MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No.1386 of 2008 titled as "Muhammad Sarwar v. The State" filed by Muhammad Sarwar, Criminal Appeal No.1387 of 2008 titled as "Sakhawat Ali alias Sakhoo v. The State" filed by Sakhawat Ali alias Sakhoo, Criminal Appeal No. 270-J of 2008, titled as "Muhammad Irshad v. The State" filed by Muhammad Irshad (appellant) against their convictions and sentences and Murder Reference No.5 of 2009 titled as "The State v. Muhammad Sarwar etc." submitted by the learned trial Court, under section 374 of the Code of Criminal Procedure, for confirmation or otherwise, of the sentences of death awarded to Muhammad Sarwar, Sakahawat Ali alias Sakhoo and Muhammad Irshad appellants, as all these matters have arisen out of the same judgment dated 27-11-2008 passed by the learned Additional Sessions Judge, Chunian, District Kasur in case FIR No. 110 dated 5-3-2004, registered under sections 302 and 396, P.P.C. (section 109, P.P.C. Was added subsequently), 148 and 149, P.P.C. (added in charge) Police Station Chunian, District Kasur whereby, Muhammad Sarwar, Sakhawat Ali alias Sakhoo and Muhammad Irshad appellants were convicted under section 302(b), P.P.C. Read with section 396, P.P.C. For committing the murder of Fateh Muhammad (deceased) and all of them were sentenced to death with a direction to pay Rs. 50,000 (rupees fifty thousand only) each to the legal heirs of deceased, as envisaged under section 544-A of the Code of Criminal Procedure and in default thereof to further undergo rigorous imprisonment for six months each.
The learned trial Court, however, through the same judgment, acquitted Muhammad Ismail, Niaz Ahmad, Muhammad Tufail and Mushtaq Ahmad, co-accused of the appellants while giving them the benefit of doubt.
2. Brief facts of the case, as disclosed by Abid Ali Khan complainant, (P.W.10) in his application (Exh- PG/1), on the basis of which the formal FIR (Exh-PG) was registered, are that he (complainant) was resident of Kora Khooh Mashmoola Sadha Ottar and runs a shop of dry cleaner at Chunian. His (complainant's) father Fateh Muhammad (deceased) had purchased a Mazda Coaster bearing registration No.LPT-1161, which was driven by him (Fateh Muhammad deceased) from Chunian to Lahore. On 5-3-2004 at 9-30 p.m., when, as per routine, he (father of the complainant), being relieved-from passengers, was going to Sadha, he (complainant) along with Abdur Rehman (P.W.11) and Muhammad Ashfaq (given up P.W.) also sat with him. Their wagon, when reached at a distance of one kilometer from College Bypass near Abadi Haji Idrees, all of a sudden, seven persons armed with firearm weapons came in front of the wagon and asked to stop the same. As the wagon stopped, the accused persons started firing and the bullets hit father of the complainant (Fateh Muhammad deceased) who succumbed to the injuries at the spot. Thereafter the accused persons came inside the wagon and carried out the personal search of the P.Ws. They took Rs.2,500 from the pocket of the complainant and Rs.150 from the pocket of Ashfaq (given up P.W.). The inner and outer lights of the wagon were lit. The occurrence was witnessed by the complainant, Abdur Rehman (P.W.11) and Muhammad Ashfaq (given up P.W.). It was further stated in the FIR, that he (complainant) can identify the accused persons on confrontation.
3. On 22-4-2002, Muhammad Sarwar (appellant) was arrested in this case by Muhammad Idrees, S.I (he was not produced as he has gone abroad) who on 5-5-2004, while in police custody, after making disclosure, got recovered .12 bore gun (P-7), which was taken into possession vide recovery memo. Exh-PM. Irshad alias Shada (appellant) was arrested on 24-5-2004 by Muhammad Idrees, S.I. Sakhawat Ali alias Sakhoo (appellant) was arrested in this case on 24-8-2004 by Muhammad Ashraf, S.I. (P.W.13), who, on 28-8-2004, while in police custody, after making disclosure, got recovered .12 bore gun (P-2), which was taken into possession vide recovery memo. Exh-PB. The appellant Sakhawat Ali also got recovered parts of motorcycle i.e. Mudguard (P-7), handle (P-8), Chimta Grari chain cover (P-9), filter cover (P-10), both wheels (P-11/1-2), oil tank of the motorcycle (P-12), engine bearing No.CD 70-E/F01909 (P-13) two indicators (P-14/1-2) which were taken into possession vide recovery memo. Exh-PC. 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 appellants and their co-accused (since acquitted) on 4-2-2006, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced fifteen witnesses, during the trial. wherea3, Naveed ur Rehman (C.W.1) appeared as Court Witness. Abid Ali Khan, complainant (P.W.10) and Abdur Rehman (P.W.11) furnished the ocular account of the case.
The medical evidence was furnished by Dr Nawab Din (P.W.9) who, on 6-3-2004 at 11-00 a.m., conducted the postmortem examination on the dead body of Fateh Muhammad (deceased).
Muhammad Ashraf, S.I. (P.W.13) is the Investigating Officer of the case. Nazir Ahmad 565/C (P.W.2) is the witness of recovery of .12 bore gun (P-2) whereas, Mehmood ul Hassan 937/HC (P.W.3) is the witness of recovery of motorcycle (P-1) at the instance of Sakhawat Ali alias Sakhoo (appellant).
Shaukat Ali 839/C (P. W.1), Mubarik Ali Shah 802/C (P.W.4), Ghulam Mustafa 926/HC (P.W.5), Riaz Ahmad 421/C (P.W .6), Muhammad Anees, Draftsman (P.W.7), Ali Muhammad (P.W.8), Muhammad Saleem 663/C (P.W.12), Karamat Ali 177/HC (P.W.14) and Abdur Rashid 169/C (P.W.15) are the formal witnesses whereas, Naveed ur Rehman 1040/C2 appeared as C.W.1.
It is pertinent to mention here that Karamat Ali 177/HC again appeared as P.W.14 to give secondary evidence as Muhammad Idrees, S.I, the investigating officer of this case proceeded abroad to Kosovo for duty in Peace Mission of United Nations.
The prosecution also produced documentary evidence in the shape of recovery memo. Of motorcycle P-1 (Exh.PA), rough site plan of the place of recovery of motorcycle P-1 (Exh.PA/1), recovery memo. Of .12 bore gun P-2 (Exh.PB), rough site plan of the place of recovery of .12 bore gun P-2 (Exh.PB/1), recovery memo. Of parts of motorcycle CD-70 (Exh.PC), recovery memo. Of last worn clothes of the deceased (Exh.PD), scaled site plan, in duplicate, of the place of occurrence (Exh.PE and Exh.PE/1), postmortem report of the deceased along with pictorial diagram (Exh.PF and Exh.PF/1), FIR (Exh.PG), application of the complainant for registration of the case (Exh.PG/1), application for postmortem examination (Exh.PH), injury statement of the deceased (Exh.PJ), inquest report of the deceased (Exh.PK), recovery memo. Of blood stained mat (Exh.PL), recovery memo. Of .12 bore gun (P-7) at the instance of Muhammad Sarwar appellant (Exh.PM), rough site plan of the place of recovery of .12 bore gun P-7 (Exh.PM/1), warrants of arrest of Muhammad Tufail accused (since acquitted) along with report (Exh.PN and Exh.PN/1), warrants of arrest of Mushtaq accused (since acquitted) along with report (Exh.PO and Exh.PO/1), proclamation of Tufail accused (since acquitted) along with report (Exh.PQ and Exh.PQ/1), proclamation of Mushtaq accused (since acquitted) along with reports (Exh.PR and Exh.PR/I), rough site plan of the place of occurrence (Exh.PS), receipt of receiving the dead body of the deceased (Exh.PT), report of the Chemical Examiner (Exh.PU), report of the Serologist (Exh.PV), reports of the Forensic Science Laboratory (Exh.PW and Exh.PX), application for discharge of Niaz Ahmad accused (Exh.PY), copy of letter from DIG (Exh.CW-1/1), list of police officers selected for UNO Peace Mission (Exh.CW-1/2) and closed its evidence.
5. The statements of the appellants and their co-accused (since acquitted) except Muhammad Ismail, under section 342 of the Code of Criminal Procedure, were recorded by the learned trial Court on 4-5-2007. They refuted the allegations levelled against them and professed their innocence. While answering to a question that "Why this case against you and why the P.Ws. Have deposed against you?", Muhammad Sarwar appellant replied as under:- "The P.Ws. Are related inter se and they have deposed falsely against me. It was an occurrence of blind murder. I and my co-accused Muhammad Ismail etc., have been involved in the case by the Police with mala fide in connivance with this complainant party just to show its efficiency. We all are innocent in this case."
In reply to the above said question, Sakhawat alias Sakhoo appellant replied as under:- "The P.Ws. Are related inter se, so they have deposed against me falsely. I have been falsely involved in this case without any reason. In fact, it was an occurrence of blind murder and the Police party has involved me in the case in connivance with the complainant party by nominating me in supplementary statement got recorded by the complainant. I am innocent and false recovery has been planted upon me. No weapon of offence was recovered from my house. On the fateful night of occurrence, I was present at my house and have no knowledge about any such occurrence."
In reply to the same question, Muhammad Irshad appellant replied as under:- "The P.Ws. Are related inter se and they have falsely deposed against me. In fact, on the fateful night of occurrence, I along with my father Muhammad Hussain were present at the Dera of Shaukat Ali, situated at Qilla Natha Singh, in a punchayat and I along with my father spent the whole night at the said Dera. On the next morning, I went to Lahore and for that reason I have also been declared innocent during investigation."
6. The learned trial court vide its judgment dated 27-11-2008, found the appellants guilty, convicted and sentenced them as mentioned and detailed above.
7. Learned counsel for the appellants, in support of these appeals, contend that admittedly the appellants are not named in the FIR (Exh.PG) and even no feature or description of any of the appellants or any other accused is mentioned therein; that the claim of the complainant that he made a supplementary statement immediately at the spot is belied by other circumstances of the prosecution's own case; that firstly, in the inquest report (Exh.PK), the story of the prosecution is the same as was in the FIR (Exh.PG) and even in the scale4 site plan (Exh.PE), which was prepared on 15-3-2004, name of any of the appellants or any other co-accused is not mentioned and the Draftsman who prepared the scaled site plan appeared before the learned trial Court as P.W.7 and stated that he did not mention the name of any accused in the scaled site plan as the Investigating Officer told him that no accused was traced out by that time; that the complainant has stated that he was disturbed at the time of submitting application (Exh.PG/1) for registration of the case and he could not mention the names of the appellants, therefore, he got recorded his supplementary statement but his version does not appeal to common sense and even no such supplementary statement of the complainant is available on the record; that it was specifically alleged by the complainant in the FIR (Exh.PG) and while appearing before the learned trial court that seven persons fired at the deceased but the doctor who conducted the postmortem examination on the dead body of Fateh Muhammad (deceased) appeared before the learned trial court as P.W.9 and as per postmortem report (Exh.PF), he noted a group of firearm entry wounds on the person of the 'deceased which was caused by one fire shot and as such, the medical evidence is in conflict with the ocular account; that along with the appellants five other persons namely, Muhammad Ismail, Niaz Ahmad, Muhammad Tufail, Mushtaq Ahmad and Ashiq were also implicated in this case, out of whom, Ashiq had died whereas, Muhammad Ismail, Niaz Ahmad, Muhammad Tufail and Mushtaq Ahmad were acquitted by the learned trial court and no appeal against their acquittal was filed either by the State or by the complainant, therefore, the evidence which has been disbelieved qua the acquitted accused persons cannot be believed to the extent of the appellants until and unless, there is strong and independent corroboration which is very much lacking in this case as the recovery of .12 bore guns (P-2 and P-7) at the instance of Sakhawat. Ali alias Sakhoo and Muhammad Sarwar (appellants), respectively is of no avail to the prosecution because no crime empty was recovered from the spot and the reports of the Forensic Science Laboratory (Exh.PW and Exh.PX) are simply to the effect that the guns were in working order; that recovery of Rs.150 from Muhammad Sarwar (appellant) is also of no avail to the prosecution as no description of the currency notes allegedly snatched from the complainant and Muhammad Ashfaq (given up P.W.) was mentioned in the FIR; that even Muhammad Ashfaq from whom Rs.150 were snatched did not appear before the learned trial court as witness; that recovery of motorcycle and parts of motorcycle at the instance of Sakhawat Ali alias Sakhoo (appellant) is also not helpful to the prosecution because there is no allegation that any accused was riding on the motorcycle or motorcycle was snatched during the occurrence; that the prosecution case is of doubtful nature from all angles; that prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt; thus, these appeals be accepted and the appellants may be acquitted from the charges.
8. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant vehemently opposes these appeals on the grounds that the appellants cannot get any benefit from the acquittal of other co-accused namely, Muhammad Ismail, Niaz Ahmad Muhammad Tufail and Mushtaq Ahmad as they were found innocent during the course of investigation; that this incident took place on 5-3-2004 at 10-00 p.m. Whereas, the matter was reported to the police on the same night at 10-30 p.m.; that immediately after the registration of the case, the complainant made a supplementary statement wherein, the appellants were named with specific allegation of causing firearm injury to Fateh Muhammad (deceased) and snatching Rs.2,500 from him and Rs.150 from Muhammad Ashfaq (given up P.W.); that there is absolutely no enmity of the complainant or any other witness with the appellants and other co-accused (since acquitted) for their false implication in this case; that the prosecution witnesses cannot be treated as interested or inimical witnesses; that it is not only a case under section 302, P.P.C. But it is also a case under section 396, P.P.C. And all the accused are conjointly responsible for the murder of Fateh Muhammad (deceased): that A2 bore guns (P-2 and P-7) were recovered at the instance of Sakhawat Ali alias Sakhoo and Muhammad Sarwar (appellants), which were taken into possession vide recovery memos. Exh.PB and Exh.PM, respectively; that the prosecution has proved its case against the appellants beyond the shadow of any doubt; that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellants and the same may be maintained, appeals may be dismissed and Murder Reference be answered in the affirmative.
9. We have heard the arguments of learned counsel for the appellants, the learned Deputy Prosecutor General assisted by learned counsel for the complainant and have also gone through the record with their able assistance.
10. The detail of the prosecution story has already been mentioned in paragraph No.2 of this judgment, therefore, there is no need to repeat the same, however, the gist of the prosecution case is that on 5-3-2004 at 9-30 p.m., Fateh Muhammad (deceased), Abid Ali Khan complainant (P.W.10), Abdul. Rehman (P.W.11) and Muhammad Ashfaq given up P.W.) were going to village Sadha Ottar on wagon of the deceased and when they reached near Abadi Haji Idrees, one kilometer from College bypass, seven persons armed with firearm weapons came in front of the wagon and asked to stop the same. As the wagon stopped, the accused persons started firing and the bullets hit the deceased who succumbed to the injuries at the spot. The accused persons also snatched cash amount from the complainant and Ashfaq (given up P.W)
We have noted that the appellants were not named in the FIR (Exh.PG). No description of the appellants, whatsoever, was mentioned in the FIR. No identification parade of the appellants was conducted. Although it has been claimed by the complainant that the appellants were implicated through his supplementary statement which was recorded on the day of occurrence but no such statement has been brought on the record. The complainant had claimed that the accused persons were known to him prior to the occurrence but it is not understandable that if the accused persons were known to the complainant prior to the occurrence, then what was the obstacle in his way to nominate them in the FIR (Exh.PG). It was the case of the prosecution, as set forth in the FIR (Exh.PG), that seven unknown accused persons participated in the occurrence and resorted to firing at the deceased at the time of occurrence but there was only one firearm injury on the person of Fateh Muhammad (deceased) as per medical evidence furnished by Dr. Nawab Din (P.W.9) and besides abovementioned one fire-arm injury, there were only two abrasions on the person of the deceased. We have also noted that three co-accused namely, Muhammad Tufail, Niaz Ahmad and Mushtaq Ahmad who were also assigned the role of making firing at the deceased, have been acquitted by the learned trial Court and no appeal against their acquittal has been filed either by the State or by the complainant and as such, their acquittal has attained the finality.
11. In the FIR (Exh.PG), the complainant Abid Ali Khan (P.W.10) attributed the joint role of firing to all the seven unknown accused persons who were later on nominated as Muhammad Sarwar, Sakhawat Ali alias Sakhoo, Irshad (the appellants) and Niaz Ahmad, Mushtaq Ahmad and Muhammad Tufail (since acquitted). The complainant Abid Ali Khan, while appearing before the learned trial court as (P.W.10) narrated the same allegation and assigned the role of inflicting fire- arm injury to all the above-mentioned accused persons. The relevant part of his statement is reproduced here under:- "...All of a sudden, 7 persons i.e., accused Muhammad Sarwar duly armed with .12 bore Gun, Irshad armed with 30 bore Pistol, Sakhawat armed with .12 bore Gun, Tufail armed with .44 bore Rifle, Ashiq armed with .12 bore Gun, Mushtaq armed with Carbine and Niaz armed with .12 bore Gun, came in front of the Coaster and started making fire shots with their respective weapons of offence. All the aforesaid accused are present before this court. Due to firing by the accused, my father Fatteh Muhammad died at the spot..."
The other eye-witness namely, Abdur Rehman (P.W.11), while appearing before the learned trial Court made the following statement:- ..When we were passing through Bypass and reached at a distance of about one Kilometer ahead of Commercial College, Chunian, we saw tractor trollas on the road and those were being stopped by the accused. We saw accused Irshad duly armed with Pistol, Sarwar, Sakhawat, Niaz duly armed with .12 bore Guns, Ashiq armed with .12 bore Gun (since dead), Tufail armed with .44 bore Rifle and Mushtaq armed with Carbine. All the accused except Ashiq are present before this court. We saw the accused looting tractor trollas. Our driver was intended to overtake the tractor trollas whereupon the accused gave signal to stop the Mazda Wagon, but it was in high-speed. The driver of coaster stopped the same after applying break, but in the meantime accused made fire shots.
One of the fire. Hit Fateh Muhammad at the back side of his body, who died at the spot..."
It is evident from the perusal of evidence of the above-mentioned prosecution witnesses that the role attributed to the appellants Muhammad Sarwar, Sakhawat Ali alias Sakhoo and Irshad was similar to that of acquitted co-accused, namely, Niaz Ahmad, Muhammad Tufail and Mushtaq Ahmad.
12. Charge under sections 302, 396, 148, 149 of P.P.C. With identical allegations was framed against the appellants Muhammad Sarwar, Sakhawat Ali alias Sakhoo, Muhammad Irshad and the above- mentioned acquitted three co-accused namely, Niaz Ahmad, Muhammad Tufail and Mushtaq Ahmad. The said three co-accused were also assigned the similar joint role of firing on the person of Fateh Muhammad (deceased) due to which he (Fateh Muhammad deceased) died 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 "Iftikhar Hussain and another v. State" 2004 SCM R 1185, wherein the Hon'ble Supreme Court, at page 562, held as under:- "17. ...It is true that principle of falsus in uno falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e. Sifting of grain out of chaff i.e. If an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), relevant para therefrom is reproduced 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 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), Zaiaullah v. 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 All and others v. The State" (2008 SCMR 6). We, therefore, following the principles as set forth by the Hon'ble Supreme Court of Pakistan in such like cases, would examine the case of the appellants to see, as to whether there case is distinguishable from the case of acquitted co-accused and whether there is any independent corroboration of the prosecution case against the appellants.
13. Learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has referred to the recovery of .12 bore gun (P-2) and cash amount of Rs.150 allegedly recovered at the instance of Sakhawat Ali alias Sakhoo (appellant) and recovery of .12 bore gun (P-7) allegedly recovered at the instance of Muhammad Sarwar (appellant). In so far as the alleged recovery of .12 bore gun (P-2) at the instance of Sakhawat Ali alias Sakhoo (appellant) and .12 bore gun (P-7) at the instance of Muhammad Sarwar (appellant) is concerned, the same is inconsequential as there is no report of the Forensic Science Laboratory about wedding of any empty with the said guns and the reports of the Forensic Science Laboratory (Exh.PW and Exh.PX) are only to the extent of working condition of the said guns. We are, therefore, of the view that the recoveries of .12 bore guns (P-2 and P-7) allegedly recovered at the instance of Sakhawat Ali alias Sakhoo and Muhammad Sarwar (appellants) respectively, are of no avail to the prosecution whereas, nothing was recovered from Muhammad Irshad (appellant) during the investigation of this case.
In so far as the alleged recovery of Rs.150 at the instance of Muhammad Sarwar (appellant) is concerned, we have noted that no specific identification mark or denomination of any currency note is mentioned in the FIR (Exh.PG). No specific identification mark on allegedly recovered currency notes has been mentioned in the recovery memo Exh.PM. There is no identification memo of the recovered currency notes prepared in this case to show that the said currency notes were got identified by any eye-witness and he verified that recovered currency notes were the same which were looted during the occurrence, therefore, recovery of cash amount of Rs.150, which is easily available with almost every person, at the instance of Muhammad Sarwar (appellant) is of no avail to the prosecution.
We are, therefore, of the view that there is no corroboration of the prosecution case from the abovementioned alleged recoveries.
14. As far as medical evidence is concerned, Dr. Nawab Din (P.W.9) conducted the postmortem examination on the dead body of Fateh Muhammad (deceased) on 6-3-2004 at 11-00 a.m., who noted the following injuries on the dead body of Fateh Muhammad (deceased):- "(1) A group of six entry wounds, every one measuring 1/2 x 1/2 cm x chest cavity deep. On back of middle and lower part of right side of chest 2 to 3 cm apart from one another. Margins were inverted.
(2) An exit wound 1/2 x 1/2 cm x chest cavity deep, in mid-line 3 cm above, epigastrium. Margins everted.
(3) An abrasion 3 x 1 cm, present in front of right lower leg.
(4) An abrasion 2 x 1 cm present in front of left knee."
It is obvious from the perusal of above-mentioned medical evidence given by Dr Nawah Din (P.W.9), that there was only one firearm entry wound (injury No.1) on the person of Fateh Muhammad (deceased). The said injury has not been specifically assigned to any of the appellants and the same was jointly attributed to the appellants, as well as, their three acquitted co-accused namely, Niaz Ahmad, Muhammad Tufail and Mushtaq Ahmad.
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 the shadow of doubt. We, therefore, accept all the appeals i.e. Criminal Appeal No.1386 of 2008 filed by Muhammad Sarwar (appellant), Criminal Appeal No.1387 of 2008 filed by Sakhawat Ali alias Sakhoo (appellant) and Criminal Appeal No.270-J of 2008 filed by Muhammad Irshad (appellant) and set aside their convictions and sentences awarded by the learned trial Court vide its judgment dated 27-11-2008 by extending them the benefit of doubt. The appellants are acquitted from all the charges. They are in custody, they be released forthwith if not required in any other case.
16. Murder Reference No.5 of 2009 is answered in the NEGATIVE and the sentence of death of Muhammad Sarwar, Sakhawat Ali alias Sakhoo and Muhammad Irshad (convicts) is NOT CONFIRMED.