1. Farooq Haider, J. Through instant criminal appeal, Ali Shahzad (appellant) has assailed judgment dated 25.08.2015, passed by learned Sessions Judge, Bahawalnagar in case arising out of F.I.R. No. 172/14, dated 21.07.2014, registered under Sections 302, 34 PPC at Police Station Takht Mehal, District Bahawalnagar; whereby learned trial court while acquitting co-accused Muhammad Ahmad, convicted the appellant under Section 316, PPC and sentenced him to undergo Rigorous Imprisonment for 14 years as Taz'ir for committing Qatl Shibh-i-amd of Ahmad Sher; he was also directed to pay an amount of Rs.19,23,843/- as Diyat to the legal heirs of the deceased. Benefit of Section 382-B Cr.P.C. was also given to him.
2. Prosecution story in brief as per written application (Ex.PE/1) submitted by Allah Wadaya complainant (PW-4) to Ghulam Mustafa S.I., on the basis of which, above mentioned F.I.R. (Ex.PE) was chalked out, is that Ahmad Sher son of the complainant was employee at the milk shop of Muhammad Mueen; on 21.07.2014 at about 02:45 p.m. when complainant was present at some distance from said shop, Ali Shahzad and Muhammad Ahmad (accused persons) were quarrelling with his son Ahmad Sher; Ali Shahzad (appellant) had caught hold of the cape of his son and pressed his neck while Muhammad Ahmad was giving him fists; Ali Shahzad (appellant) while catching hold of the neck of his son, threw him on the metalled road, in result of which, he sustained injury on the back of his head; on hearing hue and cry, Muhammad Farooq and Muhammad Mueen PWs came at the spot; complainant alongwith witnesses attended his son but he succumbed to the injuries. It has been also alleged in the application (Ex. PE/1) that occurrence was reported to 1122 Rescue Service, who shifted Ahmad Sher to District Hospital, Bahawalnagar whereas people of the locality apprehended both the accused persons at the spot; Ali Shahzad, Muhammad Ahmad etc. had quarrel, due to said grudge, accused persons had committed murder of his son.
3. After completion of usual investigation, challan report under Section 173 Cr.P.C. was submitted in the Court and the appellant alongwith his co-accused was formally charge sheeted under Section 302/34, PPC, to which they pleaded not guilty and claimed trial, where-after prosecution evidence was summoned. In order to prove its case, prosecution examined as many as seven PWs to bring home the guilt of accused/appellant. Dr. Hafiz Muhammad Saleem (PW-2) provided medical evidence, Ghulam Mustafa S.I. (PW-7) provided detail of investigation of this case, whereas Allah Wadaya complainant (PW-4) and Muhammad Mueen (PW-5) provided ocular account.
4. Appellant and his co-accused were examined under Section 342, Cr.P.C. wherein they denied the allegations and professed their innocence. While answering to question (Why this case is against you and why the PWs have deposed against you?), appellant replied as under:- "I have been falsely involved in this case. The private PWs are closely related inter se and to the deceased. They have deposed against me and my co-accused falsely."
2. The appellant and his co-accused neither made statements under Section 340 (2) Cr.P.C, nor produced any evidence in their defence. After conclusion of trial, learned trial Court while acquitting co-accused Muhammad Ahmad, convicted and sentenced the appellant as mentioned above, through the impugned judgment.
5. After hearing learned counsel for the appellant, learned counsel for the complainant, learned Deputy Prosecutor-General and going through the record with their able assistance, it has been noticed that occurrence allegedly took place on 21.07.2014 at 02:45 p.m., matter was reported by Allah Wadaya complainant (PW-4) to the police at 07:30 p.m. through written application (Ex. PE/1) in the hospital (as per claim of the complainant); no explanation whatsoever for this delay has been brought on record by the prosecution, which fact is sufficient to establish that neither complainant nor other cited eyewitnesses were present at the time and place of occurrence; this time has been consumed by prosecution for concoction, consultation, deliberation, inducing and procuring the witnesses and then after tailoring false story, got registered the case. So, this important aspect of the case, which has to lay foundation of the case of prosecution, has given no support to the case of the prosecution rather has smashed the same.
3. Case of the prosecution comprises upon ocular account and medical evidence at the moment because no evidence has been produced by the prosecution to prove the motive and same already stands disbelieved by the learned trial court. As far as ocular account is concerned, same comprises upon cited eyewitnesses i.e. Allah Wadaya complainant (PW-4/father of the deceased) and Muhammad Mueen (PW-5/cousin of the deceased); for evaluating testimonial value of their deposition, relevant facts are hereby being discussed.
4. Admittedly, complainant was not resident of the place of occurrence rather his residence is one kilometer away from the spot; he is having no place of job over there; no plausible reason could come on record for his presence at the place of occurrence at the relevant time, therefore, he is the chance witness; it is own case of the prosecution that both accused persons were empty handed, now question does arise that if complainant (father of deceased), Muhammad Mueen cited eyewitness (PW-5/maternal nephew of the complainant) and Muhammad Farooq PW (cousin of the complainant) were present at the time and place of occurrence, then why they did not intervene and rescue the deceased from the clutches of two empty handed accused persons, answer is very simple that neither complainant nor any other cited eyewitness was present there at that time. This fact further gets support from the perusal of postmortem report, which reveals that eyes of the deceased were found "open" at the time of autopsy, and had complainant (father of the deceased), Muhammad Mueen PW-5 (cousin of the deceased) and Muhammad Farooq PW (uncle of the deceased) been present over there at the time and place of occurrence, then they had certainly closed eyes of the deceased.
5. It is not out of place to mention here that in the application (Ex.PE/1), it is not mentioned that Muhammad Mueen and Muhammad Farooq PWs were present at the relevant time, at the place of occurrence rather perusal of same reveals that when operative part of occurrence has already taken place, then they attracted at the place of occurrence after hearing noise; it is also not mentioned in application (Ex. PE/1) that both of them had seen entire occurrence; it is also noticeable that complainant introduced dishonest improvement in this regard in his examination- in-chief and he was duly confronted; relevant portion of his statement is hereby being reproduced for ready reference: - "I got recorded in Exh.PE/1 that PWs Mueen and Muhammad Farooq were also standing with me.
6. Confronted with Exh. PE/1 where it is not so recorded."
7. It is established that complainant has introduced dishonest improvement for strengthening case of the prosecution and giving colour to his version. It is trite of law that when witness introduces such sort of dishonest improvement, then, his statement does not remain reliable rather same is liable to be thrown away; in this regard, guidance has been sought from the case of "Syed Saeed Muhammad Shah and another versus The State" (1993 SCMR 550), "Muhammad Mansha versus The State" (2018 SCMR 772) and "Muhammad Arif versus The State" (2019 SCMR 631).
8. Furthermore, though it was claim of the complainant in his application (Ex.PE/1) that occurrence took place near the shop of Muhammad Mueen, yet in his statement he has categorically deposed that owner of said milk shop is Peer Muhammad Mohsin and Muhammad Mueen (PW-5) is only milk seller; in this regard, relevant portion of his statement is reproduced: - "The name of owner of milk shop is Pir Muhammad Mohsin. Muhammad Mueen PW is milk seller."
9. Said fact has further been negated by Muhammad Mueen (PW-5) when he during his cross- examination stated that owner of said milk shop is Syed Faraz Hussain. Although, he has stated that he has taken said shop on rent but no rent deed or any other proof has been produced to prove said fact. Muhammad Mueen is also not resident of vicinity of place of occurrence rather of Mouza Khai Bodla. He also introduced dishonest improvement in his statement before the Court in order to show his presence alongwith complainant and other cited eyewitnesses at the shop, but he was duly confronted, relevant portion is being reproduced:- "I got recorded in my statement u/s 161 Cr.P.C. that Muhammad Farooq and Allah Wadaya were present at my shop at the time of occurrence. Confronted with Exh. DA where shop of milk is not mentioned. I got recorded in my statement that Ali Shahzad caught hold the hairs of Ahmad Sher deceased. Confronted with Exh. DA where it is not so recorded."
10. Therefore, Muhammad Mueen (PW-5) who is also chance witness, has introduced dishonest improvement and neither could establish having any shop nor his presence at any said shop at the time and place of occurrence.
11. Prosecution witnesses even have contradicted each other on very important aspect that who provided first information to police about the occurrence. In this regard, one claim of prosecution is that complainant through application (Ex. PE/1) provided first information to police about the occurrence, but the complainant took the somersault and stated that Muhammad Mueen informed the police about the occurrence and relevant portion of his deposition is being reproduced: - "My nephew Mueen informed the police about the occurrence."
12. Complainant in his statement stated that application for registration of case (Ex. PE/1) was got drafted by an unknown person and he produced said application to Ghulam Mustafa, S.I. in the hospital; Muhammad Mueen while appearing as PW-5 stated that it was got drafted by Ghulam Mustafa S.I.; relevant portion of his deposition is being reproduced: - "Ghulam Mustafa S.I. written the application. Application was drafted soon after the arrival of Ghulam Mustafa S.I." but Ghulam Mustafa S.I. while appearing as PW-7 did not own that he had written said application; then complainant again took further somersault on this material aspect through following lines of his statement: - "After autopsy I met the police at the Police Station. Police lodged FIR there. My signatures were also obtained by the police."( (emphasis added)
13. It can be safely gathered that acceptance of one stance (mentioned above) with respect to providing information to police and registration of case results rejection of the other; it was also claim of complainant through application (Ex.PE/1) that both accused persons were apprehended by public at the spot, if it was so, then why they were not handed over to police on the same day; even any such person of the public has not been produced before the Court; as per statement of Ghulam Mustafa S.I. (PW-7), accused were not arrested from the spot or on the day of occurrence rather they were arrested on 04.08.2014, hence, complainant has also mentioned false statement in the application in this regard, furthermore, complainant took somersault in the Court on this point also and stated as under: - "The accused persons fled away from the place of occurrence."
14. At the cost of repetition, it is again being mentioned that even on this point, acceptance of first stance taken by complainant in application (Ex. PE/1) results straightaway rejection of second stance taken by him in the Court. This state of affairs has established the fact that complainant has no regard for truth and has spoken lies with each breath and had been taking somersault time and again on one and the same point, therefore, his testimony is tainted piece of evidence, neither confidence inspiring nor reliable; guidance in this regard is sought from the dictum laid down in case of "Muhammad Nadeem alias Banka versus The State" (2011 SCMR 1517); relevant portion from Page No. 1521 is being reproduced: - "Thus, having made his above-noted conflicting statements the complainant cannot be considered as truthful witness".
15. It is trite of law that in such like cases where complainant claims himself as the eyewitness of the occurrence, it is the statement and evidence of the complainant which plays the vital role for fate of the case and remaining witnesses have to support and corroborate him; if complainant's evidence has been found as not trust worthy, then evidence of other witnesses is of no help to the case of prosecution. It is also important to mention here that complainant in his statement stated that "we reached D.H.Q. Hospital, Bahawalnagar at 05:30 p.m." and also mentioned in his application (Ex. PE/1) that Rescue 1122 took dead body but neither any official nor any record of 1122 (Rescue) was produced in the Court rather Dr. Hafiz Muhammad Saleem while appearing as PW-2 stated that deceased was brought by the police at 04:15 p.m., relevant portion of his statement is being reproduced: - "Dead body reached in the hospital at 4.15 p.m. The dead body was brought by the police."
16. Prosecution neither challenged said deposition of the doctor nor re examined him on this aspect.
17. Now it is very crucial point of this case that police had brought dead body in the hospital at 04:15 p.m. and if complainant and other cited eyewitnesses were accompanying the dead body at that time, then why case was not got registered then and there at 04:15 p.m. and why application for registration of case was moved (as per own case of prosecution) at 07:30 p.m., meaning thereby that none of the cited eyewitnesses including complainant was present at the time and place of occurrence, none of them carried deceased to the hospital and this time was consumed for cooking up false story and engaging/procuring the witnesses.
18. As far as medical evidence is concerned, it is trite of law that it can only show nature, locale and description of the injury but cannot tell that who caused it, therefore, it is mere supportive and not corroboratory piece of evidence, in this regard, guidance has been sought from the case of "Sajjan Solangi versus The State" (2019 SCMR 872).
19. Injury Statement of deceased prepared by the prosecution (Ex.PC) shows that injury was having blood (L)e-.; ) and post mortem report also reveals availability of clotted blood at said injury but no blood has been secured from the stated place of occurrence; had any injury been caused due to alleged falling of the deceased there, then blood must have been available at the place of occurrence and non-securing of the same from there, establishes the fact that as a result of said alleged falling, no injury was received by the deceased.
20. Therefore, in view of what has been discussed above, it is crystal clear that prosecution has been failed to prove charge against present appellant, in the case.
21. Aforementioned was one aspect of the case, the other crucial aspect of the case is that Muhammad Ahmad co-accused has been acquitted by the learned trial Court in this case while observing at Para No.14 of judgment that learned counsel for the complainant conceded that prosecution could not prove charge against him, relevant portion is being reproduced:- "Learned counsel for the complainant agreed upon that there was only one injury on the dead body of the deceased and the same was attributed to Ali Shahzad accused. He further agreed upon that prosecution failed to prove the allegation levelled against Muhammad Ahmad accused."
22. Learned counsel for the complainant and learned Law Officer have categorically stated at bar that his acquittal has not been challenged by the complainant or the state, meaning thereby that his acquittal has attained finality. It is also important to mention here that when co-accused has been acquitted, then 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 and authored by my lord Mr. Justice Asif Saeed Khan Khosa, the Hon'ble Chief Justice 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.
23. 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)
24. Paragraph No. 22 is also being reproduced for ready reference:- "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."
25. Therefore, by applying the golden principle of "falsus in uno, falsus in omnibus" it can be safely held that evidence of the prosecution witnesses, which has not been believed against co-accused Muhammad Ahmad in this case, cannot be believed against present appellant, therefore, present appellant also deserves acquittal, on this score as well.
6. Resultantly, instant Criminal Appeal No. 391-J of 2015 filed by Ali Shahzad (appellant) is hereby allowed, conviction recorded and sentence awarded to the appellant vide judgment dated 25.08.2015 passed by learned Sessions Judge, Bahawalnagar is hereby set-aside. The appellant shall be immediately released if not required in any other case.
7. In this case, complainant (Allah Wadaya) roped and deposed against Muhammad Ahmad co- accused of the appellant also, but his evidence was disbelieved and Muhammad Ahmad was acquitted but complainant even did not challenge the same before any forum and same attained finality; it also appears that complainant has resorted to deliberate falsehood before the learned trial court, on material aspect i.e. registration of case, therefore, Sessions Judge, Bahawalnagar is directed to proceed under Section 194 Cr.P.C. against complainant of the case, in accordance with law. Copy of this judgment and relevant record be immediately sent to Sessions Judge concerned.