' MANZOOR AHMAD MALIK, J.---This judgment shall decide Criminal Appeal No,703 of 2009 titled as M"Saleem Masih v. The State" and Murder Reference No,316 of 2009 titled as "State v. Saleem Masih" as both these matters have arisen out of the same ease i,e, F.I.R. No,47 of 2004 dated 5-2-2004 offence under sections 302, 324, 379, 148 and 149, P.P.C. Registered at Police Station Raiwind Saddar, District Kasur.
2. Saleem Masih (appellant) has filed Criminal Appeal No,703 of 2009 against the judgment dated 30-4-2009, whereby, after having been tried by the learned Additional Sessions Judge Kasur camp at District Jail Kasur in the above mentioned case he was convicted and sentenced as under:-- "36. ...Salim Masih son of Emanuel Masih is convicted under section 302(b), P.P.C. Read with section 34, P.P.C. And is sentenced to death on two counts for committing Qatal-e-Amd of deceased Abdul Majeed and Noor Hassan. He shall be hanged by his neck till he is dead. He shall also pay a sum of Rs,50,000 on each count to the legal heirs of the two deceased by way of compensation under section 544-A, Cr.P.C. And the same shall be recoverable as arrears of land revenue and in default of payment or recovery thereof he shall undergo simple imprisonment for one year on each count.
He is further convicted and sentenced under section 324 read with section 34, P.P.C. For the attempt to commit Qatal-e-Amd of Muhammad Hussain son of Rahim Bakhsh to undergo R.I. For seven years and a fine of Rs,10,000 and in case fine is not paid, he shall further undergo S.I. For six months. He is also convicted and sentenced under section 337-F.Iii read with section 34, P.P.C. For causing injury on the person of Muhammad Hussain son of Rahim Bakhsh to undergo R.I. For two years and to Daman Rs,5,000 payable to the said injured; in case Daman is not paid he shall be kept in imprisonment till the payment of the same."
' The learned trial court has sent Murder Reference No,316 of 2009 for confirmation or otherwise of the sentence of death awarded to Saleem Masih (convict) as required under section 374, Code of Criminal Procedure. Before proceeding with the case, we may observe here that this case was registered against eight persons including the appellant. Six co-accused of the appellant namely Sarfraz Masih, Muhammad Ilyas, Muhammad Iqbal, Muhammad Abbas, Muhammad Akram and Muhammad Ashiq were acquitted by the learned trial court as the prosecution failed to prove the charge against them, as per paras 31 and 32 of the impugned judgment whereas one Naeem Masih was declared a proclaimed offender.
3,. Concisely, the prosecution story, as unfolded in the F.I.R. (Exh.PM), registered on the basis of statement of Mukhtar Ahmad complainant (P.W.10) is that he was resident of Haveli Deen Muhammad Wali Bhamba Khurd and an agriculturist. His late brother namely Hakim Ali had a dispute of land with Saleem Masih etc. Due to the said grudge Hakim Ali was murdered by Saleem Masih etc. And a case of murder under section 302, P.P.C. Was got registered at Police Station Raiwind. In that case Muhammad Akram and Muhammad Ashiq both sons of Muhammad Tufail were on bail and Against them a private complaint was pending adjudication before learned Additional Sessions Judge Kasur. Complainant's brother Noor Hassan and nephew Abdul Majeed were pursing the said case. Saleem Masih etc. Used to extend threats to Noor Hassan and Abdul Majeed to refrain from pursuing the case otherwise they would also be done to death, however, both of them persistently kept on pursuing the case. Saleem Masih etc. Apprehended that they might be convicted and sentenced for the murder of Hakim Ali. On the day of occurrence i,e, 5-2- 2004, complainant's brother Noor Hassan, nephew Abdul Majeed and Muhammad Hussain son of Raheem Bakhsh, who was their relative, while riding on a motorcycle were coming from Kot Radha Kishan via canal bank to their home. While following them, the complainant along with Shahzad son of Hakim Ali and Muhammad Mushtaq son of Ghulam Hassan also boarded on a motorcycle after some interval and proceeded to their home from Kot Radha Kishan. At about 2-30 p.m., Noor Hassan, Abdul Majeed and Muhammad Hussain while on motorcycle were about two squares behind their haveli. In the meanwhile Muhammad Akram, Muhammad Ashiq both sons of Muhammad Tufail residents of Kalarkabad, Muhammad Abbas, Muhammad Iqbal and Muhammad Ilyas all sons of Ghulam Qadir residents of Bhamba Khurd, Naeem Masih, Sarfraz Masih and Saleem Masih (appellant) all sons of Emanueal Masih residents of Kalarkabad all armed with pistols .30 bore, who had ambushed stood up and raised a lalkara that they should be done to death and be taught a lesson for having enmity with the assailants. The complainant, Shahzad son of Hakim Ali and Muhammad Mushtaq son of Ghulam Hassan also reached on the scene of occurrence on their motorcycle and turned a little towards eastern side. Muhammad Ilyas made a fire with his pistol 30 bore which landed on the head of Noor Hassan at right side who fell on the ground. Thereafter Muhammad Akram made a fire through his pistol 30 bore which hit Abdul Majeed on testicles at right side. Then Muhammad Ashiq made a fire with .30 bore pistol which landed on the left shoulder of Abdul Majeed and went through and through. Muhammad Abbas made a fire with his pistol 30 bore which landed on the inner side of left thigh of Abdul Majeed.
Muhammad Iqbal made a fire with pistol 30 bore which landed on the right leg above thigh of Abdul Majeed and went through and through. Then Sarfraz Masih made a fire with 30 bore pistol which landed on the back side of left thigh of Muhammad Hussain. Naeem Masih and Saleem Masih raised lalkaras in order to create harassment. They also made aerial firing with their respective weapons with the alarm that whoever came near would be done to death. Due to fear and in order to save their lives the complainant and his companions did not step forward. While leaving the assailants raised lalakaras and extended threats and also took away licensed rifle of Noor Hassan deceased, licensed pistol of Abdul Majeed deceased and cash amounting to Rs,30,000 (rupees thirty thousand only) from pockets of both the deceased persons. It was further alleged by the complainant that Noor Hassan and Abdul Majeed were murdered by firing whereas Muhammad Hussain was grievously injured within the view of complainant's side. The occurrence was witnessed by the complainant, Shahzad, Mushtaq and Muhammad Hussain. At the end of the F.I.R. The complainant alleged that the occurrence was committed due to previous enmity of murder.
4. Muhammad Riaz Sub-Inspector (P. W.12) was posted at Police Station Raiwind Saddar. On 5-2- 2004 at 3-30 p.m. Mukhtar Ahmad (complainant) appeared before in the Police Station and on his statement F.I.R. (Exh.PM) was chalked out. He proceeded to the place of occurrence, recorded the statement of Muhammad Hussain injured. He prepared his injury statement (Exh.PN) and sent him to hospital at Kot Radha Kishan along with a constable. Thereafter he inspected the dead body of Abdul Majeed (deceased), prepared injury statement (Exh. PO), inquest report (Exh.PP) and drafted an application (Exh. PQ) for post mortem examination. He also collected blood stained earth from underneath the dead body of Abdul Majeed (deceased) vide recovery memo (Exh.PJ) and sealed the same into a parcel. Then he inspected the dead body of Noor Hassan (deceased), prepared the inquest report (Exh.PR), injury statement (Exh.PS) and also drafted an application (Exh. PT) for post mortem examination. He also collected blood stained earth from underneath the dead body of Noor Hassan (deceased) vide recovery memo (Exh.PK) and made the same into a sealed parcel.
He dispatched the dead bodies of both the deceased to District Headquarters Hospital Kasur under the escort of Police constables. Then he prepared rough site plan (Exh. PX) of the place of occurrence. He collected nine empties (P.11/1-9) of pistol 30 bore along with three live bullets (P.12/1-3). He sealed the same into a parcel and took the same into possession vide recovery memo (Exh.PH). He also took into possession motorcycle (P.13) bearing No,4018/LXA vide recovery memo (Exh.PL). On 6-2-2004, he was present at octroi post Kot Radha Kishan when Nazir Ahmad Constable and Ibrahim Constable appeared before him and produced last worn clothes of the deceased Abdul Majeed (P.1 to P.4) and also last worn clothes of Noor Hassan deceased (P.6 to P.9) which were taken into possession vide recovery memo (Exh.PA). On 8-2-2004 Draftsman (P.W.8) came at the spot, took rough notes and prepared scaled site plan (Exh.PF and Exh.PF/1). He got issued proclamations for appearance of Sarfraz Masih, Naeem Masih and Saleem Masih. On 17-7- 2004 he obtained physical remand of Sarfraz M asi h and Saleem Masih who were already under arrest in case F.I.R. No,44/2001 under Section 302, P.P.C. On 20-7-2004, vide recovery memo. (Exh.PV) he took the extract of recovery memo of pistol .30 bore which was recovered from Salim Masih (appellant) by Akbar (SI/I.0) of the case F.I.R. No,44 of 2001.
5. The appellant and his co-accused (since acquitted) were summoned by the learned Additional Sessions Judge Kasur 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 under sections 302, 324, 379, 109, 148 and 149 P.P.C. Was framed against them on 26-1-2005 to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as twelve witnesses, in all. Ocular account was furnished by Muhammad Hussain injured (P.W.9), Mukhtar Ahmad complainant (P.W.10) and Muhammad Mushtaq (P.W.11). Medical evidence was furnished by Dr Ashfaque Muhammad Akhtar (P.W.6) and Dr. Masood Aziz (P.W.7). Muhammad Riaz S.I (P.W.12) investigated this case and while appearing in the witness box, narrated the various steps taken by him during the course of investigation. Rest of the witnesses are formal in nature. Learned DDA gave up evidence of Qasim Ali A.S.I, Habibullah Constable and Nazir constable being unnecessary vide statement dated 17-3-2005. He gave up Muhammad Iqbal and Rai Muhammad Hussain (P.Ws.) being unnecessary vide statement dated 20-4-2006. Then he gave up Muhammad Iqbal (P.W.) for the time being vide statement dated 27-5-2005. Learned DDA tendered in evidence reports of Chemical Examiner Lahore (Exh.PX and Exh.PY) and closed the prosecution case subject to production of reports of Serologist vide statement dated 22-4-2006.
Learned DDA tendered in evidence reports of Serologist (Exh.PZ) and (Exh.PAA) vide statement dated 25-4-2006. Thereafter he tendered in evidence reports of Chemical Examiner (Exh.PY and Exh.PX) and report of Serologist (Exh.PAA) vide statement dated 25-4-2008. The appellant and his co-accused (since acquitted) were examined under section 342, Code of Criminal Procedure on 6- 5-2006. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Saleem Masih (appellant) replied as under:- "The witnesses in this case have implicated me because of previous enmity. On the date of alleged occurrence I was not present at the spot and all the witnesses in this case are the interested witnesses and are close relatives of the deceased. Nothing has been recovered from me and if there is. Any recovery, that has been planted upon me and by the police."
' The appellant did not appear as his own witness in disproof of the allegations leveled against him as provided under Section 340(2), Code of Criminal Procedure, however, he opted to produce defence evidence. Niamat Ali (DW.1), Jamil Ahmad (DW.2), Muhammad Aslam Shah (DW.3), Muhammad Arshad (DW.4), Karamat Ali (DW.5), Sajjad Ali (DW.6), Muhammad Latif (DW.7), Sh.
Muhammad Tahir Advocate (DW.8), Muhammad Bashir (DW.9), Shaukat Ali (DW.10), Dildar Hussain Jafari (DW.11) and Rai Muhammad Hussain DSP (DW.12) were examined as defence witnesses mainly in support of the plea of alibi taken by five co-accused of the appellant.
6. After conclusion of the trial, the learned trial court convicted and sentenced the appellant as detailed above. Six co-accused of the appellant namely Sarfraz Masih, Muhammad Ilyas, Muhammad Iqbal, Muhammad Abbas, Muhammad Akram and Muhammad Ashiq were acquitted by the learned trial tourt as the prosecution failed to prove the charge against them. Against their acquittal Muhammad Mushtaq nephew of Noor Hassan (deceased) and first cousin of Abdul Majeed (deceased) preferred Criminal Appeal No,823 of 2009 which was dismissed in limine by a learned Division Bench of this Court vide order dated 9-3-2010 and the said order was not assailed any further as confirmed by the learned Deputy Prosecutor General and learned counsel for the complainant.
7. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that in the F.I.R. Along with the appellant seven others namely Sarfraz Masih, Muhammad Ilyas, Muhammad Iqbal, Muhammad Abbas, Muhammad Akram, Muhammad Ashiq and Naeem Masih were also implicated, that Naeem Masih was declared a proclaimed offender whereas Sarfraz Masih, Muhammad Ilyas, Muhammad, Iqbal, Muhammad Abbas, Muhammad Akram and Muhammad Ashiq were tried along with the appellant but acquitted of the charge with the observation that the prosecution failed to prove the charges against them; that Muhammad Ilyas was accused of firing a fatal shot at Noor Hassan (deceased), Muhammad Iqbal, Muhammad Abbas, Muhammad Akram and Muhammad Ashiq were accused of firing at Abdul Majeed deceased whereas Sarfraz Masih was accused of firing at Muhammad Hussain injured but all of them were acquitted by the learned trial court; that allegation against the appellant was of aerial firing and there was no allegation. Against him that he caused any injury to either of the deceased or the injured; that there is no allegation against the appellant of taking away licensed rifle belonging to Noor Hassan (deceased), licensed pistol belonging to Abdul Majeed (deceased) and cash amounting to Rs,30,000 (rupees thirty thousand) from the pockets of both the deceased persons as in the F.I.R. It was against all the assailants whereas while appearing before the learned trial court, by all the three witnesses of ocular account, the allegation of taking away licensed rifle was levelled against Muhammad Ilyas and the allegation of taking away licensed pistol and cash amounting to Rs,30,000 (rupees thirty thousand only) belonging to Abdul Majeed (deceased) was levelled against Muhammad Akram; that the prosecution evidence which has been disbelieved to the extent of six acquitted co-accused of the appellant could not be believed against the appellant without there being any independent corroboration which is very much lacking in this case; that according to the F.I.R. Motive was alleged against Saleem Masih etc. But all the remaining co-accused were acquitted of the charge, therefore, the motive could not be believed against the appellant; that the recovery of 30 bore pistol at the instance of the appellant which was taken into possession vide recovery memo (Exh.PV) could not be used against the appellant as the same was not put to the appellant while recording his statement under section 342, Code of Criminal Procedure; that report of Forensic Science Laboratory was wrongly relied by the learned trial court to award conviction to the appellant as it was neither exhibited during the trial nor put to the appellant while recording his statement recorded under section 342, Code of Criminal Procedure; that in the circumstances, the prosecution case is of doubtful nature and the appellant is entitled to the benefit of doubt as a matter of right and not as grace.
8. On the other hand, learned Deputy Prosecutor-General, assisted by learned counsel for the complainant opposes this appeal on the grounds that the occurrence took place at 2-30 p.m. On 5-2-2004 and matter was reported to the Police at 3-30 p.m. On the same day just after one hour of the occurrence whereas distance between the place of occurrence and the Police Station is seven kilometers and all necessary details of the incident are mentioned in the F.I.R; that the appellant is nominated in the F.I.R. With the specific role of resorting to indiscriminate firing at the complainant party wherein two persons were done to death and one was injured, that recovery of pistol .30 bore was effected at the instance of Saleem Masih (appellant) which was taken into possession vide recovery memo (Exh.PV); that the prosecution case is further corroborated by the positive report of Forensic Science Laboratory; that case of the appellant is distinguishable from that of his co-accused who were acquitted by the learned trial court as all of them were found innocent during the course of investigation whereas the appellant was found involved; that the prosecution also proved motive against the appellant; that provisions of sections 148 and 149 P.P.C.
Are fully attracted in this case, therefore, appellant is also liable for the acts of his co-accused; that there is no merit in this appeal.
'
9. We have heard learned counsel for the appellant as well as the learned Deputy Prosecutor- General assisted by learned counsel for the complainant at a considerable length and have also gone through the record.
10. This incident wherein Noor Hassan and Abdul Majeed were done to death whereas Muhammad Hussain was injured as per F.I.R. (Exh.PM) took place at 2-30 p.m. On 5-2-2004 within the territorial limits of Kalarakabad situated at a distance of seven kilometers in north from Police Station Sadar Raiwind, District Kasur. The matter was reported to the Police through the statement of Mukhtar Ahmad complainant (P.W.10) on the basis whereof formal F.I.R. Was registered on the same day at 3-30 p.m.
11. Case of the prosecution has been reproduced in para 3 above. This case was registered against eight persons namely Sarfraz Masih, Muhammad Ilyas, Muhammad Iqbal, Muhammad Abbas, Muhammad Akram, Muhammad Ashiq; Naeem Masih and Saleem Masih. Out of them four namely Muhammad Iqbal, Muhammad Abbas, Muhammad Akram and Muhammad Ashiq were attributed firearm injuries at the person of Abdul Majeed (deceased). The sole firearm injury on the person of Noor Hassan (deceased) was attributed to Muhammad Ilyas whereas Sarfraz Masih was burdened with the role of causing injury at the person of Muhammad Hussain injured.
12. Perusal of the F.I.R. Reveals that no injury to any of the deceased or the injured was attributed to the appellant. In the F.I.R., there is general allegation against all the assailants that while leaving the scene of crime they also took away licensed rifle of Noor Hassan deceased, licensed pistol of Abdul Majeed (deceased) and cash amounting to Rs,30,000 (rupees thirty thousand only) from their pockets. While appearing before the learned trial court, witnesses of the ocular account specifically attributed the role of taking away licensed rifle of Noor Hassan (deceased) to Muhammad Ilyas co-accused of the appellant and that of taking away licensed pistol .30-bore and cash amounting to Rs,30,000 belonging to Abdul Majeed (deceased) to Akram, co-accused of the appellant and as such there. Is no allegation against the appellant of taking away firearms and cash belonging to the deceased persons.
Case of the appellant is thus on much better footings than that of six co-accused who were acquitted by the learned trial court and B Cr1. Appeal No,823 of 2009 filed against their acquittal was dismissed by a learned Division Bench of this Court vide order dated 9-3-2010, which was not assailed any further as confirmed by learned Deputy Prosecutor General and the learned counsel for the complainant. Therefore, the question for determination before us is whether the prosecution evidence which has been disbelieved qua the acquitted co- accused of the appellant can be believed against the appellant?In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Iftikhar Hussain and another v. State" (2004 SCM R 1185), wherein the Hon'ble Supreme Court at page 1196 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 SCM R 1758), relevant para there from 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 maxim would not be applicable and testimony of a witness will be acceptable against one set of accused though sanie 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)."
' 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 the above mentioned judgment of the Hon'ble Supreme Court of Pakistan that testimony of a witness will be acceptable against one set of accused though the same has been rejected qua another set of accused facing the same trial, provided it gets some independent corroboration on material particulars of the case and in the absence of any independent corroboration qua the role attributed to a convict he would also be liable to acquittal.
Keeping in view the guidelines given by the Hon'ble Supreme Court of Pakistan in the aforementioned judgments we will discuss the case of the appellant.
13. As per F.I.R., general role of aerial firing is attributed to the appellant. There is absolutely no allegation either in the F.I.R. Or before the learned trial court that he caused any injury to either of the deceased persons namely Abdul Majeed and Noor Hassan or Muhammad Hussain (injured). Same was the stance of the three witnesses of the ocular account i,e, Muhammad Hussain (P.W.9), Mukhtar Ahmad (P.W.10) and Muhammad Mushtaq (P.W.11) while appearing before the learned trial court.
14. Coming to the recovery of .30 bore pistol effected at the instance of the appellant which was taken into possession vide recovery memo (Exh.PV). After going through the statement of the appellant recorded by the learned trial court under section 342, Code of Criminal Procedure we have noted that this piece of evidence was not put to the appellant. It is well settled by now that a piece of evidence not put to the accused while recording his statement under section 342, Code of Criminal Procedure, cannot be used against him for his conviction. Report of Forensic Science Laboratory was wrongly relied by the learned trial court to award conviction to the appellant as it was neither exhibited during the trial nor put to the appellant while recording his statement under Section 342, Code of Criminal Procedure.
15. As per F.I.R., motive behind the occurrence was that complainant's late brother namely Hakim All had a dispute of land with Saleem Masih etc. Due to the said grudge Hakim Ali was murdered by Saleem Masih etc. And case of murder was got registered at Police Station Raiwind. In that case Muhammad Akram and Muhammad Ashiq both sons of Muhammad Tufail were on bail .And against them a private complaint was pending adjudication before learned Additional Sessions Judge Kasur. Complainant's brother Noor Hassan and nephew Abdul Majeed were pursing the said case. Saleem Masih etc used to extend threats to Noor Hassan and Abdul Majeed to refrain from pursuing the case otherwise they would also be done to death, however, both of them persistently kept on pursuing the case. Saleem Masih etc apprehended that they might be convicted and sentenced for the murder of Hakim Ali. We have noted that according to the contents of the F.I.R., Muhammad Akram and Muhammad Ashiq, co-accused of the appellant since acquitted, were facing the trial in the case registered for the murder of Hakim Ali. Therefore, the motive was alleged against the appellant as well as his co-accused and since it has not been believed against co- accused of the appellant, therefore, the same cannot be believed against the appellant to maintain his conviction.
16. The only distinguishing feature of the appellant's case is the opinion of the Police. It was stressed hard by learned Deputy Prosecutor General and learned counsel appearing on behalf of the complainant that the appellant was found involved by the Police. We are of the view that the said argument of the learned counsel for the complainant is misconceived. It is by now well settled law that the opinion of the police qua innocence or guilt of an accused is inadmissible in evidence, therefore, the appellant cannot be convicted merely on the ground that he was declared guilty by the police during the course of investigation. A reference in this respect may be made to the case of "Muhammad Ahmad (Mahmood Ahmed) and another v. The State" (2010 SCM R 660) wherein, at page 676, the Hon'ble Supreme Court of Pakistan was pleaded to observe as under:-- "37. ...It may be mentioned here, for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons was the exclusive domain of only the Courts of law established for the purpose and the said sovereign power of the Courts could never be permitted to be exercised by the employees of the police department or by anyone else for that matter. If the tendency of allowing such like impressions of the Investigating Officers to creep into the evidence was not curbed then the same could lead to disastrous consequences. If an accused person could be let off or acquitted only because the Investigating Officer was of the opinion that such an accused person was innocent then why could not, on the same principle, another accused person be hanged to death only because the Investigating Officer had opined about his guilt..."
17. For the foregoing reasons, we hold that the prosecution case to the extent of the appellant is doubtful in nature. This appeal is accordingly allowed. Conviction and sentence awarded to the appellant for the murder of Noor Hassan and Abdul Majeed (deceased) and for launching a murderous assault upon Muhammad Hussain injured vide judgment dated 30-4-2009 passed by the learned trial Court is set aside. While extending him benefit of doubt, the appellant is acquitted of the charges framed against him He is in jail. He be released forthwith if not required to be detained in any other case.
18. Before parting with this judgment it is clarified that the observations made in this judgment are relevant only for the disposal of this appeal and shall not influence the learned trial court in case of arrest and trial of Naeem Masih (co-accused of the appellant since P.0).
19. Murder Reference No,316 of 2009 is answered in the NEGATIVE and the sentence of death awarded to Saleem Masih (convict) on two counts is NOT CONFIRMED.