' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,389-J of 2006 titled as "Shoaib alias Shaboo v. The State"and Murder Reference No, 571 of 2006 titled as "State v.
Shoaib alias Shaboo" as both these matters have arisen out of the same case i,e,, F.I.R. No,210 of 2005 dated 16-5-2005 offence under sections 302, 324, 148 and 149, P.P.C. Registered at Police Station Sadar Hafizabad, District Hafizabad.
2. Shoaib alias Shaboo appellant has filed Criminal Appeal No,389-J of 2006 against the judgment dated 22-7-2006 whereby he was convicted by the learned Additional Sessions Judge Hafizabad under section 302(b), P.P.C. And sentenced as under:-- "16.....Therefore, he is held guilty under section 302(b), P.P.C. And is sentenced to DEATH subject to confirmation by the Hon'ble High Court. He be hanged by the neck till death. The convict is also directed to pay/deposit compensation of Rs,1,00,000 under section 544-A, Cr.P.C. Which on recovery be distributed among the legal heirs of deceased according to their Shari share. In the event of his failure to pay/deposit compensation, he shall undergo six months' S.I."
' The learned trial Court has sent Murder Reference No,571 of 2006 for confirmation or otherwise of the sentence of death awarded to Shoaib (convict) as required under section 374, Code of Criminal Procedure.
3. Precisely stated facts of the case, as given in the complaint (Exh.PE) lodged by complainant, Muhammad Akram (P.W.8) are that on 16-5-2005 at about 9-00 p.m. Complainant along with his brother Muhammad Khan (deceased) son of Allah Ditta caste Sheikh, Mazhar Ali son of Abdullah caste Muslim Sheikh, Zahoor Ahmed son of Mian Sohna and Master Muhammad Aslam son of Allah Ditta Sheikh, residents of the same village had gone to the dera of Rai Waryam situated in village Udhoke in connection with an important work. All five of them were coming back to their house and when they reached in front of outer door of deceased Muhammad Khan's house, accused who had concealed themselves behind the wall of haveli of Rai Muhammad Sharif, all of a sudden accused Shoaib alias Shaboo son of Mathela armed with pistol .30 bore, Muhammad Iqbal son of Mathela armed with pistol .30 bore, Muhammad Yousaf son of Mathela armed with danda, Mathela son of Noora armed with hatchet all Sheikh by caste and an unknown person appeared there. On seeing them, Mathela son of Noora raised a lalkara that Muhammad Khan be taught a lesson for 'getting a case registered against them and that he be done to death. On this, Shoaib alias Shaboo made fire with his pistol .30 bore which hit on the back of Muhammad Khan (deceased) who fell down.
Then Muhammad Iqbal made second fire with his .30 bore pistol hitting Mazhar Ali on the back side of his right shoulder causing him injury. The accused persons also gave blows with dandas/sotas.
Muhammad Khan succumbed to the injuries on the spot. The occurrence was witnessed by Zahoor Ahmad son of Sohna and Master Muhammad Aslam son of Allah Ditta P.Ws.
' According to the F.I.R., the motive behind occurrence was registration of a case by deceased Muhammad Khan against Shoaib alias ,Shaboo etc. 4/5 years prior to the occurrence.
4. Muhammad Irshad S.I. (P.W.10) was posted at Police Post Kaleke, Police Station Saddar Haifzabad.
On 16-5-2005 he was present in village Tootra in connection with patrol duty. He received information through wireless about this occurrence. After receiving the information he rushed towards the place of occurrence i,e, village Udhoke where Muhammad Akram complainant met him and he recorded his (complainant's) statement under section 154, Code of Criminal Procedure.
Thereafter he took into possession dead body of deceased Muhammad Khan, prepared injury statement (Exh.PD), inquest report (Exh.PG) and drafted application (Ex.PC) for post mortem examination. He also took blood-stained earth from the place of occurrence after making it into sealed parcel vide recovery memo (Exh.PA). He also prepared rough site plan of place of occurrence. (Exh.PN). He sent the dead body for post mortem examination. On 17-5-2005 Muhammad Bashir 361/C and Noor Ahmad 262/C produced before him post mortem report, last worn clothes of deceased comprising Lungi (P-1), Qameez (P-2) which were taken into possession vide recovery memo (Exh.PL). On 7-6-2005 Draftsman produced before him scaled site plan (Exh.PK and Exh.PK/1). On 18-6-2005 he arrested Shoaib alias Shaboo (appellant) and his co- accused namely Muhammad Iqbal and Muhammad Yousaf. On 25-6-2005, Shoaib alias Shaboo appellant while in Police custody got recovered pistol .30 bore (P-3) which was taken into possession vide recovery memo (Exh.PM). Thereafter the investigation was transferred from him.
Formal challan was submitted in the Court on 31-10-2005.
5. . The appellant and his co-accused were summoned by the learned Additional Sessions Judge Hafizabad to face the trial. Copies of the documents, as required under section 265-C Code of Criminal Procedure were provided to them on 14-12-2005 and formal charge was framed against the appellant and his co-accused on 14-2-2006 to which they pleaded not guilty and claimed trial.
In order to prove its case, prosecution examined as many as eleven witnesses, in all. Ocular account was furnished by Muhammad Akram (P.W.8) complainant and Muhammad Aslam (P.W.9) both brothers of the deceased. Medical evidence was furnished by Dr Captain Khalid Farooq (P.W.3). Muhammad Irshad S.I. (P.W.10) investigated this case and while appearing in the witness box he narrated the various steps taken by him during the course of investigation. Rest of the witnesses are formal in nature. Learned Assistant District Attorney after tendering in evidence report of Chemical Examiner (Exh.PO), report of Serologist (Exh.PP) and that of Forensic Science Laboratory (Exh.PQ) closed the case of prosecution vide statement dated 8-6-2006. Statements of the appellant and his co-accused were recorded under section 342, Code of Criminal Procedure on 12-6-2006. To a question as to why the case against him and why the prosecution witnesses had deposed against him the appellant replied as under: -- "P.Ws. Are related with each other as well as with deceased. In fact it was a blind murder which took place in the darkness that's why prosecution did not produce the star witness of the case Mazhar Ali injured P.W. Due to the fear that he would depose actual facts of the case. During course of investigation, complainant's version was found false. I was involved in this due suspicion."
' The appellant did not appear as his own witness as provided under section 340(2), Code of Criminal Procedure nor did he opt to produce defence evidence.
6. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Co-accused of the appellant namely Mathela, Iqbal and Yousaf were, however, acquitted by extending them benefit of doubt and no appeal against their acquittal, as confirmed by the learned counsel for the complainant was preferred either by the State or the, complainant.
7. Learned counsel for the appellant, in support of this appeal, contends that both the witnesses of ocular account i,e, Muhammad Akram (P.W.8) and Muhammad Aslam (P.W.9) are chance witnesses as they have given a reason for their presence at the spot which is to the effect that both of them along with the deceased and Mazhar Ali and Zahoor Ahmad had gone to the dera of Rai Waryam in connection with some important work but no detail of any such work has been given by the complainant Muhammad Akram Cher before the Police or before the learned trial Court while appearing as P.W.8 and the Investigating Officer (P.W.10) admitted that the complainant and prosecution witnesses did not explain the detail of necessary work at the dera of Waryam; that case of the complainant in the F.I.R. (Exh.PF) is that Shoaib alias Shaboo appellant made a fire with his pistol .30 bore which landed at the back of Muhammad Khan deceased and thereafter the accused inflicted dandas/sotas blows, however, while appearing before the learned trial Court as P.W.8 he did not say anything about dandas/sotas blows as according to the medical evidence furnished by Dr. Captain Khalid Farooq (P.W.3) the deceased had received only one firearm injury and there was no blunt injury on the person of the deceased; that Muhammad Akram (P.W.8) was confronted with his statement made before the Police and this dishonest improvement was brought on record; that in the F.I.R. It is the case of the complainant that Muhammad Iqbal co- accused of the appellant made a fire which hit Mazhar Ali at his back but said Mazhar Ali was not produced as a witness and was given up by the Assistant District Attorney being won over by the accused, therefore, adverse inference in terms of Article 129(g) of Qanun-e-Shahadat Order, 1984 can safely be drawn against the prosecution; that co-accused of the appellant namely Mathela, Iqbal and Yousaf were acquitted by extending then benefit of doubt and no appeal against their acquittal was preferred either by the State or the complainant, therefore, very strong and independent corroboration is required to maintain conviction of the appellant on the basis of same set of evidence which is very much lacking in this case as positive report of Forensic Science Laboratory (Exh.PQ) which is to the effect that the pistol (P-3) is in working order is of no avail to the prosecution as no crime empty was taken into possession from the place of occurrence; that that prosecution has failed to prove motive part of the occurrence as according to the Investigating Officer (P.W.10) the complainant did not produce before him any F.I.R. Regarding the motive; that from all angles prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as a matter of right.
8. On the other hand, learned Deputy Prosecutor-General, assisted by learned counsel for complainant, opposes this appeal on the grounds that the occurrence took place at 9-00 p.m. On 16-5-2005 and the matter was reported to the Police at 10-30 p.m. On the same day and even the post mortem examination on the dead-body of Muhammad Khan deceased was also conducted on the same night at 3-30 a.m., therefore, there was no delay in lodging the F.I.R. And the crime was reported to the Police with full promptitude; that case of the appellant is quite distinguishable from his co-accused namely Muhammad Iqbal as said Muhammad Iqbal was attributed injury on the person of Mazhar Ali who did not appear in the witness box being won over by the accused side whereas case against the appellant has been proved to the hilt; that the ocular account furnished by Muhammad Akram (P.W.8) and Muhammad Aslam (P.W.9) is fully supported by the medical evidence furnished by Dr. Captain Khalid Farooq (P.W.3) and the recovery of pistol .30 bore (PP-3) coupled with the positive report of Forensic Science Laboratory (Exh.PQ); that even the motive has fully been proved against the appellant; that both the witnesses of the ocular account i,e, Muhammad Akram (P.W.8) and Muhammad Aslam (P.W.9) are real brothers inter se and brothers of the deceased as well, therefore, there was no occasion for them to falsely implicate the appellant and his co-accused by letting off the real culprits and even otherwise substitution in such like cases is a rare phenomenon; that testimony of both these witnesses cannot be discarded merely because of their inter se relationship if otherwise it rings true; that the prosecution has proved its case against the appellant beyond any shadow of doubt and as such this appeal is liable to outright dismissal.
9. We have heard learned counsel for the appellant, learned counsel for the complainant as well as the learned Deputy Prosecutor-General for the State at a considerable length and have also gone through the record with their able assistance.
10. We have noted that the prosecution case is of doubtful nature for the following reasons:--
(a) It is case of the complainant that on 16-5-2005 he along with Muhammad Khan deceased, Mazhar Ali, Zahoor Ahmad and Muhammad Aslam went to the dera of Rai Waryam in connection with some important work but no details of that important work were disclosed by the complainant and the prosecution witnesses either in the F.I.R. Or while appearing before the learned trial Court as P.W.8 and P.W.9. Even the Investigating Officer (P.W.10) in his cross-examination admitted that the complainant and his P.Ws. Did not explain the detail of necessary work at the dera of Waryam, therefore, both these witnesses are chance IA witnesses.
(b) It is the case of the complainant in the F.I.R. That the deceased was fired at by the appellant and thereafter the accused gave dandas/sotas blows to the deceased whereas while appearing before the learned trial Court as P.W.8 he did not state anything regarding dands/sotas blows. He was duly confronted with his statement recorded by the Police and this important improvement was brought on the record. This change in the version of the complainant seems to be intentional because post mortem examination report of Muhammad Khan (deceased) (Exh.PB) reflects that the deceased had suffered only one firearm injury and there was no other injury on his person.
(c) It is the case of the prosecution that Muhammad Iqbal co-accused of the appellant made a fire with his pistol which hit Mazhar Ali on his back at right shoulder but said Mazhar Ali did not appear before the court to support the prosecution case and he was given up by the Deputy District Attorney vide statement dated 25-5-2006 being won over by the accused. In the circumstances adverse inference in terms of Article 129(g) of the Qanun-e-Shahadat Order, 1984 that had the said witness appeared he would not have supported the prosecution case can be drawn against the prosecution.
(d) Muhammad Iqbal co-accused of the appellant against whom there was a specific allegation of causing firearm injury to Mazhar Ali was acquitted by the learned trial Court. Besides said Muhammad Iqbal two other co-accused of the appellant namely Muhammad Yousaf and Mathela who were also assigned the role of inflicting danda/sota blows to the deceased were also acquitted through the impugned judgment but no appeal against their acquittal was preferred by the State as well as the complainant, therefore, very strong and independent corroboration is required to maintain conviction of the appellant on the basis of same evidence which is very much lacking in this case as recovery of pistol .30 bore (P-3) and report of the Forensic Science Laboratory (Exh.PQ) that it was in working condition is of no avail to the prosecution because no crime empty was taken into possession from the spot.
(e) A specific motive was alleged in the F.I.R. Which is to the effect that the deceased got a criminal case registered against the appellant art others 4/5 years ago but no detail of the criminal case was mentioned either in the F.I.R. Or before the learned trial Court and the Investigating Officer (P.W.10) has stated that the complainant did not produce before him any F.I.R. Or any witness of that F.I.R.
11. We are mindful of the fact that the principle of falsus in uno falsus in omnibus is not applicable in criminal cases and the courts are required to sift the grain from chaff but reappraisal of the prosecution evidence as discussed in para 10 above clearly shows that there is chaff and chaff in the prosecution evidence and not a grain to sift. Therefore, for the foregoing reasons, we hold that the prosecution has failed to prove its case against the appellant. This appeal is accordingly allowed. Conviction and sentence awarded to the appellant vide judgment dated 22-7-2006 passed by the learned trial Court is set aside and the appellant is acquitted of the charge framed against him. He is in jail. He be released forthwith if not required to be detained in any other case.
12. Murder Reference No,571 of 2006 is answered in the NEGATIVE and the sentence of death awarded to Shoaib alias Shaboo (convict) is NOT CONFIRMED.