' ZAFAR PASHA CHAUDHARY, J.--- Murder Reference No,288 of 1995 and Criminal Appeal No,838 of 1995 have been taken up together as both arise out of common judgment, dated 23-11-1995 passed by Mian Jalalud-Din Akbar, learned Additional Sessions Judge, Faisalabad, whereby, the appellant Samiullah Tariq was convicted under section 302, Part I, P.P.C. And was sentenced to death as Qisas.
2. The prosecution case in brief as revealed from the statement of Sarfraz Ahmad P.W.8 is that on 28-5-1993 at about 8-00 a.m. The complainant alongwith Muhammad Iqbal and Razzaq Ahmad brothers was constructing a culvert near their land when Samiullah Tariq appellant armed with gun, Shakil Ahmad armed with carbine, Zubair Ahmad with gun, Arif with gun and Munir Ahmad with gun emerged from the side of their land. Sami Ullah Tariq fired a straight shot on Muhammad Iqbal hitting his chest. Whereafter, he fell down. Arif co-accused tired a shot hitting Muhammad lqbal on his shoulder and arm. Shakil Ahmad tired a shot from his carbine which too hit said Muhammad Iqbal on his chest. Thereafter, Zubair Ahmad and Munir Ahmad started indiscriminate tiring. The complainant and his brothers anyhow managed to escape. Muhammad Iqbal succumbed to the injuries there at the spot. The motive was stated to be that Sami Ulla Tariq accused appellant had a standing litigation with Muhammad Iqbal, with this background, constructing a culvert was taken as an excuse. Muhammad Iqbal was subjected to attack and as such was murdered by all the five accused persons.
3. During the course of investigation, Munir Ahmad alias Moulvi did not surrender, therefore, was declared as proclaimed offender and his case was separated. The remaining four accused persons i.e, Sami Ullah Tariq, Shakil Ahmad, Arif and Zubair were sent up to face trial in the Court of Mian Jalal-ud-Din Akbar, learned Additional Sessions Judge, Faisalabad.
4. The learned trial Judge on conclusion of the trial extended the benefit of doubt to Shakil Ahmad, Zubair and Arif and, therefore, acquitted them of the charges against them. Sami Ullah Tariq accused-appellant anyhow was held to be guilty and as noted above was convicted and sentenced to death.
5. The prosecution in order to prove its case examined eleven witnesses. Out of them Dr. Abdul Shakoor Gill P.W.2 conducted the postmortem examination of Muhammad lqbal deceased and noted the following injuries on his person:--
(1) Four fire-arm wounds of entrance 3/4 c.m. x 3/4 x D.N.P. Each with inverted margins in an area 14 c.m. x 12-1/2 c.m. At front of right and left side of chest 3 c.m. On right one left side of chest and 7 c.m. Above right nipple.
(2) Three fire-arm wounds of entrance 3/4 c.m. x 3/4 c.m. Each x D.N.P. With inverted margins at front of upper part of right upper arm. The last one 15 c.m. Above right elbow and first one 3 c.m.
Below shoulder top.
(3) A fire-arm wound of entry 3/4 c.m. x 3/4 c.m. x D.N.P. On top of front of right shoulder with inverted margins.
(4) A grazing fire-arm wound 1-1/2 c.m. x 1 c.m. x skin deep on top of right shoulder-joint.
' All the injuries were ante-mortem, had been caused with fire-arm and were sufficient to cause death in ordinary course of nature..
6. Aman Ullah P.W.7 and Sarfraz Ahmad P.W.8 furnished the eyewitness account of the occurrence.
Sarfraz Ahmad P.W.8 repeated the statement which he had already made in Exh.P.A. On the basis of which formal F.I.R. Exh.P.A./ I was registered. According to him all the five accused persons while armed with tire-arms attacked Muhammad Iqbal and thereafter, resorted to firing, as a result of which he succumbed to the injuries. Details of specific allegations have already been given above.
P.W.7 also made statement on similar lines and according to him also all the accused persons came armed with fire-arms, they opened attack and thereafter, targeting Muhammad Iqbal deceased inflicted fire-arm injuries on his person, as a result of which he succumbed to the injuries.
After the occurrence all the accused persons fled away.
7. The remaining prosecution witnesses are more' or less of formal nature, which consist of police officials and the Patwari who prepared the site plan of the place of occurrence. P.W.9 Muhammad Ramzan, P.W.10 Tahir Pervaiz and P.W.11 Muhammad Anwar, Inspector/S.H.O. Investigated the case in part and on conclusion of the same Inspector Muhammad Anwar submitted challan in Court.
8. On conclusion of the prosecution evidence the learned Special Public Prosecutor tendered in evidence the report of Chemical Examiner Exh.P.J. And that of the Serologist Exh.P.K. And with that closed the case for the prosecution.
9. All the accused persons were examined under section 342, Cr.P.C. Appellant Sami Ullah Tariq when confronted with the allegations, denied the same and stated that witnesses had deposed against him due to enmity and malice. In answer to Question No,6, he came forward with the following defence version:- ' "The facts are that on the tentative time and date Arif had turn of water. His son was irrigating his land when Iqbal deceased took up a quarrel with him. The boys went to his father. He came to me as I was his Pattidar. I sent Falak Sher to inquire about the matter and due to the provocation given by Iqbal deceased, Falak Sher fired at him. I and other accused are innocent. The same fact was proved time and again during several investigations conducted by Mukhtar Ali, Inspector and Ghulam Abbas, S.H.O. Ghulam Abbas, S.H.O. Now dead categorically wrote, 'Muhammad lqbal deceased had stopped the water. There was quarrel on the turn of water Falak Sher was there.
Iqbal had a fire-arm. When Iqbal extended his hands towards his side, Falak Sher tired at him'. I produce copy of FIR, dated 15-6-1993 under section 440, P.P.C. Police Station Chak Jhumra. It was lodged by my brother against Sarfraz and Nasir P.Ws. Which is Exh.D.B. Copy of F.I.R. No,52, dated 25-2-1997 under sections 307/452/148/149, P.P.C. In order to show that Iman Ullah P.W. Wrongly denied that he was not an accused in that case, which is Exh.D.C., F.I.R. No,53, dated 25-2-1977 Police Station Chak Jhumra under section 307/148/149, P.P.C. To show that Iman Ullah P.W. And his brother Ahgan Ullah were already witnesses for the police which is Exh.D.D., copy (certificate) of writ petition made by Zubair accused on 18-11-1991 wherein he alleged that the actual murderers of his uncle were Muhammad Khan, Nasir Ali P.W. This Writ Petition is 1066 of 1991 now exhibited as Exh.D.E.
' Regarding site plan there is high ground in-between Point No,3 and Point No,1 due to the bank of Rajbah. To the north of the Rajbah the small road is only on the paper. Actually there are Sarkandis standing there. The Southern side of the road of the Rajbah is 5 feet below level."
' On the face of the above version tendered in defence, he pleaded his innocence and prayed for acquittal. No evidence in defence was produced nor he appeared as his own witness as envisaged under section 340(2), Cr.P.C. The remaining accused came up with straight denial and pleaded their false implication due to enmity and relationship with the main accused.
10. We have gone through the evidence and other relevant material on the file with the help of learned counsel for the appellant. The learned counsel for the appellant has argued that eye- witness account is not supported by the medical evidence, it was impossible to have specified or ascertained as to who caused the specific injury, therefore, benefit of doubt which was extended to co-accused should have been extended to the appellant as well. It is further argued that motive as set up by the prosecution is not true, in fact the occurrence took place in the manner as stated by the appellant in his statement under section 342, Cr.P.C. It is supplemented that the enmity exists in-between the parties and the witnesses being closely related to the deceased and the complainant party, necessary independent witnesses are not available, therefore, no safe reliance can be placed on their testimony, as such the learned trial Judge has erred in singling out the appellant out of the five accused and thereafter, to record his conviction under section 302, P.P.C.
11. As against that, the learned counsel for the State has supported the conviction and sentence. On a question as to how case of the appellant could be distinguished, the learned counsel for the State could not satisfactorily explain and justify the conviction of the appellant.
12. After very careful consideration we find that the prosecution case against the appellant and his co-accused is that all the five accused were armed with fire-arms and all of them resorted to firing and thereafter, inflicted injuries on the person of the deceased. The description of injuries as given by the doctor shows that all the injuries were sustained by the deceased on the front side of the body, first injury is described on the front right and left side of the chest, the second injury is on the front part of upper right arm and the third injury is also on the front of right shoulder, then there is fourth injury which in fact is grazzing fire-arm wound on the top of right shoulder. After examining these injuries which are all located on the front side of the body, it appears that all of them have been caused by a single shot. The locale of the injuries, distances in-between them, their dimensions and nature suggest that they are result of a single fire shot. This impression is further fortified by the fact that when we take into account the exit wounds, there are six exit wounds noted by the doctor which are of the following descriptions:--
(i) Fire-arm wound of exit 1/2 c.m. x 1/2 c.m. With everted margins on back of left chest.
(ii) A tire-arm wound of exit 1/2 c.m. x 1/2 c.m. With everted margins on back of lower part of left chest.
(iii) A fire-arm wound of exit 1/2 c.m. x 1/2 c.m., on back of right chest upper part close to midline in scupular area.
(iv) A fire-arm wound of exit 1/2 c.m. x 1/2 c.m. On back of right shoulder.
(v) A fire-arm wound of exit 1/2 c.m. x 1/2 c.m. On back of right upper lateral chest close to shoulder girdle.
(vi) A fire-arm wound of exit 1/2 c.m. x 1/2 c.m. With everted margins on back of right upper arm 14 c.m. Above right elbow.
' These exit wounds, therefore, leave no doubt in believing that all the injuries caused on the person of the deceased had identical impact and three inlet wounds made an apperture in the shape of exit wounds at the back of the deceased. By discerning the entry as well as exit wounds together, we are left with no doubt in our mind that all the injuries are result of one single shot. The medical evidence, therefore, strongly belies the prosecution version on this point. According to the witnesses all the five accused resorted to firing and thereafter, caused injuries on the person of the deceased. It appears that witnesses had not seen the occurrence. They saw the dead body and then on finding that there are a number of injuries on his person, implicated five accused persons and as such attributed specific roles to each and every assailant. The learned trial Court did not believe the prosecution version and as such discarded the testimony of the witness vis-a-vis three co-accused of the appellant who had been sent up to face trial. He, however, proceeded to believe the prosecution version against the appellant only on the ground that he was the first person who opened the tire and thereafter, he after eliminating the participation of the remaining accused picked up the appellant as a real culprit who was responsible for causing injuries.
13. It is true that according to the complainant the first shot has been attributed to the appellant and in some cases it has been held that witnesses might not have seen the whole of the occurrence yet a witness may be capable of noting the first fire shot by the first assailant. In the instant case, however, matter is different. According to the eye-witnesses all the five accused persons suddenly emerged and thereafter, opened tire almost simultaneously and thereafter, caused injuries on the different parts of the body of the deceased. Eye-witnesses have been found to be false qua implication of the co-accused, therefore, their testimony has to be assessed and evaluated with extra caution.
14. We are not oblivious of the ruling laid down by their Lordships of the Honourable Supreme Court in Tawab's case PLD 1970 SC 13. However, the principle, which has already been laid down earlier by Lord Tucker PLD 1959 PC 24 that credibility of a witness is indivisible and if a witness is found to be false against one, cannot be delivered against other accused. However, the doctrine of falsus in uno falsus in omnibus was held to be of no universal application in Twab's case. Very phraseology employed by their Lordships of Supreme Court indicate that rule has not been abundoned or has been deviated from completely. It has, however, been observed that in order to do complete justice and to ensure that real culprit may not escape the legal punishment, it was provided that grain may be sifted from chaff. But if it is found that it would be unsafe to sift grain from chaff and the testimony of a witness is not confidence-inspiring then it will be unsafe to record conviction by singling out one of the accused person as a real culprit merely on the ground that he was alleged to be the first one to open attack.
15. Unfortunately, when the prosecution falsely implicates innocent persons alongwith the guilty ones, at times it becomes extremely difficult rather impossible to pick up the real culprit out of the various accused persons. As discussed above, we are of the firm view that the deceased lost his life as a result of a single tire shot. According to the prosecution all the five accused persons resorted to firing and caused injuries, the roles of some of the accused have specifically been defined. In this situation, it will be highly unsafe to convict the appellant merely because he is stated to be the first one who opened the fire. According to the prosecution it is not the appellant who has caused injuries on the chest of the deceased Muhammad Iqbal, there is another accused Shakil Ahmad who is also alleged to have fired a shot at the chest of the deceased. In this situation to acquit Shakil Ahmad and to convict Sami Ullah Tariq would be highly unsafe and unjust. May be we cannot deny that real murderer is amongst the five assailants but if he cannot safely be specified or picked up then benefit of doubt is to be extended to all the accused persons in the interest of safer administration of justice.
16. Apart from what has been observed above, we have not been pursuaded to believe the motive as set up by the prosecution. Mere assertion that criminal litigation is pending in-between the parties and the occurrence took place on account of constructing of a culvert, without there being any evidence as to where the culvert was being constructed and what harm would have been caused to the accused persons. This motive is rather too vague or unspecific. The defence version as put forward by the appellant is not believable but the part of the statement pertaining to initiation of the dispute on account of turn of water etc. Cannot completely be ignored or neglected. Be that as it may, we feel that the real motive or the igniting cause has been suppressed by the prosecution. Therefore, the prosecution version is not supported by the motive as well.
17. Concluding the above discussion, we find that eye-witness account neither finds support from the medical evidence nor from the motive. There is also no other credible evidence by way of recoveries etc. We are, therefore, constrained to extend the benefit of doubt to Sami Ullah Tariq accused-appellant as well. Accordingly Criminal Appeal No,838 of 1995 filed by Sami Ullah Tariq appellant is allowed, his conviction and sentence as recorded by Mian Jalal-ud-Din Akbar, learned Additional Sessions Judge, Faisalabad on 23-11-1995 in case F.I.R. No,263, dated 28-5-1993 under sections 302/148/149, P.P-.C. Registered with Police Station Chak Jhumra, Faisalabad, is set aside.
He is ordered to be acquitted of the charges against him. He will be released from jail if not required in any other case.
' Murder reference is answered in negative.