' MALIK SHAHZAD AHMAD KHAN, J.---Shaukat Ali, the appellant, along with his co-accused namely, Sarfraz alias Sarfi, Bashir Ahmed, Nazeer Khan, and Akram Khan, was tried by the learned Additional. Sessions Judge, Shakargarh, District Narowal, in case F.I.R. No,49, Dated 6-3-2004, registered under sections 302, 324 of P.P.C., at Police Station, Kot Nainan, for the murder of Ilyas Khan (deceased). The learned trial Court vide judgment dated 23-7-2005, acquitted co-accused Sarfraz alias Sarfi, Bashir Ahmed, Nazeer Khan, and Akram Khan, of the charge framed against them, whereas the appellant was convicted under section 302, P.P.C., for committing Qatl-eAmd of Ilyas Khan and he was sentenced to death. He was further directed to pay Rs,1,00,000 as compensation to the legal heirs of the deceased under section 544-A of Cr.P.C. The appellant was also convicted under section, 324 of P.P.C., for launching a murderous assault upon Naazer Khan and sentenced to 10 years' R.I with a fine of Rs,30,000 and in default whereof to further undergo one year's S.I.
2. The appellant has filed Criminal Appeal No,1432 of 2005, against his conviction and sentence, whereas, the learned trial Court has sent Murder Reference No,574 of 2005 under section 374 of Cr.P.C., to this Court for confirmation or otherwise of death sentence of the appellant. We propose to dispose of both these matters by this single judgment as both these matters have arisen out of the same judgment.
3. Brief facts of the case as given by the complainant Ismail Khan (P.W.1) in his complaint (Exh.PA) are that, on 6-3-2004, at 2-00 p.m., he alongwith his real brothers namely, Ilyas Khan (deceased) and Naazer Khan (P.W.2) went to the fields for cutting fodder. At about 2-30 p.m., he along with his two above said brothers was coming back to his village after cutting fodder, and when they reached near defence wall of the rainy drainage, the accused Bashir Ahmed son of Taj Din armed with `daraar , Shaukat Ali (appellant) armed with hatchet, Sarfraz alias Sarfi son of Bashir armed with `daraar, Nazeer Khan son of Jan Muhammad armed with hatchet, Akram Khan son of Nazeer armed with hatchet, along with two unknown accused, who were armed with fire arm weapons, who had hidden themselves in the rainy drainage, suddenly launched an attack on them while raising lalkaras. The complainant. Ismail Khan (P.W.1) alleged that Shaukat Ali (appellant) inflicted hatchet blow on the left eye of his brother Ilyas Khan (deceased), Bashir Ahmed co-accused (since acquitted) inflicted `daraar blow on the upper part of left ear of Ilyas Khan (deceased), Sarfraz alias Sarfi inflicted `daraat' blow on the forehead of his brother Naazer Khan (P.W.2), Nazeer Khan co- accused (since acquitted) inflicted hatchet blow on the upper part of left ear of Naazer Khan (P.W.2), Akram Khan co-accused (since acquitted) inflicted hatchet blow on the back side of the head of Naazer Khan (P.W.2), Sarfraz alias Sarfi co-accused (since acquitted) inflicted 'daraat' blow on the forehead of Ilyas Khan (deceased), Nazeer Khan co-accused (since acquitted) inflicted hatchet blow on the right side of forehead of Ilyas Khan (deceased), Akram Khan co-accused (since acquitted) inflicted hatchet blow on the left thigh of Ilyas Khan (deceased), Bashir Ahmed inflicted `daraar blow on the right side of neck. Of Naazer Khan (P.W.2) and Shaukat Ali (appellant) inflicted hatchet blow on the left wrist of Naazer Khan (P.W.2). His brothers Ilyas Khan (deceased) and Nazeer Khan (P.W.2) fell on the ground after receiving injuries. The accused kept on inflicting injuries on their persons with their respective weapons. On raising hue and cry by the complainant party, Haji Asghar Khan (P.W.3) and Muhammad Ijaz Khan son of Ilyas Khan, caste Pathan, resident of village Bheeko Chak, who were cutting fodder in the nearby fields were also attracted to the scene of occurrence. In the meanwhile, some persons of the village came towards them on which the accused while resorting to aerial firing fled away from the spot. The complainant and his companions shifted both the injured to Civil Hospital, Shakargarh, where Ilyas Khan succumbed to the injuries.
' The motive for the occurrence was that about four year prior to the occurrence, 9-1/2 acres agricultural land was purchased by the complainant party from one Shabbir Ahmed, a relative of the accused and the accused had this grudge against the complainant party.
4. After completion of investigation, the challan was submitted before the. Court. The appellant and his co-accused namely, Sarfraz alias Sarfi, Bashir Ahmed, Nazeer Khan, and Akram Khan were charge-sheeted, to which, they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 12 P. Ws. And also tendered documentary evidence.
(P.W.7) Dr. Ghulam Safdar, on 6-3-2004, medically examined Naazer Khan (P.W.2), and found the following injuries on his person:--
(1) An incised wound 5 c.m x 1.5 c.m bone exposed on the left side of skull just about the left eye.
(2) An incised wound 5 c.m x 1 c.m. Into bone exposed on left side of skull 4 c.m above the left ear.
(3) An incised wound 3 c.Nt. x half c.m. On the back of skull.
(4) An incised wound 2.5 c.m. x 2.5 c.m into bone exposed on the right side of skull 5 c.m behind the right ear.
(5) An incised wound 2 c.m. x 5 c.m on the right ear bone.
(6) An incised wound 5 c.m x half c.m on the right side of neck.
(7) Surgical emphysema is present on the left chest in its upper part.
(8) An incised wound 3 c.m. x 1.5 c.m into flesh deep on inner side of the left arm just below the elbow joint.
(9) An incised wound 2 c.m. x 5 c.m into muscle deep on the back of left arm at its middle.
(10) An incised wound 3 c.m. x 5 c.m. Into bone deep on the back of left thumb.
(11) An incised wound: 2 c.m x 5 c.m 'into muscle deep on top of right thumb.
(12) An incised wound 2 c.m x 5 c.m on the back of right thumb.
(13) An incised wound 5 c.m x 5 c.m on the back of right index finger.
(14) A lacerated wound 1 c.m. x 25 c.m on the front of right leg.
(15) A lacerated wound 1 c.m. x 25 c.m. Into skin deep on front of left leg.
' On the same day i.e, 6-3-2004, at 8-00 p.m. He conducted the post-mortem examination on the dead body of Ilyas Khan (deceased) vide Post mortem Report Exh.PH, diagrams Exh.PH/ 1 and Exh.PH/2 and found the following injuries on his person:--
(1) An incised wound 2.5 c.m. x 2.5 c.m. Into bone exposed on the frontal part of the skull 7 c.m.
Above the root of nose.
(2) An incised wound 8 c.m x 1 c.m into bone deep on the right side of the skull 7 c.m. Above the right ear.
(3) An incised wound 1 c.m. x 5 c.m. Into bone deep on the left side of the skull just above the left eyebrow.
(4) An incised wound 1 c. m. x 1 c.m. On the left side of the skull 5 c.m. Behind the injury No,3.
(5) Contused swelling bluish in colour 5 c.m. x 5 c.m. Around the left eye.
(6) An abrasion 1 c.m. x 1 c.m. On the outer side of left thigh at its middle.
' In his opinion, all the injuries mentioned above were ante-mortem in nature and were caused by sharp-edged weapon. The cause of death in his opinion was due to haemorrhage, shock and brain damage caused by the injuries on the skull, collectively. Probable time that elapsed between injuries and death was within three hours and between death and post mortem was within four hours.
' (P.W.11) Muhammad Ashraf Inspector and (P.W.12) Rana Muhammad Saeed S.-I. Are the Investigating Officers of this case.
' P.W.5 Waris Ali LHC/678, P.W.6 Dilawar Hussain HC/21, P.W.8 Tahir Tasleem Draftsman, P. W.9 Sagheer Ahmed C-17, P.W.10 Farhan Aslam Inspector, are the formal witnesses. P.W.1 Ismail Khan (complainant), P.W.2 Naazer Khan, and P.W.3 Asghar Khan are the witnesses of ocular account.
P.W.4 Maqsood Ahmed Khan is the recovery witness of hatchet P.3., from the possession of Shaukat Ali (appellant) which was taken into possession vide recovery memo Exh.P.D.
5. The statement of the appellant under section, 342 of Cr.P.C. Was recorded. He refuted the allegations levelled against him and professed his innocence. In answer to the question, why this case against you and why the P. Ws have deposed against you, the appellant replied as under:- "It is an unseen occurrence. I and my co-accused had no motive and reasons to commit the offence. Due to party faction, deliberately the complainant and his close related P. Ws. Have roped me and my other co-accused in this case. The case was investigated by the Investigating Authority, Narowal, and the conclusion was' that the Investigation Authority exonerated my other four co-accused. Though I was also innocent just to get rid of the headache of the criminal case, they challaned me inadvertently. While I was also innocent like my other four co-accused. The complainant party had enmity of murder with one Muhammad Shakeel son of Muhammad Rafique. The complainant party had other disputes in respect of women of other areas i.e, Karachi and Peshawar, which is admitted by the P. Ws. In cross-examination. For unknown reasons, the complainant party falsely roped me in this case. P. Ws are closely related inter se and they have deposed falsely deliberately. I am innocent".
' The appellant had not opted to make statement on oath as envisaged under section 340(2) of Cr.P.C. In disproof of the allegations levelled against him. However, he opted to produce his defence evidence and produced copy of Rapat Roznamcha dated 6-3-2004 of Police Station, Kot Nainan Exh.D.A and closed his defence.
' After conclusion of the trial, the learned trial Court, convicted the appellant, as detailed above, whereas, co-accused namely, Sarfraz alias Sarfi, Bashir Ahmed, Nazeer Khan, and Akram Khan were acquitted of the charge framed against them.
6. The learned counsel for the appellant, in support of this appeal, contends that in the F.I.R., there was an allegation against four persons besides the appellant of causing injuries to Ilyas Khan (deceased) and the injured Naazer Khan, and those four persons namely, Sarfraz alias Sarfi, Bashir Ahmed, Nazir Khan and Akram Khan have been acquitted by the learned trial Court and their acquittal has not been assailed either by the State or by the complainant before this Court and the same has attained finality, therefore, on the basis of, same evidence, the appellant cannot be convicted unless and until there is strong independent corroboration, which is very much lacking in this case; that the motive is attributed to all the accused nominated in the F.I.R. And recovery of hatchet at the instance of the appellant cannot be considered a corroborative piece of evidence as it is an ordinary hatchet and there is no report of Serologist regarding the blood on the hatchet; that neither the appellant nor the co-accused have been shown in the site plan (Exh.PK), thus, this appeal be accepted and the appellant may be acquitted from the charge.
7. Conversely, the learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant, opposes this appeal on the grounds that in this case one person namely, Ilyas Khan lost his life, who received six injuries on his person, whereas, the other person namely, Naazer Khan was seriously injured, and he received fifteen injuries; that the appellant was named in the F.I.R., which was promptly lodged with the role of causing injuries to Ilyas Khan (deceased) and the injured as well, and the prosecution witnesses of the ocular account remained consistent and straightforward, and even the motive was also alleged against the appellant as well, and the prosecution has proved its case against him; that the medical evidence has supported the ocular account, because the deceased has received six injuries on his person and the injured Naazar Khan (P: W.2) received 15 injuries and he was medically examined on 6-3-2004 at 3-30 p.m. Which is clear from his MLR Ekh.PF; that the case of the acquitted accused is distinguishable from the case of the present appellant, as the acquitted accused were declared innocent by the police, whereas, the appellant Shaukat Ali was declared guilty during the course of investigation, therefore, this appeal may be dismissed and Murder Reference may be answered in affirmative.
8. We have heard the arguments of the learned counsel for the parties, and have gone through the evidence available on record.
9. This unfortunate incident, took place on 6-3-2004, at 2-30 p.m., in the fields of Tibba Pakhral, within the jurisdiction of Police Station, Kot Nainan, at a distance of six miles from the spot, wherein one person namely, Ilyas Khan son of Rehamdad Khan lost his life and other Naazer Khan (P:W.2) was seriously injured. The matter was reported to the police at 4-45 p.m., by Ismail Khan (P.W.1), who is real brother of the deceased Ilyas Khan and formal F.I.R. (Exh.PA/ 1) was chalked out at 2-30 p.m. In the F.I.R., it is the case of the complainant that on 6-3-2004, at about 2-00 p.m., he along with his brothers Ilyas Khan and Naazer Khan went to the fields for cutting fodder, and at 2-30 p.m., after cutting fodder, when they were returning to their village and reached near the Defence Band, in the meantime, Bashir Ahmed armed with daraat' , Shaukat (appellant) armed with hatchet, Sarfi armed with `daraar , Nazir Khan armed with hatchet and Akram Khan armed with hatchet alongwith two unknown persons duly armed with fire arm weapons launched a murderous attack on them by raising lalakarus. The complainant has also specifically alleged in the F.I.R. That all the accused persons named in the F.I.R. Caused injuries to Ilyas Khan (deceased) and the injured Naazer Khan (P.W.2) as well. Ismail. Khan while appearing before the learned trial Court as (P.W.1) qua injuries stated as under:- "We, were coming back to our house after cutting fodder and when we reached near Defence Band, the accused Bashir armed with daraat, Sarfi armed with daraat, Shaukat armed with hatchet, Nazeer Khan armed with hatchet and Akram Khan armed with hatchet who are residents of village Tibba Pakhraal along-with two unknown persons who were armed with fire arms had hidden themselves in a rainy drain. All the accused persons raised lalkaras and thereafter Shaukat accused inflicted hatchet blow on the left-eye of my brother Ilyas Khan (deceased); Bashir inflicted injury with daraat above the left ear of Ilyas Khan (deceased); Sarfi accused inflicted injury with daraat on the forehead of my brother Naazer Khan; Nazeer accused inflicted injury with hatchet above the left ear of Naazer Khan; Akram Khan inflicted hatchet blow on the left temporal region of Naazer Khan on the back side; Sarfi accused inflicted injury with daraat on the forehead of Ilyas Khan (deceased); Naazer Khan accused inflicted injury with hatchet on the right side of forehead of Ilyas Khan (deceased); Akram Khan inflicted injury with hatchet on the left thigh of Ilyas Khan (deceased); Bashir inflicted injury with daraat on the right side of neck of Naazer Khan; Shaukat inflicted injury with hatchet on the left elbow of Naazer Khan; Ilyas Khan and Naazer Khan fell on the ground after receiving the injuries' and all the accused persons also tortured both of them when they had fallen on the ground".
' Whereas, case of other witness namely, Naazer Khan (P.W.2), who was allegedly injured in this incident, was to the following effect:- "We were coming back to our house after cutting fodder, when at about 2-30 p.m, we, reached near Defence Band, the accused Bashir armed with daraat, Sharfi armed with daraat, Shaukat armed with hatchet, Nazeer armed with hatchet, Akram Khan armed with hatchet, who had hidden themselves in ' the rainy drain emerged out from the drain and all the accused raised.
Lalkaras. Shaukat Ali accused inflicted hatchet blow on the left-eye of Ilyas Khan (deceased); Bashir Khan inflicted injury with daraat on the upper side of ear of Ilyas Khan; Sarfraz alias Sarfi accused inflicted injury with daraat on the left side of my forehead; -Nazeer accused inflicted hatchet blow on the left. Side of my head; Akram Khan accused inflicted hatchet blow on the back side of my head; Sarfraz alias Sarfi accused inflicted injury with daraat on the forehead of Ilyas Khan (deceased); Nazeer Khan accused inflicted hatchet blow on the right side of forehead of Ilyas Khan (deceased); Akram Khan inflicted hatchet blow on the right thigh of Ilyas Khan (deceased); thereafter Bashir Khan accused inflicted injury with daraat on the right side of my neck; Shaukat Khan inflicted injury with hatchet on my left arm. I and Ilyas Khan (deceased) fell on the ground and the accused persons also tortured us when we had fallen on the ground".
' There is another eye-witness of this occurrence namely, Asghar Khan (P.W.3), who simply stated that all the accused caused injuries to Ilyas Khan (deceased) and injured PW Nazeer Khan.
10. Charge was framed against the appellant Shaukat Ali, and his four co-accused, namely, Sarfraz alias Sarfi, Bashir Ahmed, Nazeer Khan, and Akram Khan, who were named in the F.I.R. However, four co-accused of the appellant namely, Sarfraz alias Sarfi, Bashir Ahmed, Nazir Khan and Akram Khan, who were also assigned specific role of causing injuries on the person of Ilyas Khan (deceased) and injured Nazeer Khan (P.W.2), were acquitted by the learned trial Court while extending them benefit of doubt and no appeal against their. Acquittal has been preferred either by the State or by the complainant, as confirmed by the learned Deputy Prosecutor-General and the learned counsel for the complainant and as such the said acquittal has attained finality therefore, the question for determination, before us 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 pages 1196 and 1197 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 Le. 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 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), Zaiaullah v. The State (1993 SCMR 155), Ghulam Sikandar v. Mamaraz 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).
11. So keeping in view, the principle laid down in the above referred judgments, we asked the learned counsel for the complainant and learned DPG to point out any independent corroboration qua the involvement of the appellant.
' The learned D.P.-G., 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 the appellant. We have gone through the contents of the F.I.R., and the statement of the witness made before the Court.
The motive alleged in the F.I.R. And stated before the learned trial Court was to the following effect:- - "The motive for occurrence is that about four years before, 9 1/2 acres agricultural land was purchased from Shabbir Ahmed, a relative of accused persons and the accused had grudge for the same".
It clearly shows that motive was attributed not only to the appellant but also to the acquitted co- accused.
The learned D.P.-G, and learned counsel for the complainant has referred to the recovery of hatchet at the instance of the appellant, which was taken into possession vide recover memo (Exh.PD), whereas, as per reports of the Chemical Examiner (Exh.P0), it contains blood, but unfortunately, there is no report of Serologist regarding origin of the blood, and in these circumstances, it cannot be considered as corroborative piece of evidence.
13. As far as medical evidence is concerned, it is very much clear that there are six injuries on the person of Ilyas Khan (deceased). Dr. Ghulam Safdar (P.W.7) has stated in his opinion that the death occurred due to haemorrhage, shock and brain damage caused by the injuries on the skull collectively, but it is the case of the prosecution that the appellant caused only one injury to the deceased, whereas, remaining injuries were attributed to other co-accused. According to the statement of Ismail Khan (P.W.1) and Naazer Khan (P.W.2) specific injuries were attributed to Shaukat Ali appellant as well as to acquitted co-accused. According to their statements the appellant Shaukat Ali inflicted one hatchet blow .At the head of Ilyas Khan deceased and one blow on the left wrist of Naazer Khan (P.W.2). Bashir Ahmad co-accused (since acquitted) allegedly caused one daraat blow on the left ear of. Ilyas Khan deceased and one on the right side of the neck of Naazer Khan P.W. Similarly, Sarfraz alias Sarfi co-accused (since acquitted) allegedly inflicted one daraat blow on the forehead of Ilyas Khan deceased and one blow on the forehead of Naazer Khan (P.W.2). Nazeer Khan co-accused (since acquitted) was given the role of inflicting bile hatchet blow on the right forehead of Ilyas Khan deceased and one blow on the left side of the head of Naazer Khan (P.W.2). Akram Khan co-accused (since acquitted) was attributed the role of giving one hatchet blow on the left thigh of Ilyas Khan deceased, and one hatchet blow on the back side of the head of Naazer Khan (P.W.2). So it is evident that the role attributed to the appellant is identical to that of the role attributed to acquitted co-accused namely Bashir Ahmad, Sarfraz alias Sarfi and Nazir Khan. One injury each on the area of head/forehead of the deceased was attributed to the appellant Shaukat Ali, as well as, to acquitted co-accused Bashir Ahmad, Sarfraz alias Sarfi and Nazir Khan. Similarly, one injury each on the person of Naazer Khan -P.W.2 was attributed to the appellant, as well as, to above-mentioned three acquitted co-accused. So the case of the appellant Shaukat Ali is not distinguishable from the case. Of above-mentioned acquitted co-accused namely Bashir Ahmad, Sarfraz alias Sarfi and Nazir Khan. We are unable to find out any independent corroboration qua the role attributed to the appellant Shaukat Ali.
14. In view of the above-mentioned circumstances, we are of the considered opinion that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. We, therefore, allow this appeal, and the conviction and sentence awarded to the appellant Shaukat Ali vide impugned judgment , dated 23-7-2005, passed by the learned trial Court, is set aside. The appellant namely, Shaukat Ali, is acquitted of all the charges, and shall be released from Jail forthwith, if not required in any other case.
' Death sentence awarded to the appellant Shaukat Ali is not CONFIRMED and Murder Reference is answered in the NEGATIVE.