2020 P Cr (PLP)

FAROOQ HAIDER, J.

Before proceeding further in the matter, it is clarified here that at the time of pronouncement of impugned judgment, co-convict of the appellant namely Ghulam Qadir was absent, therefore, trial court after convicting and awarding sentences to Ghulam Qadir through impugned judgment declared him as proclaimed offender and issued perpetual non-bailable warrant of his arrest, initiated proceedings against his surety and also forwarded the case under section 374, Cr.P.C. for confirmation of death sentence awarded to him; who admittedly has not filed any appeal against the convictions recorded and sentences awarded. However, we are examining entire record and deciding murder reference to his extent also.

2. Through this single consolidated judgment Criminal Appeal No.590/2016 filed by Ghulam Sabir (appellant) against judgment dated 28.11.2016 passed by learned Additional Sessions Judge, Bahawalpur, whereby the appellant and his above named co-convict Ghulam Qadir have been convicted and sentenced as under:- Ghulam Sabir 1) under section 302(b), P.P.C. to death as tazir for committing qatl-i-amd of Mst. Kalsoom Bibi without payment of compensation as required under section 544-A, Cr.P.C. because of compromise with her parents; and 2) under section 302(b)/34, P.P.C. to life imprisonment as tazir for committing qatl-i-amd of Muhammad Asif with payment of compensation Rs.3,00,000/- as required under section 544-A, Cr.P.C. and in case of default thereof to further undergo SI for six months. Ghulam Qadir 1) under section 302(b), P.P.C. to death as tazir for committing qatl-i-amd of Muhammad Asif with payment of compensation Rs.3,00,000/- as required under section 544-A, Cr.P.C. and in case of default thereof to further undergo SI for six months; and 2) under section 302(b)/34, P.P.C. to life imprisonment as tazir for committing qatl-i-amd of Mst. Kalsoom Bibi without payment of compensation as required under section 544-A, Cr.P.C. because of compromise with her parents. Benefit of section 382-B, Cr.P.C. was also extended to Ghulam Sabir (appellant) and his co-convict (Ghulam Qadir). and Murder Reference No.76/2016 sent by learned trial Court under section 374, Cr.P.C. for confirmation of death sentence awarded to Ghulam Sabir (appellant) and his co-convict (Ghulam Qadir) through the aforementioned impugned judgment passed in private complaint under sections 302, 148, 149, P.P.C., are being decided together because both these matters have arisen out of one and same judgment.

2. Brief facts, as per written application (Ex.PA) submitted by Faqir Muhammad complainant/PW-1 to Muhammad Abdullah SI (PW-7) are that he is resident of Chak No.56/4-R, Tehsil and District Sahiwal and is farmer by profession; one of his son Muhammad Arshad is an employee in Pak Army and is posted at Bahawalpur Cantonment while his younger son Muhammad Asif is doing the work of shuttering and to earn livelihood, he along with his wife Mst. Kalsoom Bibi was residing in a rented house situated in Street No.3 Islami Colony, Bahawalpur; on 18.10.2013, when complainant along with Shafqat Ali came at Laari Adda, Bahawalpur at about 04:00 p.m. in order to see his son Muhammad Asif and daughter-in-law Kalsoom Bibi, then Ghulam Qadir, Ghulam Haider, Ghulam Sabir, Muhammad Yaseen, Zafar Iqbal and Tanveer Ahmad met them there; on asking of the complainant, Ghulam Qadir told that they came at Islami Colony Bahawalpur to meet his sister Kalsoom on the eve of Eid and now they are going back to home; when complainant along with Shafqat Ali reached to the house of his son in Islami Colony, Bahawalpur, he saw that throat of Mst. Kalsoom Bibi was cut and her deadbody was lying in front of the door while throat of his son Muhammad Asif was also cut and his deadbody was lying on the northern wall whereas the hands and feet of his other son namely Muhammad Arshad were tied with cot and his mouth was also closed by putting cloth, whereupon they untied Muhammad Arshad who told them that about 1/2 p.m. above named persons i.e. Ghulam Qadir, Ghulam Haider, Ghulam Sabir, Muhammad Yaseen, Zafar Iqbal and Tanveer Ahmad came there, out of them, Ghulam Qadir, Ghulam Haider and Ghulam Sabir, who were armed with knives , caught hold Mst. Kalsoom Bibi and Muhammad Asif whereas remaining accused persons caught hold him and tied his hands and feet with ropes and also put cloth in his mouth and thereafter tied his mouth with cloth and then in his view, Ghulam Qadir and Ghulam Haider laid down Muhammad Asif on the floor and thereafter Ghulam Qadir cut his throat whereas Ghulam Haider caused injury at his forehead while Muhammad Yaseen, Zafar Iqbal and Tanveer Ahmad caught hold Kalsoom Bibi and laid down her on the floor and Ghulam Sabir cut her throat; thereafter the accused persons fled away from the place of occurrence. Motive behind the occurrence was over solemnization of love marriage with Kalsoom Bibi (deceased) by Muhammad Asif (deceased). On the basis of above said application (Ex.PA), case vide FIR No.595/2013 dated 18.10.2013 under sections 302, 148, 149, P.P.C. was registered at Police Station Baghdad-ul-Jadeed, Bahawalpur. After registration of the case, the police conducted investigation of the case and submitted report under section 173, Cr.P.C., however, complainant while posing dissatisfaction with the investigation, filed private complaint (Ex.PB) before the learned Judicial Magistrate which was entrusted to learned Additional Sessions Judge, Bahawalpur, in which, accused persons were summoned; however, accused i.e. Ghulam Qadir, Ghulam Haider, Ghulam Sabir, Tanveer Ahmad put their appearance before the trial Court whereas accused Muhammad Yaseen and Zafar Iqbal absented themselves and they both were declared as proclaimed offenders; charge was framed against Ghulam Qadir, Ghulam Haider, Ghulam Sabir and Tanveer Ahmad (aforementioned), to which, they pleaded not guilty and claimed trial. Thereafter prosecution got examined eleven witnesses and closed its evidence after tendering reports of experts, then Court also examined four Court Witnesses. Thereafter, statements of accused were recorded under section 342, Cr.P.C. in which they refuted the allegations levelled against them. However, they neither opted to appear as their own witnesses under section 340(2), Cr.P.C. nor produced any evidence in their defence.

3. The learned trial court after conclusion of the trial convicted and sentenced the present appellant (Ghulam Sabir) and his co-convict namely Ghulam Qadir, as mentioned above, whereas acquitted their two co-accused namely Ghulam Haider and Tanveer Ahmad vide impugned judgment dated 28.11.2016.

4. Learned counsel for the appellant submitted that impugned conviction recorded and sentence awarded to the appellant through impugned judgment are against the 'law and facts‟' result of non-reading/misreading of evidence; ocular account is contradicted to medical evidence. Learned counsel for the appellant finally prayed for acquittal of the appellant by accepting his appeal.

5. Conversely, learned Deputy Prosecutor General has supported the impugned judgment and prayed for dismissal of the appeal.

6. Arguments heard. Record perused.

7. It has been observed that as per case of prosecution, occurrence allegedly took place at about 1/2 p.m. on 18.10.2013, written application (Ex.PA) regarding the occurrence was filed by Faqir Muhammad (PW-1) to Muhammad Abdullah SI (PW-7) at 07:50 p.m. on 18.10.2013 at the place of occurrence and case vide FIR (Ex.PA/1) was got registered at 08:10 p.m. on the same day on the basis of application (Ex.PA) in the police station; on 18.10.2013, Muhammad Abdullah, S.I. (PW-7) through application (Ex.PU) got kept dead bodies of both the deceased in the cold house/storage of B.V. Hospital, Bahawalpur as trust ; then on 19.10.2013, he obtained dead bodies of both deceased from cold house of B.V. Hospital, Bahawalpur through application (Ex.PS) and then produced the same for autopsy; post-mortem examination over dead body of Muhammad Asif was conducted on 19.10.2013 at 07:00 p.m. i.e. about 29/30 hours after the occurrence and post-mortem examination over the deadbody of Kalsoom Bibi was conducted at 05:00 p.m. on 19.10.2013 i.e. about 23/24 hours after the occurrence, no valid reason for this delay has been offered by the prosecution. Perusal of application (Ex.PU) clearly suggests that it was unwitnessed occurrence, police after getting intimation reached at the spot, took dead bodies into possession, no one was available to become complainant or witness, police got kept dead bodies in cold house/storage of B.V. Hospital, Bahawalpur as trust on 18.10.2013, on the next afternoon i.e. 19.10.2013, father, brother and other relatives of Muhammad Asif deceased reached, then post mortem examination of both deceased was conducted at 05:00 p.m. and 07:00 p.m. on 19.10.2013 and thereafter FIR was registered, in this regard relevant portion of Faqir Muhammad complainant (PW-1) is being reproduced:-- "After Post mortem examination, Police took us to the Police Station where FIR was lodged and thereafter we took the dead bodies to our home." Therefore, it is crystal clear that case was registered with much delay, however, showing ante time in the record, and said fact has falsified the presence of sole cited eye-witness i.e. Muhammad Arshad at the relevant time, at the place of occurrence; it has also negated arrival of Faqir Muhammad complainant at the spot on 18.10.2013; this scenario clearly suggests that time has been consumed by the prosecution for cooking up false story for registration of case and procuring and planting complainant and eye-witness; in this regard, guidance has been sought from the dictum laid down by august Supreme Court of Pakistan in the case of "Haroon Shafique v. The State and others" (2018 SCMR 2118), "Muhammad Ashraf alias Acchu v. The State" (2019 SCMR 652), "Mian Sohail Ahmed and others v. The State and others" (2019 SCMR 956) and "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068). Muhammad Arshad (PW-2), according to the case of prosecution, is the sole eye-witness of the occurrence and admittedly he is not resident of place of occurrence and a chance witness, in this regard, relevant portion from his statement is being reproduced: - "I did not use to live with my deceased brother" Said eye-witness was admittedly employee in army but he could not produce any record to prove that he was on leave at the time of occurrence, non-production of said record goes against the prosecution. According to the version of Muhammad Arshad (PW-2), he was tied by the accused persons with ropes and cloth was put into his mouth and he remained so even after the occurrence till arrival of his father i.e. Faqir Muhammad complainant (PW-1) at the place of occurrence at about 04:20, meaning thereby he remained so tied for about 2/3 hours, but surprisingly even a single scratch or bruise or signs of ropes on his body have neither been claimed by him nor any proof in this regard in the form of injury statement or Medico Legal Certificate has been produced by the prosecution; he during his statement before the Court stated that accused also cut the private organs of both the deceased, relevant portion of his statement is being reproduced: - "The accused also cut the private organs of my brother and Bhabhi" But perusal of post-mortem reports of both the deceased and statements of doctors, who conducted post mortem examination, do not reveal such fact, therefore, his version on this important aspect has not been confirmed by the medical evidence; furthermore, injury available at left eyebrow of Muhammad Asif deceased and injuries available at forehead and right side eye of Kalsoom Bibi have also not been explained by Muhammad Arshad (PW-2); he further stated that deadbody of Kalsoom Bibi deceased was lying in the courtyard but his said version has also been negated by the site plan of place of occurrence prepared by the Investigating Officer (Ex.PT), site plan of place of occurrence prepared by Patwari (Ex.PW), application (Ex.PA) and FIR (Ex.PA/1) wherein it has been categorically mentioned that deadbody of Kalsoom Bibi was in the room; he could not tell who untied him; relevant portion of his statement is being reproduced :-- "I cannot tell that who first of all untied me." He (PW-2) has been disbelieved to the extent of Ghulam Haider and Tanveer Ahmad (acquitted co-accused), it goes without saying that Ghulam Haider accused was allegedly equipped with churri and caused injury at the forehead of Muhammad Asif deceased; acquittal of said co-accused has not been challenged and same has already attained finality; even otherwise, question does arise that why accused persons, who were six in number, left alive sole eye-witness namely Muhammad Arshad (PW-2) to become witness against them in the case punishable with death sentence, particularly when the accused persons committed murder of his brother and sister-in-law/ in his view, it is not appealing to the common prudence; in view of above, ocular account furnished by Muhammad Arshad (PW-2) is neither trustworthy nor confidence inspiring nor truthful nor reliable, as such, same is disbelieved. As far as claim of Faqir Muhammad complainant (PW-1) regarding seeing all the six accused persons at lorry Adda of Bahawalpur on the day of occurrence is concerned, suffice to say that since arrival of complainant on said day has not been proved, therefore, his said claim is also disbelieved. Medical evidence is mere supportive/confirmatory type of evidence; it can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it cannot tell about identity of the assailant who caused the injury; therefore, same is also of no help to the prosecution in peculiar facts and circumstances of the case. As far as recovery of churri is concerned, it was allegedly got recovered by Ghulam Sabir (appellant) on 03.03.2014 and same was sent to Punjab Forensic Science Agency, Lahore but report of PFSA, Lahore (Ex.PX) reflects that same was not found blood stained, therefore, said recovery has lost its relevance and is of no help to the case of prosecution. Furthermore, Muhammad Arshad (PW-2) has appeared as recovery witness of aforementioned churri and it is trite of law that a witness cannot corroborate himself, therefore, he being recovery witness cannot corroborate his own ocular account which he deposed as eye-witness; in this regard case of "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) and "Mst. Rukhsana Begum and others v. Sajjad and others" (2017 SCMR 596) can be safely referred. As far as motive is concerned, it is trite of law that when ocular account has been disbelieved, then motive cannot be made basis for conviction and it cannot fill up the lacunas of the case of prosecution; even otherwise, motive is double edged weapon and it can equally be considered as reason for false involvement of the appellant and his co-convict Ghulam Qadir in the case due to peculiar facts and circumstances of the case.

8. Last but not least, all aforementioned witnesses produced by prosecution have not been believed to the extent of Ghulam Haider and Tanveer Ahmad (co-accused persons, who have been acquitted), therefore, said evidence cannot be believed to the extent of both convicts i.e. Ghulam Sabir and Ghulam Qadir for the reason that "principle of sifting grain from chaff" is no more applicable rather principle "falsus in uno, falsus in omnibus" has been invoked for deciding criminal cases by full Bench of the Hon'ble Supreme Court of Pakistan in the case of "Notice to Police Constable Khizar Hayat son of Hadait Ullah on account of his false statement: In the matter of Criminal Miscellaneous Application No.200 of 2019 in Criminal Appeal No.238-L of 2013, decided on 4th March, 2019." (PLD 2019 Supreme Court 527), relevant portion is being reproduced: - "

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 of 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.

22. The office of this Court is directed to send a copy of this order to the Registrars of all the High Courts in the country with a direction to send a copy of the same to every Judge and Magistrate within the jurisdiction of each High Court handling criminal cases at all levels for their information and guidance." (emphasis added) Hence, Ghulam Sabir and Ghulam Qadir, mentioned above, cannot be convicted on the basis of same set of witnesses in the case.

9. Nutshell of the above discussion is that prosecution has been failed to prove its case against Ghulam Sabir (appellant) and his co-convict Ghulam Qadir, therefore, there is no need to discuss defence version.

10. In view of, what has been discussed above, Crl. Appeal No.590/2016, filed by Ghulam Sabir is allowed; impugned convictions recorded and sentences awarded to Ghulam Sabir (appellant) through impugned judgment dated 28.11.2016 are hereby set aside, as a result of which he is acquitted of the charge; He shall be released from jail forthwith, if not required in any other case. By now law is well settled that while hearing appeal of the convict, if appellate Court does not believe prosecution evidence and comes to the conclusion that case of the prosecution has also not been proved upto the extent of co-convict who has not filed appeal, then benefit of the same can also be extended to said co-convict; in this regard, we have been guided on the subject by the dictum laid down by the August Supreme Court of Pakistan in case of "Imtiaz alias Taj v. The State and others" (2018 SCMR 344); relevant portion is being reproduced:-- "It had been held by this Court in the case of Shabbir Ahmad v. The State (2011 SCMR 1142) that the benefit of acquittal of an appellant can be extended to a non-appealing co-convict if the circumstances of the case so warrant. We have found that the prosecution had utterly failed to prove its case against Imtiaz son of Muhammad Ramzan co-convict as well and, thus, he too is entitled to be acquitted of the charge. As a consequence of this conclusion reached by us it is ordered that Imtiaz son of Muhammad Ramzan co-convict's conviction and sentence recorded and upheld by the courts below are also set aside and he too is acquitted of the charge by extending the benefit of doubt to him." Therefore, convictions recorded and sentences awarded to Ghulam Qadir (co-convict) are also set-aside, he is also acquitted of the charge, perpetual warrant of his arrest issued by the trial Court is hereby recalled. Murder Reference No.76/2015 is answered in negative and death sentence awarded to Ghulam Sabir (appellant/convict) and Ghulam Qadir (co-convict) is not confirmed. JK/G-11/L Appeal allowed.