1. Qazi Muhammad Amin Ahmed, J.--Abdul Ghaffar, 50/55, and Zulfiqar Hussain, 50, real brothers inter-se, were gunned down at 3:30 p.m. on 23-11-2010 within the area of Bhera 'Phial, situating at a distance of 1 Kilometer from Police Station Jatli, District Rawalpindi by no other than their real brother and nephew, appellants herein. The incident was reported by Arif Javed (PW-7) through statement (Ex.PE) recorded by Dost Ali, SI (PW-12) 6:00 p.m. at the spot. According to the complainant on the fateful day, one Ibrar Hussain, related with Abdul Ghaffar, deceased as well as complainant's wife, came to visit him and he accompanied said Ibrar Hussain to the hOuse of Abdul Ghaffar, deceased who had statedly gone to fetch fodder alongwith his wife Fouzia Ghaffar (PW-11); they came across them near the house of Imtiaz at about 3:30 p.m, when they saw Muhammad Anwar and Muhammad Sadiq standing outside the house of Abdul Sattar, appellant as soon as Abdul Ghaffar and his wife Fouzia Ghaffar came within their view, they exhorted Abdul Sattar and Muhammad Shoaib, appellants to come out of their house and finish Abdul Ghaffar and his wife whereupon both the appellants armed with 30-caliber pistols came out of their house and raised lalkara that they would avenge the demand for land; Abdul Sattar, appellant made a straight fire hitting Abdul .Sattar, deceased on his left ear; in the meanwhile Zulfiqar Hussain arrived at the scene who was hit by Muhammad Shoaib on his chest; Shoaib appellant dealt repeated butt blows to Zulfiqar Hussain as well; as Fouzia Ghaffar PW raised commotion, Abdul Ghaffar, gave multiple butt blows on her head, left shoulder and left thigh. Both the deceased, succumbed to their injuries at the spot and the accused decamped from the scene. Motive for the crime is that Abdul Sattar appellant was in occupation of ancestral land in excess of his share and both the deceased asked for their due share.
2. ' Fouzia Ghaffar (PW-11) was medically examined on 23-11-2010 under a police docket at 11:30 p.m by Dr. Farhat Naveed Malik (PW-1) and was noted to have a lacerated wound 2 x 1 cm on the left side of skull accompanied by a swelling 2 x 2 cm on left shoulder. Dr. Naveed Malik (PW-3) conducted autopsy at 8:30 P.M on the dead body of Zulfiqar Hussain and noted a solitary fire-arm entry wound on the left side of chest on 6th inter costal space, 4 cm from left nipple and 24 cm from left shoulder, 15 cm from sternum, bullet was found embedded on the lateral aspect of right thigh, 8 cm from right iliac crest. The Medical Officer also noted a lacerated wound . measuring 1 x 1 cm on the forehead accompanied by a swelling on right side of skull; severe bleeding leading to a hypovoleinic shock and cardio pulmonary arrest were opined as cause of death. Time between injuries and death was within 10 to 15 minutes whereas between death and post-mortem it was estimated as 4 to 5 hours. Dr. Shahid Mehmood (PW-6) conducted autopsy of Abdul Ghaffar, deceased at 8:30 P.M and noted a fire-arm entry wound with black margin and tattooing under the left ear with its exit on right lateral aspect of neck; the injury was blamed as cause of death in the ordinary course of nature, time between the injury and death was reckoned as 10 to 15 minutes whereas between death and post-mortem 4 to 5 hours.
3. ' Dost Ali, SI (PW-12) carried out initial investigation; during spot inspection, he collected bloodstained earth and a casing (P-10) secured vide inventory besides recording statements of the witnesses; Abdul Sattar, appellant was arrested on 6-12-2010 and pursuant to disclosure, led to the recovery of 30-caliber pistol (P-1); Shoaib Shahid, co-accused was arrested on 26-12-2010 whereas Muhammad Sadiq and Muhammad Anwar co-accused joined investigation on 6-1;2011; they were exonerated by the Investigating Officer. After completion of investigation, both the appellants were indicted by learned a Additional Sessions Judge at Gujjar Khan on 27-6-2011 when they claimed trial, pursuant whereto, prosecution in order to bring home charge against them, besides relying" upon forensic reports, produced as many as twelve witnesses; of them, Arif Javed (PW-7) and Mst. Fouzia Ghaffar (PW-11) furnished ocular account, the mainstay of the prosecution case. Forensic Science Laboratory Report (Ex.PV) is in the positive albeit with dispatch of casing subsequent to arrest. The appellants confronted the prosecution evidence with a unanimous denial. The learned trial Judge vide impugned judgment dated 30.04.2014 convicted Abdul Sattar, appellant under Section 302 (b) of the Pakistan Penal Code, 1860 for committing Qatl-i-Amd of Abdul Ghaffar, deceased and sentenced him to death along with payment of compensation in the sum of Rs,200,000/- or to undergo six months simple imprisonment in the event of default; he was additionally convicted for being in the community of intention with Shoaib Shahid, appellant for Qatl-i-Amd of Zulfiqar Hussain and sentenced to imprisonment for life with compensation of Rs, 100,000/-or six months simple imprisonment in default of payment thereof; likewise, Muhammad.
4. Shoaib Shahid was convicted for Qatl-i-Amd of Zulfiqar Hussain under Section 302(b) of the Code ibid and sentenced to death alongside compensation of Rs,200,000/- or six months simple imprisonment in the event of default; for being in the community of intention with Abdul. Sattar, appellant for the murder of Abdul Ghaffar, deceased he was convicted under Section 302(b) of the Code ibid and sentenced to imprisonment for life with compensation of Rs, 100,000/- or six months S.I in the 'event of default; for the injuries sustained by Fouzia Ghaffar (PW-11) Abdul Sattar, appellant was convicted under Sections 337-A(ii) and F(i) of the Code ibid and sentenced to one year and six months imprisonment alongwith payment of Arsh in the sum of Rs, 100,000/- and Daman in the sum of Rs, 25,000/- respectively; benefit of Section 382-B of the Code of Criminal Procedure, 1898 was extended to the appellants; vires of the impugned judgment are being assailed through Crl. Appeals Nos. 188 and 218 of 2014 whereas the State seeks confirmation of death penalty vide Murder Reference No, 30 of 2014; these are being decided through this single judgment.
5. 2.Learned counsel for the appellants contends that prosecution case is fraught with doubts and contradictions; that Arif Javed (PW-7) is admittedly not a local resident and came all the way from village Dhurnal of District Attock; that during the course of investigation three out of four accused were given a clean chit and this according to the learned counsel, goes a long way to reflect upon the veracity of prosecution's version; that seizure of one casing belies the story; that ocular account is not in line with medical evidence inasmuch as the Medical Officer observed burning and tattooing around the wound of Abdul Ghaffar whereas bullet course in the dead body of Zulfiqar Hussain suggest a different scenario; the bottom . line is that the occurrence did not take place in the manner as alleged in the crime report and being a case of wider net, it would be extremely unsafe to maintain the conviction. Contrarily, the learned Law Officer vehemently defended impugned judgment on the ground that Abdul Sattar, appellant is a real brother of both the deceased whereas his son Muhammad Shoaib Shahid being paternal nephew of both the deceased could not be falsely implicated in the crime occurred in a broad daylight in the middest of village Abadi, viewed by the prosecution witnesses that included an injured as well; he blamed police inaptitude for flaws in investigative process and urged reliance on ocular account supported by a motive.
6. 3.Heard. Record perused.
7. 4.Calamity struck the members of immediate family; both the deceased, real brothers inter-se, were related in the same degree with Abdul Sattar appellant; Muhammad Shoaib appellant is their real paternal nephew; Fouzia Ghaffar (FW-11) widow of Abdul Ghaffar is a member of the household as well; this close relationship notwithstanding, the prosecution evidence warrants scrutiny on the same touchstone of probability and truthfulness; investigative conclusions do not support prosecution case set up in crime report Ex.PE) as Shoaib Shahid, Muhammad Sadiq and Muhammad Anwar, accused had been exonerated during investigation; the last two were not even summoned to face trial; they are residents of Peoples Colony Rawalpindi and one of them, namely, Muhammad Anwar is brother-in-law of Abdul Sattar appellant; two of them harbingered the occurrence, inasmuch as according to the witnesses, they exhorted the appellants to come out of their house so as to do away with Abdul Ghaffar and his wife; seemingly, in the absence of this communication, Abdul Ghaffar deceased and his wife would have gone past peacefully without being face to face with the appellants and as such role assigned to these two accused is indissolubly linked with that of the appellants; it is mind boggling as to why the appellants would depute these two accused to intimate them about unanticipated arrival of the deceased, if at all they were hell-bent to eliminate them in a preconcert; seemingly an attempt to cast a wider net.
8. Though arrested, nonetheless, Muhammad Shoaib Shahid was exonerated without any recovery from the charge assigned to him in the crime report; he is attributed a fatal shot to Zulfiqar Hussain deceased besides causing him repeated butt blows; apparently, there appears no logic behind infliction of butt blows after Zulfiqar Hussain deceased had already received fatal shot. According to site-plan Ex.PC, inter se distance between the appellants and both the deceased is 6-feet, however, firearm injuries sustained by both of them present a different picture; Zulfigar Hussain deceased sustained a fire-arm entry wound on 6th inter costal space on chest 4 cm from left nipple and the bullet landed on lateral aspect of right thigh 8 cm from right iliac crest without there being any exit; given the respective locations, in the absence of massive deflection, bullet course is inconceivable. In the case of Abdul Ghaffar deceased, the entry wound was surrounded by black margins as well as tattooing with a straight exit on the opposite side; this is nearer to the position taken by Abdul Sattar appellant before the Investigating Officer, clamoring his solitary encounter with both the deceased in a different scenario; though inadmissible in evidence being hit by Article 29 of the Qanun-e-Shahadat Order, 1984, it can still be looked into to extend him a possible benefit.
9. Confronted with these circumstances, the learned Law Officer has attempted to take refuge behind principle of sifting; according to him, even if Muhammad Anwar and Muhammad Sadiq accused were let off, both the appellants could still be convicted and sentenced by sifting grain from chaff.
10. The position is far from being tenable for more than one reason. Muhammad Shoaib Shahid appellant has been independently convicted and sentenced for a fatal shot to Zulfigar Ilussain deceased; he is additionally convicted and sentenced for being in the community of intention vis- a-vis Abdul Ghaffar deceased; there is no recovery of weapon as he was exonerated during investigation and as such, it would be extremely unsafe to maintain his conviction; the hypothesis of his innocence cannot be brushed aside, as it is other Vase inconceivable that a father would let his son to join him in a pursuit with horrendous consequences when he himself could have accomplished the task; it is antithetical to human instinct and conduct. After departure of three out of four accused from the scene, Abdul Sattar appellant could not be possibly convicted and sentenced without independent corroboration; recovery of pistol (P-1) is inconsequential in view of dispatch subsequent to his arrest; he is not assigned any harm to Zulfiqar Hussain deceased and thus, cannot be convicted and sentenced in isolation with his co-accused; a vaguely formulated motive, is not exclusively focused upon him and thus cannot be pressed into service as corroboration either, as according to Arif Javed. (PW-7), "Motive of said occurrence is dispute of share of land between all accused and both the deceased" Principle of sifting is essentially based upon a bonafide judicial concern that in the event of prosecution's partial/ fractional failure on a charge with respect to any of the accused, the real culprit must not escape justice provided his guilt is otherwise established through an independent source; the principle has its inherent limitations; it cannot be invoked either to blanket the truth or in aid of perjury; once the prosecution case is found fraught with doubts qua Muhammad Shoaib Shahid appellant, inexorably placed in an identical position, it cannot succeed against Abdul Sattar appellant on the ground that he had factually participated in the occurrence albeit under different circumstances; factuality is to be essentially determined on the basis of evidence, based upon truth; justice and truth are synonymous with each other and a conviction resting upon falsary would be a travesty nor it can be based upon moral certainty about the culpability of an accused in the absence of reliable evidentiary basis. Reliance is placed in the case of Muhammad Asshar alias Nannah & another vs. The State (2010 SCM R 1706) relevant portion whereof is advantageously reproduced: "Reasonable doubt, proof beyond--Scope--Such proof should be based on reasons and common sense, which must be logically based upon the evidence or lack of evidence.... Proof beyond reasonable doubt cannot be based on sympathy or prejudice or be imaginary or frivolous-- Prosecution is not required to prove its case to an absolute certainty since such an unrealistically high standard can seldom be, achieved--Proof beyond reasonable doubt does not mean proof beyond all doubts--Law does not require absolute certainty on the part of Court before it returns a verdict of guilty--law requires that after hearing all evidence, if there is something in evidence or lack of evidence that leaves in the minds of Judges, as' reasonable men, a reasonable doubt as to the guilt of accused, then accused must be given the benefit of that doubt and acquitted, even if the Court/Judge believes that the accused is probably guilty or likely to be guilty, that is not sufficient--Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion ".
11. Absence of independent corroboration, as pointed out above, is a dilemma confronting the prosecution; it has been held in the case of Shahhaz us. The State (2016 SCM R 1763) that in case certain eye witnesses are disbelieved against some accused, who had been attributed effective roles, they could not be relied upon to the extent of other accused persons in the absence of independent corroboration: law and justice must be in a comfortable unison. Consequently, by extending benefit of doubt to the appellants, Crl. Appeals Nos. 188 and 218 of 2014 are allowed impugned judgment dated 30.04.2014 is set-aside; they are acquitted from the charge and shall be released forthwith, if not required in any other case. MURDER REFERENCE No, 30 of 2014