' MALIK SHAHZAD AHMAD KHAN, J.---Riaz appellant along with seven co-accused was tried in case F.I.R. No,369/2004 dated 18-6-2004 offences under sections 302, 148, 149 P.P.C. Read with section 109 P.P.C., registered at Police Station Saddar, Kasur District Kasur. After conclusion of the trial, the learned trial Court vide its judgment dated 1-9-2008 has convicted and sentenced the appellant as under:- Riaz ' Under section 302(b), P.P.C. To death for committing the murder of Junaid Qadar deceased. He was directed to pay compensation amount of Rs,5,00,000 (Rupees Five Hundred Thousand only) to the legal heirs of deceased as envisaged under section 544-A of Cr.P.C. And in default, thereof, to undergo imprisonment for six months' S.I.
' Through the same judgment the learned trial Court has, however, acquitted Shahid, Faiz Muhammad, Barkat alias Faqir Hussain, Nasroo alias Billa, Jamil, Zubair and Muhammad Akram accused, while giving benefit of doubt to them.
2. Feeling aggrieved, the appellant Riaz has challenged his conviction and sentence through Criminal Appeal No,1055 of 2008 and Seraj Din complainant has filed Criminal Revision No,747 of 2008 for enhancement of compensation amount, whereas, the learned trial Court has transmitted Murder Reference No, 217 of 2008, for confirmation or otherwise of the death sentence of Riaz (appellant). We propose to dispose of all these matters by this single judgment as these have arisen out of the same judgment dated 1-9-2008 passed by the learned Additional Sessions Judge, Kasur.
3. Brief facts of the case as given by the complainant Seraj Din (P.W.9) in his Fard Biyan Exh PF on the basis of which the formal F.I.R. Exh.PF/1 was chalked out are that he (complainant) was resident of Haveli Padhianwali and agriculturalist by profession. On the intervening night of 17/18-6-2004 he (complainant) was sleeping in his cattle shed. His brother Ghulam Qadir (given up P.W.) and son of Ghulam Qadar namely Junaid Qadar (deceased) aged 14 years were sleeping on the cots at `thara' outside their `baithak'. 'His (complainant's) son Liaquat Ali (P.W.8) who had a shop near his `baithak' was also sleeping on the cot near them. Electric bulb was illuminating there. At about 12- 30 a.m., (night) all of a sudden Riaz (appellant) armed with pistol .30 bore, Shahid accused (since acquitted) armed with pistol .30 bore, Jamil accused (since acquitted) armed with pistol .30 bore, Muhammad Akram accused (since acquitted) armed with pistol .30 bore, Zubair accused (since acquitted) armed with carbine .12 bore, Billa accused (since acquitted) armed with rifle came towards their `baithak'. His (complainant's) dog was also sleeping in the street in front of the `baitkak' who on hearing the noise of the feet of accused persons, started barking. His son Liaquat Ali (P.W.8), brother Ghulam Qadir (given up P.W.) and nephew Junaid Qadir (deceased) also woke up. Billa accused (since acquitted) made a fire shot with his rifle which hit on the wall of their `baitkak' Junaid Qadir (deceased) was still sitting on his cot, upon which Riaz (appellant) made a fire shot with his pistol, which hit on the right flank of Junaid Qadar (deceased). Shahid accused (since acquitted) made a fire shot with his pistol, which hit on the left inguinal area (nal) of Junaid Qadar (deceased). Jamil accused (since acquitted) made a fire shot which landed on the right inguinal area of Junaid Qadar (deceased). Muhammad Akram made a fire shot which hit on the left thigh of Junaid Qadir (deceased) who fell on the cot, facing downwards. Zubair accused (since acquitted) made a fire shot with his rifle at Ghulam Qadir (given up P.W.) who sat down and fire hit on the wall of the `baithak' . He (complainant), Liaquat Ali (P.W.8) and his brother Ghulam Qadir (given up P.W.) made hue and cry, Zubair accused (since acquitted) made a fire shot with his carbine which hit on the backside of chest between both shoulders of Junaid Qadar (deceased).
He (complainant), Ghulam Qadir (given up P.W.), Liaquat Ali (P.W.8) and many people of the village reached at the spot. The accused persons fled away from the spot towards the fields while making aerial firing. The appellant, his brother Ghulam Qadar (given up P.W.), his son Liaquat Ali (P.W.8) came towards Junaid Qadar (deceased) who succumbed to the injuries at the spot.
' The motive behind the occurrence as set forth in the F.I.R. (Exh. PF/1) was that three years prior to the occurrence, accused Riaz etc. Had injured Nasir and Riasat Ali, nephew and son of the complainant, against whom a case was pending adjudication in the Court and father of the accused persons namely Faiz Muhammad was forcing the complainant party for effecting compromise but they (complainant party) refused to do so.
4. The appellant was arrested on 4-5-2005, by Rana Muhammad Riaz S.-I. (P.W. 16). As per prosecution case, on 8-5-2005 Riaz appellant led to the recovery of pistol .30 bore P-10), which was taken into possession vide ' recovery memo Exh.PG. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused on 15-5-2006, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced seventeen witnesses, during the trial. Seraj Din, complainant (P.W.9) and Liaquat Ali (P.W.8) are the witnesses of ocular account. Nasir Ali (P.W.14) is the witness of recovery of pistol (P-10) from the appellant.
' The medical evidence was furnished by Dr. Zulfiqar Ahmad (P.W.2). Ijaz Ahmad, Inspector (P.W.17), Muhammad Rafique Khan, S.-I. (P.W.15) and Rana Muhammad Riaz, S.-I. (P.W.16) are the Investigating Officers of this case.
' Muhammad Nasar Ullah Draftsman (P.W.1), Muhammad Din 7/HC (P.W.3), Mushtaq Ahmad 196/C, (P.W.4), Faqir Hussain 971/C (P.W.5), Allah Ditta 309/C (P.W.6), Asghar Ali 858/C (P.W.7), Shaukat Ali 31/HC (P.W.10), Muhammad Aslam 157/C (P.W.11), Muhammad Iqbal (P.W.12) and Alamdar Abbas, S.- I. (P.W.13) are the formal witnesses. The prosecution also produced documentary evidence in the shape of scaled site plan of the place of occurrence in duplicate Exh. PA and Exh. PA/1, post mortem report of Junaid Qadar (deceased) Exh. PB, pictorial diagrams Exh. PB/1 and Exh. PB/2, memo of possession of three crime empties (P-1/1-3), one plastic stopper of .12 bore cartridge (P-2), crime empty (P-4), two lead bullets (P-3/1 to 2) magazine of 8 mm along with 15 live bullets (P-5/1 to 15) and chaddar blood-stained (P-6) Exh. PC, memo of possession of revolver .32 bore Exh. PD, site plan without scale of the place of recovery of revolver .32 bore Exh. PD/1, memo of possession of last worn clothes of the deceased Exh. PE, written complaint of Seraj Din complainant Exh. PF, F.I.R. Exh.
PF/1, Police `Karwai' (proceedings) on the complaint of Seraj Din complainant Exh.PF/1, memo of possession of pistol .30 bore (P-10) from the possession of Muhammad Riaz (appellant) Exh. PG, rough site plan of the place of recovery of pistol .30 bore (P-10) Exh. PG/1, memo of possession of rifle 8-mm from the possession of Billa (since acquitted) Exh. PH, site plan of the place of recovery of rifle Exh. PH/1, site plan without scale of the place of occurrence Exh. PJ, inquest report Exh. PK, injury form Exh. PL, report of Chemical Examiner, Punjab, Lahore Exh. PM, report of Serologist Exh.PN, report of Forensic Science Libratory Exh. PO, F.I.R. No,93/2001 Exh. P.W.14, warrants of arrest of Riaz (appellant) Exh. PJ, warrants of arrest of Barkat (since acquitted) Exh. PL, warrants of arrest of Billa (since acquitted) Exh. PK and closed its evidence.
6. The statement of the appellant under section 342, Cr.P.C. Was recorded by the learned trial Court. He refuted the allegations levelled against him And professed his innocence. While answering to a question that "Why the prosecution witnesses deposed against you and why this case against you" the appellant replied as under:-- Muhammad Riaz "I am innocent. I have been falsely involved in this case due to previous hurt case. In fact, the complainant used to tease us and we in order to avoid any further misshape sold out our agricultural land as well as our residential house which were purchased by the relatives of the complainant and thereafter, we shifted to Lahore and started to do labour there. My father is patient of hepatitis C and one of my brother is patient of spinal cord disease. We had no grudge against an innocent chap. As alleged, if we had come at the spot having arms where the complainant along with his sons was present, then there was no hurdle and hindrance to murder the complainant or his son instead an innocent child, the nephew of the complainant. The complainant has falsely involved me and my co-accused in this false case due to previous enmity regarding the pendency of hurt case. It is pertinent to mention here that father of the deceased who has been shown witness of the occurrence was given up by the prosecution as he had refused to give false evidence in the Court. Actually, this is a blind murder and complainant having previous enmity and involved in this case falsely, wants to use this blind murder against us."
Neither the appellant opted to make statement under section 340 (2) of Cr.P.C., nor he produced any witness in his defence.
7. The learned trial Court vide judgment dated 1-9-2008, found Riaz appellant guilty, convicted and sentenced him as mentioned and detailed above.
8. Learned counsel for the appellant in support of this appeal, contends that in the F.I.R. Besides appellant seven other persons with the same role of firing at the deceased were implicated in the instant case by the complainant but all the remaining accused namely Shahid, Faiz Muhammad, Barkat alias Faqir Hussain, Nasroo alias Billa, Jamil, Zubair and Muhammad Akram have been acquitted by the learned trial Court and appeal filed against their acquittal has also been dismissed by this Court, being time-barred vide order dated 29-4-2009 passed in Criminal Miscellaneous No,2341-M of 2008, which is application for condoning the delay in filing the appeal against acquittal, therefore, the evidence which has been disbelieved qua the acquitted accused can not be believed to the extent of the appellant without any independent corroborative piece of evidence which is very much lacking in this case. So far as the motive is concerned, complainant has stated that three years prior to the occurrence the accused persons had injured his son and nephew and case was registered against the appellant and others and appellant and others were compelling the complainant party for compromise but the deceased was not inclined for the said compromise but the said motive does not appeal to common sense because a minor boy of 14 years of age cannot be a hurdle in the compromise and there in fact was no reason for the appellant to commit the murder of the 'deceased because of the above mentioned reason; moreover elder son of the complainant Liaquat Ali (P.W.8) who was witness of that case was present at the spot but he was not touched by the appellant. So far as the abscondance of the appellant is concerned, learned counsel for the appellant contends that no proclamation was obtained by the Investigating Officer and even no question regarding abscondance of the appellant was put by the learned counsel for the complainant. So far as recovery of pistol .30 bore and positive report of Forensic Science Libratory is concerned, there is no evidence that the empties which were allegedly taken from the spot were handed over to the `moharrar. By the Investigating Officer as Muhammad Din Woharrar' (P.W.3) appeared before the learned trial Court and he simply stated that the blood-stained earth was handed over to him. Apart from that there is conflict between ocular account and medical evidence as in the F.I.R. There was specific allegation of causing five firearm injuries to the deceased but only three entry wounds were noted by the Doctor in the post mortem examination. So far as the appellant is concerned, it was alleged that he caused injury on the right flank of the deceased but there was no injury on the right flank of the deceased, therefore, the complainant changed his version before the learned trial Court and he simply stated that fire shot made by the appellant landed on the flank of deceased; that father of the deceased was allegedly present at the spot, he was cited as a witness but given up by the prosecution, therefore, adverse presumption can be drawn against the complainant under Article 129(g) of Qanune-Shahadat, 1984; that the prosecution has 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 charges.
9. Learned Deputy Prosecutor-General, for the State, assisted by learned counsel for the complainant opposes this appeal on the grounds that the instant occurrence took place on the intervening night of 17/18-6-2004 at 12-30 a.m. (night) and the matter was promptly reported to the police on the same night at 3-55 a.m. Though the distance between the place of occurrence and police station was 12 kilometers; that there is no reason for the complainant and other witnesses to falsely implicate the appellant in the instant case; that the motive has also been alleged in the F.I.R.
That the deceased was creating hurdle in effecting the compromise with the appellant in a hurt case; that the medical evidence to the extent of the appellant is in line with the ocular account; that the appellant cannot get any benefit from the acquittal of co-accused as motive was directly attributed to the appellant; that prosecution case is further corroborated by the recovery of pistol .30 bore (P-10) from the possession of appellant and positive report of Forensic Science Laboratory; that the prosecution case is also corroborated by the abscondance of the appellant as he remained fugitive from law and was arrested on 4-5-2005; that there is no mitigating circumstance 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.
10. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance.
11. The occurrence in this case took place on the intervening night of 17/18-6-2004 at 12-30 a.m.
Outside the house of complainant situated in village Haveli Padianwali within the area of Police Station Saddar Kasur, District Kasur. The matter was reported to the police on the same night at 3- 55 a.m. By the complainant Seraj Din (P.W.9) through `Fard Biyan' Exh. P-F on the basis, whereof the formal F.I.R. Exh.P-F/1 was also registered on the next morning (18-6-2004) at 4-50 a.m. The ocular account of the prosecution was furnished by Seraj Din complainant (P.W.9) and Liaquat Ali (P.W.8).
The examination-in-chief of Seraj Din complainant (P.W.9) is reproduced hereunder:- 'About two years and 3-1/2 months ago, I was sleeping near my cattle heads. My brother Ghulam Qadar was sleeping near his baithak along with his son Junaid Qadar where an electric bulb was also litting. Whereas Liaqat my son was sleeping near his shop. It was 12-30 a.m. When my dog started barking I saw accused Nasroo alias Billa, present in the Court, who was armed with a rifle and he fired towards Ghulam Qadar my brother but the fire hit the wall. Then accused Riaz, Shahid and Jamil present in Court while armed with Mozers came 'near the place where Junaid Qadar was present. Riaz accused fired at Junaid which landed on his flank. Thereafter Shahid accused fired at Junaid which landed on lower part of abdomen (nal). Thereafter Jamil accused also fired at Junaid Qadar which also hit on the lower part of his abdomen (nal.). Bari accused present in Court along with one Faiz were present near the street and they made ariel firing and retrieved back alongwith other accused when the villagers attracted to the spot after hearing firing. Junaid Qadar succumbed to the injuries at the spot.
' The motive behind this occurrence is that Riaz accused alongwith his companions had injured Riasat Ali and Nasir some time before the occurrence and the case was got registered which is still pending in the trial Court.
' Accused was absconder. They were compelling us to effect the compromise otherwise we will be done to death. Due to this grudge accused committed the murder of Junaid Qadar.
' Thereafter, I.O. Came at the spot and I got recorded my statement to him which is Exh.PF which was read over and explained to me and I thumb marked the same in token of its correctness.
Thereafter, I submitted an application Exh.PF/1 which was also thumb marked by me. I also got recorded my supplementary statement in respect of said application.'
The evidence of other eye-witness namely Liaqat Ali (P.W.8) is also on the same lines. It is evident from the perusal of the statements of above mentioned prosecution eye-witnesses that the role attributed to Riaz (appellant) was similar to that of acquitted co-accused namely Shahid and Jamil.
12. Charge under sections 302, 148, 149 P.P.C. Read with section 109, P.P.C. With an identical allegation was framed against the appellant Riaz and his above mentioned acquitted co-accused namely Shahid, Jamil. The said co-accused were also assigned the similar role of causing fire arm injuries on the person of Junaid Qadar (deceased) but they have been acquitted by the learned trial Court while extending them the benefit of doubt and Criminal Appeal filed against their acquittal before this Court, was time barred and Criminal Miscellaneous No,2341-M of 2008, for condoning the delay in filing the appeal was dismissed vide order dated 29-4-2009 as the delay was not condoned and as such the acquittal of above mentioned co-accused 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 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 believed 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 SCM R 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 overworked 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 SCM R 150), Khairu and another v. The State' (1981 SCM R 1136). 'Ziaullah v. The 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).'
' 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 the witnesses is disbelieved against a particular set of accused persons then it cannot be believed against another accused/set of accused persons facing the same trial, without independent corroboration on material particulars of the case. We will, therefore, discuss the case of the appellant while following the guidelines given in the above mentioned judgments by the Hon'ble Supreme Court of Pakistan.
13. The learned Deputy Prosecutor-General for the State, assisted by the learned counsel for the complainant has referred the motive part of the prosecution story with the assertion that it was attributed to Riaz appellant. We have gone through the contents of F.I.R. Exh. PF/1 and the statements of the prosecution witnesses namely Liaquat Ali (P.W.8) and Seraj Din (P.W.9). The motive as alleged by the said prosecution witnesses before the learned trial Court was as under:-- Liaquat Ali (P.W.8).
' The motive of the occurrence is that 4/5 years ago Riaz and Shahid accused had caused fire shot injuries to my brothers namely Riasat and Nasir. The case against accused was lodged which is pending in the trial Court and the present accused were pressurizing us to effect compromise. The said Junaid Qadar (deceased) was not agreed to effect compromise and due to this grudge the accused had committed the murder of Junaid Qadar.'
Seraj Din, complainant (P.W.9).
' 'The motive behind this occurrence is that Riaz accused along with his companions had injured Riasat Ali and Nasir sometime before the occurrence and the case was got registered which is still pending in the trial Court.
' Accused was absconder. They were compelling us to effect the compromise otherwise we will be done to death. Due to this grudge accused committed the murder of Junaid Qadar.'
' The perusal of above mentioned evidence clearly shows that the motive was attributed not only to Riaz (appellant) but also to the acquitted co-accused Shahid. So even to the extent of motive the case of Riaz (appellant) is not distinguishable from the case of acquitted co-accused. Even otherwise, we have noted that the motive as alleged by the prosecution does not appeal to common sense because Junaid Qadar (deceased) was a young boy of 14 years of age. He was neither complainant nor a witness in the earlier case lodged by the complainant against the appellant and his co-accused. It does not appeal to the mind of a prudent person that as to how a minor boy of 14 years of age would create any hurdle in the compromise efforts of the accused persons with the complainant party. The other adult family members of the complainant, party were also sleeping in the same street but they were not even touched by the accused persons. We are, therefore, of the view that the story of motive as alleged by the prosecution is not reliable. It is noteworthy that the said motive has already been disbelieved against Shahid accused (since acquitted) against whom the same motive was alleged. So even to the extent of motive, the case of the appellant is not distinguishable from the case of acquitted co-accused Shahid.
14. Learned Deputy Prosec utor-General for the State and learned counsel for the complainant has referred to the recovery of pistol' .30 bore (P-10) at the instance of Riaz (appellant) and positive .Report of Forensic Science Libratory Exh. PO, to substantiate their arguments that case of the prosecution against the appellant has been corroborated by the recovery of pistol .30 bore (P-10) and positive report of Forensic Science Libratory Exh. P0. We have noted that three crime empties were secured from the spot on 18-6-2004 vide memo Exh-PC. According to the statement of Investigating Officer, Rana Muhammad Riaz, S.-I. (P.W.16) the appellant was arrested on 4-5-2005 and pistol .30 bore (P-10) was allegedly recovered on his pointation on 8-5-2005, whereas the crime empties were deposited in the office of Forensic Science Libratory, Punjab, Lahore on 3-9- 2004, and the pistol .30 bore (P-10) was deposited in the said office on 17-5-2005. According to the report of Forensic Science Libratory Exh. PO the above mentioned parcels of empties and pistol were brought to the office of Forensic Science Laboratory by Muhammad Ashfaq 196/C and Muhammad Aslam 157/C. Muhammad Ashfaq 196/C did not appear in the witness box whereas Muhammad Aslam 157/C appeared before the learned trial Court as (P.W.11) but he did not utter even a single word regarding the delivery of crime empties to him or their onward transmission to the office of Forensic Science Libratory, Lahore and as such there is no evidence regarding the save transmission of crime empties from the police station to the office of Forensic Science Libratory, therefore, it is not safe to rely upon the alleged recovery of pistol .30 bore (P-10) at the instance of the appellant and positive report of Forensic Science Libratory Exh.P0. In these circumstances, the alleged recovery of pistol .30 bore (P-10) from the possession of the appellant cannot be considered as corroborative piece of evidence against the appellant.
15. So far as the medical evidence is concerned, Doctor Zulfiqar Ahmad (P.W.2) on 18-6-2004 at 3- 30 p.m. Vide post mortem report Exh.PB and pictorial diagrams Exh. PB/1 to Exh. PB/2 conducted the post mortem examination on the dead body of Junaid Qadar (deceased) and found the following injuries on his person:--
(1) A circular wound of entry with abraded inverted margins, blackening present around the margins on front of abdomen, left upper corner 3 c.m below subcostal margin.
(2) A wound of exit 1-1/2 x 1 c.m with everted margins on back of chest at level of 8th dorsal vertebra, 2 c.m left of mid line. It was exit of injury No, 1.
(3) An oblique wound of entry 2-1/2 x 2 c.m with blackening around the margins, left inguinal region. Wound was oval in shape.
(4) An oblique entry wound 1 x 3/4 c.m oval in shape front and outer side of left thigh in middle, blackening present on margins.
(5) A wound of exit 2-1/2 x 1-1/2 c.m upper most part of left thigh in middle, 1 c.m below injury No,3, internally contiguous with injury No,4. It was exit of injury No,4.
' We have noted that the prosecution case as set forth in the F.I.R. Exh. PF/1 was in conflict with the above mentioned evidence because five fire arm injuries on the person of the deceased were attributed to Riaz appellant and his co-accused (since acquitted) namely Shahid, Jamil, Muhammad Akram and Zubair but according to the medical evidence furnished by Doctor Zufliqar Ahmad (P.W.2) there were only three entry wounds on the person of the deceased. It was alleged in the F.I.R. Exh.PF/1 that Riaz appellant made a fire shot with his pistol .30 bore (P-10) which landed on the right flank of Junaid Qadar (deceased), Shahid accused (since acquitted) made a fire shot with his pistol which landed on the left inguinal area of the deceased, Jamil accused (since acquitted) made a fire shot which landed on the right inguinal area of the deceased. Muhammad Akram accused (since acquitted) made a fire shot with his pistol .30 bore which landed on the left thigh of the deceased and Zubair accused (since acquitted) made a fire shot with his carbine which landed on the back of chest, between both the shoulders of the deceased. In the F.I.R. Jamil co-accused (since acquitted) was attributed a fire shot injury on the right inguinal area of the deceased but according to the medical evidence furnished by Doctor Zulfiqar Ahmad (P.W.2) there was no such injury on the person of the deceased. Similarly Zubair accused (since acquitted) was attributed the role of making a fire shot with .12 bore carbine which landed on the back of chest between both the shoulders of the deceased but according to the medical evidence the said injury i,e, injury No,2 was an exit wound. Riaz (appellant) was assigned the role of making a fire shot which landed on the right flank of the deceased but there was no entry wound on the right flank of the deceased, whereas, the entry wound was on the left flank of the deceased. As the prosecution story narrated in the F.I.R. Was in conflict with the medical evidence, therefore, the prosecution witnesses namely Seraj Din complainant (P.W.9) and Liaquat Ali (P.W.8) while appearing before the learned trial Court assigned only three fire arm injuries on the person of the deceased, one each to three different accused persons namely Riaz (appellant), Shahid accused (since acquitted) and Jamil accused (since acquitted). As mentioned earlier, there was no entry wound on the right flank of Junaid Qadar (deceased) which was assigned to Riaz (appellant) in the F.I.R. And the entry wound was on the left flank of the deceased, therefore, the above mentioned eye-witnesses of the prosecution while appearing before the learned trial Court have simply stated that the fire shot made by the appellant landed on the flank of the deceased, in order to bring their testimony in line with the medical evidence. If the statements of the above mentioned eyewitnesses made before the learned trial Court are taken to be correct even then the case of the appellant is not distinguishable from the case of acquitted co-accused namely Shahid, Muhammad Akram because injury attributed to Shahid accused (since acquitted) on the left inguinal area of the deceased and injury attributed to Muhammad Akram co-accused (since acquitted) on the left thigh of the deceased were available as injuries Nos.3 and 4 respectively on the person of the deceased according to the medical evidence furnished by Doctor Zulfiqar Ahmad (P.W.2), therefore, to the extent of medical evidence, the case of Riaz (appellant) is not distinguishable from the case of his acquitted co-accused Shahid and Muhammad Akram.
16. Learned Deputy Prosecutor-General assisted by learned counsel for the complainant has lastly argued that the prosecution case against the appellant is corroborated by the abscondence of the appellant. We have noted that although the warrant of arrest of the appellant and report thereof Exh. PJ has been brought on the record but no proclamation or report thereof qua the abscondence of the appellant was produced in evidence by the prosecution. We have also noted that abscondence, if any, of the appellant was not put to him in his statement recorded under section 342 of Cr.P.C. It is by now well-settled law that any incriminating evidence which is not put to an accused in his statement recorded under the above mentioned provision of law, cannot be used against him. We are therefore, of the view that there is no corroboration of the prosecution case against the appellant through his alleged abscondence.
17. In the circumstances of the case, we could not find out any independent corroboration against the appellant and despite our best efforts, we are unable to distinguish the case of the appellant from the case of acquitted co-accused.
18. In view of the above mentioned circumstances, we are of the considered view that there is no independent corroboration of the prosecution case against the appellant. The prosecution evidence which has been disbelieved against acquitted co-accused namely Shahid, Jamil, Muhammad Akram, Zubair and Billa cannot be believed against the appellant without independent corroboration on material particulars of the case, which is very much lacking in this case.
19. In the light of above discussion, we accept the Criminal Appeal No,1055 of 2008 filed by Riaz appellant by extending him the benefit of doubt and acquit him from the charges. Resultantly the conviction and sentence of the Riaz appellant vide judgment dated 1-9-2008 passed by learned Additional Sessions Judge, Kasur is set aside. The appellant Riaz is in custody, he shall be released forthwith if not required in any other case. Murder Reference No, 217 of 2008 is, therefore, answered in the NEGATIVE and the sentence of death of Riaz (convict) is NOT CONFIRMED.
20. Now coming to Criminal Revision No,747 of 2008 filed by the complainant Seraj Din for enhancement of compensation amount, we have held while deciding the appear filed by Riaz that the prosecution story is replete with number of doubts, therefore, the question of enhancement of compensation amount, does not arise, therefore, Criminal Revision No, 747 of 2008 is hereby dismissed.