' MALIK SHAHZAD AHMAD KHAN, J.---We propose to dispose of Murder Reference No,57 of 2007, sent by the learned trial Court, Criminal Appeal No,1963 of 2006, preferred by. Appellant Zulfiqar Ali, and Criminal Appeal No,1988 of 2006, filed by Muhammad Saleem appellant, by this single judgment, as all these matters have arisen out of the same judgment dated 7-12-2006, passed by learned Additional Sessions Judge, Shakargarh, District Narowal.
2. Zulfiqar Ali and Muhammad Saleem appellants along with their co-accused namely, Irshad Ahmad, Muhammad Sarwar alias Chhabbu, Hameedan, Farooq Hussain, Muhammad Arshad, Sarfraz Ahmad and Shamsa Bibi, ,were tried in case F.I.R. No,216, dated 19-9-2004, registered at Police Station, Noor Kot, in respect of offences under sections, 302, 109, 148, and 149 of P.P.C. After conclusion of the trial, the learned trial Court vide its judgment dated 7-12-2006, convicted and sentenced the appellants as under:- Zulfiqar Ali and Muhammad Saleem Under section 302(b) of P.P.C. To death for committing Qatl-e-amd of Muhammad Lateef deceased. They were also ordered to pay Rs,1,00,000 (Rupees one hundred thousand only) each as compensation under section 544-A, of Cr.P.C. To the legal heirs of deceased or in default to suffer simple imprisonment for six 'months each. ' whereas, the learned trial Court vide the same judgment acquitted the above-mentioned co- accused of the appellants from the charges.
3. Brief facts of the case as disclosed by Mushtaq Ahmad complainant (P.W.11) in his statement (Exh.PA) on the basis of which .F.I.R. (Exh.PA/1) was chalked out are that during the preceding year of the occurrence, his younger brother Ashiq Hussain, was murdered by Muhammad Saleem, Zulfiqar Ali and Muhammad Sarfraz accused and all of them were absconders in the said case. The younger brother of the complainant, namely, Muhammad Lateef, was an army personnel, who had come to his house on leave and on the fateful day, he had to go back to join his duty at Sialkot. It was mentioned by the complainant in the F.I.R. (Exh.PA/1) that he, along with his brother-in-law Nazir Ahmad and Rasheed Ahmad (P.W.12) were going to Bhajpur Bus Stand to see off his brother Muhammad Lateef (deceased). When they reached near the 'Haveli' of one Irshad Ahmad, all of a sudden, Zulfiqar Ahmad, and Muhammad Saleem (the appellants), along with their co-accused namely, Sarfraz Ahmad, Farooq Ahmad, Muhammad Arshad, and Sarwar alias Chhabbu (since acquitted), while armed with firearm weapons, came to the place of occurrence on two motorbikes. Co-accused Farooq Ahmad (since acquitted) raised a Lalkara' to take the life of Muhammad Lateef (deceased), on which Muhammad Lateef (deceased) ran towards the 'Haveli' of Irshad Ahmad in order to save his life. All the above-mentioned accused followed Muhammad Lateef inside the said 'Haveli' and all of them inflicted firearm injuries on his person, who succumbed to the said injuries at the spot. The accused decamped from the place of occurrence on motorbikes while making aerial firing and raising Ealkaras'. It was also alleged that the accused had committed the murder of Muhammad Lateef (deceased) on the abetment of co-accused Hameedan Bibi widow of Hakim Ali (since acquitted), Shamsa Bibi wife of Sarfraz Ahmad (since acquitted) and Irshad Ahmad son of Taj Din' (since acquitted)..
' The motive for the occurrence, as stated by the complainant in F.I.R. Exh.PA/1 was previous enmity of the complainant party with the accused.
4. After completion of investigation, the challan was submitted before the trial Court, the appellants along with acquitted co-accused were charge sheeted on 4-5-2006, to which they pleaded not guilty and claimed trial.. The prosecution in order to prove its case examined as many as twenty P.
Ws.
' The complainant Mushtaq Ahmad (P.W.11), and Rasheed Ahmed (P.W.12) furnished ocular account of the occurrence.
' Dr. Javed ,Iqbal (P.W.9) on 19-9-2004, at 10-30 p.m., conducted, the post-mortem examination on the dead body of Muhammad Lateef (deceased) vide post-mortem report (Exh.PC) and found the following injuries on his person:--
(i) A lacerated wound of 1 cm x 1 cm at the back of right shoulder inward and to the front direction with blackening at the clothes, at the site of injury. (Entry wound).
(2) A lacerated wound of 1 cm x 1.25 cm at the front of right shoulder, everted margins with leaking of blood. (Exit wound).
(3) A lacerated wound of 2 cm x 1 cm at the right cheek near the nose, inward and backward.
(Entry wound). Blackening at the site of injury.
(4) A lacerated wound of 1 cm x 1.25 cm at the right cheek in front of ear, everted margins. (Exit wound).
(5) A lacerated wound of 6 cm x 3 cm at back right side of skull, inward and toward the ear, bone fractured, bone matters scattered. (Entry wound).
(6) A lacerated wound of 1-112 cm x 1 cm at the right face below the right ear bleeded. (Exit wound).
' In his opinion, all the injuries mentioned, above were ante-mortem and were caused by fire-arm weapon. The injuries on skull apd face were enough to cause death due to neougeranic and haemorrhage shock. Probable time that elapsed between injuries and death was immediate and between death and post mortem was within eight hours.
' Rashad Majeed, S.-I. (P.W.2), Faryad Ali, S.-I. (P.W.8), -Muhammad Iqbal, S.-I. (P. W,16), Maqbool Ahmad Inspector, SHO (P.W.17), and Muhammad Iqbal Goraya, SI/SHO (P.W.19), were the Investigating Officers of this case.
(P.W.1) Amjad Parvez ASI, (P.W.3) Aftab Ahmad ASI, (P.W.4) Muhammad Ishaque HC-122, (P.W.5)
Naseer Ahmad HC-267, (P. W.6) Muhammad Boota C-622, (P. W.7) Muhammad Asif C-378, (P.W.10)
Allah Ditta SI, (P.W.13) Muhammad Farooq, (P.W.14) Rasheed Ahmed, (P.W .15) Tahir Tasleem Draftsman, (P.W.18) Muhammad. Sagheer C-17, and (P.W.20) Allah Rakha, are the formal witnesses.
5. After completion of prosecution evidence, the statements of the appellants under section, 342 of Cr.P.C. Were recorded on 14-7-2006. They refuted the allegations levelled against them and professed their innocence. In answer to the question, "why this .Case against you and why the P.Ws.
Have deposed against you", the appellant Zulfiqar Ali replied as under:-- "On the basis of previous murder of Ashiq Hussain I have been falsely implicated in this case and the allegations against me in this case are so frivolous that (deceased) namely Muhammad Lateef was done to death in a small room and eight accused according to prosecution version hit him/deceased indiscriminately with deadly weapons like kalashnikovs etc., whereas, only three injuries are on the person of (deceased), so it cannot be ascertained nor there is any evidence with the prosecution that any injury was hit by me to the (deceased). P. Ws. Are related inter se and inimical towards me. I am innocent".
' The appellant Muhammad Saleem also denied the allegations of the prosecution levelled against him and claimed his innocence, in his statement recorded under section 342 of Cr.P.C. In answer to the. Question, why this case against you and why the P.Ws. Have deposed against you, the appellant Muhammad Saleem replied as under:- "On account of previous enmity and strained relations with the complainant of this case and his relatives, I have been falsely implicated in this case".
' The appellants did not make statements under section 340(2), Cr.P.C., nor they intended to adduce their defence evidence.
' The learned trial Court vide its judgment dated 7-12-2006, found both the appellants guilty, convicted and sentenced them as mentioned and detailed above.
6. The learned counsel for the appellants, in support of both the appeals, contends that in the F.I.R., there was an allegation against four persons besides the appellants of causing firearm injuries to Muhammad Lateef (deceased), whereas, co-accused namely, Sarfraz Ahmad, Farooq Ahmad, Muhammad Arshad, and Sarwar alias Chhabbu 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 case of the appellants is not distinguishable from the case of acquitted co-accused; that the motive is attributed to the appellants as well as to the above- mentioned acquitted co-accused; that the recovery of rifle (P.5) from the possession of the appellant Zulfiqar Ali and the recovery of rifle (P.7) from the possession of the appellant Muhammad Saleem cannot be considered a corroborative piece of evidence, because the reports of Forensic Science Laboratory are only to the extent of working condition of the said rifles, therefore, this appeal be accepted and the appellants may be acquitted from the charges.
7. Conversely, the learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant, opposes both the appeals on the grounds that the appellants were named in the F.I.R., which was promptly lodged with the specific allegation against the appellants for causing firearm injuries to Muhammad Lateef (deceased); that the motive was also proved against the appellants; that rifles (P.5) and (P.7) have also been recovered from the possession of the appellants; that the prosecution witnesses of the ocular account remained consistent and straightforward and their evidence could not be shattered by the defence; that the case of the acquitted accused is distinguishable from the case of the present appellants as they were found innocent by the police. 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 appellant and learned DPG assisted by learned counsel for the complainant, and have also gone through the evidence available on record with their able assistance.
9. The occurrence in this case took place on 19-9-2004, at 4-30 p.m., in the 'Haven' of one Irshad, situated in village Kasraj, Police Station, Noor Kot, District Narowal. The matter was reported to the police on the same day at 6-00 p.m., by the complainant Mushtaq Ahmad (P.W.11), who is real brother of Muhammad Lateef (deceased). The prosecution, in order to prove its ocular account has produced Mushtaq Ahmad (P:W.11) and Rasheed Ahmad (P.W.12). In the F.I.R.. (Exh.PA/1); it is the case of the complainant that on 19=9-2004, at 4-30 p.m., he along with his brother-in-law Nazeer Ahtnad son of Din Muhammad and Rasheed. Ahmad (P.W.12) were going towards Bhojpur bus stand to see off his brother Muhammad Lateef (deceased), who had to rejoin his duty in his unit of Pakistan Army at Sialkot. According to the complainant Mushtaq Ahmad (P.W.11), when they reached near the 'Haveli' of one Irshad Ahmad, all of a sudden, Zulfiqar Ali, and Muhammad Salem (the appellants), along with their co-accused namely, Sarfraz Ahmad, Farooq Ahmad, Muhammad Arshad, and Sarwar alias Chhabbu (since acquitted), while armed with firearm weapons, came to the place of occurrence on two motorbikes. Co-accused Farooq Ahmad (since: acquitted) raised a lalkara' to take the life of Muhammad Lateef (deceased), on which Muhammad Lateef (deceased) ran towards the 'Haven' of Irshad Ahmad in order to save his life. All the above-mentioned accused followed Muhammad Lateef inside the said 'Haveli and all of them inflicted firearm injuries on his person, who succumbed to the said injuries at the spot. The accused decamped from the place of occurrence on motorbikes while making aerial firing and raising Lalkaras'. It was also alleged that the accused had committed the murder of Muhammad Lateef (deceased) on the abetment of co- accused Hameedan Bibi widow of Hakim Ali (since acquitted); Shamsa Bibi wife of Sarfraz Ahmad (since acquitted) and Irshad Ahmad son of Taj Din (since acquitted).
' The motive for the occurrence, as stated by the complainant in the F.I.R. (Exh.PA/1) was previous enmity of the complainant party with the accused.
10. In the F.I.R. (Exh.PA/1), the complainant Mushtaq Ahmad attributed the joint role of firing to all the above-mentioned six accused namely, Zulfiqar Ali Muhammad Saleem (the appellants) and Sarfraz Ahmad, Farooq Ahmad, Muhammad Arshad, and Sarwar alias Chhabbu (since acquitted).
The complainant Mushtaq Ahmad, while appearing before the learned trial Court as (P.W.11) narrated the same allegation and assigned the role of inflicting fire-arm injuries to all the above- mentioned accused. The relevant part of his evidence is reproduced hereunder:-- "The fires hit Muhammad Lateef (deceased) in my presence. All the accused persons entered in the bethik of Irshad and made firing at the (deceased). The door of bethik was of normal size. I do not know the measurement of bethik. I myself saw the accused persons making firing at the (deceased). I saw the occurrence outside the bethik at a distance of three karms. I cannot tell the number of fires made by each accused at the time of occurrence. All the accused persons made firing at the (deceased) and the fires hit the (deceased)".
' The other eye-witnes's namely, Rasheed Ahmad (P.W.12), while appearing before the learned trial Court made the following statement:-- "All the accused were armed with fire arms. Farooq Ahmed accused raised lalkara that Muhammad Lateef should be murdered, whereby, Lateef took shelter in the haveli of Irshad and the accused persons made firing at Lateef with their respective fire arms in the bethik. Lateef succumbed to the injuries at the spot. The accused persons while making firing fled-away from the spot on their motor-cycles".
' It is evident from the perusal of evidence of the above-mentioned prosecution witnesses that the role attributed to the appellants Zulfiqar Ali and Muhammad Saleem was similar to that of acquitted co-. Accused, namely, Sarfraz Ahmad, Farooq Ahmad, Muhammad Arshad, and Sarwar alias Chhabbu.
11. Charge under sections 302, 109, 148, 149 of P.P.C. With identical allegations was framed against the appellants Zulfiqar Ali and Muhammad Saleem and the above-mentioned acquitted four co- accused namely, Sarfraz Ahmad, Farooq Ahmad, Muhammad Arshad, and Sarwar alias Chhabbu.
The said four co-accused were also assigned the similar role of causing injuries on the person of Muhammad Lateef (deceased) but they have been acquitted by the learned trial Court while extending them the 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, for the State, and the learned counsel for the complainant and, as such, the said acquittal 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 appellants can be believed against the appellants. In this regard, we, are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as lftikhar Hussain and another v. State (2004 SCM R 1185), wherein the Hon'ble Supreme Court at page 1196 and 1197 as under:-- "17. ... It is true that principle of alsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence .Of a witness is' to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e, sifting of grain out of chaff i.e, if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others versus. The,State (2000 SCMR 1758), relevant para there from 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. 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).
12. 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 the appellants. We have gone through, the contents of the F.I.R. (Exh.PA/1), and the statements of the prosecution witnesses namely, Mushtaq Ahmad (P'. W.11) and Rasheed Ahmad (P.W.12) made before the Court. The motive as alleged by the said prosecution witnesses was that 1-1/2 years prior to the occurrence the younger brother of the complainant Ashiq Hussain was murdered by Zulfiqar Ali, Muhammad Saleem (the appellants) and their co-accused Sarfraz Ahmad (since acquitted). Similarly, the complainant Mushtaq Ahmad, while appearing before the trial Court as (P.W.11) made the following statement qua the motive:--- "My brother Ashiq Hussain (deceased) was murdered by Swfraz, Zulfiqar and Saleem accused about 1-1/2 years prior to this occurrence and all the said accused were (Pos) in the murder case of Ashiq Hussain (deceased)".
' Similarly., the statement of Rasheed Ahmad (P.W.12) regarding the motive is reproduced hereunder--- The motive for occurrence is that Sateen!, Zulfiqar and Sarfraz accused committed murder of Ashiq Hussain brother of Mushtaq Ahmed complainant 1-1/2 years prior to this occurrence and the accused said that they would find peace of mind only after committing murder of Muhammad Lateef (deceased)".
The perusal of above-mentioned evidence clearly shows that motive was attributed not only to the appellants, but also to the acquitted co-accused Sarfraz. So, even to the extent of motive, the case of the appellants is not distinguishable from the case of acquitted co-accused Sarfraz.
13. The learned Deputy Prosecutor-General, for the State, and the learned counsel for the complainant have referred to the recovery of rifle (P.5), at the instance of the appellant Zulfiqar, and the recovery of rifle (P.7) at the instance of the appellant Muhammad Saleem to substantiate their arguments that the case of prosecution against the appellants has been corroborated by said recoveries. The reports of Forensic Science Laboratory (Exh.PQ) and (Exh.PR) are only in respect of working condition of the allegedly recovered rifles. In these circumstances, the rifles (P.5) and (P.7), allegedly recovered from the possession of the appellants cannot be cisidered as corroborative piece of evidence.
14. As far as medical evidence is concerned, Dr. Javed Iqbal (P.W.9), conducted the post-mortem examination on the dead body of Muhammad Lateef (deceased) on 19-9-2004, at 10-30 p.m., vide postmortem report (Exh.FPC), pictorial diagrams (Exh.PC/1) and (Exh.PC/2), and found the following injuries on the dead body of Muhammad Lateef (deceased):--
(1) A lacerated wound of 1 cm x 1 cm at the back of right shoulder inward and to the front direction with blackening at the clothes, at the site of injury. (Entry wound).
(2) A lacerated wound of 1 cm x 1.25 cm at the front of right shoulder, everted margins with leaking of blood. (Exit wound).
(3) A lacerated wound of 2 cm x 1 cm at the right cheek near the nose, inward and backward.
(Entry wound). Blackening at the site of injury.
(4) A lacerated wound of 1 cm x 1.25 cm at the right cheek in front of ear, everted margins. (Exit wound).
(5) A lacerated wound of 6 cm x 3 cm at back right side of skull, inward and toward the ear, bone fractured, bone matters scattered. (Entry wound).
(6) A lacerated wound of 1-1/2 cm x 1 cm at the right face below the right ear bleeded. (Exit wound).
' It is obvious from the perusal of above-mentioned medical evidence given by Dr. Javed Iqbal (P.W.9), that there were three (3) entry wounds (Injuries Nos.l, 3 and 5) on the person of Muhammad Lateef (deceased). The said injuries have not been specifically assigned to any of the accused, and the same were jointly attributed to the appellants, as well as, their four acquitted co- accused namely, Sarfraz Ahmad, Farooq Ahmad, Muhammad Arshad, and Sarwar alias Chhabbu.
' In the circumstances of the case, we could not find out any independent corroboration against the appellants and we are unable to distinguish the case of the appellants from the case of acquitted co-accused.
15. In view of the above-mentioned circumstances, we are of the considered opinion that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt. We, therefore, accept both the appeals, bearing Criminal Appeal No,1963 of 2006, filed by Zulfiqar Ali appellant, and Criminal Appeal Nb.1988 of 2006, filed by Muhammad Saleem appellant, by extending them the benefit of doubt, and set aside the conviction and sentence awarded to the appellants, namely, Zulfiqar Ali and Muhammad Saleem Ali, vide impugned judgment dated 7-12- 2006, passed by the Additional Sessions Judge, Shakargarh, District Narowal. The appellants namely, Zulfiqar Ali and Muhammad Saleem, are acquitted from all the charges, and they shall be released from Jail forthwith, if not required in any other case.
' Death sentence awarded to the appellants, namely, Zulfiqar Ali and Muhammad Saleem, is not CONFIRMED and Murder Reference is answered in the NEGATIVE.