' MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No,1468 of 2008, filed by the appellant, Nazakat Ali, against his conviction and sentence, and Murder Reference No, 328 of 2008 (The State vs. Nazakat Ali), sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Nazakat Ali convict, as both these matters have arisen out of the same judgment dated 20-12-2008, passed by the learned Additional Sessions Judge, Hafizabad. Nazakat Ali appellant was tried in case F.I.R. No, 53, dated 11-3-2007, registered at Police Station, Kassoke, District Hafizabad, in respect of offences under section, 302/34 of P.P.C. After conclusion of the trial, learned trial Court vide its judgment dated 20-12-2008, has convicted and sentenced the appellant as under:- Nazakat Ali son of Muhammad Yar.
' Under section 302 (b) of PPC to death for committing the murder of Basharat (deceased). He was directed to pay compensation of Rs,1,00,000 under section 544-A of Cr.P.C. To the legal heirs of the deceased Basharat Ali and in default whereof, to further undergo 6 months' S.I.
' However, he was acquitted of the charge of murder of Mst. Robina Bibi.
' The learned trial Court vide the same judgment, however, acquitted co-accused Asif Ali from the charge of murder of Basharat Ali (deceased) as well as of Mst. Robina Bibi (deceased).
2. Brief facts of the case as given by the complainant Liaqat Ali (P.W.10) in his complaint (Exh.PG), on the basis of which formal F.I.R. (Exh.PG/1) was chalked out, are that he (complainant) was resident of Mauza Burianwala and cultivator by profession. His (complainant's) son Basharat Ali (deceased) and Naveed (P.W.11) both after obtaining poultry farm on 'thaika' (lease) at the Dera of one Tahir Bhatti, kept chicks there. On Sunday, 11-3-2007 at about 7-00 p.m, Naveed (P.W.11), Zahid (given up P.W.) and he (complainant P.W.10) were providing feed to the chicks, while his (complainant's) son Basharat Ali (deceased) was sitting on a cot. Suddenly Nazakat Ali (appellant) armed with rifle and Asif Ali accused (since acquitted) armed with rifle came inside after forcibly opening the door. Electric bulb was illuminating. Nazakat (appellant) raised lalkara that Basharat be ready to die and made fire with his rifle which hit Basharat Ali (deceased) on the back side of the left shoulder and crossed through the right armpit. Second fire was made by Asif accused (since acquitted) with his rifle which hit his (complainant's) son (Basharat AID on the inner side of right thigh near knee who succumbed to the injuries at the spot and the accused persons ran away from the spot after raising `lalkaras' . It was further alleged in the F.I.R. That after some time of their return, Nazakat accused etc. Committed the murder of their sister Mst. Robina with firing, Occurrence was witnessed by him (complainant), Zahid (given up P.W.) and Naveed Abbas (P.W.11).
' The motive as alleged by the complainant was that Nazakat accused etc. Had suspicion that some time earlier, Basharat Ali deceased had developed illicit relations with4their sister (Mst.
Robina) but the said suspicion was false, however due to this grudge the accused persons committed the crime.
3. The appellant Nazakat Ali was arrested in this case on 28-3-2007 by Rafi Ullah, S.-I (P.W.13) and as per prosecution case, during investigation rifle .44 bore (P-3) and 10 live bullets (P-4/1-10) were recovered on pointation of the appellant on 31-3-2007 which were taken into possession vide recovery memo (Exh.PB). After completion of investigation, the challan was prepared and submitted before the Court. The learned trial Court, after observing all legal formalities, as envisaged under the Code of Criminal Procedure, 1898, framed charge against the appellant Nazakat Ali and Asif Ali (since acquitted) under sections 302/34, P.P.C., on 18-8-2007, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced thirteen witnesses, during the trial. The complainant Liaqat Ali (P.W.10) and Naveed (P.W.11) have furnished the ocular account of the prosecution. Akhtar (P.W.2) was the recovery witness of rifle (P-3) and 10 live cartridges (P-4/1-10) which were taken into possession on the pointation of the appellant vide memo (Exh.PB).
' The medical evidence was furnished, by Dr. Cap. Khalid Farooq, (P.W.3) amd Dr. Samina Kausar (P.W.8). Faiz Ahmad, A.S.-I. (P.W.12) and Rafi Ullah, S.-I . ,(P.W.13) were the Investigating Officers of the case. Allah Dittah 2 /HC (P.W.1), Inayat Hussain 61/C (P.W.4), Mushtaq Ahmad A.S.-I. (P.W.5), Masood Ahmad Bhatti, Draftsman (P.W.6), Muhammad Nawaz 258/HC (P.W.7) and Muhammad Aslam 409/C (P.W.9), were the formal witnesses.
' The prosecution has also produced documentary evidence in the shape of memo of possession of last worn clothes of Basharat Ali deceased i.e, qameez (P-1) and shalwar (P-2) (Exh. PA), memo of possession of rifle 44 bore (P-3) and 10 live cartridges (P-4/ 1-10) (Exh.PB), site plan without scale of the place of recovery of gun .44 bore (Exh.PB/ 1), copy of post mortem examination report of the deceased Basharat Ali (Exh.PC), pictorial diagram (Exh.PC/1), application for post mortem examination of Basharat Ali deceased (Exh.PD), injury statement of the deceased Basharat Ali (Exh.PE), death report of Basharat Ali deceased (Exh.PF), complaint (Exh. PG), formal F.I.R. (Exh. PG/1), memo of possession of last worn clothes of Mst. Robina Bibi (deceased) i.e, qameez (P-5), shalwar (P-6) and bunyan (P-7) (Exh.PH), scaled site plan of the place of murder of Basharat All deceased in duplicate (Exh.PH-A) 86 (Exh.PH-A/1), scaled site plan of the place of murder of Mst. Robina Bibi deceased in duplicate (Exh.PJ) and (Exh.PJ/1), copy of post mortem examination report of Mst.
Robina Bibi deceased (Exh.PK), pictorial diagram (Exh.PK/1), injury statement of Mst. Robina Bibi deceased (Exh.PL), death report of Mst. Robina Bibi deceased (Exh.PM), memo of possession of bloodstained earth from the place of murder of Basharat Ali deceased and copy of application for post mortem examination of Mst. Robina Bibi deceased both exhibited as (Exh.PN), memo of possession of 10 empty cartridges (P-8/1-10) from the place of murder of Basharat Ali deceased (Exh.PP), memo of possession of cot (P-9) (Exh.PQ), memo of possession of bloodstained earth from the place of murder of Mst. Robina Bibi deceased (Exh.PR), site plan without scale of the place of murder of Basharat Ali deceased (Exh.PS), site plan without scale of the place of murder of Mst.
Robina Bibi deceased (Exh.PT), report of Chemical Examiner regarding blood-stained earth of Basharat Ali deceased (Exh.PU), report of Chemical Examiner regarding blood-stained earth of Mst.
Robina Bibi deceased (Exh.PV), report of Chemical Examiner regarding three high vaginal swabs (Exh.P.W.), report of Serologist regarding blood-stained earth of Basharat Ali deceased (Exh.PX), report of Serologist regarding blood-stained earth of Mst. Robina Bibi deceased (Exh.PY), report of Forensic Science Laboratory (Exh.PZ) and closed the prosecution evidence.
5. The statements of appellant under section 342 of Cr.P.C., was recorded. The appellant refuted all the allegations levelled against him and professed his innocence.
' While answering to a question that "Why this case against you and why the P. Ws. Have deposed against you", the appellant, replied as under: -- "All the P. Ws. Are not residents of village Boeke. They are chance witnesses. The deceased and the P. Ws. Had no business in the village Boeke. They belong to one party of village Borianwala. In fact it was blind murder. P. Ws. 14 not present at the time and place of occurrence. The complainant party involved me and my brother in this case on suspicion because my sister was also murdered on the same night by unknown assailants. I am innocent."
' Appellant Nazakat Ali did not opt to make statement under section 340(2) of Cr.P.C. In disproof of the allegations levelled against him, nor, he produced any evidence in his defence.
6. The learned trial Court vide its judgment dated 20-12-2008, found the appellant Nazakat Ali, guilty and convicted and sentenced him as mentioned and detailed above.
7. The learned counsel for the appellant, in support of this appeal, contends that the appellant along with his real brother Asif Ali co-accused (since acquitted) have falsely been implicated in this case; that there was allegation against Asif Ali co-accused that he fired with rifle which hit the deceased inside his right thigh near knee but said Asif Ali co-accused has been acquitted by the learned trial Court and no appeal against his acquittal has been filed either by the State or by the complainant therefore, the evidence which has been disbelieved to the extent of co-accused Asif Ali (since acquitted) can only be believed against the appellant if the same is corroborated by. Any independent evidence which is very much lacking in this case; that the motive is alleged not only against the appellant but also against co-accused Asif Ali (since acquitted) but it has not been believed by the learned trial Court. Insofar as the recovery of rifle (P-3) and positive report of Forensic Science Laboratory (Exh.PZ) is concerned, learned counsel contends that the incident took place on 11-3-2007 and empties (P-8/1-10) were allegedly taken into possession by the I.O. On 11-3- 2007, appellant was arrested on 28-3-2007 and he allegedly got recovered rifle (P-3) on 31-3-2007 but empties were sent to the office of Forensic Science Laboratory on 19-4-2007 i.e, after 20 days of the alleged recovery of rifle (P-3) therefore, no reliance can be placed on the recovery of rifle (P-3) and positive report of Forensic Science Laboratory (Exh.PZ); that apart from alleged recovery of rifle (P-3), there was no evidence on the record which could corroborate the case of the prosecution against the appellant; that the appellant has been acquitted by the learned trial Court from the charge of murder of his sister Mst. Robina Bibi; that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt, thus, this appeal be accepted and the appellant may be acquitted from the charge.
8. On the other hand, learned Deputy Prosecutor-General for the State, assisted by learned counsel for the complainant, opposes this appeal on the grounds that it was a promptly lodged F.I.R. As incident in this case took place on 11-3-2007 at 7-00 p.m. And the matter was reported to the police at 7-45 p.m. And F.I.R. Was also registered on the same night at 8-5 p.m.; that case of the appellant is distinguishable from his co-accused as fatal fire shot is attributed to the appellant because Dr. Khalid Farooq (P.W.3) in his post mortem report (Exh.PC) has mentioned that injury, which was caused by the appellant, was fatal; that ocular account gets full support from the medical evidence to the extent of the appellant which is further corroborated by the recovery of rifle (P-3) and positive report of Forensic Science Laboratory (Exh.PZ). As far as motive is concerned, learned counsel for the complainant contends that it was wrongly disbelieved by the learned trial Court and the prosecution has fully proved the motive in this case; that the sentence of death was rightly awarded- to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative. In support of his arguments, he has placed reliance on the case of 'Mir Muhammad alias Miro v. The State' (2009 SCM R 1188).
9. We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor- General for the State assisted by learned counsel for the complainant, and have also gone through the evidence available on the record, with their able assistance.
10. The detail of the prosecution case as set forth in the F.I.R. (Exh.PG/ 1) has already been given in paragraph No,2 of this judgment however, gist of the prosecution case is that on 11-3-2007 at about 7-00 p.m., when complainant along with Naveed (P.W.11) was providing feed to the chicks in the poultry farm of his son Basharat Ali (deceased) and Basharat Ali (deceased) was sitting on a cot.
Suddenly Nazakat Ali (appellant) armed with rifle and Asif Ali (since acquitted) armed with rifle came there and Nazakat Ali (appellant) after raising lalkara, made a fire shot with his rifle which hit Basharat Ali (deceased) on the back side of his left shoulder and crossed through his right armpit.
Second fire shot made by Asif Ali accused (since acquitted) hit Basharat Ali (deceased) at the inner side of his right thigh near knee who succumbed to the injuries at the spot. Motive, as set forth by the complainant, was that Nazakat Ali etc. Accused persons had suspicion that some time earlier to the occurrence, the deceased had developed illicit relations with their sister Mst. Robina.
11. The occurrence in this case took place on 11-3-2007, at 7-00 p.m., at the poultry farm of Basharat Ali deceased at village Boeki situated within the area of Police Station Kassoki, District Hafizabad.
The matter was reported to the police on the same evening by real father of the deceased, namely, Liaqat Ali complainant (P.W.10), on the same evening at 7-45 p.m. Through his complainant, (Exh.PG). The formal F.I.R. (Ex.PG/ 1) was also chalked out on the same night i.e, 11-3-2007, at 8-5 p.m. The prosecution, in order to prove its ocular account has produced Liaqat Ali (P.W.10) and Naveed (P.W.11). In the F.I.R. (Exh.PG/1), the complainant Liaqat Ali (P.W.10) assigned the role of inflicting one fire arm injury each on the person of Bashar Ali (deceased) to both Nazakat Ali (appellant) and Asif Ali accused (since acquitted). The complainant Liaqat Ali (P.W.10) even while appearing before the learned trial Court attributed one injury each on the person of deceased to Nazakat Ali appellant and Asif Ali accused (since acquitted). Relevant part of the evidence of Liaqat Ali (P.W.10) is reproduced hereunder:- "Asif accused shouted lalkara at the deceased that he should be ready to face his death. Nazakat accused fired his rifle at the shoulder of deceased in the back. Asif accused then fired his rifle at the deceased which hit his right thigh inwardly."
' The other eye-witness, namely, Naveed (P.W.11) while appearing before the learned trial Court made the following statement:-- "Nazakat and Asif accused present in the court suddenly appeared at that time when the farm had been lit by the electric bulbs. Each of them was armed with a rifle .44 bore. Nazakat accused shouted a lalkara at Basharat deceased that he should be prepared to face his death. Nazakat also fired at the deceased which hit his left shoulder in the back. Asif too followed and fired his rifle at deceased and the shot hit his right thigh to its inside. Basharat died at the spot.
It is evident from the perusal of the evidence of above mentioned prosecution eye-witnesses that role attributed to Nazakat Ali (appellant) was similar to that of acquitted co-accused, namely, Asif Ali.
12. Charge under section 302/34 of P.P.C. With identical allegation was framed against the appellant Nazakat Ali and above mentioned acquitted co-accused Asif Ali. Said Asif Ali was also assigned the role of causing fire arm injury on the person of Basharat Ali deceased but he has been acquitted by the learned trial Court while extending him the benefit of doubt and no appeal has been filed against his acquittal either by the State or by the complainant as conceded by the learned Deputy Prosecutor General as well as by the learned counsel for the complainant and, as such, the acquittal of Asif Ali, co-accused, has attained finality therefore, question for determination before this Court is that whether the prosecution evidence, which has been disbelieved qua the acquitted co-accused, namely, Asif Ali, 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 562 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 v. 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), Ziaullah v. The State' (1993 SCMR 155), 'Ghulam Sikandar v. Mumaraz Khan' *(PLD 1985 SC 11), '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). It is evident from the perusal of above mentioned judgments passed by the Hon'ble Apex Court of the country that if the ocular testimony of eye-witnesses was disbelieved against a particular set of accused persons, then it cannot be believed against another set of accused persons without independent corroboration on the material particulars of the case. So following the guidelines given by the Hon'ble Supreme Court of Pakistan in the aforementioned-judgments, we will discuss the case of the appellant.
13. The learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant has referred the motive part of the prosecution story with the assertion that motive has fully been established against the appellant. We have gone through the contents of F.I.R.
(Exh.PG/1) and the statements of the prosecution witnesses namely Liaqat Ali (P.W.10) and Naveed (P.W.11) made before the learned trial Court. Motive as alleged by the said prosecution witnesses was that the accused persons suspected that Basharat Ali (deceased) had developed illicit relations with their sister Mst. Robina and due to this grudge, they committed the murder of Basharat Ali (deceased). Complainant Liaqat Ali (P.W.10) while appearing before the learned trial Court made the following statement qua motive:-- "The accused suspected that deceased and Robina had an illicit affair but this was an unfounded suspicion. The accused had killed my son without any justification."
' Similarly statement of Naveed (P.W.11) regarding motive is aq under:-- "The accused had a suspicion against deceased and said Robina that they were having an illicit affair. This suspicion was however without any basis. The deceased had been killed by them out of this suspicion."
No evidence was produced by the prosecution to prove the alleged motive and it cannot be held that the motive in this case has been proved, merely on the basis of the imagination of P.Ws. The learned trial Court rightly disbelieved the motive part of the prosecution case. Moreover, perusal of above mentioned evidence clearly shows that motive was attributed not only to the appellant but also to Asif Ali, acquitted co-accused who is the real brother of Nazakat Ali appellant and also real brother of above mentioned Mst. Robina. So, even to the extent of motive, case of the appellant is not distinguishable from the case of acquitted co-accused Asif Ali.
14. The learned Deputy Prosecutor-General for the State and the learned counsel for the complainant have referred to the recovery of rifle (P-3) at the instance of Nazakat Ali appellant and positive report of Forensic Science Laboratory (Exh.PZ) to establish that there is independent corroboration of the prosecution case, against the appellant, through aforementioned pieces of evidence. We have noted that ten crime empties (P-8/1-10) were secured from the spot vide memo (Ex.PP) on 11-3-2007 by Faiz Ahmad, A.S.-I. (P.W.12). Appellant was arrested in this case on 28-3- 2007 by Rafi Ullah, S.-I. (P.W.13) and rifle (P-3) was allegedly recovered on the pointation of appellant on 31-3-2007. Empties were deposited in the office of Forensic Science Laboratory on 19- 4-2007. It is evident from the perusal of the record that crime empties (P-8/1-10) and rifle (P-3) were kept together at the police station and empties were deposited in the office of Forensic Science Laboratory after 19 days of the alleged recovery of rifle (P-3). As crime empties (P-8/1-10) and rifle (P-3) were kept together at the police station therefore, chances of preparation of fake empties from rifle (P-3) for their comparison with said rifle cannot be ruled out in this case. It is, therefore, not safe to rely upon the alleged recovery of rifle (P-3) and positive report of Forensic Science Laboratory (Exh.PZ). In these circumstances, prosecution evidence qua the alleged recovery of rifle (P-3) and positive report of Forensic Science Laboratory (Exh.PZ) cannot be considered as corroborative piece of evidence against the appellant.
15. As far as medical evidence is concerned, Dr. Cap. Khalid Farooq, (P.W.13), on 12-3-2007, at 12-00 p.m. (noon), conducted the post-mortem examination on the dead body of Basharat Ali (deceased), vide post-mortem report (Exh.PC), pictorial diagram (Exh.PC/1), and found the following injuries on his person:-- Injuries.
(1) Fire arm wound of entry 3/4 cm x 3/4 cm on the back of left shoulder, edges inverted, and margins were tattooed with exit wound 3 cm x 1 1/2 cm on the outerside of right side of chest 4 cm below exilla, edges were everted.
(2) Fire arm entry wound 3/4 cm x 3/4 cm on the inner side of right thigh just above knee. Edges were inverted and margins were tattooed, with exit wound 2 cm x 1-1/2 cm on the outer part of right thigh in its lower Ordinance Edges were everted. Adjacent to the entry, wound, laceration was present.
' It is clear from the above mentioned medical evidence furnished by Dr. Cap. Khalid Farooq (P.W.3) that there were two entry wounds on the person of Basharat Ali deceased. Injury. No,1 on the left shoulder of the deceased was attributed to the appellant Nazakat Ali whereas injury No,2 on the right thigh of deceased was assigned to Asif Ali (acquitted co-accused) and, as such, case of the appellant is not distinguishable from the case of Asif Ali (acquitted co-accused) on the basis of medical evidence.
' In the circumstances of the case, we could not find any independent corroboration against Nazakat Ali appellant. Despite our best efforts we are unable to distinguish the case of the appellant from the case of Asif Ali co-accused (since acquitted). The facts of the case of 'Mir Muhammad alias Miro v. The State' (2009 SCM R 1188) are distinguishable from the facts of this case, therefore, said judgment is not helpful to the prosecution in this case.
16. In the above mentioned circumstances, we are of the considered view that prosecution evidence which has already been disbelieved against Asif accused (since acquitted) cannot be believed against the appellant without independent corroboration, which is very much lacking in this case. We, therefore, accept this appeal, (Criminal Appeal No,1468 of 2008), filed by Nazakat Ali appellant, by extending him the benefit of doubt, and set-aside the conviction and sentence awarded to the appellant, Nazakat Ali, vide impugned judgment dated 20-12-2008, passed by the learned Additional Sessions Judge, Hafizabad. The appellant, namely, Nazakat Ali, is acquitted from the charge, he is in custody and he shall be released from the Jail forthwith, if not required in any other case.
' Death sentence awarded to the appellant, Nazakat Ali, is not CONFIRMED and Murder Reference is answered in the NEGATIVE.