved through the medical evidence, no injury is found on the neck of the deceased. Role of Muhammad Mansha son of Muhammad Azam is confirmed through the medical evidence. Role of Ashfaq Ahmed alias Fazal Rasool son of Ghulam Rasool is supported by the medical evidence. Role of Nazzar Hussain alias Ranjha son of Sadiq is not confirmed through the medical evidence. Similarly role of Muhammad Aslam alias Billu son of Gulzar Hussain is not confirmed nor corroborated by the Doctor in his statement. Role of Azmat alias Babbi son of Muhammad Ashiq is confirmed by the medical evidence. He caused firearm injuries on the abdomen of the deceased. He was declared innocent by the Police but the ipse dixit opinion of the Police is not binding upon the court. So far the arguments that the weapon of offence is not recovered from his possession. It is the slackness of the Police, as such the Police could not be allowed to sit on the blood of the innocent person and to leave the actual culprits unhurt or for legal punishment, Muhammad Sarwar alias Saroo son of Gulzar Hussain was implicated for causing firearm injuries on the chest of the deceased. The injury attributed to this accused is corroborated and confirmed by the medical evidence. So far the arguments that weapon of offence is not recovered from his possession and he was declared innocent. My view is the same as regard with Azmat alias Bappi, Muhammad Mushtaq son of Hameed was accriminated for having 244 bore rifle, he made a fire which hit on the leg of the deceased, no specific leg is mentioned by the complainant in his first statement subsequent any improvements in his statement recorded before this court is not acceptable in view of the Law of land. Muhammad Mansha accused was implicated for having .12 bore gun. He discharged the fire which hit upon the legs of the deceased, The injury on the legs might be result of one fire. As such Muhammad Ashfaq son of Hameed is acquitted."
3. We have gone through the evidence available on record. The reasons given by the learned Additional Sessions Judge while acquitting respondents Nos.1 to 10 are borne out from the record.
4. Even otherwise, it is well-settled principle of criminal administration of justice that when an accused is acquitted of the charge, he enjoys double presumption of innocence in his favour and courts seized with the acquittal appeal under section 417, Code of Criminal Procedure, are obliged to be very careful in dislodging such presumption. In this regard reliance is placed on "Haji Paio Khan v. Sher Biaz and others" (2009 SCM R 803)
5. Keeping in view the afore-referred circumstances coupled with the guidelines given by the apex Court of the country in the above-quoted precedent case law this Court is of the affirmed view that there is nothing in this case which could be considered as arbitrary, capricious, fanciful or against the record to warrant interference in the judgment of acquittal. Furthermore no grave miscarriage of justice has been done due to the acquittal of the respondents and there is no misreading or non-reading of the prosecution evidence. In nutshell, this appeal against acquittal of respondents No,1 to 10 has no merit, which is hereby dismissed.
6. Now we take up Criminal Appeal No,775 of 2007 titled "Muhammad Sarwar etc. v. The State" filed by the Muhammad Sarwar, Azmat alias Bappi, Faiz Rasool and Muhammad Mansha appellants against their conviction and sentence recorded by the learned Additional Sessions Judge Sheikhupura vide judgment dated 19-4-2007 in case F.I.R. No,17 of 2005 offence under sections 302, 109, 148 and 149, P.P.C. Registered at Police. Station Saddar Farooqabad, District Sheikhupura. At the very outset it is relevant to note that Muhammad Sarwar son of Gulzar Hussain, Azmat Ali alias Bappi son of Ashiq Ali and Fazal Rasool alias Ashfaq son of Ghulam Rasool were acquitted by a learned Single Judge of this Court vide judgment dated 22-11-2007 recorded in Criminal Miscellaneous. No, 1233-M of 2007 on account of their compromise with the legal heirs of Khushi Muhammad deceased. Now the appeal is pending only to the extent of Muhammad Mansha (appellant No,4).
7. The learned Additional Sessions Judge Sheikhupura convicted and sentenced the appellant along with his co-accused as under:--- "Keeping in view the facts and circumstances of the case, with utmost care and caution, I hold guilty to Muhammad Mansha son of Muhammad Azam, Ashfaq Ahmed alias Fazal Rasool son of Ghulam Rasool, Azmat alias Bappi son of Muhammad Ashiq and Muhammad Sarwar alias Saroo son of Gulzar Hussain for committing Qatl-e-amd of Khushi Muhammad deceased. All the injuries attributed to them are collectively and injuries Nos. 1 to 5 individually were found sufficient to cause death of deceased in ordinary course of nature as per opinion of the Doctor. Keeping in view 1996 PCr.LJ page 155, Lahore when several persons are involved for killing of one person, it is held by the Honourable High Court, as a matter of abundant caution, it is held that on account of uncertainty as to who caused the fatal injury, the accused deserves imposition for lesser penalty. In this case all the four accused jointly caused the injuries to the deceased. As such keeping in view the mitigating and extenuating circumstances, I hold them guilty for the murder of Khushi Muhammad deceased, therefore, 1 convict them under section 302(b), P. P. C . And sentenced them for life imprisonment. They shall pay an amount of Rs.100,000 each as compensation to the legal heirs of deceased under section 544-A of Cr.P.C., in default of payment of compensation, they shall further undergo for six months' S.I. The benefit of section 382-B of Cr.P.C. Is also extended to the accused."
8. Briefly, facts of the case as narrated by the complainant Muhammad Iqbal (P.W.2) in F.I.R. Ex.P.B/1, are that on 2-2-2005, at 01.30 p.m his brother Khushi Muhammad was going on foot to his house from the shop of his brother. When he reached near the house of Nazzar and Mushtaq Ahmad (acquitted accused), accused namely, Mushtaq Ahmad raised Lalkara that Khushi Muhammad should not go alive, upon which Asif (Acquitted accused) made a fire with rifle 244 bore, Muhammad Arshad (acquitted accused) fired with 244 bore which hit Khushi Muhammad on his right flank, then Muhammad Anwar (acquitted accused) made a fire which hit on the neck of Khushi Muhammad and Khushi Muhammad fell to the ground. Then Muhammad Mansha appellant made fire with .12 bore gun which hit on the left leg of deceased, then Ashfaq (acquitted accused) also made a fire with his respective weapon which hit upon his left leg, then Nazzar Hussain (acquitted accused) made a fire with 30 bore pistol which hit on his left knee, then Aslam (acquitted accused) made fire with his carbine which hit upon the lip and head of the deceased, then Azmat appellant made a fire with his rifle which hit in the abdomen of deceased and then Sarwar appellant made a fire which hit on the chest of deceased, then Muhammad Ashfaq son of Hameed (acquitted accused) made a fire with rifle 244 bore which hit on the leg of deceased. All the accused raised lalkaras that Khushi Muhammad has been done to death and now the hindrances which were in their way have been removed and all the matters shall be decided upon their own accord. The occurrence was witnessed by complainant, Shabbir and Khalid P.Ws. The occurrence was committed at the abetment of Nazim, Azam and Asmat Islam (acquitted accused).
' Motive behind the occurrence, as set out in the was that one Allah Rakha had rescinded from an agreement to sell with Muhammad Aslam (Acquitted accused) and others and the accused party suspected that it was at the instance of Khushi Muhammad. Another motive behind the occurrence as disclosed in the F.I.R. Was that Muhammad Azam alias Ahman (acquitted accused) was physically tortured by unknown assailants and the accused party suspected Khushi Muhammad deceased for this assault.
9. After registration of the case, Muhammad Siddique S.-I. (P.W.8) started investigation, visited the place of occurrence, inspected the spot, prepared the site plan of place of occurrence without scale (Exh.PP), injury Statement Exh.PN), inquest report (Exh.PM). He collected blood-stained earth from the place of occurrence and made into sealed parcel (Exh.PC), collected empty cartridges of .12 bore gun P4/1-8 and 6 empties of 244 bore P6/1-6, 5 empties of 303 P5/1-3. He also recorded the statements of P.Ws. Under section 161, Code of Criminal Procedure and after completing the formalities submitted report under section 173, Code of Criminal Procedure.
10. Formal charge was framed against the appellant and his co-accused on 13-12-2005, to which they pleaded not guilty and claimed trial. In order to prove its case prosecution examined nine witnesses in all.
11. After conclusion of the trial, the learned trial Court convicted the appellant and his co-accused namely Ashfaq Ahmed alias Fazal Rasool son of Ghulam Rasool, Azmat alias Bappi son of Muhammad Ashiq and Muhammad Sarwar alias Saroo son of Gulzar Hussain and acquitted Muhammad Irshad alias Ashfaq, Anwar Hussain alias Asif, Muhammad Anwar, Muhammad Arshad, Muhammad Azam alias Ahman, Muhammad Aslam alias Billo, Nazaar Hussain alias Ranjha, Mushtaq Ahmad, Muhammad Nazim and Asmat Islam, as stated above; hence, this appeal.
12. Learned counsel for the appellant, in support of this appeal, contends that as per F.I.R. Allegation against the appellant is that he was armed with a .12 bore gun and he caused injuries on the left leg of deceased Khushi Muhammad whereas as per F.I.R. Co-accused of the appellant namely Muhammad Irshad alias Ashfaq son of Abdul Hameed also caused firearm injury on the leg of the deceased; that complainant namely Muhammad Iqbal appeared as P.W.2 and stated that fire of the appellant hit on the leg of the deceased whereas fire of Ashfaq accused hit on the leg of the deceased. The other eye-witness namely Muhammad Shabbir appeared as P.W.3 and stated that fire shot by Muhammad Mansha with his .12 bore gun hit on the left leg of deceased and Muhammad Ashfaq son of Hameed made a fire with his rifle 244 bore which hit on the leg of the deceased; that the learned trial Court attributed injury No,6 to the appellant which is in fact on the right leg and was not attributed to the appellant as per F.I.R.; that Muhammad Ashfaq co-accused of the appellant against whom there was similar allegation has been acquitted; that there was no corroborative evidence qua the appellant; that the report of the Forensic Science Laboratory on the file and the recovery of the alleged gun is of no avail to the prosecution because as per prosecution the appellant was arrested on 3-3-2005 whereas the empties were taken into possession on 2-2-2005 and the gun (P.11) was recovered from possession of the appellant on 16- 3-2005. But the gun and the empties were sent to the Forensic Science Laboratory after the arrest of the appellant on different dates and even none appeared from the prosecution to depose that he took the gun and the empties to the Forensic Science Laboratory; that report of the Forensic Science Laboratory reveals that the empties were received on 12-4-2005 whereas the gun was received on 23-5-2005 and as such no reliance can be placed on the same; that no question regarding report of Forensic Science Laboratory was put to the appellant during his statement under section 342, Code of Criminal Procedure and as such this evidence cannot be used against him; that as per medical report the deceased sustained injuries on his back whereas as per F.I.R.
The appellant fired at the deceased when he fell on the ground and this also negates the ocular account; that the case of the appellant is exactly at par with his co-accused namely Muhammad Irshad alias Muhammad Ashfaq from whom a rifle 244 bore was also recovered and who has been acquitted of the charges and as such the appellant is also entitled to acquittal.
13. Learned Deputy Prosecutor- General opposes this appeal on the grounds that the appellant is duly nominated in the F.I.R. With a specific role and the prosecution has produced confidence inspiring evidence against the appellant, therefore, this appeal is liable to be dismissed. However, after perusal of the record, learned Deputy Prosecutor-General concedes that there is no evidence on the record as to who took the empties and firearms to the Forensic Science Laboratory and report of Forensic Science Laboratory was also not put to the appellant while recording his statement under section 342, Code of Criminal Procedure.
14. We have heard learned counsel for the appellant and the learned Deputy Prosecutor-General for the State and have also gone through the record with their assistance.
15. In this case, the occurrence took place on 2-2-2005 at about 1-30 P.M and the matter was reported by Muhammad Iqbal (P.W.2) to the Police and formal F.I.R. Exh.PB/1 was recorded at 03.05 P.M. Fourteen persons were implicated as accused persons out of whom ten were acquitted by the learned trial Court whereas four including the appellant were convicted and sentenced and three namely Ashfaq Ahmed alias Fazal Rasool son of Ghulam Rasool, Azmat alias Bappi son of Muhammad Ashiq and Muhammad Sarwar alias Saroo son of Gulzar Hussain have been released on the basis of a compromise. Allegation against the appellant as per F.I.R. Is that he made a fire with his .12 bore gun, which hit on the left leg of the deceased Khushi Muhammad. Complainant appeared as P.W.2 and in his examinationin-chief stated that appellant made a fire with his twelve bore gun which hit on the leg of the deceased. The other witness of the ocular account namely Muhammad Shabbir appeared as P.W.3 and deposed that appellant made a fire with his .12 bore gun which hit on the left leg of the deceased and as such the version furnished by the witnesses of prosecution is different from the one disclosed in the F.I.R. On the basis of same prosecution evidence ten persons have been acquitted and the prosecution evidence qua them has been disbelieved. Therefore, it was essential to search for independent corroboration for statements of prosecution witnesses to convict the appellant on the basis of same evidence. While holding so we are fortified by the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in "Iftikhar Hussain and another v. The State"(2004 SCM R 1185) wherein it was held 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 follow 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 the 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 case of Sarfraz alias Sappi and 2 others v. The State 2000 SCM R 1758; relevant para therefrom is reproduced herein below thus:- ' The proposition of law in criminal administration of justice namely whether a common set of ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the same commission of offence is an over-worked proposition. Originally the opinion of the court was that if a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus but subsequently this view was changed and it was held that principle enshrined in this maxim would not be applicable and testimony of a witness will be acceptable against one set of accused though same has been rejected against another set of accused facing same trial. However, for safe administration of justice a condition has been imposed namely that the evidence which is going to be believed to be true must get independent corroboration on material particulars meaning thereby that to find out credible evidence principle of appreciation of evidence i,e, sifting chaff out of grain was introduced as it has been held in the cases of Syed Ali Bepari v. Nibran Mollah and others PLD 1962 SC 502; Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCM R 150; Khairu and another v.
The State 1981 SCM R 1136; Ziaullah v. State 1993 SCM R 155; Ghulam Sikandar v. Mamraiz Khan PLD 1985 SC 11; Shahid Raza and another v. The State 1992 SCM R 1647; Irshad Ahmed and others v. The State and others PLD 1996 SC 138; and Ahmad Khan v. The State 1990 SCM R 803.
16. In the instant case on the basis of same evidence 10 persons were acquitted of the charges and no independent corroboration was available on the record to convict the appellant on the basis of same set of witnesses. As far as report of Forensic Science Laboratory is concerned, nobody appeared in the witness box to depose that he took the .12 bore gun and the empties to the Forensic Science Laboratory. Moreover there are two different dates of the receipt of articles i,e, 12- 4-2005 and 23-5-2005. The appellant was arrested in the case on 3-3-2005 and the rifle .12 bore (P.11) was allegedly recovered from his possession on 16-3-2005 whereas the empties were recovered from the place of occurrence on 2-2-2005. Meaning thereby that both the articles were sent to the Forensic Science Laboratory after the arrest of the appellant and as such no reliance can be placed on the report of the Forensic Science Laboratory especially when the same was not put to the appellant while recording his statement under section 342, Code of Criminal Procedure.
Another important aspect which has been noted by us is that co-accused of the appellant namely Muhammad Irshad alias Muhammad Ashfaq who was attributed the identical role of firing at the deceased which hit him on his leg and recovery of 244 bore rifle was also effected from him, has been acquitted by the learned trial Court while extending him benefit of doubt whereas on the basis of same evidence appellant has been convicted while attributing him injury No,6 which as per statement Medical Officer (P.W.5) was on the back of right lower thigh making two exit wounds of average 2 x 2 cm on the medial aspect of right thigh. All these points create serious doubts qua the involvement of the appellant and it was bounden duty of the prosecution to prove its case beyond all doubts. The benefit of doubt would go in favour of the appellant, therefore, this appeal is allowed. The conviction and sentence of appellant recorded by the learned Additional Sessions Judge, Sheikhupura vide judgment dated 19-4-2007 is set aside and he is acquitted of the charges levelled against him. The appellant is in jail. He shall be released forthwith if not required in any other case.