' MANZOOR AHMAD MALIK, J.--This judgment shall dispose of Criminal Appeal No,1265 of 2006 titled as "Idrees Raza and others v. The State" and Murder Reference No,639 of 2006 titled as "The State v.
Idrees Raza and others" as both these matters have arisen out of the same case i.e, F.I.R. No,43 dated 5-3-2005 registered under sections 302, 324, .109, 148 and 149, P.P.C. At Station Saddar Lalamusa District Gujrat.
2. Idrees Raza and Shahid Anwar appellants filed Crimina1l Appeal No,1265 of 2006 against the judgment dated 23-8-2006-whereby, they were convicted by the learned Addl. Sessions Judge, Kharian District Gujrat under sections 302(b), 324 and 337-F(v), P.P.C. And sentenced them as under:- "50. ...They both are convicted under section 302(b), P.P.C. And - are sentenced to death as Tazir as they committed the offence in a callous and brutal manner and there is no mitigating circumstance for awarding lessor punishment. They shall be hanged by their neck till death. They shall pay compensation in the sum of Rs,100,000 each to the legal heirs of Khizer Hayat deceased under section 544-A, Cr.P.C. In case of failure to pay the compensation, they shall have to undergo six months' S.I. Both the above named accused inflicted Injuries to Nazar Hussain and attempted to commit his murder.. They are convicted under section 324, P.P.C. And are sentenced to 10 years' R.I.
They shall also be liable to pay fine of Rs,10000 each. Both the above named accused inflicted injuries of fracture of his leg and they are convicted under section 337-F(v), P.P.C. And shall pay Daman to Nazar Hussain in the sum of Rs,20000 each. They are also sentenced with imprisonment for 3 years' R.I each. In case of failure to, pay Daman aforementioned, they shall have to undergo S.1 imprisonment for 3 months each."
' However, the learned trial Court acquitted Muhammad Asghar, Noor Dad, Tahir alias Tariq, Nasar Rehman, Basharat Ali and Rashad Ali (since murdered before final arguments but even then the learned trial Court acquitted him) co-accused of the appellants while giving them the benefit of doubt. The learned trial Court has sent Murder Reference No,639 of 2006 for confirmation or otherwise of the sentence of death awarded to Idrees Raza and Shahid Anwar (convicts) as required under section 374 of Code of Criminal. Procedure.
3. Brief facts, of the case are that on the complaint of Muhammad Inayat complainant (P.W.8), F.I.R.
(Exh.PE) was registered at Police Station Saddar Lalamusa, District Gujrat wherein the complainant stated that he is cultivator and they are five brothers. About 3/4 months prior to the occurrence, Muhammad Asghar son of Tajay Khan caste .Gujjar resident of Chak Sikandar etc., the opposite party made murderous assault on his brother Khizer Hayat in order to take revenge of Muhammad Ashraf and injured him. Khizer Hayat brother of the complainant got registered a case bearing F.I.R.
No,279 of 2004 under section 324, P.P.C. Police Station Saddar Lalamusa against Muhammad Asghar etc. And Muhammad Asghar is in judicial lock-up District Jail, Gujrat. Today i.e, 5-3-2005, the complainant, Khizer Hayat, Zafar Iqbal his brothers and Adalat Khan son of Manay Khan caste Gujjar resident of Deh had gone to Kharian to attend the proceedings of said case whereas, Rashid, Basharat, Shahid, Nasar Iqbal, Idrees, Tahir alias Tariq caste Gujjar residents of Deh, their opposite party had also gone to Kharian to attend the proceedings of said case. Muhammad Asghar had also come from. Gujrat Jail. After the proceedings, they all four Persons boarded the wagon and alighted at Gunja Phatak and started walking in a street. Khizer Hayat, brother of the complainant was walking few paces ahead of the complainant. At about 3-00 p.m, when they reached near the house of Malik Mushtaq at the corner of the street, Rashid son of Behram Khan armed, with .222 bore, Muhammad Basharat son of Allah Ditta armed with Kalashnikov, Shahid Mahmood son of Muhammad Anwar armed with Kalashnikov, Nasar Iqbal son of Bahadar Khan armed with Kalashnikov, Muhammad Idrees son of Jalal Khan armed with .222. Bore, Tahir alias Tariq son of Hakim Ali armed with .222 bore caste Gujjar residents of Deh, who were already sitting there in prosecution of their common object, stood up and they all started firing with their respective weapons at Khizer Hayat brother of the complainant. The complainant, Zafar Iqbal (brother of the complainant) and Adalat Khan saved their lives after taking the shelter behind 'the wall. Meanwhile, Nazar Hussain son of Mian Muhammad caste tailor resident of Mohallah Ahmad Abad Lalamusa, a passerby, fell down after receiving injuries by the firing of the accused person. This occurrence was committed at the abetment of Muhammad Asghar son of Tajay Khan caste Gujjar resident of Deh who is confined in jail and Noor Dad son of Rajay Khan caste Gujjar resident of Deh.
' The motive for the occurrence, as stated in the F.I.R., was that there is enmity between the complainant party and the accused persons of murders and attempt to commit murder and because of this, all the accused persons have committed the murder of Khizer Hayat, brother of the complainant.
4. Zulfiqar Verya Inspector/S.H.O., who appeared in the witness box as P.W.11 has stated that on 5-3- 2005, Muhammad Inayat complainant appeared before him in police station and got recorded F.I.R. (Exh.PE) regarding the occurrence, which was read over to him who signed the same as 'token of its correctness. Thereafter, he proceeded to the place of occurrence, prepared injury statement (Exh.PJ) regarding Nazar Hussain injured and sent him to RHC Lalamusa through Anar Khan S.-I. For his medico-legal examination. He also prepared injury statement (Exh.PK) of deceased, inquest report (Exh.PL), application for postmortem examination (Exh.PM) and sent the dead body of Khizer Hayat to Civil Hospital, Kharian for postmortem examination under the escort of Muhammad Yousaf 51/C (P.W.10). He then inspected the place of occurrence and secured the blood-stained earth, made the same into sealed parcel and took it into possession vide recovery memo Exh-PF.
He also secured twelve empties of .222 bore rifle (P-2/1-12), made the same into sealed parcel and took it into possession vide recovery memo. Exh-PG. He prepared rough site plan (Exh-PN) of the place of ' occurrence. After the medico-legal examination of Nazar Hussain injured, Anar Khan S.-I.
Handed over to him his medico-legal report (Exh-PA). After the postmortem examination of Khizer Hayat, Muhammad Yousaf 51/C' (P.W.10), handed over to him the last worn clothes of deceased which he took into possession vide recovery memo Exh.PH. On 8-3-2005, he took Akhtar Naqash draftsman to the place of occurrence who took rough notes on his instructions and as pointed out by the eye- witnesses who on 9-3-2005 handed over to him scaled site plans (Exh.PC and Exh.PC/1). On 18-3-2005, he recorded the statement of Nazar Hussain injured. On 1-4-2005, he moved an application (Exh-PQ) to the learned Illaqa Magistrate to obtain permission to join Muhammad Asghar accused, whO was confined in jail, in this case. On 5-4-2005, he interrogated Muhammad Asghar accused and arrested him in this case. On 8-4-2005, he arrested Noor Dad, Idrees Raza, Shahid Anwar, Tahir alias Tariq, Nasar Rehman and Basharat Ali accused. On 10-4- 2005, during investigation, he found Muhammad Asghar accused involved in this case and sent him to judicial lock-up. On 22-4-2005, Idrees' Raza accused, after disclosure, got recovered .222 bore rifle (P-1) from his residential house, which he took into possession vide recovery memo Exh.PD. On 23-4-2005, he sent the accused persons to judicial lock up whereas, Rashid accused could not be arrested. He prepared incomplete challan and submitted the same in the court.
5. Muhammad Sharif S.-I. Appeared in witness box as CW-1 and stated that on 3-7-2005, he arrested Rashid Ali accused in this case who produced before him photocopy of application regarding his, attendance at the place of his posting at Rawalpindi. On 4-7-2005, he went to Rawalpindi. He obtained Rapt Roznamcha regarding the attendance of Rashid accused from Moharrer which he took into possession vide recovery memo Exh.CW.1/A. He also verified the application regarding attendance of Rashid Ali accused at the place of his posting. On 9-7-2005, he came to the conclusion that Rashid All accused was innocent in this case. On 11-'7-2005, he sent Rashid Ali accused to judicial lock-up. After that he sent up the challan in the court after placing the name of accused in Column No,2.
6. The appellants along with their co-accused (since acquitted) were summoned by the learned Addl. Sessions Judge, Kharian to face the trial. Copies of the documents, as required under section 265-C, Code of Criminal Procedure, were provided to them and formal charge was framed against them on 13-10-2005 to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as eleven witnesses whereas, Muhammad Sharif S.-I. And Mushtaq Ahmad DSP appeared before the learned trial Court as CW-1 and CW-2 respectively. Dr Naeem Akhtar (P.W.1) medically examined Nazar Hussain' injured whereas, Dr Navid Iqbal (P.W.2) conducted the postmortem examination on the dead body of Khizer Hayat deceased. Muhammad Inayat complainant (P.W.8) and Zafar Iqbal (P.W.9) furnished the ocular account of the occurrence.
Sabir Hussain (P.W.7) is witness of abetment and recovery of .222 bore rifle (P-1) at the instance of Idrees Raza appellant. Zulfiqar Verya Inspector/S.H.O. (P.W.11) and Muhammad Sharif S.-I. (CW-1) described the different steps taken during the investigation whereas, the remaining witnesses are formal in nature. Thereafter, the learned Deputy District Attorney, .Vide his statement dated 14-7- 2006, tendered in evidence certified copy of judgment dated 14-10-2003 passed by learned Addl.
Sessions Judge, Kharian in case titled as "State v. Khizer Hayat, Atif Raza and others" and attested copy of F.I.R. No,279 of 2004 of the Police Station Saddar Lalamusa Exh.PS and Exh.PR respectively (under objection). He also tendered in evidence report of Chemical Examiner (Exh.PT), report of Serologist (Exh-PU) and that of Forensic Science Laboratory (Exh.PV). Learned Deputy District Attorney closed the prosecution case vide his statement dated 18-7-2006. After that, on 20-7-2006, the statements of the appellants were recorded under section 342, Code of Criminal Procedure. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Idrees Raza appellant replied as under:-- "I am innocent. I have been falsely implicated in this case alongwith my other family members.
Previously one Ashraf brother of Asghar accused was murdered in that case. The sons of complainant Muhammad Inayat were arrayed as accused persons during the investigation. We were P. Ws against the sons of complainant in that case. Due to this reason complainant particularly nourished grudge against us. We have nothing to do with the murder of Khizer Hayat in fact complainant party belongs to desperate criminal clan having enmities in different villages with different groups in the territorial jurisdiction of Police Station Dinga, Sadar Lalamusa, City Lalamusa and Pahrianwala. They remained involved in different cases, arranging from custody of illicit arms, dacoities, attempts to murders, free fights arising out of Dogs fights. Khizer Hayat deceased was involved in double murder of Malik and Said Begum and injuring Bashir Bibi, Raj Bibi and Inayat Bibi vide F.I.R. No,76 of Police Station Dinga Exh.D-2; for containing illicit arms vide F.I.R.
No,182. Of 2002 Police Station Dinga Exh.D-3; for encountering with police as the police raided at the Dera of Khizer Hayat for the arrest of proclaimed offenders vide F.I.R. No,181 of 2002 Police Station Dinga Exh.D.4. 7 M.M rifle was recovered from accused Khizer Hayat and a case F.I.R. No,12 of 1988 Exh.D.5 was registered at Police Station Dinga. Case F.I.R. No,315 of 2000 Police Station Sadar Lalamusa Ex.D.6 was registered against Khizer Hayat for harbouring proclaimed offenders. Illicit arms were recovered from deceased Khizer Hayat and F.I.R. No,485 of 2002 Exh.D.7 was registered against him. The complainant party was involved in case F.I.R. No,246 of 2001 Police. Station Dinga for the murder of one Khursheed RIO Sandhanwala Exh.D.8. Complainant party was involved in double murder of Anwar and Liaqat Ali R/O Sandhanwala vide F.I.R. No,183 of 2001 Police Station Dinga Exh.D-9. Complainant party was also involved in case F.I.R. No,90 of 1985 Police Station Dinga for an altercation arising out of Dogs fighting which is Exh.D.10. Complainant party was also involved in case F.I.R. No,336 Police Station Dinga in the murder of Amanat RIO Dhakranwali Exh.D-11.
Complainant party was also involved in case F.I.R. No,276 of 2000 registered at Police Station City Lalamusa Exh.D.12. Son of complainant namely Atif was involved in a Dacoity case vide F.I.R. No,225 of 2001 Police Station Sadar Lalamusa Exh.D-13. Again Atif son of complainant was involved in case F.I.R. No,135 of 2006 under section 392, P.P.C. Police Station City Lalamusa Exh..D-14. Complainant party was also involved in case F.I.R. No,194 of 1994 Police Station Dinga Exh.D-15. All these exhibits spell volumes about the character and enmities of complainant party and their nephews in different villages. Deceased was done to death by his unknown enemies. (All the aforementioned documents produced by the accused are exhibited under objection). I was not present at the place of occurrence at the time of occurrence. I have. Been falsely involved in this case.
Complainant being inimical to us has managed to concoct a false story just due to grudge mentioned in earlier para."
' To the same question, Shahid Anwar appellant opted the reply made by Idrees Raza appellant.
The appellants neither opted to appear as their own witnesses, in disproof of the allegations levelled against them, as provided under section 340(2), Code of Criminal Procedure nor produced any evidence in their defence.
7. The learned trial Court after the conclusion of the trial convicted the appellants as stated above.
8. Learned counsel for the appellants, in support of this appeal, contends that the matter was reported to the police after due deliberation and consultation because as per complainant, the occurrence allegedly took place at 3-00 p.m. Whereas, the F.I.R. (Exh-PE) was recorded at 3-30 p.m.
And the injured was brought in the hospital at 2.35 pm which is clear from the statement of. Dr Naeem Akhtar (P.W.1) and moreover the injured was taken to the hospital by the police; that both the eye-witnesses namely, Muhammad Inayat complainant (P. W.8) and Zafar Iqbal (P.W.9) are not only inimical towards the appellants but they are also chance witnesses as they are not the residents of the area where this occurrence took place; that they were not the complainant or witness in the case in which Khizer Hayat deceased appeared on the day of occurrence; that the star witness of the prosecution namely, Nazar Hussain injured did not appear before the learned trial Court to support the prosecution story:
9. As far as recovery of .222 bore rifle (P-1) taken into possession at the pointation of Idrees Raza appellant is concerned, learned counsel for the appellants contends that the same is of no consequence as the empties (P-2/1-12) recovered from the spot did not match with rifle (P-1) and the report of the Forensic Science Laboratory (Exh.PV) is riot positive; that this was the case of the prosecution in the F.I.R. As well as before the learned trial Court that Idrees Raza appellant was armed with .222 bore, Shahid Anwar appellant was armed- with Kalashnikov, Tahir alias Tariq was armed with .222 bore, Rashid (since murdered before final arguments before the learned trial Court) armed with .222 bore, Muhammad Basharat armed with Kalashnikov and Nasar Iqbal armed with Kalashnikov fired at the deceased Khizer Hayat but no specific injury was attributed to any of these persons and a general allegation of firing was levelled against all the accused persons; that Tahir alias Tariq, Nasar Iqbal and Basharat accused have been acquitted by the learned trial Court whereas, Rashid Ali accused though died before the final arguments but even then he was acquitted by the learned trial Court; that Asghar and Noor Dad who were accused of abetment have also been acquitted by the learned trial Court and the appeal (Criminal Appeal No,1306 of 2006) filed against their acquittal has already been dismissed by this Court vide order dated 21-5-2007 and the said order was not assailed further before the Hon'ble Supreme Court of Pakistan, therefore, the evidence which has been disbelieved qua the co-accused of the appellants especially those who were accused of firing at the deceased and injured cannot be believed to the extent of the appellants unless and until it is corroborated by any other independent piece of evidence which corroboration, as per learned counsel, is very much lacking in this case as no recovery was effected from Shahid Anwar appellant and the rifle (P-1) allegedly recovered from Idrees Raza appellant cannot be considered as corroborative piece of evidence - for the reason that as per recovery memo it was a joint recovery. Moreover, the empties (P-2/1-12) allegedly recovered from the spot did not match with the rifle (P-1) and the report of the Forensic Science Laboratory (Exh.PV) is not positive. Learned counsel further contends that the motive cannot be considered a . Corroborative piece of evidence and .Even otherwise, this motive, as per F.I.R. And statements of witnesses, was specifically against Asghar etc. And Asghar accused has been acquitted by the learned trial Court and the said acquittal has been maintained by this Court.
In support of his contentions, learned counsel for the appellants places reliance on "Iftikhar Hussain v. The State" (2004 SCM R 1185).
10. On the other hand, the learned Deputy Prosecutor-General assisted by the learned counsel fore the complainant vehemently opposes this appeal on the grounds that there was no delay in reporting the matter to the police as the occurrence took place at 3-00 p.m. And the matter was reported to the police at 3-30 p.m.; that all necessary details of the incident including the names of the appellants, their roles, names of the witnesses and name of the injured were mentioned in the F.I.R.; that some discrepancies in the time of arrival of the injured in the hospital is of no consequence. So far as the argument of learned counsel for the appellants that the evidence of the prosecution has been disbelieved to the extent of Rashid Ali (though murdered before the final arguments but acquitted by the learned trial Court), Basharat, Nasar Iqbal and Tahir alias Tariq, therefore, the same cannot be believed qua the appellants, the learned counsel for the complainant contends that from the trend of the cross-examination on the prosecution witnesses i.e, Zulfiqar Verya Inspector (P.W.11), Muhammad Shard S.-I. (CW-1) and Mushtaq Ahmad DSP (CW- 2), it can safely be inferred that the appellants admitted their presence at the spot; that finally the prosecution challaned the appellants whereas, the names of other accused persons (who have been acquitted) were placed in Column No,2 of the challan and they were not arrayed as accused, therefore, their acquittal is not helpful for the appellants; that the co-accused of the appellants namely, Rashid (since murdered), Muhammad Basharat, Nasar Iqbal and Tahir alias Tariq were acquitted mainly because of the reasons that they were found innocent by the police during the course of investigation; that the injured of this case namely, Nazar Hussain stated before the doctor Naeem Akhtar (P. W. I) that two persons resorted to firing and it was- the reason which weighed with this Court while dismissing the appeal filed by the complainant against acquittal. As far as recovery of .222 bore rifle, at the instance of appellants is concerned, learned counsel for the complainant contends that this recovery was effected at the instance of Idrees Raza- appellant, therefore, it is a corroborative circumstance notwithstanding the fact that the report of the Forensic Science Laboratory (Exh.PV) regarding this rifle (P-1) and the empties (P-2/I-12) is negative because Idrees Raza appellant disclosed before the police that it was weapon of offence; that the F.I.R. Was lodged by real brother of Khizer Hayat deceased, therefore, no question of substitution arises; that there was no question of misidentification because the parties were known to each other. As far as motive is concerned, learned counsel for the complainant contends that in the F.I.R.
(Exh.PE) and in his statement before the learned trial Court, it was stated by the complainant that the motive was that about 3/4 months ago, Khizer Hayat brother of the complainant was injured by Asghar etc.; that it is clear from Exh. PS that Idrees Raza appellant was also involved in the list of accused in said case, therefore, it is another circumstance which distinguish the case of the acquitted co-accused of the appellants from the appellants; that the appellants remained fugitive from law for a considerable period and were arrested on-8-4-2005. In support of his contentions, learned counsel for the complainant places reliance on "Muhammad Tashfeen Wand others v. The State and others" (2006 SCM R 577) and "Zulfiqar. Ahmad v. The State" (2006 PCr.LJ 91).
11. We have heard the lengthy arguments of learned counsel for the appellants, the learned Deputy Prosecutor-General and the learned counsel for the complainant and have gone through the record with their able assistance.
12. This occurrence took place on 5-3-2005 at 3-00 p.m. In a street of Mohallah Ahmad Abad within the jurisdiction of Police Station Saddar Lalamusa District Gujrat at a distance of three miles from the said police station and the matter was reported at the police station at 3-30 p.m. On the same day. In this case, Khizer Hayat, real brother of the complainant lost his life whereas, one passerby namely, Nazar Hussain was injured. Nazar Hussain did not appear in the witness box in support of the prosecution case whereas, the ocular account has been furnished by Muhammad Inayat complainant (P.W.8) and Zafar Iqbal (P.W.9). In the F.I.R., it was the case of the complainant that on the day of occurrence, he along with Khizer Hayat (deceased), Zafar Iqbal, his brother and Adalat Khan were returning from the court after attending the proceedings regarding the incident wherein Khizer Hayat received injuries and case was registered against Asghar etc., and when they reached near Gunja Phatak stop in a street, the appellants Idrees Raza armed with .222 and Shahid Anwar armed with Kalashnikov along with Rashid (since murdered before final arguments before the learned trial Court) armed with .222 bore, Muhammad Basharat armed with Kalashnikov, Nasar Iqbal armed with Kalashnikov and Tahir alias Tariq armed with .222 bore stood up and they all resorted to indiscriminate firing on Khizer Hayat who succumbed to the injuries because of the firing and one passerby namely, Nazar Hussain was injured. However, no specific role was assigned either to the appellants or their co-accused and the same was the stance of Muhammad Inayat complainant (P.W.8) and Zafar Iqbal (P.W.9) before the learned trial Court. The learned trial Court convicted the appellants whereas, their co-accused namely, Tahir alias Tariq, Rashid (since murdered before the final arguments before the learned trial Court), Muhammad Basharat and Nasar Iqbal were acquitted. Two other co-accused of the appellants namely, Noor Dad and Asghar who were accused of abetment were also acquitted by the learned trial Court. Their acquittal was challenged by the complainant through Criminal Appeal No,1306 of 2006 before this Court and the said appeal was dismissed vide order dated 21-5-2007 and thereafter, that order was not assailed before the Hon'ble Supreme Court of Pakistan as confirmed by the learned Deputy Prosecutor- General and the learned counsel for the complainant, therefore, the question arises whether the evidence which has not been believed to the extent of four acquitted co-accused of the appellants namely, Rashid Ali (though murdered before final arguments but acquitted by the learned trial Court), Muhammad Basharat, Nasar Iqbal and Tahir Alias Tariq who were also accused of firing at the deceased and the injured, can be believed to the extent of the appellants. In this context we may refer the judgment of the Hon'ble Supreme of Pakistan reported as "Iftikhar Hussain and another v. State" 2004 SCM R 1185 wherein, at page 562, the Hon'ble Supreme Court was pleased to hold 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 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 maxiln 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 SCM R 150), Khairu and another v. The State (1981 SCM R 1136), Zaiaullah v. State (1993 SCM R 155), Ghulam Sikandar v.
Mamaraz Khan (PLD 1985 SC 11), Shahid Raza and another v. The State (1992 SCM R 1647), Irshad Ahmad and others v. The. State and others (PLD 1996 SC 138) and Ahmad Khan v. The State (1990 SCM R. 803). "
' In a latter judgment reported as "Akhtar All and others v. The State" (2008 SCM R 6), the Hon'ble Supreme Court of Pakistan was pleased to reiterate the same principle. Therefore, the answer is simple that such evidence can only be believed if the same is corroborated by any other independent piece of evidence. As far as Shahid Anwar appellant is concerned, there is no recovery of any weapon of offence on his pointation. Though it is the case of the prosecution that Idrees Raza appellant led to the recovery of .222 bore rifle (P-1) from his residential house which was taken into possession vide recovery memo Exh-PD. Perusal of said recovery memo reveals that there was a joint disclosure by the appellants Idrees Raza and Shahid Anwar and recovery was effected from the house of Idrees Raza appellant. Twelve empties of .222 bore rifle (P-2/1-12) were taken into possession from the spot vide recovery memo Exh.PG on 5-3-2005 and were sent to the office of Forensic Science Laboratory on 15-3-2005 i.e, prior to the, arrest of the appellants on 8-4- 2005 and alleged recovery of rifle (P-1) on 22-4-2005. The rifle (P-1) was also sent to the office of the Forensic Science Laboratory. The report of the FSL (ExhPV) reveals that the empties were not fired from this rifle, therefore, in our view, this could not be considered as corroborative piece of evidence. The contention of the learned counsel for the complainant that since it was disclosed by the appellants in police custody that it was a weapon of offence, therefore, it be considered as a corroborative circumstance against Idrees Raza appellant, is not tenable under the law as any confession before the police is not admissible in evidence. Moreover, even otherwise, in the presence of negative report of the FSL, this piece of evidence cannot be considered against the appellant Idrees Raza. The other corroboration pointed out by the learned counsel for the complainant is the trend of the cross-examination conducted on behalf of the appellants and in this regard, he has referred to certain portions of the cross-examination of the Investigating Officers whereby, it was suggested to them that during the course of investigation, the prosecution case was not found correct to the extent of Rashid (since murdered), Muhammad Basharat, Nasar Iqbal, Tahir alias Tariq, and Noor Dad co-accused of the appellants and learned counsel for the complainant contends that from this trend of cross examination, it can be inferred that the appellants admitted their presence at the spot. . We are afraid that this contention is also not tenable in law because in their statements recorded under section 342 of the Code of Criminal Procedure, the appellants had denied their rote in occurrence and mere suggestions to the Investigating Officers, reply thereof is based on their opinion is not admissible in evidence as held in number of judgments by the Hon'ble Supreme Court of Pakistan. As far as motive is concerned, it is the case of the complainant in the F.I.R. That months ago, his brother Khizer Hayat was injured by Asghar etc. In retaliation of the murder of Muhammad Ashraf, real brother of Asghar. He has also stated in the F.I.R. That there is' long standing enmity of murders between the parties. Asghar has been acquitted by the learned trial Court and the enmity as per F.I.R. Is between the complainant side and accused side. There is no specific motive against the appellants. Moreover, the motive is a double edged weapon that cuts both ways. On the, one hand, it could be a cause of commission of offence, simultaneously, it could be a reason for 'false implication of the accused in a case, therefore, in the circumstances, it cannot be considered a corroborative piece of evidence or circumstance against 'the appellants. As far as contention of the learned counsel for the complainant that the appellants were arrested on 8-4-2005 and as such they remained fugitive from law for about one month and three ,days, therefore, it may be considered as a corroborative circumstance. We may observe that no proceedings under sections 87 and 88 of the Code of Criminal Procedure were initiated against the appellants. Moreover, their co-accused namely Muhammad Basharat, Nasar Iqbal and Tahir alias Tariq who have been acquitted by the trial Court and whose acquittal has been maintained by this Court, were also arrested on 8-4-2005. We have not been able to find any corroborative piece of evidence which could be considered for maintaining the conviction of the appellants in this case. The case-law relied upon by the learned counsel for the complainant is distinguishable on facts. Moreover, every criminal case is to be decided on its own facts and circumstances.
13. For the foregoing reasons, we are of the view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, this appeal is allowed, the conviction and sentence awarded to the appellants by the learned trial court vide judgment dated 23-8-2006 is set aside and they are acquitted from the charges. They are in custody, they be released forthwith if not required to be detained in any other case.
14. Murder Reference No,639 of 2006 is answered in the NEGATIVE and the sentence of death awarded to Idrees Raza and Shahid Anwar (convicts) is NOT CONFIRMED.