PLJ 2022 Cr.C. 1159 (DB)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt--Ocular account--Medical evidence--Motive--Delay in post-mortem--These witnesses were also not ones who had identified dead body of the deceased at time of post-mortem report--All these omissions an conspicuous by their absence--In absence of physical proof or reason for presence of witnesses at crime scene, same cannot be relied upon--Wherein august Supreme Court of Pakistan rejected claim of witnesses who lived one kilometre away from occurrence, but on day of occurrence stated to be present near spot as they working as labourers, inasmuch as they failed to give any detail of projects they were working on--Held: August Supreme Court of Pakistan held that ocular account of incident had been furnished by, complainant, and who were all residents of some other houses and they were not inmates of house wherein occurrence had taken place and he said eye-witnesses were, thus, chance witnesses and not worthy of reliance--Thus, open mouth of deceased forces a hostile interpretation against prosecution's version regarding presence of witnesses at place of occurrence, at time of occurrence--This fact by itself indicates that none was present with deceased till his death--Prosecution witnesses failed to establish fact of such availability of light source and in absence of their ability to do so, we cannot presume existence of such a light source--The absence of any light source has put whole prosecution case in murk--It was admitted by witnesses themselves that it was a dark night and they has used light of torch lights, never produced, to identify assailants during occurrence and as prosecution witnesses failed to prove availability of such light source, their statements with regard to ther identifying assailants cannot be relied upon--The failure of prosecution witnesses to prove presence of any light source at place of occurrence at time of occurrence has repercussions, entailing failure of prosecution case--Investigating Officer of case, did not join any witness of locality during recovery of said Toka (P-6) from appellant which was in clear violation of Section 103 Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against appellant, being evidence which was obtained through illegal means and hence hit by exclusionary rule of evidence--When said witnesses have not been believed by learned trial Court with regard to their evidence regarding motive with respect to co-accused of appellant--No independent witness was produced by prosecution to prove motive as alleged--Even otherwise a tainted piece of evidence cannot corroborate another tainted piece of evidence.
[Pp. 1170, 1171, 1174, 1186 & 1188] A, B, C, D, E, I & J
2014 SCMR 1698, 2017 SCMR 622, 2017 SCMR 724, 2019 SCMR 1068, 2017 SCMR 1189, 2017 SCMR 898 & 2016 SCMR 2021.
Delay in Post-mortem--
----Post-Mortem Examination Report clearly establishes fact post-mortem examination of dead body of deceased was delayed and delay was due to late arrival of dead body at hospital and late submission of police papers--No explanation was offered to justify said delay in conducting post-mortem examination--This clearly establishes that witnesses claiming to have seen occurrence were not present at time of occurrence and delay in post-mortem examination was used to procure their attendance and formulate a false narrative after consultation and concert--It has been repeatedly held by august Supreme Court of Pakistan that such delay in post-mortem examination is reflective of absence of witnesses and sole purpose of causing such delay is to procure presence of witnesses and to further advance a false narrative to involve any person. [P. 1180] F
2012 SCMR 327 ref.
Criminal Administration of Justice--
----The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against accused persons who were charged for 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 notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that said witness will declare truth about any other aspect of case. [P. 1182] G
Maxim--
----"Falsus in uno falsus in monibus"--If a witness is not coming out with whole truth, then 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 same case--This proposition is enshrined in maxim falsus in unofahus in omnibus. [P. 1182] H
PLD 2019 SC 527.
Motive--
----It is an admitted rule of appreciation of evidence that motive is only corroborative piece of evidence and if ocular account is found to be unreliable then motive alone cannot be made basis of conviction.
[P. 1188] K
Medical evidence--
----The only ether piece of evidence left to be considered by us is medical f evidence but same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence--As all other pieces of evidence relied upon by prosecution, in this case, have been disbelieved and discarded by us, therefore, appellant's conviction cannot be upheld on basis of medical evidence alone. [P. 1188] L
Benefit of doubt--
----It is settled principle of law that for giving benefit of doubt it is not necessary that there should be so "many circumstances rather if only a single circumstance creating reasonable doubt in mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. [P. 1188] M
2018 SCMR 772.
Mr. Farooq Haider Malik, Advocate for Appellant.
Ch. Asghar Ali Gill, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 13.10.2021.
PLJ 2022 Cr.C. 1159 (DB)
[Lahore High Court, Bahawalpur Bench]
Present: Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ.
FAKHAR ABBAS--Appellant
versus
STATE and another--Respondents
Crl. A. No. 209 & M.R. No. 7 of 2019, heard on 13.10.2021.
Judgment
Sadiq Mahmud Khurram, J.--Fakhar Abbas son of Muhammad Yar (convict) was tried along with Muhammad Yar, Amir Shahzad and Sanwal Shahzad (the co-accused of the convict, all since acquitted) by the learned Additional Sessions Judge, Chishtian in case instituted upon the private complaint titled "Azhar Iqbal v. Fakhar Abbas and three others" (relating to FIR No. 389 of 2015 dated 27.12.2015 registered at Police Station Bakhshan Khan District Bahawalnagar) in respect of offences under Sections 302, 201, 120-B and 34, PPC for committing the Qatl-i-amd of Bilal Asghar son of Muhammad Younas (deceased). The learned trial Court vide judgment dated 16.04.2019, convicted Fakhar Abbas son of Muhammad Yar (convict) and sentenced him as infra:
Fakhar Abbas son of Muhammad Yar:
Death under Section 302(b), PPC as Tazir for committing Qatl-i-Amd of Bilal Asghar son of Muhammad Younas (deceased) and directed to pay Rs. 300, 000/-as compensation under Section 544-A., Cr.P.C. to the legal heirs of the deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.
The convict was ordered to be hanged by his neck till dead.
Muhammad Yar, Amir Shahzad and Sanwal Shahzad, the
co-accused of the convict, were, acquitted by the learned trial Court.
2. Feeling aggrieved, Fakhar Abbas son of Muhammad Yar (convict) lodged Criminal Appeal No. 209 of 2019 assailing his conviction and sentence. The learned trial Court submitted Murder Reference No. 07 of 2019 under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Fakhar Abbas son of Muhammad Yar. We intend to dispose of the Criminal Appeal No. 209 of 2019 and Murder Reference No. 07 of 2019 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as stated by Azhar Iqbal (PW-1), the complainant of the case, are as under:-
“Stated that I am resident of Chak No. 93/F and cultivator by profession. I had a cattle shed in my agricultural land. My brother Bilal Asghar used to sleep there in order to look after the cattle. On 26.12.2015 at about 8:00 p.m. night my brother Bilal Asghar went to sleep in the said cattle shed. Muhammad Jabbar and Rashecd Ahmad were present at my house in order to discuss about the marriage of my brother Bilal Asghar. In the late night of the same day I alongwith above said Rasheed Ahmad and Muhammad Jabbar went to look after the cattle shed, we had two electric torches with us, when we entered in the said cattle shed we saw in the light of electric torches that accused persons present in Court Fakhar Abbas armed with Toka, Amir Shahzad armed with Toka, Sanwal Shahzad armed with hatchet and Muhammad Yar armed with sota were present near the cot of my brother Bilal Asghar, accused Muhammad Yar raised lalkara that Bilal Asghar had illicit relations with his daughter, therefore, he should not be spared, accused persons Fakhar Abbas gave Toka blow on the head of Bilal Asghar Amir Shahzad gave Toka blow on the head of my brother Bilal Asghar, accused Sanwal Shahzad gave hatchet blow on the head of my brother Bilal Asghar. Accused persons had suspicion that my brother Bilal Asghar deceased had illicit relations with their sister. We tried to apprehend the accused persons but they waived their; weapons and threatened us of dire consequences and fled away with their respective weapons from the place of occurrence, We attended my brother injured Bilal Asghar who succumbed to the injuries at the spot.
I left Muhammad Jabbar and Rasheed P.Ws. at the place of occurrence with dead body of deceased and went to the police station for registration of case. I informed police about the occurrence, one SI of police obtained my signatures on a blank paper and drafted FIR. I am illiterate person, I took copy of FIR and got it read over and found that police lodged FIR of different version with connivance of accused persons which was not deposed by me to the said SI. After some time inspector homicide alongwith police officials reached at the place of occurrence where I complained him about the registration of FIR on different version whereupon the said inspector again heard my version and prepared a written application Exh.P-A which bears my signatures and the same was read over to me. I.O. also recorded my statement as well as statements of my witnesses u/S. 161, Cr.P.C. Investigation officer conducted the preliminary investigation at the spot and sent the dead body to THQ Hospital, Chishtian for post-mortem
Investigation officer conducted investigation of this case being in league with the accused persons and in order to favour the accused persons I.O. challaned accused Fakhar Abbas for the murder of my brother Bilal Asghar, challaned accused Muhammad Yar to the extent of presence at the spot, challaned accused Amir Shahzad to the extent of destroying the proofs and challaned accused Sanwal Shahzad to the extent of giving information about the deceased. Investigation officer conducted investigation with mala-fide intention and after receiving reasonable bribe from the accused persons. Being aggrieved I filed this private complaint Exh.P-B which is before my and bears my signatures as Exh.P-B/1. Accused persons are real culprits, they be punished as per law. (Exh.
P-A is shifted from State case file)."
4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Azhar Iqbal v. Fakhar Abbas and three others" (relating to FIR No. 389 of 2015 dated 27.12.2015 registered at Police Station Bakhshan Khan District Bahawalnagar) in respect of offences under Sections 302, 201, 120-B and 34, PPC for committing the Qatl-i-Amd of Bilal Asghar son of Muhammad Younas (deceased). The learned trial Court framed the charge against the accused on 29.08.2016, to which the accused pleaded not guilty and claimed trial.
5. The complainant of the case in order to prove its case got recorded statements of as many as three witnesses. The ocular account of the case was furnished by Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2). Muhammad Abbas, (PW-3) stated that on 27.12.2015 he identified the dead body of the deceased and the Medical Officer handed over the last worn clothes of the deceased to police in his presence. Muhammad Abbas (PW-3) further stated that on 29.01.2016 the appellant got recovered the Toka (P-6).
6. The learned trial Court also examined as many as nine witnesses as Court witnesses. Muhammad Azam, ASI (CW-1) stated that on 27.12.2015 black shoes (P-1) were recovered from the house of the appellant and further stated that on 12.01.2016, Muhammad Siddique 799/HC (CW-3) handed over to him one sealed parcel said to contain blood stained earth for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Maqbool Ahmad 1195/HC (CW-2) stated that on 27.12.2015 he escorted the dead body of the deceased to the hospital and after the post-mortem examination, the Medical Officer handed over to him last worn clothes of the deceased and further stated that on 18.01.2016, Muzaffar Iqbal 362/C produced the Call Data Record (CDR) (P-5/1-5) of the mobile phone device under the use of Sanwal Shahzad, the co-accused of the appellant since acquitted. Muhammad Siddique 799/C (CW-3) stated that on 27.12.2015, the Investigating Officer of the case handed over to him sealed parcel said to contain blood stained earth which on 12.01.2016, he handed over the said sealed parcel to Muhammad Azam, ASI
(CW-1) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Abdul Hameed, Patwari (CW-5) stated that he prepared the scaled site-plan of the place of occurrence (Exh. CW-5/A). Asim Ayyub, SI (CW-6) stated that on 02.02.2016 he was handed over one sealed parcel said to contain a Toka, which parcel he transmitted to the Punjab Forensic Science Agency, Lahore. Razzaq Ahmad, SI (CW-7) stated that on 27.12.2015 he recorded the formal F.I.R (Exh.CW-7/A). Muhammad Naeem 1043/C (CW-8) stated that on 29.01.2016, the Investigating Officer of the case handed over to him one sealed parcel said to contain a Toka which parcel on 02.02.2016 he handed over to Asim Ayyub, SI (CW-6) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Younas Ali
(CW-9) investigated the case from 27.12.2015 till 30.01.2016, arrested the appellant namely Fakhar Abbas son of Muhammad Yar on 17.01.2016 and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court.
7. The learned trial Court also examined Dr. Azhar Farooq (CW-4) who on 27.12.2015 was posted as Senior Medical Officer at THQ hospital Chishtian and on the same day conducted the post-mortem examination of the dead body of the deceased namely Bilal Asghar son of Muhammad Younas. Dr. Azhar Farooq (CW-4), on examining the dead body of the deceased namely Bilal Asghar son of Muhammad Younas observed and opined as under:--
"DESCRIPTION OF INJURIES.
Injury No. 01-A
An incised wound measuring 6cm X 1.5cm X deep going on the left side of forehead starting from above the left eyebrow outer side to the middle of the forehead above the left side of nose. Injury was oblique in direction. On exploration skin, bone (left frontal bone) meninges and brain matter was cut and damaged.
Injury No. 01-B
An incised wound measuring 08cm X 02cm X deep going on the front of the forehead starting from the left side of the nose on forehead and extending above the outer side of the right eyebrow. Injury was oblique in direction and was about 5cm (five centimeter) above the right eyebrow. On exploration skin, fascia, bone, meninges and brain matter was cut and damaged.
Injury No. 01-C
An incised wound measuring 15cm X 02cm X deep going starting from the outer side of right eyebrow above the temporal region of right side and going backward above the right ear till the middle of the occipital region of back of scalp. Wound was above 8cm (eight centimeter) above the right ear. On exploration skin, fascia, bone, right parital bone, meninges and brain matter was cut and damaged.
Injury No. 01-D
An incised wound measuring 08cm X 01cm X deep going starting about four centimeter above the right ear and extending backward till the middle of the occipital region of the back of scalp. On exploration scalp, fascia, prital bone and occipital bone was cut, meninges and brain matter was also damaged.
.........................
OPINION.
After thorough, external and internal post-mortem examination of dead body I was of the opinion that Injuries No. 01-A, No. 01-B, No. 01-C and No. 01-D collectively were the cause of death lending to severe brain damage, hypovolemic shock, cardio pulmonary arrest and finally death. In ordinary course of nature, these injuries were sufficient to cause death. All the injuries were anti-mortem in nature and caused by sharp-edged weapon.
Probable time that elapsed:
Between injury and death: within few minutes
Between death and post-mortem: within eighteen hours".
8. On 18.01.2019, the learned counsel for the complainant of the case, gave up witness namely Rasheed Ahmad as being unnecessary. On 14.03.2019, the learned Assistant District Public Prosecutor tendered in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PE) regarding the analysis of the blood stained earth and the report of Punjab Forensic Science Agency, Lahore (Exh.PF) regarding the analysis of the blood stained Toka.
9. After the closure of prosecution evidence, the learned trial Court examined the appellant namely Fakhar Abbas son of Muhammad Yar and 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 had been involved in the case falsely and was innocent. The appellant namely Fakhar Abbas son of Muhammad Yar opted not to get himself examined under Section 340(2), Cr.P.C. and did not adduce any evidence in his defence.
10. On the conclusion of the trial, the learned Additional Sessions Judge, Chishtian convicted and sentenced the appellant as referred to above.
11. The primary contention of the learned counsel for the appellant is that the whole case is fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statements of Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt.
12. On the other hand, the learned Deputy Prosecutor General contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. He further argued that the deceased died as a result of injuries suffered at the hands of the appellant. He further contended that the medical evidence also corroborated the statements of Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2). He further argued that the recovery of the Toka (P-6) from the appellant namely Fakhar Abbas son of Muhammad Yar also corroborated the ocular account. He further 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, the learned Deputy Prosecutor General prayed for the rejection of appeal as lodged by the appellant namely Fakhar Abbas son of Muhammad Yar .
13. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully.
14. The whole prosecution case revolves around the statements of Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2). The relationship of the said witnesses with the deceased is on record. Bilal Asghar son of Muhammad Younas, deceased, was the brother of Azhar Iqbal (PW-1) and maternal nephew of Muhammad Jabbar (PW-2). According to the prosecution witnesses the occurrence had taken place in a cattle shed where the deceased namely Bilal Asghar son of Muhammad Younas had gone to sleep at 8.00 p.m. on 26.12.2015. It has been admitted by Azhar Iqbal (PW-1) that the said cattle shed was at a distance from the place of his residence and was as far as 24 to 25 acres. Azhar Iqbal (PW-1) during cross-examination stated as under:
"The place of occurrence falls at a distance of about 24/25 acres from my house."
The other witness namely Muhammad Jabbar (PW-2) was not even the resident of the village where the occurrence took place, rather he was resident of Chak No. 34/6.R, which village was at a distance of as much as 35/40 kilometres from the place of occurrence. Azhar Iqbal (PW-1) during cross-examination admitted as under:-
"Jabbar PW is my real maternal uncle. The house of Jabbar PW falls in Chak No. 34/6-R which is at a distance of about 35/40 kilometer from our village. About 20 houses exist belonging to our Baradri in our village. It is incorrect that there are about hundred houses of our relatives in our village. Rashced PW is also my maternal uncle in relation. His residence Chak No. 89/F falls at a distance of about ten kilometers from our village"
In view of the above mentioned facts, it can be validly held that both the prosecution witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) were "chance witnesses" and therefore were under a duty to explain and prove their presence at the place of occurrence, at the time of occurrence. It was claimed by both the witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) that Muhammad Jabbar (PW-2) along with Rasheed Ahmad (not produced) had arrived at the house of Azhar Iqbal (PW-1) to discuss the marriage of the deceased, however the deceased Bilal Asghar son of Muhammad Younas went away to sleep in the cattle shed, whereas the witnesses namely Azhar Iqbal (PW-1), Muhammad Jabbar (PW-2) and Rasheed Ahmad (not produced) kept on discussing his marriage plans, in his absence. This explanation offered by the prosecution witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) for the presence of Muhammad Jabbar (PW-2) and Rasheed Ahmad (not produced) in the house of Azhar Iqbal (PW-1) is absurd and not proved. Additionally, the occurrence did not take place inside the house of Azhar Iqbal
(PW-1) where all these witnesses claimed to have gathered, rather had taken place at a cattle shed which was at a distance of about 24 acres from the said house. We have also noted that Azhar Iqbal (PW-1) admitted in his statement before the learned trial Court that it was the deceased namely Bilal Asghar son of Muhammad Younas who, in routine and usual manner, used to sleep at the place of occurrence whereas Azhar Iqbal (PW-1) slept at his house which was at a distance of 24 to 25 acres from the said place. While appearing before the learned trial Court, neither Azhar Iqbal (PW-1) nor Muhammad Jabbar (PW-2) explained as to why, in the odd hours of Hie night, they found it necessary to go to the said cattle shed when they had not done so ever earlier. In this manner, the prosecution witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) failed to explain as to the reason which prompted them to leave their house and proceed to the place of occurrence, for no reason at all.
15. Another aspect of the case noted by us wih a high degree of concern is that while filing the private complaint (Exh.PB), Azhar Iqbal (PW-1) got recorded in the same that they had proceeded to the place of occurrence early in the morning whereas while appearing before the learned trial Court, both the witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) claimed that they proceeded to the place of occurrence in the night. Azhar Iqbal (PW-1) in his examination in-chief stated as under:
"In the late night of the same day I alongwith above said Rasheed Ahmad and Muhammad Jabbar went to look after the cattle shed, " (emphasis supplied).
Similarly, Muhammad Jabbar (PW-2) in his examination in-chief recorded by the learned trial Court stated as under:
"After midnight of the same day. I alongwhh complainant and Rasheed Ahmad PW having two electric torches went to the said cattle shed to look" (emphasis supplied).
The above referred portion of the statements of both the witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) clearly lays bare the contradiction in their claim as mentioned in the private complaint (Exh.PB) and what was stated by them before the learned trial Court. Even the Younas Ali Inspector (CW-9), the Investigating Officer of the case, admitted during the cross-examination that the witnesses did not state the time of occurrence. Younas Ali Inspector (CW-9), the Investigating Officer of the case, during cross-examination admitted as under:-
"It is correct that the complianant and PWs did not disclose before me the exact time of occurrence by watch."
"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. "
We have also marked with concern that in the Post-mortem Report (Exh.CW-4/A), the mouth of the deceased has been stated to be open, which clearly shows that the dead body was not attended to by the prosecution witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2), the brother and the maternal uncle of the deceased, as claimed. Dr. Azhar Farooq (CW-4), who on 27.12.2015 was posted as Senior Medical Officer at THQ hospital Chishtian and on the same day had conducted the post-mortem examination of the dead body of the deceased namely Bilal Asghar son of Muhammad Younas, observed that the mouth of the deceased was open at the time of the post-mortem examination. However, the stance set up by the prosecution in the present case is that Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) were present at the time of the death of the deceased and had remained with the dead body. The mouth of the deceased was found open at the time of post-mortem examination, thus, if the witnesses were present then, at least after the death, as is a consistent practice of such close relatives, they would have closed mouth of the deceased on his expiry. Even Dr. Azhar Farooq (CW-4) admitted during cross-examination that if a person had remained unattended after his death, then in that scenario, his mouth was found open during the post-mortem examination. Dr. Azhar Farooq (CW-4) during cross-examination stated as under:
"It is correct that generally mouth of dead body lies open when it is unattended one"
"What has further irked this Court is that in Column No. 9 of the Marg Report (Ex.PW-9/1), and even in the Post-mortem Report (Ex.PW-10/A), the mouth of the deceased has been stated to be open, which clearly indicates that the dead body was not attended to by his close relatives after being pronounced dead. However, the stance set up by the prosecution in the present case is that Arshad Ali -the brother, and Nazir Ahmad -the uncle of the deceased Muhammad Azam were present at the time of his death, and remained with him, even thereafter. Thus, the said posture of the deceased raises an adverse inference against the prosecution's version regarding the presence of the said persons at the place and time of occurrence."
We have also noted with concern that Azhar Iqbal (PW-1) admitted that he was not present when the dead body of the deceased was moved from the place of occurrence to the hospital. Azhar Iqbal (PW-1) during cross-examination admitted as under:
"The dead body was sent by Younas Inspector from the spot to THQ hospital Chishtian after inspection but I was not present at that time." (emphasis supplied).
Even Younas Ali Inspector (CW-9), the Investigating Officer of the case admitted during cross-examination that it was not brought on record as to who had moved the dead body of the deceased from the place of occurrence to the hospital. Younas Ali Inspector (CW-9), the Investigating Officer of the case, during cross-examination admitted as under:
"It is correct that case of this file is silent regarding escort of dead body from the place of occurrence to THQ hospital Chishtian as to whether who escorted the dead body by which means to the civil hospital Chishtian. It is also correct that neither complainant nor any PW disclosed to me as how dead body reached THQ hospital Chishtian."
The above referred portions of the cross-examination further establish the fact that the prosecution witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) were not present at the place of occurrence and their attendance was procured subsequently. Reliance is also placed on the case of Muhammad Sharifan Bibi v. Muhammad Yasin and others (2012 SCMR 82) wherein the august Supreme Court of Pakistan held as under:
"Their presence becomes further doubtful as none of them accompanied Abdul Latif deceased to the hospital for post-mortem examination."
16. As mentioned above, both the witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) claimed that they proceeded to the place of occurrence in the night and had witnessed the same in the light of the torches carried by them. It was admitted by Azhar Iqbal (PW-1) that the place of occurrence did not have any supply of electricity. Azhar Iqbal (PW-1) during cross-examination admitted as under:
"The place of occurrence (our cattle shed) is not electrified."
During the course of investigation and even before the learned trial Court the said torch lights were never produced. Azhar Iqbal (PW-1) was confronted during the cross-examination with this aspect of the case that no torch lights in the possession of the witnesses were produced or taken into possession and the learned trial Court observed as under:
"At this stage learned defense counsel requests if any recovery memo of Torches produced by complainant or any witness in this case is present on record, he may be furnish the copy of the same. Learned ADPP for the state is asked to peruse the record. After perusing the record, Learned ADPP for the state has answered that there is no such recovery memo about Seizer of torches present on record of this case."
(emphasis supplied).
The non-production of the torch lights which were being carried by the prosecution witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) and which torch lights were used by them to identify the accused, is all the more a matter of disquiet for the reason that the trial of the case was conducted in a private complaint and if the said torch lights were indeed available, then the complainant of the case could have easily produced the same before the learned trial Court. The failure of the complainant of the case to produce the same before the learned trial Court leads to only one conclusion, and that being that no such source of light was available with the witnesses at the place of occurrence which could have enabled the eye-witnesses to have identified the assailants and also spectate the individual roles of the assailants as acted by them during the occurrence. As mentioned above, no such torch lights, which were used by the prosecution witnesses to witness the occurrence, were taken into possession by the Investigating Officer. According to the prosecution evidence, Younas Ali Inspector (CW-9), the Investigating Officer of the case, visited the place of occurrence after the occurrence but the torch lights, which were allegedly used by the witnesses to witness the occurrence, at the time of occurrence, were not taken into possession at the spot by the Investigating Officer alongwith other recoveries though there was no occasion for the said torch lights not to have been present at the place of occurrence or they being not produced by the witnesses before the Investigating Officer or they being not taken into possession by the Investigating Officer during his visit at the place of occurrence. Younas Ali Inspector (CW-9), the Investigating Officer of the case, admitted during the cross-examination as under:
"It is correct that there was no source of light/electricity or any lantern etc was shown to me at the place of occurrence when I visited the place of occurrence. It is correct that complainant and the eye-witnesses did not produce before me any torch etc. as source of light." (emphasis supplied).
"The occurrence in this case had taken place at about 11.45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the Courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The Courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised"
Reliance is also placed on the case of "Hameed Gul v. Tahir and two others" (2006 SCMR 1628) wherein the august Supreme Court of Pakistan observed as under:
"Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along. "
Reliance is also placed on the case of "Basar v. Zulfiqar Ali and others" (2010 SCMR 1972) wherein the august Supreme Court of Pakistan observed as under:
"7. It is also alleged by the prosecution that the witnesses had identified the culprits on torch lights. The complainant and P.Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.
8. Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt.”
Reliance is also 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:
"It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the FIR no source of light at the spot had been mentioned by the complainant. Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case."
Reliance is also 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."
17. Another fact of the prosecution case is that initially a written application (Exh.DA) was presented by Azhar Iqbal (PW-1) to Razzaq Ahmad, SI (CW-7) for the registration of the case and after receiving the said written application (Exh.DA), Razzaq Ahmad, SI (CW-7) recorded the formal F.I.R (Exh.CW-7/A) on 27.12.2015 at 11.30 a.m. It is an admitted fact that in the written application (Exh.DA) as presented by Azhar Iqbal (PW-1) and in the formal F.I.R (Exh.CW-7/A) it was recorded that Azhar Iqbal (PW-1) and Muhammad Jabbar
(PW-2) proceeded to the cattle shed where Bilal Asghar son of Muhammad Younas (deceased) had gone to sleep on the morning of 27.12.2015 and upon their arrival at the cattle shed, they found the dead body of the deceased laying there. In the written application (Exh.DA) as presented by Azhar Iqbal (PW-1) and in the formal F.I.R (Exh.CW-7/A) it was not mentioned that the prosecution witnesses namely Azhar Iqbal (PW-1), Muhammad Jabbar (PW-2) and Rasheed Ahmad (not produced) had witnessed the occurrence. Furthermore, it was not mentioned in the written application (Exh.DA) as presented by Azhar Iqbal (PW-1) and in the formal F.I.R (Exh.CW-7/A), that any of the accused had been identified or that the names of the assailants who had committed the murder of Bilal Asghar son of Muhammad Younas (deceased) were known to the witnesses. Azhar Iqbal (PW-1) subsequently claimed that the said application (Exh.DA) did not contain the correct facts and was not even written by him and he had been defrauded by the police authorities at the Police Station, who prepared the said forged document (Exh.DA). Despite the said claim of Azhar Iqbal (PW-1), he himself admitted that the application (Exh.DA), on the basis of which the formal F.I.R (Exh.CW-7/A) had been recorded, was signed by him and also had his phone number mentioned on the same. Azhar Iqbal (PW-1) also admitted that he never moved any application against any police official who had prepared the said document (Exh.DA). Azhar Iqbal (PW-1) admitted during cross-examination as under:
"It is correct that application on which FIR was lodged was signed by me and my signatures on application Exh-DA are Exh DA/1. Volunteered these signatures were obtained on blank paper.
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The Sub-Inspector name might be Parvez Bajwa who has got registered my FIR on the basis of Exh-DA. I had never moved any complaint against said sub inspector who registered FIR on the basis of Exh-DA before any forum. The Homicide Investigating Officer was Younas Buttar. I had never moved any application against Younas Buttar inspector homicide at any forum who did not investigate my case on merits and had destroyed the proofs to give benefits to accused persons till today. The dead body was sent by Younas Inspector from the spot to THQ Hospital Chishtian after inspection but I was not present the that time.
.......................
It is correct that at the time of signing Exh-DA the officer inquired my cellphone number and I informed him about my cell phone number 0346-8780993"
Younas Ali Inspector (CW-9), the Investigating Officer of the case during cross-examination stated as under:
It is correct that vide inquest report prepared by me no accused is nominated and there is no specific mentioning of causing of specific injury with specific weapon as well as no specific locale of injury is mentioned therein. I had prepared inquest report according to the condition of the dead body and the details given by complainant in FIR. At that time Muhammad Abbas s/o Muhammad Yousaf and Muhammad Younas s/o Muhammad Sardar private PWs were nlso present. It is correct that both these PWs Muhammad Abbas and Muhammad Younas PWs did not disclose before me that the occurrence was committed by Fakliar Abbas, Sanwal Shahzad, Muhammad Amir or Muhammad Yar accused persons present in Court. It is correct that these PWS had not disclosed before me that the version narrated in FIR and the complaint Exh-DA is not correct or it is wrongly registered. It is correct that from the day one till my transfer I investigated this case. During my investigation the complainant or any legal heir of deceased did not move any application against Razzaq Ahmed SI scribe of FIR Exh-CW-7/A, Muhammad Siddique 799/HC Moharrar of Police Station, Muhammad Azam ASI or Maqbool Ahmed 1195/HC officials of Police Station Bakhshan Khan."(emphasis supplied)
The above referred portions of the cross-examination of Azhar Iqbal (PW-1) and Younas Ali Inspector (CW-9), the Investigating Officer of the case, clearly establishes the fact that the written application (Exh.DA) was indeed presented by Azhar Iqbal (PW-1), however, subsequently he changed his version. Younas Ali Inspector (CW-9), the Investigating Officer of the case, also brought this fact on the record that at the time of preparation of the inquest report, none of the witnesses told him that they had seen the occurrence or that the accused had been identified by them during the same. We have ourselves perused the inquest report (Exh.CW-9/B) as prepared by Younas Ali Inspector (CW-9), the Investigating Officer of the case, and find that it had been mentioned in the same that upon the arrival of the witnesses at the place of occurrence they saw unknown persons escaping from the same and upon entering in the cattle shed, they saw the dead body of Bilal Asghar son of Muhammad Younas (deceased) who had been murdered by some unkown persons. We, in view of the above mentioned facts, have come to the irresistible conclusion that the statements of the prosecution witnesses namely Azhar Iqbal
(PW-1) and Muhammad Jabbar (PW-2) are worthy of no credence and are to be rejected outright."
18. We have also noted with disquiet that despite the fact that the post-mortem examination of the dead body of the deceased was conducted with much delay. According to the Post-mortem Examination Report (Exh.CW-4/A), Dr. Azhar Farooq (CW-4), conducted the post-mortem examination of the dead body of the deceased namely Bilal Asghar son of Muhammad Younas at 6.00 p.m. on 27.12.2015. Furthermore, according to the Post-mortem Examination Report (Exh.CW-4/A), Dr. Azhar Farooq (CW-4), received the police paper at 5.45 p.m on 27.12.2019 and thereafter conducted the post-mortem examination of the dead body of the deceased. Dr. Azhar Farooq (CW-4) gave the time between death and post-mortem examination as being within 18 hours. Dr. Azhar Farooq (CW-4), also observed the fully developed rigor mortis at the time of conducting the post-mortem examination. Before proceeding any further, it would be advantageous to mention here that rigor mortis is a term which stands for the stiffness of voluntary and involuntary muscles in human body after death. It starts within 2 to 4 hours of death and fully develops in about 12-hours in temperate climate. Similarly, the reverse process with which rigor mortis disappears is called algor mortis. In support of duration required to develop rigor mortis, an extract from "The Principles and Practice Of Medical Jurisprudence" by Alfred Swaine Taylor, MD, is being referred hereunder:
"In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor mortis usually commences within 2 to 4 hours of death. It reaches a peak in about 12 hours and starts to disappear after another 12 hours. The cadaver becoming limp some 36 hours after death."
Likewise, Dr. S. Siddiq Hussain in Chapter-V of his book "Forensic Medicine and Toxicology", observed that in temperate climate the rigor mortis completes in 8 to 12 hours. Similarly, William Carroll in his research article titled as "An Examination of Muscle Function", has declared a similar duration for rigor mortis to develop. In Chapter 15 'POST-MORTEM CHANGES AND TIME SINCE DEATH", from page 351 to page 352 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018), it has been discoursed as under:--
"Rigor mortis generally occurs, while the body is cooling. It is in no way connected with the nervous system, and it develops even in paralyzed limbs, provided the paralyzed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.
Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away.
Rigor mortis first appears in the involuntary muscles, and then in the voluntary. In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertrophy, and its relaxation or dilatation, atrophy or degeneration. The left chambers are affected more than the right. Post-mortem delivery may occur owing to contraction of the uterine muscular fibres.
In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the' abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence. However, according to H.A. Shapiro this progress of rigor mortis from proximal to distal areas is apparent only, it actually starts in all muscles simultaneously but one can distinguish the early developing and fully established stage, which gives an indication of the time factor.
Time of Onset. This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop.
Duration-In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor morts is 24 10 48 hours in winter and 18 to 36 hours in summer. According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the longest forty hours." In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early, it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associated findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles. If on examination, the body is stiff, the head cannot be fixed towards the chest, then in all probability, the death might have occurred six to twelve hours or so more before the time of examination."
"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."
19. We have already mentioned that along with the appellant his co-accused namely Muhammad Yar, Amir Shahzad and Sanwal Shahzad (all since acquitted) were also tried. The learned trial Court acquitted the above mentioned co-accused namely Muhammad Yar, Amir Shahzad and Sanwal Shahzad (all since acquitted) of the charges. We have queried the learned Deputy Prosecutor regarding the filing or otherwise of an appeal against the acquittal of the said co-accused of the appellant, who has stated that the acquittal of Muhammad Yar, Amir Shahzad and Sanwal Shahzad (all since acquitted) had attained finality as the order of the learned trial Court with regard to the acquittal of Muhammad Yar, Amir Shahzad and Sanwal Shahzad (all since acquitted) was not assailed either by the State or by the complainant and the matter was not agitated any further. The question for determination before this Court now is that whether the evidence of the prosecution witnesses, 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 the whole truth, then 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:
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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.
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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 fulsus in uno, fulsus 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."
Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. We have scrutinized the statements of Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2), the eye-witnesses of the occurrence. Azhar Iqbal (PW-1) during his statement before the learned trial Court got recorded as under:
"Amir Shahzad gave Toka blow on the head of my brother Bilal Asghar, accused Sanwal Shahzad gave hatchet blow on the head of my brother Bilal Asghar.." (emphasis supplied).
Similarly, Muhammad Jabbar (PW-2), in his examination in-chief stated as under:
"Amir Shahzad gave Toka blows on the head of Bilal Asghar and accused Sanwal Shahzad gave hatchet blows on the head of Bilal Asghar.” (emphasis supplied).
Both the prosecution witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) attributed causing of Toka blows to the deceased by Amir Shahzad and Sanwal Shahzad (both since acquitted), however both the witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) were found to have made false statements with regard to Amir Shahzad and Sanwal Shahzad (both since acquitted), the co-accused of the appellant. We are unable to find any independent corroboration of the prosecution case against the appellant and we are unable to distinguish the case of the appellant from the case of the acquitted co-accused namely Amir Shahzad and Sanwal Shahzad as the prosecution evidence with regard to the appellant and with regard to his co-accused namely Amir Shahzad and Sanwal Shahzad (both since acquitted) is similar. We have also noticed that the learned trial Court in its judgment repeatedly observed that both the prosecution witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) could not be relied upon and had given false evidence but still proceeded to convict the appellant. We find no reason to believe the statements of the witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) with regard to the appellant in absence of any reason to do so. This lying on part of the witnesses with regard to Amir Shahzad and Sanwal Shahzad (both since acquitted), the co-accused of the appellant, has vitiated our trust in them. We are thus satisfied that the evidence of Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) has no worth and deserves outright rejection. Reliance in this regard is placed on the case of Tariq v. Ttie State (2017 SCMR 1672) wherein the august Supreme Court of Pakistan has held as under:
"So the conviction of the appellant can only be sustained if there is independent corroboration to the said witnesses who had been disbelieved to the extent of majority of the accused which presently is lacking because the motive asserted by the prosecution indicates that there was enmity of murder between the parties and the said enmity, being double edge, could be reason for false implication of the appellant. "
Reliance in this regard is also placed on the case of Munir Ahmed and others v. the State and others (2019 SCMR 2006) wherein the august Supreme Court of Pakistan has held as under:
"Loss of precious lives, within a family fold, though on rocks, confirmed by the witnesses including the one with a stamp of injury, notwithstanding, there are certain Intriguing aspects, haunting the prosecution, in the totality of circumstances, a hugely large number of assailants, including the unknown, being the most prominent. In the face of indiscriminate firing, a case unambiguously put forth by the prosecution, receipt of single shot by each deceased as well as the injured belies the hypothesis of massive indiscriminate firing by each member of unlawful assembly comprising no less than 26, the unknown included; from amongst the volley of assailants, precision attribution, in an extreme crisis situation, is a feat, beyond human capacity, it sans forensic support as well; quite a few from amongst the array were let off at Investigative stage, on the basis of an affidavit sworn by no other than the injured himself; prosecution's dilemma is further compounded by acquittal of four accused, framed through the same set of evidence by the Trial Court; a severer blow came from the High Court that acquitted all others except the petitioners. The petitioners, though distinctly assigned single shot qua the deceased and the injured, nonetheless, are identically placed with those by now, off the hook. Inclusion of the unknown, eight in numbers, if factually correct was certainly not without a purpose; if at all, they were there, the petitioners and other known members of the family had no occasion to carry out the assault without being out of mind. Notwithstanding the magnitude of loss of lives, the totality of circumstances, unambiguously suggest that the occurrence did not place in the manner as is alleged in the crime report; argument that number of assailants has been hugely exaggerated, as confirmed by the acquittals of the co-accused with somewhat identical roles, though without specific attributions, is not entirely beside the mark and in retrospect calls for caution. It would be unsafe to maintain the convictions. Consequently, Jail Petitions are converted into appeals and allowed; impugned judgment is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case. "
Reliance is also placed on the case of safdar Abbas and others versus The State and others (2020 SCMR 219) wherein the august Supreme Court of Pakistan has held as under:
"Petitioners' father, namely, Charagh co-accused is assigned multiple club blows to Muhammad Bukhsh deceased; same is charge against Muzaffar co-accused; remainder of the accused, though assigned no harm to the deceased, nonetheless, are ascribed effective roles to the PWs; they are closely related being members of the same clan and in the totality of circumstances given the accusation, their roles cannot be bifurcated without nullifying the entire case. Motive cited in the crime report is non-specific; investigative conclusions were inconsistent with the case set up by the complainant. Recoveries are inconsequential. Complainant abandoned his case against the acquitted co-accused after failure of his petition seeking leave to appeal in the High Court. In this backdrop, no intelligible or objective distinction can be drawn to hold the petitioners guilty of the charge in isolation with their co-accused. Prosecution evidence, substantially found flawed, it would be unsafe to maintain the conviction without potential risk of error. Criminal Petition No. 955-L/2016 is converted into appeal and allowed, impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case."
(P-6) from the appellant which was in clear violation of Section 103 Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and 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."
Another aspect regarding the recovery of the Toka (P-6) from the appellant is that the occurrence took place on 27.12.2015, whereas the Toka (P-6) was sent to the office of Punjab Forensic Science Agency, Lahore, on 03.02.2016 and was analyzed on 12.02.2016. During such a long period the blood available on the Toka (P-6), if any, would have disintegrated. It is not possible to believe that the blood available on the Toka (P-6) had not disintegrated by the time the same was analyzed by the Punjab Forensic Science Agency, Lahore and it was, therefore scientifically impossible to detect the origin of the, blood. The august Supreme Court of Pakistan in the case of "Faisal Mehmood v. The State" (2016 SCMR 2138) has held as under:
"The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks. "
Therefore, the recovery of the Toka (P-6) from the appellant does not further the case of prosecution in any manner. In view of the above mentioned facts, the alleged recovery of the Toka (P-6) is not proved and the same cannot be used as a circumstance against the appellant. Even otherwise as we have disbelieved the ocular account in this case, hence the evidence of recovery would have no consequence. It is an admitted rule of appreciation of evidence that recovery is only a corroborative piece of evidence and if the ocular account is found to be unreliable then the recovery has no evidentiary value.
21. The learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular accounts. The motive of the occurrence as stated by the prosecution witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2) was that the appellant and the co-accused of the appellant, had a suspicion that the deceased namely Bilal Asghar son of Muhammad Younas was having illicit relationship with the daughter of Muhammad Yar (since acquitted), the co-accused of the appellant. It is an admitted fact of the prosecution case that Sana Bibi, the said daughter of Muhammad Yar never appeared during the investigation of the case nor was produced before the learned trial Court in support of the motive. Younas Ali Inspector (CW-9), the Investigating Officer of the case, admitted during the cross-examination that he did not collect any evidence with respect to the motive of the case. Younas Ali Inspector (CW-9), the Investigating Officer of the case during cross-examination stated as under:
"It is correct that I did not join in investigation Sana Bibi sister of accused persons Fakhar Abbas etc. and daughter of Muhammad Yar to dig out the motive story of the complainant. It is correct that on first day of investigation I raided the house of accused persons where said Sana Bibi was present and was washing the black shoes of her father, on my query she told that she was washing shoes of her father Muhammad Yar."
The above referred portion of the statement of Younas Ali Inspector (CW-9), the Investigating Officer of the case, clearly proves that the prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased. The evidence of Sana Bibi being the best evidence to prove the motive and the failure of the prosecution to produce the same, has repercussions entailing absolute and ardent collapse of the prosecution case with regard to the motive. There is a haunting silence with regard to the minutiae of motive alleged. Furthermore, Muhammad Yar, Amir Shahzad and Sanwal Shahzad, the co-accused of the appellant, all since acquitted, were also stated to have the same motive to commit the occurrence as the appellant and all of them namely Muhammad Yar, Amir Shahzad and Sanwal Shahzad were acquitted by the learned trial Court and their acquittal was not assailed, therefore, the prosecution witnesses namely Azhar Iqbal (PW-1) and Muhammad Jabbar (PW-2), who gave evidence with regard to motive, cannot be believed in isolation as against the appellant, when the said witnesses have not been believed by the learned trial Court with regard to their evidence regarding the motive with respect to the co-accused of the appellant. No independent witness was produced by the prosecution to prove the motive as alleged. Even otherwise 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) as under:
"The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."
"Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muqarab Khan v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749). "
Reliance is also placed on the judgment of the august Supreme Court of Pakistan Muqarab Khan v. The State (2009 SCMR 230) in which it has been observed in Paragraph No. 13 of page 236 as infra:
"It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
24. For what has been discussed above, Criminal Appeal No. 209 of 2019 lodged by Fakhar Abbas son of Muhammad Yar (appellant) is allowed. The conviction and sentence of Fakhar Abbas son of Muhammad Yar (appellant) awarded by the learned trial Court through the impugned judgment dated 16.04.2019 are hereby set-aside. Fakhar Abbas son of Muhammad Yar (appellant) is ordered to be acquitted by extending him the benefit of doubt. The appellant namely Fakhar Abbas son of Muhammad Yar is in custody and he is directed to be released forthwith if not required in any other case.
25. Consequently, the Murder Reference No. 07 of 2019 is answered in Negative and the sentence of death awarded to Fakhar Abbas son of Muhammad Yar is Not Confirmed.
(A.A.K.) Appeal allowed
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