Abadat Ali (appellant) alongwith his co-accused namely Ahmad Yar and Shaukat Ali was tried by the learned Additional Sessions Judge, Depalpur , District Okara, in case FIR No. 464/2005 dated 23.08.2005 offence under Section 302 read with Section 34, PPC registered at Police Station Hujra Shah Muqeem, District Okara for the murder of Akbar Ali (deceased) son of the complainant. Vide judgment dated 31.05.2007, passed by the learned Additional Sessions Judge, Depalpur , the appellant was convicted under Section 302(b), PPC and sentenced to imprisonment for life. He was also directed to pay a sum of Rs. 1,00,000/- (rupees one lakh only) to the legal heirs of Akbar Ali (deceased) as compensation provided under Section 544-A, Code of Criminal Procedure, which was ordered to be recovered as arrears of land revenue from the appellant and in the event of default, he was ordered to further undergo simple imprisonment for six months. Assailing the above conviction and sentence, the appellant has filed the appeal in hand. Before proce eding further with the case, it is relevant to note here that co-accused of the appellant namely Ahmad Yar, died during the trial. and his death certificate was produced before the learned trial Court on 11.07.2006. Through the same judgment, Shaukat Ali, co-accused of the appellant, was acquitted of the charge while extending him benefit of doubt.
2. Prosecution story , as set out in the FIR (Ex.P A/1), registered on the statement (Ex.P A) of Muhammad Rafique complainant (PW.1), is that he was an agriculturalist and was contesting election for the slot of General Councilor .
In preceding Election of 2001, too, he was returned candidate for the said slot. In the said Elections, he opposed Zahid Hassan, candidate for Nazim. In the complainant's village, Jilal Din Phulwarn was contesting election against him, who was maternal uncle (mamoon) of Abadat Ali and paternal cousin of Muhammad Khan, etc. A few days ago, Abadat Ali and Muhammad Khan asked the complainant to support Zahid Hassan, candidate for Nazim and withdraw his candidature against Jilal Din, otherwise he would face dire consequences. On the day of occurrence i.e. 23.08.2005 at about 01:30 p.m, the complainant alongwith his son Akbar Ali aged 32/33, was watering his paddy crops. All of a sudden, Abadat Ali (appellant) armed with rifle, Shaukat Ali armed with pistol and Ahmad Yar armed with pistol came there. Ahmad Yar raised lalkara to teach a lesson to the complainant's side for contesting elections. Thereafter Abadat Ali made three fire shots with his rifle, which hit on the upper side of left thigh of complainant's son. Shaukat Ali made two fire shots, through his pistol, which hit on the right thigh near the knee of complainant's son. Ahmad Yar made a fire shot with pistol, which hit on left thigh of Akbar Ali. On hearing the reports of firing, complainant's brother Muhammad Hanif and complainant's son Muhammad Asghar , who were working in the adjacent fields, came there and witnessed the occurrence. The complainant's son fell down and the assailants fled away while making aerial firing. It was further averred in the FIR that the incident had taken place at the abetment of Muhammad Khan. Manzoor and Allah Ditta had witnessed the crime. The complainant shifted his son in the injured condition to Hujra Shah Muaqeem Hospital and remained busy in his treatment wherer his son Akbar Ali succumbed to the injuries.
3. The appellant and his co-accused namely Ahmad Yar and Shaukat Ali were indicted by the learned Additional Sessions Judge Depalpur under Section 302, PPC read with Section 34, PPC. Ahmad Yar co-accused of the appellant died during the trial and proceedings to his extent stood abated. After conclusion of the trial, the appellant was convicted and sentenced as detailed in para 1 supra. Hence this appeal. Before proceeding further with the case, it is relevant to mention here that co-accused of the appellant namely Shaukat Ali was acquitted of the charge while extending him benefit of doubt. Cr. Appeal No. 1237 of 2007 filed by Muhammad Rafique (complainant) against the acquittal of said Shaukat All was dismissed in limine by a learned Division Bench of this Court vide order dated 06.11.2008, which was not assailed any further by the complainant or by the State as confirmed by learned counsel for the complainant and learned Deputy District Public Prosecutor for the State.
4. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that as per prosecution, the occurrence, wherein Akbar Ali son of the complainant sustained fire-arm injuries, took place on 23.08.2005 at 01:30 p.m whereas the matter was reported to the Police on the same evening through statement (Exh.P A) of Muhammad Rafique complainant (PW.1) at 07:30 p.m on the basis whereof formal FIR (Exh.P A/1) was chalked out at 08:05 p.m and as such there is a delay of six hours in reporting the crime to the Police; that Akbar Ali (deceased) was medically examined by Dr. Sagheer Ahmad (PW.4) at 04:00 p.m on 23.08.2005 and in the relevant column, meant for names of relatives/friend accompanying the injured 'through Police' is mentioned, which suggests that the occurrence was in the knowledge of the Police at or before 04:00 p.m but even then the FIR was not registered and the same was registered at 0.8:05 p.m after due deliberations and consultations with the complainant's side and as such this inordinate delay of six hours in setting the law in motion creates serious doubts qua the veracity of prosecution story and makes presence of both the witnesses of ocular account at the spot doubtful in nature; that conduct of the - witnesses of ocular account namely Muhammad Rafique complainant (PW.1) and Muhammad Hanif (PW.2) is highly improbable as it is in the cross-examination of both the witnesses of ocular account that after the occurrence Akbar Ali (deceased) in injured condition was brought to the house of complainant and after one hour he was shifted to the hospital for treatment in a taxi car; that RHC Hujra Shah Muqeem where Akbar Ali (deceased) was examined in injured condition was situated at a distance of 8/10 kilometers from the place of occurrence but the complainant's side consumed 21/2 hours in shifting Akbar All in injured condition for medical treatment; that as per own showing of the prosecution Akbar Ali was' shifted to the RHC Hujra Shah Muqeem and he was medically examined there at 04:00 p.m but both the witnesses of ocular account categorically stated during their cross-examination that they did not approach the Police for reporting the crime and the incident was reported by Muhammad Rafique complainant at 07:30 p.m only when the Police reached the hospital on its own; that motive set out by the compla inant in the FIR was that he was contesting election for the slot of General Councilor , in preceding Election of 2001, too, he was returned candidate for the said slot; one Jilal Din Phulwarn was contesting election against the complainant, who was maternal uncle (mamoon) of Abadat Ali and paternal cousin of Muhammad Khan, etc. and a few days ago, Abadat All and Muhammad Khan had asked the complainant to support Zahid Hassan, candidate for Nazim and withdraw his candidature against Jilal Din, otherwise he would face dire consequences; that the motive as set out by the prosecution even if taken as correct does not advance the case of the prosecution against the appellant as it was brought on record through cross-examination of both the witnesses of ocular account that Abadat Ali (appellant) or his co-accused namely Shaukat Ali and Ahmad Yar never contested election and likewise Akber Ali (deceased) son of the complainant also never contested elections, therefore, the appellant's side had no grudge against Akber Ali (deceased); that as per prosecution's own showing the complainant, who was a returned candidate in the previous elections and was contesting even in the upcoming elections, was present at the spot but he did not receive even a scratch during the incident, therefore, had the election rivalry motivated the crime, then the first target should have been complainant; that the motive was not believed by the learned trial Court for valid reasons recorded in para 19 of the impugned judgment, which are not open to exception by this Court; that the recovery of a rifle .44 bore (P.3) allegedly effected at the instance of the appellant and taken into possession vide recovery memo (Exh.PK) does not advance the case of the prosecution as no crime empty was collected from the spot and report of Forensic Science Laboratory (Exh.PN) is simply to the effect that the rifle was in working order; that this case was registered against four persons including the appellant out of whom Muhammad Khan, who was accused to the extent of abetting the crime, was not summoned by the learned trial Court to face the trial whereas Ahmad Yar died during the trial; that Shaukat Ali co-accused of the appellant who was attributed two fire-shots at the right thigh of Akbar Ali (deceased) near his knee was acquitted of the charge while extending him benefit of doubt and Cr. Appeal No. ,1237 of 2007, filed by the complainant against his acquittal was dismissed in limine by a learned Division Bench of this Court, which order was not assailed any further by the complainant or by the State, therefore, the prosecution evidence, which has been disbelieved to the extent of the co-accused of the appellant namely Shaukat All since acquitted cannot be believed against the appellant without there being any independent and strong corroboration, which is very much lacking in this case; that viewing from all angles the prosecutio n case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. Learned Deputy District Public Prosec utor assisted by learned counsel for the complainant's side vehemently opposes this appeal on the grounds that the occurrence took place at 01:30 p.m on 23.08.2005 and the matter was reported to the Police on the same evening at 07:30 p.m; that son of the complainant was grievously injured at the hands of the appellant and his co-accused, therefore, the complainant preferred shifting his son to the hospital for medical treatment instead of having resort to the Police for reporting the crime and in the circumstances there was no conscious or deliberate delay on the part of the complainant in reporting the crime to the Police and no adverse inference can be drawn against the prosecution for this delay as human attitude varies from person to person; that it was a broad daylight occurrence and both the parties were known to each other , therefore, there was no question of misidentification of the assailants that both the witnesses of ocular account were residents of the same vicinity where this occurrence took place, therefore, presence of the witnesses of ocular account at the spot cannot be considered to be unnatural or improbable; that the ocular account is supported by the medical evidence furnished by Dr Sagheer Ahmad (PW.4) as the injuries attributed to the appellant were observed in the MLC (Exh.PC) as well as the post-mortem examination report (Exh.PD) of Akbar Ali (deceased); that recovery of a rifle 44 bore (P.3) used during the occurrence was effected at the instance of the appellant during the course of investigation and taken into possession vide recovery memo (Exh.PK), which also corroborates the prosecution case; that the appellant cannot get any benefit from the acquittal of his co-accused namely Shaukat Ali as nothing was recovered from said Shaukat Ali whereas the recovery of a rifle was effected at the instance of the appellant; that the prosecution has successfully brought home guilt against the appellant to the hilt and there is no merit in the appeal.
7. I have heard arguments of learned counsel for the appellant and the learned Deputy District Public Prosecutor for the State assisted by the learned counsel for complainant's side to their entire satisfaction, given serious consideration to their respective submissions and also perused the record.
8. Case of the prosecution has been discussed in detail in para 2 above and the same is not being reproduced here to avoid repetition. Role of the appe llant namely Abadat Ali is exactly at par with the role of his co-accused namely Shaukat Ali who was acquitted by the learned trial Court while extending him benefit of doubt and Crl.
Appeal No. 1237 of 2007 filed by the complainant against his acquittal was dismissed in limine by a learned Division Bench of this Court vide order dated 06.11.2008 which order was not assailed any further either by the complainant or by the State as confirmed by the learned counsel for the complainant's side and the learned Deputy District Public Prosecutor for the State, therefore, the question for determination before this Court is whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant namely Shaukat Ali can be believed against the appellant? In this regard, I am guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Iftikhar Hussain and another versus State" (PLJ 2004 SC 552), 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 supe rior 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 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 vs. The State" ( 2008 SCMR 6 ). It is evident from the perusal of the above mentioned judgments of the Hon'ble Supreme Court of Pakistan that testimony of a witness will be acceptable against one set of accused though the same has been rejected qua another set of accused facing the same trial, provided it gets some independent corroboration on material particulars of the case and in the absence of any independent corroboration qua the role attributed to a convict he would also be liable to acquittal. Keeping in view the guidelines given by the Hon'ble Supreme Court of Pakistan in the aforementioned judgments I will discuss the case of the appellant.
9. As per contents of the FIR (Exh.P A/1), Abadat Ali made three fire shots with his rifle, which hit on the upper side of left thigh of complainant's son whereas Shaukat Ali made two fire shots through his pistol, which hit on the right thigh near the knee of complainant's son. Both the witnesses of ocular account while appearing before the learned trial Court deposed on almost the same lines. Therefore, role of the appellant is exactly at par with that of his acquitted co-accused namely Shaukat Ali and no corroboration can be sought against the appellant through the ocular account.
10. Dr Sagheer Ahmed (PW.4) medically examined Akbar Ali (deceased) in injured condition and as per MLC (Exh.PC) following injuries were observed on his person:
1. Four fire-arm entry wounds in an area of 9 cm x 6 cm on outer and upper part of left thigh with swelling 18 cm x 12 cm around. Each wound was measuring approximately 1 cm x 1 cm.
2. Two fire-arm exit wounds in an area of 9 cm x 4 cm on back and lower part of left thigh.
3. A fire-arm exit wound 1.2 cm x 1.2 cm on the back and middle of left thigh.
4. Two fire-arm entry wounds in area of 41/2 cm x 2 cm on inner side and lower part of right thigh.
Same is the position in the post-mortem examination report (Exh.PD) of Akbar Ali (deceased), therefore, the fire- arm injuries attributed to Shaukat Ali co-accused of the appellant at the right thigh of Akbar Ali (deceased) were observed as Injury No. 4 and as such no independent support/corroboration can be sought against the appellant from the medical evidence.
10. As per contents of the FIR the appellant was armed with a rifle whereas Shaukat Ali was armed with a pistol.
During the course of investigation, nothin g was recovered from said Shaukat Ali whereas a rifle 44 bore (P.3) was recovered at the instance of the appellant which was taken into possession vide recovery memo (Exh.PK). The said recovery is not of much help to the prosecution as no crime empty was collect ed from the scene of occurrence and report of Forensic Science Laboratory (Exh.PN) is simply to the ef fect that the rifle was in working order .
11. As per FIR, motive behind the occu rrence was that the complainant was contesting election for the slot of General Councilor . In preceding Election of 2001, too, he was returned candidate 'for the said slot. In the said Elections, he opposed Zahid Hassan, candidate for Nazim. In the complainant's village, Jilal Din Phulwarn was contesting election against him, who was maternal uncle (mamoon) of Abadat Ali and paternal cousin of Muhammad Khan, etc. A few days ago, Abadat Ali and Muhammad Khan had asked the complainant to support Zahid Hassan, candidate for Nazim and withdraw his candidature against Jilal Din, otherwise he would face dire consequences. Both the witnesses of ocular account categorically stated during their cross-examination that the appellant or his co-accused never contes ted elections and likewise Akber Ali (deceased) also never contested the election. The learned trial Court discusse d the motive behind the occurrence in para 19 of the impugned judgment and observed as under: "19. As far as the motive is concerned that is described as election grudge, as the complainant was contesting election against Jalal Din maternal uncle of accused Abadat Ali and cousin of Muhammad Khan etc. It is alleged that Abadat All and Muhammad Khan had threatened with dire consequences to complainant a few days prior to the occurrence asking him to withdraw from the election against Jalal Din and to support Zahid Hussain candidate for Nazim. PW.1 and PW.2 in their statements have mentioned this motive but durin g cross-examination, it is stated by PW.1 that Abadat Ali accused had never contested any election against him, or against the deceased that he has not made any report to the Police for alleged threats extended by accused Abadat Ali etc. It is also admitted that complainant contested election against Jalal Din and Jalal Din had two sons and if any such action has to be taken against complainant it should have been taken by the sons of Jalal Din rather by the accused persons.
Moreover , it is clear from the cross-examination of PW.1 that accused party was supporters of Tameer-i-W atton group headed by Mian Manzoor Ahmed Wattoo and complainant party was supporter of Gillani group. He has stated .that they are not permanent supporters of the parties and they supports to whom they consider better . So it is clear that both the complainant and accused party are not strong supporters of any group and it can be said that they can not go to this extent for political rivalry . It is further admitted by PW.1 in his cross-examination that before this occurrence, there was no dispute between the accused and the complainant parties. So from all these things it is clear that there was no such motive for the accused persons to commit Qatl- i-Amd of deceased Muhammad Akbar and as such motive as alleged is not proved."
Having examined the evidence produced by the prosecution, I am of the considered view that the findings of the learned trial Court qua motive behind the occurrence are not open to any exception.
12. There is another fact of the case. This occurrence, wherein Akbar Ali son of the complainant sustained fire-arm injuries, took place on 23.08.2005 at 01:30 p.m whereas the matter was reported to the Police on the same evening through statement (Exh.P A) of Muhammad Rafique complainant (PW.1) at 07:30 p.m on the- basis whereof formal FIR (Exh.P A/1) was chalked out at 08:05 p.m and as such there is a delay of six hours in reporting the crime to the Police. Akbar Ali (deceas ed) in injured was medically examined by Dr. Sagheer Ahmad (PW.4) at 04:00 p.m. on 23.08.2005 and in the relevant column of MLC (Exh.PC), meant for the names of relatives/friend accompanying the injured 'through Police' is mentioned, which suggests that the occurrence was in the knowledge of the Police at or before 04:00 p.m. The episode does not end here. Mushtaq Ahmed 710/C (PW.8) who got conducted the medico legal examination of Akbar Ali (deceased) in injured condition, stated during his cross- examination as under: "I obtained MLC of Akber All the then injured EX.P .C at 4.00 P.M. on 23.08.2005. I came back at P.S. with MLC.
After about half an hour Ashraf Khan met me. I had handed over the aforesaid MLC to the I.O. He gone through the MLC. I can not say as to whether I.O. after receiving the MLC at about 4:30 P.C from me, went to the Hospital RHC Hujra or not at the same time..."
But even then the FIR was not registered and the same was registered at 08:05 p.m. Therefore chances of deliberations and consultations on the part of complainant's side for false implication of the appellant and his co- accused cannot be ruled out.
13. For the foregoing reasons, I hold that the prosecution case to the extent of the appellant namely Abadat Ali for the murder of Akbar Ali (deceased) is doubtful in nature. This appeal is accordingly allowed. Conviction and sentence awarded to the said appellant for the murder of Akber Ali (deceased) vide judgment dated 31.05.2007 passed by the learned trial Court is set aside, while extending him benefit of doubt. He is acquitted of the charge framed against him. Sentence of the appellant was suspended vide order dated 18.01.2010 passed in Cr. Misc. No. 01 of 2009 and he is present in the Court on bail. His sureties stand discharged from the liability of bail bonds.