' MALIK SHAHZAD AHMAD KHAN, J.---We propose to dispose of Murder Reference No.675 of 2006, sent by the learned trial Court, and Criminal Appeal No.1332 of 2006, preferred by the appellant Muhammad Anwar, by this single judgment, as both these matters have arisen out of the same judgment dated 20-7-2006, passed by the learned Additional Sessions Judge, Faisalabad.
2. Muhammad Anwar appellant along with his co-accused, namely, Muhammad Shafi, Muhammad Sarwar, Monda, Allah Ditta, Abbas, Asghar Ali and Muhammad Yaqoob, was tried in case F.I.R. No.40, dated 5-2-2000, registered at Police Station, Bahlak, in respect of offences under sections, 302, 148, and 149 of P.P.C. After conclusion of the trial, the learned trial Court vide its judgment dated 20-7-2006, convicted and sentenced the appellant as under:-- ' MUHAMMAD ANWAR 'Under section 302(b) of P.P.C. To death for committing the murder of Shahbaz (deceased). He was also ordered to pay Rs.50,000 (Rupees fifty thousand only) as compensation under section 544-A of Cr.P.C. To the legal heirs of deceased or in default to suffer simple imprisonment for one year's R.I. Whereas, the learned trial Court vide the same judgment acquitted the above- mentioned co-accused of the appellant from the charges.
3. Brief facts of the case as disclosed by the complainant Muhammad Nawaz P.W.3 in his statement Exh.PB on the basis of which F.I.R. Exh.PB/1 was chalked out are that on 5-2-2000, he (the complainant) along with his brothers namely, Murad Khan, Mumtaz Khan and Shahbaz (deceased) were going towards their fields, situated in Square No.83, Killa No.12, village Thatha Dhadhera, within the area of Police Station, Bahlak, in order to cut fodder for their cattle. At about 11-30 a.m., the appellant Muhammad Anwar, along with Shafi and Sarwar armed with rifles, Abbas armed with gun .12 bore, Allah Ditta armed with rifle, Asghar Ali armed with rifle, Muhammad Yaqoob, armed with gun .12 bore, and Monda armed with rifle, came to the spot. The appellant Muhammad Anwar raised a lalkara that he would not let Shahbaz alive, and thereafter, he made a fire shot, which landed on the right side of the chest of Shahbaz (deceased). Second fire shot was made by Abbas (since acquitted), which landed on the left arm of Shahbaz (deceased). Third fire shot was made by Sarwar (since acquitted), which landed on the right side of the chest of Shahbaz (deceased).
The next fire shot was made by Asghar (since acquitted), which landed on the left side of the chest near the armpit of Shahbaz (deceased). Another fire shot was made by the appellant Muhammad Anwar, which hit on the right flank of Shahbaz (deceased), who fell down. Muhammad Yaqoob and Monda (since acquitted), thereafter, inflicted kick blows on the person of Shahbaz (deceased). All the accused kept on making aerial firing during the occurrence.
' The motive for the occurrence, as stated by the complainant in the F.I.R. Exh.PB/ 1 was that Yousaf Sahi party of the area snatched two mares from the accused Anwar party, and the appellant Muhammad Anwar and his co-accused suspected that on the information given by Shahbaz (deceased), the mares were snatched from them. It was alleged by the complainant in his Fard Bian Exh.PB that the appellant Muhammad Anwar and his co-accused nourished the above- mentioned grudge in their minds due to which they committed the murder of Shahbaz (deceased).
4. After completion of investigation, the challan was submitted before the trial Court, the appellant along with acquitted co-accused were charge sheeted on 25-3-2006, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as thirteen witnesses.
' The complainant Muhammad Nawai P.W.3, and Murad Khan P.W.5 furnished ocular account of the occurrence.
' The medical evidence was furnished by Dr. Naseer Ahmad P.W.6.
' Murad Khan P.W.5 is a recovery witness of Rifle .303 Bore, P.S. ' Mushtaq Hussain A.S.-I. P.W.11, Muhammad Ishaq S.-I. P.W.12, and Muhammad Riaz S.-I. P.W.13 were the Investigating Officers of this case.
' Ghazanfar Ali C-3336 P.W.1, Ghulam Rasul C-3450 P.W.2, Muhammad Naseem C-1183 P.W.4, Abdul Ghafoor Patwari P.W.7, Muhammad Javed MHC-73 P.W.8, and Safdar P.W.10, are the formal witnesses in this case.
' The prosecution also produced documentary evidence in the shape of memo of possession of blood-stained clothes Exh. PA, complaint Exh. PB , F. I. R. Exh.PB/ 1, memo of possession of rifle .303 bore etc. Exh.PC, copy of postmortem report etc. Exh.PD, copy of death report Exh.PF, copy of site plan Exh. PG, memo of possession of blood-stained earth Exh. PH, report of Chemical Examiner Exh.
PK, report of Serologist Ex. PL and report of FSL Exh.PM.
' The statement of appellant Muhammad Anwar under section 342, Cr.P.C. Was recorded. He refuted the allegations levelled against him and professed his innocence. While answering to a question "Why this case against you and why the P.Ws. Have deposed against you", Muhammad Anwar appellant, replied as under:-- "Due to party faction and enmity of murder in the village. Due to relations with deceased and due to enmity with us, I was involved in this case".
' The appellant did not make statement under section 340(2), Cr.P.C; however, he produced defence evidence in the shape of the statement of the complainant etc., and the persons of the accused party before the Investigating Officer regarding decision of the case on special oath Exh.DA and decision about innocence of Monda, Asghar and Muhammad Yaqoob on the basis of special oath Exh.DB.
' The learned trial Court vide the above-mentioned judgment, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
6, The learned counsel for the appellant, in support of this appeal, contends that in the F.I.R., there were allegations against three other persons besides the appellant of causing firearm injuries to Shahbaz (deceased), whereas, all the co-accused have been acquitted by the learned trial Court and their acquittal has not been assailed either by the State or by the complainant before this Court and the same has attained finality, therefore, on the basis of same evidence, the appellant cannot be convicted unless and until there is strong independent corroboration, which is very much lacking in this case; that the case of the appellant is not distinguishable from the case of acquitted co-accused; that the motive is attributed to the appellant as well as to the. Above- mentioned acquitted co-accused; that the recovery of rifle .303 bore P.5 from the possession of the appellant Muhammad Anwar cannot be considered a corroborative piece of evidence, because the report of Forensic Science Laboratory Exh.PM is only to the extent of working condition of the said rifle, therefore, this appeal be accepted and the appellant may be acquitted from the charges.
7. Conversely, the learned Deputy Prosecutor-General submits that the brother of the complainant has been properly informed about the fixation of the present case, today. He has also referred to the police report in this respect, but no one is present on behalf of the complainant to pursue this case. The learned Law Officer opposes this appeal on the grounds that the appellant was named in the F.I.R., which was promptly lodged with the specific allegation for causing firearm injuries to Shahbaz (deceased); that the motive was also proved against the appellant; that rifle .303 bore P.5 has also been recovered from the possession of the appellant; that the prosecution witnesses of the ocular account remained consistent and straightforward and their evidence could not be shattered by the defence; that the case of the acquitted accused is distinguishable from the case of the present appellant, as they were found innocent by the police, therefore, this appeal may be dismissed and Murder Reference may be answered in the affirmative.
8.. We have heard the arguments of the learned counsel for the appellant, as well as, the learned DPG, and have also gone through the evidence available on record with their able assistance.
9. The occurrence in this case took place on 5-2-2000, at 11-30 a.m., within the area of Thatha Dhadhera, Police Station, Bahlak, District Faisalabad. The matter was reported to the police on the same day at 3-30 p.m., by the complainant Muhammad Nawaz P.W.3), who is real brother of Shahbaz (deceased) through 'Fard Baiyan' Exh.PB on the basis of which formal F.I.R. Exh.PB/1 was registered.
10. The prosecution, in order to prove its ocular account has produced the complainant Muhammad Nawaz P.W.3 and Murad Khan P.W.5. In the F.I.R. Exh.PB/1, it is the case of the complainant that on 5-2-2000, he (the complainant) along with his brothers namely, Murad Khan, Mumtaz Khan and Shahbaz (deceased) was going towards their fields, situated in Square No.83, Killa No.12, village Thatha Dhadhera, within the area of Police Station, Bahlak, in order. To cut fodder for their cattle. At about 11-30 a.m., the appellant Muhammad Anwar, along with Shafi and Sarwar armed with rifles, Abbas armed with gun `.12 bore, Allah Ditta armed with rifle, Asghar Ali armed with rifle, Muhammad Yaqoob armed with gun .12 bore, and Monda armed with rifle, came to the spot.
'The appellant Muhammad Anwar raised a lalkara that he would not let Shahbaz alive, and thereafter, he made a fire shot, which landed on the right side of the chest of Shahbaz (deceased).
Second fire shot was made by Abbas (since acquitted), which landed on the left arm of Shahbaz (deceased). Third fire shot was made by Sarwar (since acquitted), which landed on the right side of the chest of Shahbaz (deceased). The next fire shot was made by Asghar accused (since acquitted), which landed on the left side of the chest near the armpit of Shahbaz (deceased).
Another fire shot was made by the appellant Muhammad Anwar, which hit on the right flank of Shahbaz (deceased), who fell down. Muhammad Yaqoob and Monda (since acquitted), thereafter, inflicted kick blows on the person of Shahbaz (deceased). All the accused kept on making aerial firing during the occurrence.
' The statement of the complainant Muhammad Nawaz P.W.3 before the learned trial Court was in line with the story mentioned in the F.I.R. Exh.PB/1, 'except the role assigned to Asghar accused (since acquitted). The role of making fire shot, which landed on the left side of the chest near the armpit of Shahbaz (deceased) was assigned to Asghar accused (since acquitted) in the F.I.R.
Exh.PB/ 1, whereas, in his statement before the learned trial Court, the complainant Muhammad Nawaz P.W.3 has stated that the fire shot made by Asghar accused hit the deceased Shahbaz on his left arm.
' The evidence of other eye-witness Murad Khan is also in line with the evidence of the complainant Muhammad Nawaz P.W.3, except the role assigned to Asghar accused since acquitted, because the said witness has given almost the same role, which was assigned to Asghar accused in the F.I.R. Exh.PB/ 1, according to which, the fire shot made by Asghar accused (since acquitted) landed on the left flank of Shahbaz (deceased).
' It is evident from the perusal of evidence of the above-mentioned eyewitnesses that the role attributed to the appellant Muhammad Anwar was similar to that of acquitted co-accused, namely, Muhammad Sarwar, and Asghar Ali.
11. Charge under sections 302, 148, and 149 of P.P.C. With identical allegations was framed against the appellant Muhammad Anwar and the above-mentioned acquitted seven, co-accused, namely, Muhammad Shafi, Muhammad Sarwar, Monda, Allah Ditta, Abbas, Asghar Ali and Muhammad Yaqoob. Out of the above-mentioned seven co-accused, the role attributed to Sarwar and Asghar Ali (since acquitted) is similar with the role of the appellant Muhammad Anwar, but they have been acquitted by the learned trial Court while extending them the benefit of doubt and no appeal against their acquittal has been preferred either by the State or by the complainant, as confirmed by the learned Deputy Prosecutor-General, for the State and, as such, the said acquittal has attained finality, therefore, the question for determination, before this Court, is that whether the evidence, which has been disbelieved qua the acquitted co-accused of the appellant can be believed against the appellant. In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as, Iftikhar Hussain and another v. State 2004 SCM R 1185, wherein the Hon'ble Supreme Court at page 1196-1197 held as under:- "17. ...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 the case of Sarfraz alias Sappi and 2 others versus The State (2000 SCMR 1758), relevant Para therefrom is reproduced 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. Nibaran Mollah and others (PLD 1962 SC 502), Tawaib Khan and another v. The State (PLD 1970 SC 13), Bakka v. The State (1977 SCMR 150), Khairu and another v. The State (1981 SCMR 1136), Zaiaullah v. The State (1993 SCMR 155), Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC II ), Shahid Raza and another v. The State (1992 SCMR 1647), Irshad Ahmad and others v. The State and others (PLD 1996 SC 138) and Ahmad Khan v. The State (1990 SCMR 803)".
' Similar view was reiterated in the subsequent judgment of the Hon'ble Supreme Court of Pakistan reported as Akhtar Ali and others v. The State (2008 SCM R 6).
12. It has been argued by the learned Deputy Prosecutor-General, for the State, that the appellant Muhammad Anwar has been attributed the fatal shot at the person of the deceased, therefore, his case was distinguish,. Ble from the case of his acquitted co-accused. We have noted that Dr. Naseer Ahmad P.W.6, conducted the post-mortem examination on the dead body of Shahbaz (deceased) .On 6-2-2000, vide post-mortam report Exh.PD, and pictorial diagram Exh.PD/1, and found the following injuries on the dead body of Shahbaz (deceased):-
(1) A firearm lacerated wound of entrance with blackening present on the outer part of left elbow joints. The joint was fractured. The muscles were ruptured.
(2) Exit wound of firearm wound infamy - No.1 on the medial side of left.. . Elbow joint. The muscles and joint were fracture.
(3) Firearm wound Of entrance 2 cm x 1-1/2 cm with slight blackening present on the left side of upper part of chest near the nipple. The wound was DNP.
(4) Firearm wound of entrance 2 cm x 1-1/2 cm on the ,left side of chest adjacent to injury No.3. ,This was only muscle deep.
(5) Firearm wound of exit 2 cm x 2 cm on the right side of chest on the front part of near the Axilla.
(6) Firearm grazing wound 3 cm x 1 1/2 cm on the' lower part of outer side of chest.
(7) Firearm wound of entrance 2 cm x 2 cm with blackening on the outer side of lower part of right side of chest. Below the injury No.6.
(8) Firearm exit wound 2 cm x 1 .1/2 cm on the outer side of lower part of chest on the left side.
Course of injury No.3. The fire injured the skin and muscle fractured the 5th and 6th' ribs on the outer side of frontal part of chest entered in the chest cavity and damaged the heart,- both lungs, plum and comes out through injury No.5. The chest cavity was full with stained blood. 5 and 6 ribs on the right side were also fractured. Course of injury No.4. This injured only muscle and skin and not go in the chest cavity. Course of injury No.
7. The firearm injury the lateral outer .Side of lower part of chest and injured the liver duodenum and injured the right kidney- and entered in the abdominal cavity which was also full with stained blood. The (sic) caused the injury oil. 4th an 5th vertebra and injured the left kidney and come out through injury No.8. Skull not. Opened.
' According to the opinion of Dr. Naseer Ahmad, the cause of death was Injury No.3 and. Injury No.7.
Injury No.3 was on left side of chest of Shahbaz (deceased), which was attributed to Asghar Ali co- accused (since acquitted), whereas, Injury No.7 was on the right side of the chest of Shahbaz (deceased). According to the prosecution case, the role of inflicting firarm injury on the right side of the chest of Shahbaz (deceased) was attributed to the appellant Muhammad Anwar, as well as, co-accused Sarwar (since acquitted). Although, the complainant Muhammad Nawaz P.W.3, while appearing in the Court has stated that the fire shot made by Asghar co-accused (since acquitted) landed on the left arm of Shahbaz (deceased), but in the F.I.R. Exh.PB/1, he assigned the role of inflicting firearm injury on left side of the chest near the armpit of Shahbaz (deceased). The other eye-witness namely, Murad Khan P.W.S also assigned the role of inflicting firearm injury on the left flank of Shahbaz (deceased) to Asghar co-accused (since acquitted). The role of causing fatal injuries on the person of Shahbaz (deceased) has been assigned to the appellant, as well as, to acquitted co-accused namely, Asghar All and Sarwar, therefore, the role attributed to the appellant Muhammad Anwar is not distinguishable from the role attributed to co-accused Sarwar and Asghar (since acquitted).
13. The learned Deputy Prosecutor-General, for the State, has referred the motive part of the prosecution story with the assertion that it was attributed to the appellant. We have gone through the contents of the F.I.R. Exh.PB/1, and the statements of the prosecution witnesses namely, Muhammad Nawaz P.W.3 and Murad Khan P.W.5 made before the Court. The motive as alleged by the complainant in the F.I.R. Exh.PB/1 was that Yousaf Sahi party of the area snatched two mares from the accused Anwar party, and the appellant Muhammad Anwar and his co-accused suspected that on the information given by Shahbaz (deceased), the mares were snatched from them. It was further alleged in the F.I.R. Exh.PB/1 that the appellant Muhammad Anwar and his co- accused nourished the above-mentioned grudge in their minds due to which they committed the murder of Shahbaz (deceased).
' Similarly, the complainant Muhammad Nawaz, while appearing before the trial Court as P.W.3 made the following statement qua the motive:-- "Yousaf Sahi party of the said area, opponent of the, accused in the present case snatched mares from Anwar Sabi party, it was suspected by Anwar accused party that Shahbaz deceased has stood informer regarding the above said fact, feeling grudge in their mind, the accused with common intention and by forming unlawful assembly committed the murder of my brother Muhammad Shahbaz".
' The perusal of above-mentioned evidence clearly shows that motive was attributed not only to the appellant, but also to the acquitted co-accused, namely, Muhammad Shafi, Muhammad Sarwar, Monda, Allah Ditta, Abbas, Asghar Ali and Muhammad Yaqoob. So, even to the extent of motive, the case of the appellant is not distinguishable from the case of acquitted co-accused, namely, Muhammad Shafi, Muhammad Sarwar, Monda, Allah Ditta, Abbas, Asghar Ali and Muhammad Yaqoob.
14. The learned Deputy Prosecutor-General, for the State, has referred to the recovery of rifle 303 bore (P.5), at the instance of the appellant Muhammad Anwar, to substantiate his argument that the case of prosecution against the appellant has been corroborated by said recovery. The report of Forensic Science Laboratory Exh.PM is only in respect of working condition of the allegedly recovered rifle. In these circumstances, the rifle P.5, allegedly recovered from the possession of the appellant cannot be considered as corroborative piece of evidence. In the circumstances of the case, we could not find out any independent corroboration against the appellant and we are unable to distinguish the case of the appellant from the case of his acquitted co-accused.
15. In view of the above-mentioned circumstances, we are of the considered opinion that the prosecution has failed to Prove its case against the appellant beyond any shadow of doubt. We, therefore, accept this appeal, (Criminal Appeal No.1332 of 2006), filed by Muhammad Anwar appellant, by extending him the benefit of doubt, and set-aside the conviction and sentence awarded to the appellant, Muhammad Anwar, vide ,impugned judgment dated 20-7-2006, passed by the Additional Sessions Judge, Faisalabad. The appellant, namely, Muhammad Anwar, is acquitted from all the charges, and he shall be released from Jail forthwith, if not required in any other case.
' Death sentence awarded to the appellant, Muhammad Anwar, is not Confirmed and Murder Reference is answered in the Negative.