2022 PLP 1762 (YLR)

FAROOQ HAIDER, J.

Through the above mentioned appeal Muhammad Ikram (appellant) has assailed the judgment dated 26.11.2015 passed by learned Additional Sessions Judge, Bahawalnagar, whereby he has been convicted and sentenced under Section 302(b), P.P.C. to imprisonment for life along with payment of compensation of Rs.5,00,000/- to the legal heirs of deceased Farooq Ahmad under Section 544-A, Cr.P.C. and in default thereof to further undergo six months S.I.

2. Brief facts, as per written application (Ex.CW-5/A) moved by complainant Zahoor Ahmad (PW-1) on 16.01.2014 in the Police Station Saddar Bahawalnagar are that he was resident of Kot Fateh Muhammad Shah and was farmer by profession having six sons and four daughters; one of his son namely Farooq Ahmad used to drive motorcycle rickshaw for earning his livelihood, who for the last about one month used to carry oranges of contractor Muhammad Ashraf son of Muhammad Ismail from garden, in his rickshaw to different markets and often used to sleep in said garden after finishing his work; on the night of 16.01.2014, Farooq Ahmad, son of complainant, and Muhammad Ikraam, son of contractor, slept on a cot under the tree of oranges whereas Muhammad Haleem slept on another cot there; at about 01:30 a.m (night), on hearing the report of firing and "hue and cry", complainant along with his son Maqsood Ahmad and one Muhammad Irfan son of Maqbool Ahmed reached at the spot and saw that two accused persons of average height, wearing shalwar qameez, and one out of them was having black chader, armed with pistol were standing near the cot of Farooq Ahmad and on seeing them, the accused persons fled away from the place of occurrence towards Kot Fateh Muhammad Shah; the complainant and PWs in the light of moon saw and attended Farooq Ahmad, observed hitting of fire shots on his head and being severely injured had died at the bed. It has been alleged by the complainant in the application Ex.CW-5/A that two unknown accused persons committed the murder of his son Farooq Ahmad on account of some opposition/annoyance. On the application (Ex.CW-5/A), case vide FIR No.13/2014 (Ex.CW-5/B) dated 16.01.2014 under Sections 302, 34, P.P.C. was registered at Police Station Saddar Bahawalnagar; during investigation, on 09.03.2014, Muhammad Ikram was arrested in the case. On 19.03.2014, he allegedly pointed out and got recovered two pistols. Feeling dissatisfied, on 21.05.2014 complainant got prepared the private complaint (Ex.PA) and thereafter filed the same before the learned Judicial Magistrate, which was entrusted to learned Additional Sessions Judge, Bahawalnagar, in which the appellant and his co-accused persons were summoned and charge sheeted, to which, they pleaded not guilty and claimed trial. Thereafter complainant produced five prosecution witnesses and also tendered reports of experts, then Court also examined seven Court Witnesses. Thereafter, statements of the 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. The learned trial court after conclusion of the trial convicted and sentenced the appellant as mentioned above, however, acquitted Muhammad Ashraf, Mst. Hafizan Bibi, Allah Ditta, Muhammad Haleem and Azhar vide impugned judgment dated 26.11.2015.

3. Learned counsel for the appellant submitted that ocular account is comprising upon chance witnesses, who could not prove their presence at the place of occurrence; ocular account is contradicted by the medical evidence; impugned judgment is against the law and facts, therefore, the same is liable to be set aside and appellant deserves acquittal.

4. Conversely learned Deputy Prosecutor General assisted by the learned counsel for the complainant submitted that prosecution has proved its case against the appellant and there is no reason for his false implication, they have supported the impugned judgment and requested for dismissal of the instant appeal.

5. Arguments heard. Record perused.

6. It has been noticed that occurrence allegedly took place at 01:30 a.m. (night) on 16.1.2014; Zahoor Ahmad complainant/PW-1 (father of the deceased) went to the police station and brought the machinery of law into motion through written application Ex.CW-5/A for registration of the case and on the basis of same FIR No.13/2014 (Ex.CW-5/B) was registered at 04:30 a.m. (night) on 16.1.2014. It is also important to mention here that copy of FIR was received by the complainant at the time of its registration and in this regard, his thumb impression is duly available at Ex.CW-5/B. As per column No.4 of the FIR, distance between place of occurrence and police station is just ten kilometers but FIR was got recorded after unexplained delay of three hours. Furthermore, it has also been noticed that dead body of the deceased was brought into hospital at 02:45 p.m. on 16.1.2014 for postmortem examination; so delay in conducting of postmortem examination was not due to any administrative reason in the hospital rather due to delay in receiving police papers and dead body in the hospital; meaning thereby that police papers were not prepared till then; this state of affairs reflects that case was not registered at the time claimed by the complainant/ prosecution rather it was recorded with much delay, however, with ante time proceedings; guidance in this regard has been sought from the dictum laid down in the case of "Haroon Shafique v. The State and others" (2018 SCMR 2118) and "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068). Therefore, it can be safely held that neither complainant nor other cited witnesses were available at the relevant time and place of occurrence. As far as complaint Ex.PA is concerned, same has also been prepared with delay of more than four months after the alleged occurrence and registration of the case, for which, no plausible reason could be offered by the complainant; complaint (Ex.PA) has not been put to the appellant while examining him under Section 342, Cr.P.C., therefore, cannot be used against him; guidance in this regard has been sought from the dictum laid down by august Supreme Court of Pakistan in the case of "Imtiaz alias Taj v. The State and others" (2018 SCMR 344). As far as ocular account in this case is concerned, as per application for registration of the case (Ex.CW-5/A), on hearing report of "firing" and "hue and cry", complainant along with his son Maqsood Ahmad and Muhammad Irfan went to the place of occurrence and saw that two unknown accused persons were standing near the cot of Farooq Ahmad, who fled away on seeing them; nutshell is that neither complainant nor his aforementioned companions witnessed the occurrence as same was already over before their arrival at the place of occurrence and they could only notice standing of unknown accused persons near the cot of deceased, who fled away after seeing them. Same is even otherwise understandable, it is a single fire shot case because deceased only received one fire shot which went through and through or in other words it caused one entry and one exit wound; only one crime empty shell was found at the place of occurrence; complainant mentioned in application (Ex.CW-5/A) that they came at the spot after hearing report of firing and also deposed in his statement before the Court that his house is 2/3 acre away from the place of occurrence; therefore, it can be safely held that occurrence had already taken place before their arrival at the spot. In site plan of place of occurrence prepared by Investigating Officer i.e. Ex.CW-5/D and in site plan prepared by Patwari with scale i.e. Ex.CW.1/A, house of the complainant or cited eye-witness has not been mentioned adjacent, near or around the place of occurrence, therefore, complainant and other cited eye-witness are even otherwise chance witnesses and in the aforementioned circumstances, they cannot be believed and in this regard, guidance has been sought from the case of "Nazir Ahmad v. The State" (2018 SCMR 787) and relevant portion whereof is being reproduced below:-- "Both the said eye-witnesses were also chance witnesses and they had claimed to have been attracted to the place of occurrence upon hue and cry of the deceased. As already mentioned above, there was no house or shop of any person situated anywhere close to the house of occurrence and, thus, it was not readily believable that the above mentioned eye-witnesses would be attracted to the place of occurrence upon hue and cry of the deceased" However, after more than four months, complainant took a somersault and filed private complaint Ex.PA in the Court by introducing dishonest improvement in the same with respect to seeing the occurrence himself and by his son Abdul Rauf. It is important to mention here that in the aforementioned application Ex.CW-5/A, Maqsood Ahmad and Muhammad Irfan were cited as companions/witnesses but in the complaint (Ex.PA) they were neither cited as witness nor produced during trial; furthermore, as per site plan Ex.CW-5/D and Ex.CW.1/A Abdul Rauf was never cited as eye-witness. In this regard, statement of Khalil Ahmad Halqa Patwari is very much important, operative portion whereof is being reproduced: - "Neither the complainant nor any body else disclosed the name of murderer nor I mentioned any such name in the site plan" Dishonestly improved version of the complainant introduced through private complaint that he has seen present appellant committing the occurrence, stood smashed/crashed when he himself while appearing as PW-1 categorically stated as under: - "The police visited the spot after the occurrence and thereafter called foot trackers of the area" Perusal of aforementioned statement of complainant clearly reveals that neither complainant nor other cited eye-witness witnessed the occurrence and accused were not known to them, therefore, foot trackers were called by the police for tracing out the clue of unknown accused. It is also important to mention here that complainant himself conceded in his statement before the Court as under: - "I did not get recorded in the application/FIR that Ikram had made fire shot upon my son and Haleem accused had made aerial firing" Aforementioned statement is sufficient to establish that complainant when firstly moved application for registration of the case (Ex.CW-5/A), he did not mention Ikraam and Haleem as the accused persons and he has taken somersault after lapse of more than four months through private complaint Ex.PA and his further dishonest improvement has been proved through his following deposition: - "I had got recorded in complaint Ex.PA that during investigation I learnt that the police had registered FIR against two unknown persons. Confronted with Ex.PA where it is not so recorded" Furthermore, any rickshaw of deceased was not taken into possession from the place of occurrence, during investigation. In view of above, it has been established that complainant was neither available at the relevant time, at the place of occurrence nor witnessed the same; he has introduced dishonest improvements and has deposed falsely regarding material aspect of "registration of case" and "seeing the occurrence"; therefore, he is neither truthful nor reliable. As far as evidence of Abdul Rauf (PW-2) is concerned, he has not been cited as eye-witness in application Ex.CW-5/A rather during investigation of the case though he joined investigation before the Investigating Officer but he did not utter even a single word regarding the occurrence i.e. he did not claim himself as eye-witness of the occurrence but he claimed himself only as witness of recovery of shoes and piece of plastic of butt of pistol 30-bore from a distance of 2/3 acres from the place of occurrence during the proceedings of search of clue of the accused persons vide recovery memo Ex.CW-5/F. Therefore, his somersault after delay of more than four months of the occurrence while appearing as witness and claiming himself as eye-witness is neither believable nor reliable. He has introduced dishonest improvements during his evidence before the Court and was duly confronted, relevant portion of his statement is being reproduced: - "During investigation I made statement before police. I had got recorded in my statement that on the night of occurrence I woke up on asking of my father and I accompanied him to the spot where I saw Ikram and Haleem accused armed with pistols standing besides the cot of my brother Farooq. Confronted with Ex-DA where it is not recorded. I also got recorded before police that the garden was taken on lease by Muhammad Ashraf accused. Confronted with Ex-DA where it is not recorded. I also got recorded in my statement that within our view and sight Ikram accused made fire shot upon the head of my brother as a result of which he died at the spot. Confronted with Ex-DA where it is not recorded. I also stated before police that Haleem made aerial firing. Confronted with EX-DA where it is not recorded. I also got recorded in my statement that on our hue and cry our family members were attracted the spot and after sometime Ashraf accused came there and took my father to the police station for lodging FIR. Confronted with Ex-DA where it is not recorded. I also stated before police that a girl Zubaida Bibi was the bone of contention in this occurrence. Confronted with Ex-DA where it is not recorded.

I had not stated before police that I along with Rafique and other number of persons helped the foot trackers and police for locating four culprits whose foot prints were present at the spot. Confronted with Ex-DA where it is so recorded. I had also not stated before police that at that time police was also present there. Confronted with Ex-DA where it is so recorded. I had not stated before police that a piece of handle of pistol butt and a pair of shoe was found at a distance of 2/3 acres from the spot. Confronted with Ex-DA where it is so recorded." In view of above, it has been established that Abdul Rauf (PW-2) has not seen the occurrence and he has deposed falsely through dishonest improvements regarding material aspect i.e. "seeing the occurrence", therefore neither he is trustful/truthful witness nor his testimony can be relied; guidance in this regard has been sought from the dictum laid down in the case of "Muhammad Arif v. The State" (2019 SCMR 631) and relevant portion whereof is being reproduced below: - "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." Nutshell is that ocular account is neither confidence inspiring nor trustworthy/ reliable, therefore, same is hereby discarded. As far as medical evidence is concerned, it cannot speak about the author of the injury, it can only tell about seat, number of the injuries and the weapon with which those injures have been caused and that is why it can never be termed as corroboratory piece of evidence rather only supportive/ confirmatory piece of evidence; in this regard, guidance has been sought from the case of "Muhammad Mansha v. The State" (2018 SCMR 772); furthermore when ocular account has been disbelieved, then medical evidence is of no help to the case of prosecution. Medical evidence has negated the claim of prosecution with respect to distance because in site plan with scale Ex.CW.1/A distance between assailant and deceased is mentioned as one karam but no blackening has been observed on any wound of the deceased in the postmortem report (Ex.PB). As far as motive is concerned, it is important to mention here that no motive was alleged in the application for registration of case Ex.CW-5/A by the complainant but he took somersault and introduced dishonest improvement in complaint Ex.PA in this regard; however, even subsequently introduced motive could not be proved during trial and it was not believed by the learned trial Court. As far as recovery of pistols at the pointing out of present appellant is concerned, same is also of no help to the case of prosecution because empty allegedly secured from the place of occurrence has not matched with the allegedly recovered pistols according to report of PFSA (Ex.PD). There is another crucial aspect of the case that same set of witnesses, has been disbelieved to the extent of acquitted co-accused i.e. Muhammad Ashraf, Mst. Hafizan Bibi, Allah Ditta, Muhammad Haleem and Azhar, therefore, said evidence cannot be believed to the extent of present appellant 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 through "ORDER" recently pronounced 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" (PLD 2019 Supreme Court 527), Relevant paragraph No. 21 is being reproduced: - "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." (emphasis added)

7. In the light of above facts and circumstances, prosecution has been failed to prove its case against the appellant beyond shadow of doubt, therefore, there is no need to discuss the defence version.

8. Resultantly, Crl. Appeal No.531/ 2015, filed by appellant, is allowed, conviction recorded and sentence awarded to the appellant through the impugned judgment dated 26.11.2015 are hereby set aside. Appellant is acquitted of the charge, he shall be released from jail, forthwith, if not required in any other case.

9. In this case, it appears that complainant Zahoor Ahmad while appearing as PW-1 has resorted to deliberate falsehood before the learned trial court, on material aspects i.e. he got registered the case through Ex.CW-5/A but then tried to deny the same and also regarding "seeing the occurrence"; similarly Abdul Rauf while appearing as PW-2 has also resorted to deliberate falsehood before learned trial Court, on material aspect i.e. "seeing the occurrence" therefore, Sessions Judge, Bahawalnagar is directed to proceed under Section 194, P.P.C. against both of them, in accordance with law. Copy of this judgment and relevant record be immediately sent to Sessions Judge concerned. JK/M-129/L Appeal allowe