2020 YLR 1620
JUDGMENT
SADIQ MAHMUD KHURRAM, J.--The appellant namely Ijaz son of Allah Rakha was tried by the learned Additional Sessions Judge, Mailsi along with his co-accused namely Akhtar son of Muhammad Rafique, Muhammad Ramzan son of Muhammad Nawaz, Aslam son of Allah Bakhsh, Muhammad Shahzad son of Allah Rakha and Muhammad Irshad son of Allah Rakha (all five since acquitted) in case instituted upon the private complaint titled "Muhammad Nawaz v. Akhtar and 5 others" (relating to FIR No. 55 of 2012 dated 02.02.2012 registered at Police Station City Mailsi District Vehari in respect of offences under sections 302 and 34, P.P.C.) for committing the Qatl-i-Amd of Muhammad Shaban son of Muhammad Arif (deceased) and Mst. Naseem Bibi wife of Muhammad Shaban (deceased). The learned trial court vide judgment dated 01.09.2014 convicted Ijaz son of Allah Rakha (convict) and sentenced him as infra:
Ijaz son of Allah Rakha:
Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Shaban son of Muhammad Arif (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. (The appellant was not convicted for committing Qatl-i-Amd of Mst. Naseem Bibi wife of Muhammad Shaban (deceased).
The co-accused of the appellant namely Akhtar son of Muhammad Rafique, Muhammad Ramzan son of Muhammad Nawaz, Aslam son of Allah Bakhsh, Muhammad Shahzad son of Allah Rakha and Muhammad Irshad son of Allah Rakha were however acquitted by the learned trial court.
2. Feeling aggrieved, Ijaz son of Allah Rakha (convict) lodged Criminal Appeal No.395 of 2014 against his conviction and sentence. The learned trial court submitted Murder Reference No.141 of 2017 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellant Ijaz son of Allah Rakha. We intend to dispose of the Criminal Appeal No. 395 of 2014 and Murder Reference No.141 of 2017 through this single judgment.
3. Precisely the facts necessary, as divulged in the statement of Muhammad Nawaz son of Karim Bakhsh (PW-8) are as under:--
"I along with Abdul Hameed and my son Muhammad Javaid went to the house of Ahmad Yar in Gharibabad on 1.2.2012. We have proceeded to his house to condole the death of his grand-son. We stayed there at night. At 2 a.m. night we heard the noise of hue and cry from the house of my nephew Shaban. I, Abdul Hameed and my son Muhammad Javaid reached there. We saw Akhtar accused armed with pistol 12 bore, Ijaz accused armed with repeater, Aslam and Ramzan accused armed with sotas. When we reached there Aslam and Ramzan raised alarm not to come forward. Akhtar fired with his pistol on Shaban which hit on the left side of his neck. Ijaz fired which hit on the right side of chest of Shaban. Ijaz fired second shot which hit on the right ribs of Shaban. On hearing the noise of firing Naseem Mai wife of Shaban opened the door of her room. Akhtar accused fired at Naseem Mai which hit her on the right side of chest. The accused persons after making fires ran away from the spot with their respective weapons. I, Abdul Hameed and Javaid attended the injured, who have died at the spot.
Imtiaz Mai sister of Ijaz, contracted Nikah with Shaban without the consent of her family members. Due to that grudge the accused persons have committed the murder of Shaban and Naseem Bibi. The accused persons have committed these murders on the abetment of Irshad and Shahzad accused.
After half an hour of the occurrence police reached at the spot. I recorded my statement Ex. PC as above to the police. Javaid and Abdul Hameed also recorded their statements before police on the same line. On 4.2.2012 Nadeem and Fida came to me and told that on 28.1.2012 they were waiting for bus proceeding to Karachi at Colony Chowk Mailsi and saw that Akhtar, Ijaz, Aslam and Ramzan were present, Irshad and Shahzad came there and said that they have arranged arms and ammunition , murder Shaban and Naseem Mai. They have arranged their arrest in some other case and they will rescue you from this case. I bring PWs Nadeem and Fida Hussain to the I.O who recorded their statements before I.O. When I obtained copy of FIR on the next day of occurrence it came into my knowledge that police has not nominated those accused who were narrated by me. I submitted application Ex-PJ to DPO Police reached in my house and recorded my statement and that of PWs. Police has not investigated this case fairly and impartially and becoming collusive with the accused persons declared them innocent. Hence, I have filed this private complaint Ex-PK."
4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Muhammad Nawaz v. Akhtar and 5 others" (relating to FIR No. 55 of 2012 dated 02.02.2012 registered at Police Station City Mailsi District Vehari in respect of offences under sections 302 and 34, P.P.C.) for committing the Qatl-i-Amd of Muhammad Shaban son of Muhammad Arif (deceased) and Mst. Naseem Bibi wife of Muhammad Shaban (deceased). The learned trial court framed the charge against the accused on 16.10.2012, to which the appellant and his co-accused pleaded not guilty and claimed trial.
5. The complainant in order to prove its case got recorded statements of as many as twelve witnesses. The ocular account of the case was furnished by Muhammad Nawaz (PW.
and Abdul Hameed (PW. 10). Muhammad Ali 142/C (PW-1) stated that on 16.04.2012 he executed warrants of arrest (Exh.PA) of the accused Muhammad Ramzan (since acquitted). Liaqat Ali, ASI (PW-2) recorded the formal FIR (Exh.PC/1) and on 02.02.2012 he received sealed parcels said to contain blood stained earth and empties which on 16.02.2012 he handed over the said sealed parcels to Iftikhar Ahmad 756/C (PW-7) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore and that he also received a sealed parcel of a pistol which he on 27.05.2012 handed over to Ghulam Abbas 55/HC (CW-2) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore and on 12.04.2012 he received a parcel said to contain a repeater gun which he on 07.05.2012 handed over to Ghulam Abbas 55/HC (CW-2) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Iqbal 1046/C (PW-3) escorted the dead bodies of both the deceased and got conducted their post mortem examination and received their last worn clothes from the medical officers concerned which were taken into possession vide recovery memos (Exh.PD) and (Exh.PE). Ijaz Latif, draftsman (PW-4) prepared the scaled site plan of the place of occurrence (Exh.PF). Ghulam Muhammad 162/C (PW-9) witnessed the recovery of repeater gun .12-bore (Exh.P12) from the possession of the appellant on 12.04.2012. Muhammad Nadeem (PW-12) stated that on 28.01.2012 he witnessed the appellant and the co-accused planning the murder of the deceased. The complainant gave up witnesses Muhammad Ishfaq 647/C and 1089/C as being unnecessary vide his statement recorded on 17.11.2012. The learned trial court also examined two witnesses as Court Witnesses. Muhammad Afzal, SI (CW-1) investigated the case from 02.02.2012 till 30.05.2012 and narrated the facts of the investigation conducted by him in his statement before the learned trial court. Ghulam Abbas 35/HC (CW-2) stated that on 07.05.2012 he received a sealed parcel said to contain repeater gun .12-bore which he deposited in the office of Punjab Forensic Science Agency, Lahore and on 27.05.2012 he received a sealed parcel said to contain pistol .30-bore which he deposited in the office of Punjab Forensic Science Agency, Lahore. On 26.04.2014 the complainant closed the prosecution evidence after tendering the report of Chemical Examiner (Exh.PQ), report of Serologist (Exh.PR) and the report of Punjab Forensic Science Agency, Lahore (Exh.PS).
6. The prosecution got examined Dr. Muhammad Suraj (PW.-6), who on 02.02.2012 was posted as Medical Officer at THQ Hospital, Mailsi and on the same day conducted the postmortem examination of Muhammad Shaban son of Muhammad Arif (deceased). Dr. Muhammad Suraj (PW-6), on examining Muhammad Shaban son of Muhammad Arif (deceased) observed as under:
"Injuries.
1. there is a lacerated wound 4x4 cm muscle deep seated on front of right chest. 6 cm below prominence of right clavical bone 2 cm above right nipple obliquely. Margins of wound roughened. Edges inverted. Blood clots present. There is a chole(sic) ring area 3/ 4 cm on inferior area of wound. Corresponding tears present on all clothes except shalwar. This wound is a entrance wound. There are multiple abrinated wounds in liner form on front of upper part of right chest and right shoulder. Abrasions are resulted from exit of pellets. All are attached with each other. There is single wound x cm circular in shape on distal said abrasion. This is 4 cm proximal to entrance wound. On dissection a pellet and plastic part of cartridge found embed in deep fishier. Both objects recovered put in a plastic bottle sealed, stamped and then handed over to police.
2. There is lacerated wound 4 cm x 4 cm oval shape going deep on outer side of right chest on mid auxiliary line 11 cm below axilla. Margins of wound are roughened, edges inverted and blood clots present. Corresponding tears were present on all clothes except shalwar. This wound is an entrance wound. On dissection a plastic cartridge and pellet was found from chest cavity, were recovered, put in a plastic bottle sealed stamped and handed over to police.
3. A lacerated wound cm x cm going deep on front of neck, to some extent on left side, just below prominence of mandible 5 cm from left side of angle of mouth. Margins are roughened, edges inverted. Blood clots present. This was an entrance wound. On dissection maxillary bone fractured, base of skull damage, left cerebral hemisphere damaged and bullet found incarcerated on junction of oxipitoperital bone. At this point skull bone was fractured and divided into multiple pieces. Bullet recovered put in plastic bottle and stamped then handed over to police.
Opinion.
To me cause of death in case is shock resulted from haemorrhage external and internal and damaged to vital organs. (Right lung and brain). All injuries are ante-mortem caused by fire arm weapon. Injuries Nos.2 and 3 are fatal and are sufficient to cause death in ordinary course of nature. The probable time that elapse between injuries and death immediately and that of death and post mortem 8 to 12 hours."
7. The prosecution got examined Lady Dr. Musarrat (PW.-5), who on 02.02.2012 was posted as Woman Medical Officer at THQ Hospital, Mailsi and on the same day conducted the postmortem examination of Naseem Bibi wife of Muhammad Shaban (deceased). Lady Dr. Musarrat (PW.-5), on examining Naseem Bibi wife of Muhammad Shaban (deceased) observed as under:
"Injuries.
1 A lacerated wound 1 x 1 cm circular in shape going deep on front of upper part of right chest 2 inches below the tip of right shoulder and 1 inch from sterna notch. Margin roughened. Blood clots present. Mixed flued (sic) oozing from the wound. This is entrance wound. Corresponding tear also present at shirt.
2 There are two small wounds x cm of each present on back of right chest (upper part of prominence of right scapula.) There is black area around these wound margins. Margins are roughened and everted. There are two exit wounds.
Two pellets found in wedded in deep facia and part of cartridge found. Upper part of scapula found fractured. Corresponding tears also present on shirt.
3. Lacerated wound 3 x 1- cm on back of left chest 3 cm below the tip of left shoulder. Six inches away from mid line. Corresponding tears on shirt were present. This wound was just like groove. Margins are slightly burnt. All injuries are ante-mortem inflicted by fire arm.
.
Opinion.
To me cause of death in case is shock due to haemorrhage and damage to right lung and aorta and injury No.1. Most fatal, inflicted by fire arm weapon and sufficient to cause death in ordinary course of nature. The probable time that elapse between injuries and death within few minutes and that of death and post mortem 9 to 10 hours approximately."
8. After the closure of prosecution evidence, the learned trial court examined appellant namely Ijaz son of Allah Rakha under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been falsely involved in the case due to previous enmity. He further stated that he had not committed the occurrence. The appellant namely Ijaz son of Allah Rakha opted not to get himself examined under section 340(2), Cr.P.C however produced copies of remand paper (Exh.DD), certificate of job (Exh.DE), copy of order dated 16.03.2012 (Mark-A), copy of FIR No. 73 of 2012 (Mark-B), copy of FIR No. 74 of 2012 (Mark-C) and certificate dated 27.02.2012 (Mark-D) in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Mailsi convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false. That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. He further contended that the statements of Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10) were not worthy of reliance. He also argued that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. He finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
11. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned counsel further argued that the deceased died as a result of injuries suffered at the hands of the appellant . They further contended that the medical evidence also corroborated the statements of Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10). They further argued that the recovery from the appellant also corroborated the ocular account. They contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, they prayed for the rejection of appeal.
12. We have heard the learned counsel for the appellant and learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial carefully.
13. The whole prosecution case revolves around the statements of Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10). These witnesses namely Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10) were related to each other. Their relationship with the deceased is also on record. Muhammad Nawaz (PW-8) admitted during cross-examination that the deceased Muhammad Shaban was his paternal nephew whereas Abdul Hameed (PW-10) was also his nephew whereas Muhammad Javed (not produced) was his son. Abdul Hameed (PW-10) also admitted the said relationships between the witnesses and the deceased Muhammad Shaban. Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10) further admitted in their cross-examination that the witnesses namely Muhammad Nawaz (PW-8) , Abdul Hameed (PW-10) and Muhammad Javed (not produced) were not the residents of the place of occurrence. Muhammad Nawaz (PW-8) during cross-examination admitted as under:-
"I, Javed and Abdul Hameed are residents of Mohalla Hafiz Abad at a distance of three kilometers from the place of occurrence."
It is an admitted fact that none of the prosecution witnesses namely Muhammad Nawaz (PW-8), Abdul Hameed (PW-10) and Muhammad Javed (not produced) had their residences or their houses at the place of occurrence. They were all "chance witnesses". We have also perused the scaled site plan (Exh.PF) as prepared by Ijaz Latif, draftsman (PW-4) and the rough site plan (Exh.CW-1/A) as prepared by Muhammad Afzal, SI (CW-1) and find that neither any house nor any shop belonging to the three eye-witnesses is marked in the same. More importantly no place has been pointed out in the said site plans where, prior to the occurrence, the witnesses namely Muhammad Nawaz (PW-8), Abdul Hameed (PW-10) and Muhammad Javed (not produced) were present. As per the claim of the prosecution witnesses, all the prosecution witnesses namely Muhammad Nawaz (PW-8), Abdul Hameed (PW-10) and Muhammad Javed (not produced), were present in the house of one Ahmad Yar (not produced). A perusal of the above mentioned site plans (Exh.PF and Exh.CW-1/A) reveals that the house of one Ahmad Yar (not produced), wherein all the three prosecution witnesses namely Muhammad Nawaz (PW-8), Abdul Hameed (PW-10) and Muhammad Javed (not produced) were allegedly present prior to the occurrence, is also not shown in the said site plans. Furthermore, to accentuate these omissions in the case of the prosecution, during the whole investigation the said Ahmad Yar did not appear before the Investigating Officer nor was produced by the witnesses to support the claim of the prosecution witnesses that the witnesses namely Muhammad Nawaz (PW-8) , Abdul Hameed (PW-10) and Muhammad Javed (not produced) were indeed present in the house of one Ahmad Yar (not produced). The said Ahmad Yar also did not appear before the learned trial court in support of the assertion of the prosecution witnesses that they were present in his house prior to the occurrence. All these omissions are conspicuous by their absence. In absence of physical proof of the reason for the presence of the witnesses at the crime scene the same cannot be relied upon. In this respect reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698) wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometer away from the occurrence, but on the day of occurrence stated to be present near the spot as they working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622) wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad complainant (PW3), Ghulam Farid (PW6) and Manzoor Ahmed (PW7) who were all residents of some other houses and they were not inmates of the house wherein the occurrence had taken place and the said eye-witnesses were, thus, chance witnesses and not worthy of reliance. Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:--
"In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."
14. We have also noted with grave concern that the witnesses namely Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10) made blatant and dishonest improvements to their earlier statements. The improvements were made with respect to role of the appellant. A perusal of the oral statement of Muhammad Nawaz reduced into writing (Exh.PC) reveals that the role attributed to the appellant was that he forbade the witnesses to come near the deceased while being armed with a sota. Similarly, when the statement under section 161, Cr.P.C. of Abdul Hameed (PW-10) was recorded by the Investigating Officer namely Muhammad Afzal, SI (CW-1) the role attributed to the appellant was that he forbade the witnesses to come near the deceased while being armed with a sota. However while appearing before the learned trial court, Muhammad Nawaz (PW-8), altered the role of the appellant in its entirety. While appearing before the learned trial court Muhammad Nawaz (PW-8) stated that the appellant Ijaz was armed with a repeater gun and fired at Muhammad Shaban (deceased) twice hitting him on the right side of chest and on the right ribs. Muhammad Nawaz (PW-8) was confronted with his oral statement (Exh.PC) and stated as under:-
"On 02.02.2012 at about 3:10 a.m. I got registered FIR No.55. It is incorrect to suggest that in my above said FIR, I had got recorded that accused Muhammad Irshad armed with pistol 30-bore, Muhammad Shazad armed with carbeen, Muhammad Ijaz armed with Sota and Muhammad Safdar armed with Sota were present in the room of Muhammad Shaban. It is incorrect to suggest that I have recorded in my above said FIR (Ex.PC) that Muhammad Ijaz and Safdar armed with Sota threatened us not to come forward. It is incorrect to suggest that in Ex.PC I have got recorded that Muhammad Irshad fired with his pistol at Shaban and Muhammad Shahzad fired with his carbeen at Muhammad Shaban. It is incorrect to suggest that I stated in Ex.PC that Muhammad Irshad again fired with his pistol on Muhammad Shaban. It is incorrect to suggest that in Ex.PC. I stated that Muhammad Shahzad fired with his carbeen at Naseem Mai. Confronted with Ex.PC wherein all the attribution according to suggestions are recorded."
Similarly, while appearing before the learned trial court, Abdul Hameed (PW-10), altered the role of the appellant in its totality. While appearing before the learned trial court Abdul Hameed (PW-10) stated that the appellant Ijaz was armed with a repeater gun and fired at Muhammad Shaban (deceased) twice hitting him on the right side of chest and on the right ribs. Abdul Hameed (PW-10) was confronted with his statement recorded under section 161, Cr.P.C. (Exh.DB) and stated as under:-
"It is incorrect to suggest that Ijaz and Safdar who were armed with Sota restrained us to step forward. Confronted with Ex.DB wherein it is so recorded. It is incorrect to suggest that I recorded in my statement Ex.DB that Muhammad Irshad fired with pistol and Shahzad fired with carbeen on the deceased. Confronted with Ex.DB wherein it is so recorded. It is incorrect to suggest that I have recorded in my statement that on hue and cry many persons came at the spot. Confronted with Ex.DB wherein it is so recorded. I have not recorded in my statement Ex.DB that accused persons have any enmity with Naseem alias Shamman Mai."
Similarly, a perusal of the inquest report (Exh.PH/3) relating to Muhammad Shaban (deceased) and inquest report (Exh.PG/3) relating to Mst. Naseem Bibi (deceased), as prepared by the Investigating Officer namely Muhammad Afzal, SI (CW-1), also reveal that the role attributed to the appellant was that he forbade the witnesses to come near the deceased while being armed with a sota. A perusal of the above mentioned site plans (Exh.PF and Exh.CW-1/A) also reveal that the role attributed to the appellant was that he forbade the witnesses to come near the deceased while being armed with a sota. Muhammad Afzal, SI (CW-1) during cross-examination admitted as under:-
"It is correct that as per statement of complainant Ex.PC Ijaz and Safdar accused were armed with sota. It is correct that as per my rough site plan Ex.CW-1/A Ijaz and Safdar accused were shown as armed with Sotas. Red notes on the back of scaled site plan are in my hand and bear my signatures and date. According to point No.4 of scaled site plan Ex.PF is the place from where Shahzad accused fired with his carbeen to Naseem alias Shmman. Point No.3 is the place from where Shahzad fired with his carbeen at Shaban deceased. Point No.6 is the place where Ijaz and Safdar accused armed with Sotas stopped the complainant and PWs and passed them threats. It is correct that statement of complainant Ex.PC and my notes dated 12.02.2012 on site plan are quite same."
As both the witnesses namely Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10), had improved upon their previous statements, hence their credit stands impeached and they cannot be relied upon. The august Supreme Court of Pakistan in the case of "Muhammad Ashraf v. State" (2012 SCMR 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, are satisfied that the evidence of Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10) has no intrinsic worth and is to be rejected out rightly. The august Supreme Court of Pakistan in a recent case reported as "Muhammad Mansha v. The State" (2018 SCMR 772) has enunciated the following principle:
"Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence".
The august Supreme Court of Pakistan in the case reported as Muhammad Arif v. The State (2019 SCMR 631) has enunciated the following principle:
"It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge."
15. We have also noted that no source of light, which could have been available at the place of occurrence at the time of occurrence allowing the witnesses to identify the assailants, was taken into possession by the Investigating Officer namely Muhammad Afzal, SI (CW-1), despite the fact that as per prosecution's own claim the occurrence had taken place during the night. Muhammad Afzal, SI (CW-1), the Investigating Officer of the case, during his investigation did not take into possession any article so as to prove that sufficient light was present at the place of occurrence at the time of occurrence for the witnesses to make a positive identity of the assailants neither the witnesses produced any such source of light during the investigation of the case or during the trial. The prosecution failed to establish the fact of such availability of light source and in absence of their ability to do so, we cannot presume the existence of such a light source. Reliance is placed on the case of "Azhar Mehmood and others v. The State" (2017 SCMR 135) wherein the August Supreme Court of Pakistan observed as under:-
"The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer."
Reliance is placed on the case of "Arshad Khan v. The State" (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:-
"The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer."
16. We have also noted that despite the fact that the matter was reported to the police at 2.45 a.m., when the oral statement (Exh.PC) of Muhammad Nawaz (PW-8) was reduced into writing, the postmortem examination on the persons of the deceased was conducted after a delay of about 8 hours from the time of recording of the oral statement (Exh.PC) of Muhammad Nawaz (PW-8). Dr. Muhammad Suraj (PW.-6), who on 02.02.2012 conducted the postmortem examination of Muhammad Shaban son of Muhammad Arif (deceased) opined about the probable duration of time between death and post mortem as 8 to 12 hours. Lady Dr. Musarrat (PW.-5), who on 02.02.2012 conducted the post-mortem examination of Naseem Bibi wife of Muhammad Shaban (deceased), opined about the probable duration of time between death and post mortem as 9 to 10 hours. It has been repeatedly held by the august Supreme Court of Pakistan that such delay is reflective of absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person. The August Supreme Court of Pakistan in the case of "Khalid alias Khalidi and 2 others v. The State" (2012 SCMR 327) has held as under:
"The incident in the instant case took place at 2.00 a.m, FIR was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR was not lodged at the given time".
The august Supreme Court of Pakistan in the case of "Mian Sohail Ahmed and others v. The State and others" (2019 SCMR 956) has held as under:
"According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution"
The august Supreme Court of Pakistan in the case of "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068) has held as under:
"More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the investigating officer are also to be handed over in order to assist in the examination of the dead body.
10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the investigating officer are also to be handed over to the said medical officer to assist his examination of the dead body.
11. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has to provide justifiable reasons therefor, which in the present case is strikingly wanting."
17. We have already mentioned that along with the appellant his co-accused namely Akhtar son of Muhammad Rafique, Muhammad Ramzan son of Muhammad Nawaz, Aslam son of Allah Bakhsh, Muhammad Shahzad son of Allah Rakha and Muhammad Irshad son of Allah Rakha ( all five since acquitted) were tried. The learned trial court acquitted the above mentioned co-accused of the charge. We have queried the learned Deputy Prosecutor General as well as the learned counsel appearing on behalf of the complainant namely Muhammad Nawaz (PW-8) regarding the filing or otherwise of an appeal against acquittal of the said co- accused, who have stated that the acquittal of co-accused namely Akhtar son of Muhammad Rafique, Muhammad Ramzan son of Muhammad Nawaz, Aslam son of Allah Bakhsh, Muhammad Shahzad son of Allah Rakha and Muhammad Irshad son of Allah Rakha ( all five since acquitted) had attained finality as till date any appeal against the acquittal of co-accused of the appellant namely Akhtar son of Muhammad Rafique, Muhammad Ramzan son of Muhammad Nawaz, Aslam son of Allah Bakhsh, Muhammad Shahzad son of Allah Rakha and Muhammad Irshad son of Allah Rakha ( all five since acquitted) by the State or the complainant or any other aggrieved person had been filed or registered. The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellant, can be believed against the appellant. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The august Supreme Court of Pakistan has recently held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view should be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected." 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. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles:-.
"The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments.
Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country. A court of law cannot permit something which the law expressly forbids.
Adverting to the Islamic principles relevant to the issue at hand we note that the following verses of the Holy Qur'an deal with the matter of giving testimony:
"And do not mix the truth with falsehood or conceal the truth while you know [it]"
(Surah Al-Baqarah: verse 42)
"And let not the witnesses refuse when they are called upon"
(Surah Al-Baqarah: verse 282)
"And do not conceal testimony, for whoever conceals it-his heart is indeed sinful"
(Surah Al-Baqarah: verse 283)
"O you who have believed, be persistently standing firm for Allah, witnesses in justice, and do not let the hatred of a people prevent you from being just. Be just, that is nearer to righteousness. And fear Allah; indeed, Allah is acquainted with what you do"
(Surah Al-Ma'idah: verse
O you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves or parents and relatives"
(Surah An-Nisa: verse 135)
So follow not [personal] inclination, lest you not be just. And if you distort [your testimony] or refuse [to give it], then indeed Allah is ever, with what you do, acquainted"
(Surah An-Nisa: verse 135)
"And establish the testimony for [the acceptance of] Allah"
(Surah At-Talaq: verse 2)
" And we will not withhold the testimony of [i.e. ordained by] Allah. Indeed, we would then be of the sinful."
(Surah Al-Ma'idah: verse 106)
"And avoid false statement"
(Surah Al-Haj: verse 30)
"And they who do not bear witness to what is false"
(Surah Al-Furqan: verse 72)
From the above, it can be seen that giving testimony its due importance and weight is an obligatory duty and those who stand firm in their testimonies are among the people of righteousness and faith. Among the necessities of faith is giving truthful testimony even if against oneself or a relative. If there are no other witnesses that would enable justice to be done and there is a fear that someone's right may be lost, it then becomes the individual responsibility of the few available witnesses to testify. Islam not only enjoins giving testimony, it also forbids concealing it because concealing evidence is something that is disapproved in Islam and detested by nature. Giving false testimony has many evils for it supports falsehood against truth and promotes injustice and aggression against justice. It also effaces fairness and equity and poses danger to public safety and security.
18. According to the corpus of traditions of the Holy Prophet (Peace Be Upon Him), false testimony is one of the greater sins and the following Ahadith demonstrate the significance attached to giving true testimony:
It was narrated by Hazrat Anas (RA) that the Prophet (PBUH) was asked about the great sins. He said, they are (1) To join others in worship with Allah; (2) To be undutiful to one's parents; (3) To kill a person (which Allah has forbidden to kill) (i.e. to commit the crime of murdering) and (4) to give a false witness.
It was narrated by Hazrat Abdullah (RA) that the Prophet (PBUH) said if somebody takes a false oath in order to get the property of a Muslim (unjustly) by that oath, then Allah will be angry with him when he will meet Him.
"To testify falsely tantamounts to polytheism." It is mentioned in Tafsir Abdul Al-Fath Razi that the Holy Prophet (PBHU) repeated said statement thrice and then quoted verse No. 30 of Surah Al-Haj stating that " And avoid false statement."
19. The Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 deals with the offence of Qazf, which has been defined by virtue of section 2 of the said Ordinance as:
"Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes an imputation of 'zina' concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation, or hurt the feelings, of such person, is said except in the cases hereinafter excepted, to commit 'qazf'."
The Holy Qur'an while dealing the offence of Qazf ordains that:
"And those who accuse chaste women and then do not produce four witnesses - lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient"
(Surah Al-Noor: verse 4)
"And those who accuse their wives [of adultery] and have no witnesses except themselves - then the witness of one of them [shall be] four testimonies [swearing] by Allah that indeed, he is of the truthful"
(Surah Al-Noor: verse 6)
"And the fifth [oath will be] that the curse of Allah be upon him if he should be among the liars"
(Surah Al-Noor: verse 7)
"But it will prevent punishment from her if she gives four testimonies [swearing] by Allah that indeed, he is of the liars"
(Surah Al-Noor: verse
"And the fifth [oath will be] that the wrath of Allah be upon her if he was of the truthful"
(Surah Al-Noor: verse 9)
The verses reproduced above highlight the importance Islam places on the requisite standard of evidence to be achieved. It can be seen that the Holy Qur'an puts a great emphasis upon the need to meet the requisite standard of evidence, so much so that for a person levelling the allegation of Zina but not meeting the given standard, it not only provides for a penal punishment, but also for withdrawal of such a person's civic right to give evidence in all matters of his life.
20. Article 2 of the Constitution of the Islamic Republic of Pakistan, 1973 declares that "Islam shall be the State religion of Pakistan." Clause (1) of Article 227 of the Constitution mandates as follows:
"All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions."
According to Article 189 of the Constitution "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan". Declaring by this Court that the rule falsus in uno, falsus in omnibus is inapplicable in Pakistan is enunciation of a principle of law and has a binding effect. If inapplicability of that rule militates against the Injunctions of Islam and if such inapplicability cannot be enacted by the Parliament on account of its repugnance to the Injunctions of Islam then this Court may not be in a position to introduce such inapplicability through an enunciation of a principle of law or to continue with the same any more. A court of law cannot grant a licence to a witness to tell lies or to mix truth with falsehood and then take it upon itself to sift grain from chaff when the law of the land makes perjury or testifying falsely a culpable offence. A court also has no jurisdiction to lay down a principle of law when even the Parliament is expressly forbidden by the Constitution from enacting such a principle as law. The inapplicability of this rule in Pakistan was introduced by Chief Justice Muhammad Munir in the year 1951 at a time when Article 227 of the Constitution was not in the field but after introduction of the said constitutional prohibition the enunciation of law by his lordship in this field, like the infamous doctrine of necessity introduced by his lordship in the constitutional field, may not hold its ground now, as already predicted and foreseen by this Court in the case of Ghulam Sikandar (supra) in the following prophetic words:
"Expressed in a more direct manner a similar rule in the administration of criminal justice which is hall-mark of Islamic Jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. ------- The afore discussed main rule shall suffer serious change if and when it is examined in the light of the Islamic Principles."
21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system has suffered a lot as a consequence of the above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in light of the discussion made above, we declare that the rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against for committing perjury."
We have perused the statements Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10). Muhammad Nawaz (PW-8), in his statement before the learned trial court, stated as under:
"We saw Akhtar accused armed with pistol 12 bore, Ijaz accused armed with repeater, Aslam and Ramzan accused armed with sotas. When we reached there Aslam and Ramzan raised alarm not to come forward. Akhtar fired with his pistol on Shaban which hit on the left side of his neck. Ijaz fired which hit on the right side of chest of Shaban. Ijaz fired second shot which hit on the right ribs of Shaban. On hearing the noise of firing Naseem Mai wife of Shaban opened the door of her room. Akhtar accused fired at Naseem Mai which hit her on the right side of chest."
Similarly, Abdul Hameed (PW-10) also levelled the same allegation regarding the individual role of the appellant as well as the acquitted co-accused. We have perused the statements of the eye-witnesses and find that there was no difference in the role of the appellant and that of acquitted co-accused. We are unable to find any independent corroboration against the appellant and we are unable to distinguish the case of the appellant from the case of acquitted co-accused. This dishonesty on part of the witnesses has vitiated our trust in them. We are thus satisfied that the evidence of Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10) has no worth and is to be rejected outright.
18. Learned Deputy Prosecutor General along with the learned counsel for the complainant have laid much stress on the promptitude in reporting the matter to the police. The oral statement of Muhammad Nawaz (PW-8) was reduced into writing by Muhammad Afzal, SI, (CW-1) who sent the said statement (Exh.PC) to the police station where Liaqat Ali ASI (PW-2) registered the formal FIR (Exh.PC/1). When Muhammad Afzal, SI, (CW-1) was allegedly present at Kehrorpacca road he got information about the occurrence and reached the place of occurrence. No one out of the eye-witnesses had told him about the occurrence. We have also observed that none of the witnesses including Muhammad Nawaz (PW-8) and Abdul Hameed (PW-10) ever proceeded to report the matter to the police. This has left no doubt in our minds that the witnesses were not present at the place of occurrence at the time of occurrence and proves that the said oral statement reduced into writing as Exh.PC is just a compromised and fake document. Even otherwise Muhammad Nawaz (PW-8) abandoned support for the oral statement reduced into writing and exhibited as Exh.PC and claimed that the same had not been recorded correctly. The August Supreme Court of Pakistan in the case of "Abdul Jabbar alias Jabbari v. The State" (2017 SCMR 1155) has observed as under:
"An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot."
19. Learned District Prosecutor General has also relied upon the recovery made from the appellant. The recovery of the repeater gun 12-bore (Exh.P12) from the appellant Ijaz cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said repeater gun 12-bore (Exh.P12) from the appellant which was in clear violation of section 103, Cr.P.C. and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of "Muhammad Ismail and others v. The State" (2017 SCMR 898) at page 901 has held as under:-
"For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard."
20. Learned Deputy Prosecutor General and learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence, given in the oral statement (Exh.PC), was that Imtiaz Mai sister of Ijaz (appellant) had contracted Nikah with Muhammad Shaban (deceased) without the consent of her family members and due to that grudge the accused persons had committed the murder of Muhammad Shaban and Naseem Bibi. It is beyond reason as to why the appellant who allegedly were aggrieved of the actions of their sister proceeded to murder Mst. Naseem Bibi. No further details of said motive were mentioned in the oral statement (Exh.PC).There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. A tainted piece of evidence cannot corroborate another tainted piece of evidence. The august Supreme Court of Pakistan has held in the case of "Muhammad Javed v. The State" (2016 SCMR 2021)
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