MUHAMMAD AFZAL Versus State

MAZHAR ALAM KHAN MIANKHEL, J.--- Muhammad Afzal along with his co-accused namely Muhammad Qasim, Muhammad Anwar, Abdul Ghaffar, Jafar Ali and Sadiq faced trial before a learned Additional Sessions Judge Jaranwala in case FIR No.177/2002 dated 14.05.2002 offences under sections 302, 324, 148 and 149, P.P.C. registered at Police Station Satiana, District Faisalabad for Qatal-e-Amd of Muhammad Akram and launching a murderous assault upon Muhammad Aslam injured (PW.8).

2. According to the prosecution story, as set out in the FIR (Exh.PC/1), the complainant along with with Akram, Aslam as well as the other inhabitants of the vicinity was present in a joy party arranged at night time for celebrating the birth of a male baby when Abdul Ghaffar, Muhammad Afzal armed with .12 bore, Jafar armed with rifle, Qasim armed with pistol .30 bore, Sadiq armed with rifle, Anwar armed with 12 bore and an unknown muffled person emerged there. Abdul Ghaffar raised a lalkara that lesson be taught for causing firearm injury to Muhammad Afzal (appellant) whereupon Jafar made a fire through his rifle which landed on the left forearm of Akram. Second shot was fired by Qasim which landed on the left ear of Akram (deceased). Then Afzal made a fire through .12 bore which landed in the chest of Akram (deceased) on left side who fell down. For his rescue Muhammad Aslam stepped forward. Sadiq inflicted butt blows of rifle on the right leg, arm and head of Muhammad Aslam. Then Muhammad Anwar fired through his .12 bore which landed on the left side of Muhammad Aslam. All the assailants were identified because of tube lights, which had been erected at the place of occurrence.

3. After trial, Muhammad Afzal (appellant) was convicted under section 302(b), P.P.C. and sentenced to death for committing Qatl-i-amd of Muhammad Akram (deceased). He was also directed to pay an amount of Rs.50,000/- (rupees fifty thousand only) as compensation to the legal heirs of the deceased. For the same murder, co-accused of the appellant namely Muhammad Anwar was also convicted under section 302(b), P.P.C. and sentenced to imprisonment for life. He was further convicted under section 324, P.P.C. and sentenced to 10 years' R.I. He was also directed to pay an amount of Rs.50,000/- to the legal heirs of the deceased. All the remaining co-accused of the appellant including those who had been attributed firearm injuries to Muhammad Akram (deceased) were acquitted by the learned trial court.

4. Muhammad Afzal and Muhammad Anwar filed Crl. Appeal No.1112 of 2005 against their convictions and sentences which was heard by a learned Division Bench of the Lahore High Court along with Murder Reference No.646 of 2005 sent by the learned trial court for confirmation of the sentence of death awarded to Muhammad Afzal convict. The learned appellate court through the impugned judgment reduced the death sentence of Muhammad Afzal (appellant) to imprisonment for life whereas Muhammad Anwar co-convict of the appellant was acquitted of the charges under section 302(b)/324, P.P.C. He was, however, convicted under section 337-A(i), P.P.C. and sentenced to one year rigorous imprisonment. Said Muhammad Anwar was also burdened with daman of Rs,5,000/- (rupees fifty thousand only). Before proceeding further with the case it is pertinent to mention here that no appeal against acquittal of co-accused of the appellant was preferred by the complainant or by the State as per the available record and as such their acquittal attained finality.

5. We have heard learned counsel for the appellant as well as the learned Additional Prosecutor General Punjab for the State and with their assistance we have examined the available record.

6. It has not been disputed by learned Additional Prosecutor General that firearm injuries on the person of Muhammad Arkam (deceased) were also attributed to Jafar and Qasim. Likewise another co-accused of the appellant namely Sadiq was attributed butt blow on right leg, arm and head of Muhammad Aslam (injured). Injuries attributed to the said co-accused of the appellant were also available in the post mortem report of Muhammad Akram (deceased) and in the MLC of Muhammad Aslam injured (PW.8). Witnesses of the ocular account while appearing before the learned trial court implicated all the accused facing the trial. However, three co-accused of the appellant namely Jafar, Qasim and Abdul Ghaffar were acquitted by the learned trial court and their acquittal was not assailed any further as per the available record. We are mindful of the fact that principle of falsus in uno falsus in omni bus is not applicable in our system of administration of justice relating to criminal cases and the courts are required to sift grain from the chaff in order to reach at a just conclusion but it is well settled by now that if some accused are acquitted on the basis of same set of evidence the said evidence can be believed to the extent of the other accused facing the same trial but the courts have to be at guard and are required to look for corroborating evidence for maintaining conviction in such like cases.

7. As already discussed earlier the witnesses of ocular account namely Nazir Hussain complainant (PW.7) and Muhammad Aslam injured (PW.8) implicated the appellant as well as the acquitted co-accused. Injuries attributed to the said acquitted co-accused of the appellants were also reflected in the post mortem report of Muhammad Akram (deceased) and MLC of Muhammad Aslam (injured PW.8). It is also case of the prosecution before the learned trial court that recovery of a .12 bore gun was effected at the instance of Muhammad Afzal (appellant) which was taken into possession vide recovery memo (Exh.PL) but the said recovery is inconsequential as no empty cartridge was collected from the place of occurrence and no report of Forensic Science Laboratory even to the effect that .12 bore gun was in working order is available on record. Moreover, recoveries of firearms were also effected at the instance of Jafar and Qasim co-accused of the appellant since acquitted. The learned High Court rightly disbelieved the motive part of the occurrence and observed that it had fatally damaged the prosecution case. In the circumstances, we hold that no independent corroboration is available on record for maintaining the conviction and sentence of the appellant on a capital charge. Therefore, this appeal is allowed and convictions and sentences recorded against the appellant by the learned courts below are set aside. He is acquitted of the charge while extending him benefit of doubt. The appellant is in jail and he is ordered to be released forthwith if not required to be detained in any other case.

MWA/M-30/SC Appeal allowed.