1. Farooq Haider, J.:- Through instant criminal appeal filed through jail, Khursheed Ahmad appellant has assailed judgment-dated 27.10.2011 passed by learned Addl. Sessions Judge, Rahim Yar Khan in a complaint case titled "Muhammad Khan versus Khursheed Ahmad etc." pertaining to case F.I.R. No. 243/2002 dated 27.08.2002 registered under Section 302 PPC at Police Station Abadpur, District Rahim Yar Khan; whereby learned trial Court while acquitting co-accused Ghulam Rasool, Muhammad Arif and Feroz, convicted the appellant under Section 302(b), PPC and sentenced him to "Imprisonment for Life" for committing Qatl-i-amd of Mumtaz Ahmad and Mst.
2. Zohra Mai with a fine of Rs.200,000/- as compensation under Section 544-A, Cr.P.C. or in default thereof to undergo Six Month's Simple Imprisonment with the benefit of Section 382-B, Cr.P.C.
2. Initially, complainant Muhammad Khan (PW-6) got registered case F.I.R. No.243/2002 on 27.08.2002 under Sections 302, 34 PPC at Police Station Abadpur , District Rahim Yar Khan (Ex. PC) against four accused including the appellant, however , complainant being dissatisfied with the investigation of the case, had preferred a private complaint (Ex. PG) alleging therein that on 27.08.2002 at 10:30 a.m. complainant alongwith Mumtaz Ahmad, Saeed Ahmad and Sajjad Hussain was coming back from the fields after spraying cotton crop; Mumtaz Ahmad was going at a distance of two Acres ahead from them and when he reached near cotton crop of Rasool Bakhsh, in the meantime, Khursheed Ahmad while armed with gun, Ghulam Rasool armed with pistol and Arif armed with rifle, emerged from cotton crop suddenly; who raised lalkara that they would not let go Mumtaz Ahmad (deceased) alive; Khursheed Ahmad made a straight fire shot with his gun, which hit at his right shoulder; Ghulam Rasool made fire shot with his pistol hitting at left ribs of Mumtaz (deceased), then, Khursheed Ahmad appellant made second fire with his gun hitting at elbow and left arm of the deceased Mumtaz Ahmad, upon which, Mumtaz Ahmad took a few steps and then, accused Feroz while armed with hatchet attacked upon him and inflicted hatchet blows at his right and left side of neck and forehead as well, due to which, he succumbed to the injuries. It has also been mentioned in the complaint that complainant and PWs witnessed the occurrence and seeing them, accused persons while brandishing their respective firearms, proceeded towards house of Khursheed Ahmad appellant, from where after a short time, complainant and PWs heard the reports of fire and subsequently they came to know that Khursheed Ahmad appellant by joining hands with his co-accused also committed murder of his wife namely Mst. Zohra Mai.
3. Motive behind the occurrence as per contents of private complaint (Ex. PG) was that Khursheed Ahmad (appellant) had suspicion of illicit relations of his wife Mst. Zohra Mai with Mumtaz Ahmad, due to which, appellant by joining hands with his co-accused committed the occurrence.
3. The appellant and his co-accused in the complaint case, were formally charge sheeted under Section 302/34, PPC, to which they pleaded not guilty and claimed trial. The complainant produced as many as seven PWs to prove the charge against the accused whereas ten CWs were examined by the learned trial Court; Dr. Zubair Iqbal (PW-3) and Lady Dr. Khalida Anwar (PW-4) provided medical evidence; Hazoor Bakhsh S.I. (CW-1) and Syed Ali Raza Shah D.S.P . (CW-5) conducted investigation of this case which was duly verified by Syed Nazir Hussain Shah DSP/SDPO (CW-9), whereas Sajjad Hussain (PW-5), complainant Muhammad Khan (PW-6) and Rashid Ahmad (CW -4) have furnished the ocular account.
4. On 05.05.2009 learned counsel for the complainant after giving up PWs Saeed Khan and Muhammad Anees being unnecessary and tendering in evidence different documents including reports of Chemical Examiner regarding hatchet (Ex. PN), report of Serologist regarding hatchet (Ex. PJ), report of Chemical Examiner regarding blood stained earth (Ex. PK), report of Chemical Examiner (Ex. PB), report of Serologist regarding earth (Ex. PM), report of Chemical Examiner (Ex. PN) and report of Forensic Science Laboratory (Ex. PO), closed the complainant's evidence. Thereafter , statements of the appellant and his co-accused as required under Section 342 Cr.P.C were recorded, in which they refuted all the allegations levelled against them; the appellant and his co-a- accused did not appear as their own witnesses under Section 340(2) Cr.P.C and also did not produce any document in their defence. After conclusi on of trial, co-accused Ghulam Rasool, Muhammad Arif and Feroz were acquitted of the charge whereas the appellant was convicted and sentenced by the learned trial court, as mentioned above.
5. Arguments advanced by learned counsel for the appellant as well as learned Deputy Prosecutor General have been heard and the record has been perused.
6. It has been noticed that occurrence allegedly took place in this case on 27.08.2002 at 10:30 a.m. and although F.I.R. has been recorded on the same day at 11:30 a.m. yet perusal of postmortem report (Ex. PE) of Mst. Zohra Mai (one of the deceased) reveals that postmortem was conducted over her dead body on 28.08.2002 at 03:00 a.m. i.e. after about 14/2 hours of the occurrence and 13/2 hours of registration of the case, for which no plausible reason has been given by the prosecution; this fact shows that police papers were not prepared, none of the cited eyewitnesses was available at the place of occurrence and this time was consumed by the prosecution for consultation, deliberation, inducing, procuring of witnesses, thereafter concocting the version and then getting the case registered with ante time proceedings. In this regard, guidance has been sought from the dictum laid down in the case of "Javaid Akbar versus Muhammad Amjad and Jameel @ Jeela and another" (2016 SCMR 1241), case of "Shahbaz versus The State" (2016 SCMR 1763) and case of "Haroon Shafique versus The State and others" (2018 SCMR 2118). No time of postmortem examination of Mumtaz Ahmad (deceased) has been mentioned in his postmortem report; Sajjad Hussain (PW-5) in his cross-examination (at page No. 4), deposed as under: - "I alongwith Muhammad Khan and Saeed Ahmad had gone alongwith the dead body. Dead body was brought firstly to the P/S, then, it was sent to hospital. I cannot tell the time which spent in P/S however dead body remained there for some time during which FIR was registered. The FIR was lodged on the statement of Muhammad Khan complainant, statement of Muhammad Khan was recorded in my presence. Thereafter, my statement was recorded in P/S and then statement of Saeed Ahmad was recorded at the P/S. Police had examined dead body of Mumtaz Ahmad deceased at P/S but I did not know whether they prepared injury statement or not."
4. It has been also noticed that Muhammad Khan complainant (PW-6) during his cross-examination (at Page No. 11) has stated: -1 1 "Police came at the spot, took the dead body and then I went to get register the case."
5. He in his cross-examination (at Page No. 13) has also stated: - "Both the dead bodies remained placed at the Police Station for about 2/21/2 hours. That 2/21/2 hours was consumed by the police in preparing and recording documents regarding the dead body to be despatched to the mortuary . Bodh the dead bodies were despatched to mortuary from Police Station on separate vehicles led by the police."
6. This state of affairs clearly shows that F.I.R. was recorded after consultation and concoction with much delay but ante-time has been shown in the record; so, this is not promptly lodged F.I.R., hence, no sanctity can be attached to the same.
7. It has been further observed that both Sajjad Hussain (PW-5) and Muhammad Khan (PW-6), who are cited eyewitnesses of murder of Mumtaz Ahmad, are chance witnesses, they could not establish any valid and plausible reason regarding their presence at the time and place of occurrence; even Rashid Ahmad (CW-4) cited eyewitness regarding murder of Mst. Zohra Mai, is also chance witness, who is admittedly resident of place, which is 40/50 k.m. away from the place of occurrence and he also could not establish any valid reason about his presence at the relevant time and place of occurrence; when they all are chance witnesses, then evidence of strong, independent nature and unimpeachable character was required for their corroboration but same is lacking in this case. It has been observed that learned trial court through impugned-judgment has rightly disbelieved the presence of the cited aforementioned eyewitnesses at the time and relevant places of occurrence, on the basis of valid reasons, which have been borne out/ substantiated by the record of the case.
8. Medical evidence is only supportive type of evidence, which can tell about number , locale of injury and weapon used for causing the injuries but cannot tell about author of said injuries. In this case, it was claim of Rashid Ahmad (CW-4) that Khursheed Ahmad fired at Mst. Zohra Mai, which hit on her flank, and in this regard relevant portion of his statement is being reproduced: - "Within the period of 5 to 10 minutes Khurshid Ahmad armed with gun and Feroz Ahmad was armed with hatchet came at their house. Khurshid Ahmad fired at Zohran Mai which hit on her flank. Feroz Ahmad accused gave hatchet blows on different parts of Zohran Mai."
9. However , said version of Rashid Ahmad (CW-4) has been negated by postmortem examination report of Mst.
10. Zohra Mai, wherein no firearm injury was found on her body .
11. As far as motive is concerned, it is claim of complainant party in the F.I.R. (Ex. PC) that Khursheed Ahmad (appellant) was having suspicion that Mumtaz Ahmad (deceased) was having illicit relation with Mst. Zohra Mai (deceased) and for the said reason murder of Mumtaz Ahmad and Mst. Zohra Mai, has been committed; same motive was also repeated by the complainant Muhammad Khan in the private complaint (Ex. PG) but when he appeared before learned trial court as PW-6, in his evidence he did not narrate the abovementioned reasons as motive rather introduced another motive to the following effect:- "The motive behind the occurrence was that on the marriage of Mumtaz Ahmad, the accused persons alongwith others had chased the Tractor trolley of wedding procession of Mumtaz Ahmad and we had beaten them but Khursheed Ahmad accused had been saying that Mumtaz Ahmad deceased had developed illicit relation with Mst: Zohran."
12. He was duly confronted in this regard with the F.I.R. and it was proved that through dishonest improvement, he has introduced the aforementioned reason as motive. It is important to mention here that even said changed and newly introduced motive could not be established by the complainant, hence, the same could not be proved in the case.
13. As far as question of recovery of gun .12 bore (P-4) and hatchet (P-5) at the pointing out of present appellant Khursheed Ahmad is concerned, it is important to mention here that in the F.I.R. (Ex. PC) and in the private complaint (Ex. PG), appellant was not alleged to have hatchet with him at the time of occurrence rather he was only stated to be equipped with gun. Occurrence allegedly took place on 27.08.2002, whereas hatchet (P-5) was allegedly recovered on 22.09.2002 through recovery memo (Ex. CW3/D) after about 26 days of the occurrence; admittedly blood disintegrates in period of about three weeks, therefore, reports of Chemical Examiner and of Serologist in this regard are of no help to the case of prosecution. Reference can be placed upon the dictum laid down by the August Supreme Court of Pakistan in the case of "Faisal Mehmood versus The State" (2017 Cr.L.J.
14. 1). For ready reference, relevant portion is being reproduced 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 25.5.2004. 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 "
15. It is also important to mention here that according to prosecution, when gun (P-5) was allegedly got recovered at the pointing out of the appellant, 5/6 persons of the vicinity attracted there but none of them was cited as witness and according to recovery witness Abdul Ghani 1241/C, who appeared as CW-3, a lot of persons were present in the house of the recovery at that time. Relevant portion of his statement, is being reproduced: - "When we reached the house of Khursheed Ahmad about 5-6 persons have reached from the locality . The Thanidar had not asked any one of them to become witness of recovery memo. At that time a number of people were present at the house of Khurshid Ahmad accused as it was occasion of death of a human being"
16. Therefore, this recovery of gun cannot be considered as recovery from exclusive possession of the appellant.
17. Furthermore, prosecution could not produce any witness through whom aforementioned hatchet, empties and gun were got deposited in the concerned offices of Chemical Examiner and Forensic Science Laboratory . In this regard, it is important to mention here that Riaz Ahmad A.S.I. while appearing as CW-6 deposed that said articles were sent through Muhammad Ramzan 875/C to the office of Chemical Examiner and Forensic Science laboratory but said Muhammad Ramzan while appearing as PW-7 has never stated so; it is also pertinent to mention here that he was not re-examined by the complainant/prosecution in this regard, so, prosecution remained fail to prove safe custody of allegedly recovered hatchet, empties and gun .12 bore from date of recovery till their receipt in the offices of concerned laboratories, which fact has impaired and vitiated the conclusiveness and reliability of reports of Chemical Examiner and Forensic Science Laboratory, therefore, rendering them incapable of reliance for proving charge in criminal case, hence, said reports are of no help to the case of the prosecution. Guidance in this regard has been sought from the case of "The State through Regional Director ANF versus Imam Bakhsh and others" (2018 SCMR 2039). Hence, recovery of hatchet and gun is inconsequential.
18. When ocular account comprising of chance witnesses has already been disbelieved by the learned trial court as mentioned above, then, no other evidence i.e. recovery , motive or any circumstantial evidence can be made basis for conviction of the accused. In this regard guidance has been sought from the case of "Khalid Javed and another versus The State" reported in (2003 SCMR 1419 ) and case of "Mst. Sughra Begum and another versus Qaiser Pervez and others (2015 SCMR 1142). Furthermore, it is case of the complain ant in the F.I.R. and in the private complaint that four accused persons i.e. Khursheed Ahmad (appellant), Ghulam Rasool, Muhammad Arif and Feroz have committed the occurrence; out of whom, Ghulam Rasool co-accused was alleged to have given firearm shots at the left ribs of Mumtaz Ahmed (deceased); Feroz was alleged to have given hatchet blows at different vital parts of his body including neck etc. and then as per claim of Rashid Ahmad (CW-4), Khursheed Ahmad (appellant) and accused Feroz Ahmad committed murder of Mst. Zohra Mai by way of inflicting firearm injury and injury by hatchet, respectively . It is important to mention here that two co-accused Ghulam Rasool and Feroz, who were attributed effective role in the F.I.R. and in the private complaint with respect to inflicting injuries to Mumtaz Ahmad (deceased), have been acquitted and there is no strong and independent corroboration available against Khursheed Ahmad. Similarly, Feroz Ahmad, who was alleged to have caused effective role of causing injuries with hatchet to Mst. Zohra Mai, has been acquitted and there is no strong and independent evidence available against Khurshid Ahmad, therefore, on the basis of same set of evidence, Khursheed Ahmad (appellant) cannot be convicted, guidance has been sought in this regard from the case of "Mst. Sughra Begum and another versus Qaiser Pervez and others" (2015 SCMR 1142), case of "Shahbaz versus The State" (2016 SCMR 1763) and case of "Zafar versus The State and others" (2018 SCMR 326). In this regard, reliance can also be placed upon the case of "Haroon Shafique versus The State and others" (2018 SCMR 2118), relevant portion whereof is reproduced as under: - "Almost all the co-accused of the appellant, attributed effective roles, had been acquitted by the High Court and, thus, the appellant could not have been convicted and sentenced without independent corroboration"
19. Guidance, in this respect, has also been sought from the case of "Altaf Hussain versus The State" (2019 SCMR 274), relevant portion whereof is also reproduced as under:- "7. There is another aspect of the case. As stated earlier besides the appellant three other persons were also indicted in this case three of whom namely Nisar Ahmad, Muhammad Aslam and Mst. Amiran were acquitted by the learned trial court. PSLA No.67 of 2013 filed by the complainant against their acquittal was dismissed by the learned appellate court which was not assailed any further either by the complainant or the State and as such their acquittal attained finality . It is well settled by now that if a set of witnesses is disbelieved to the extent of some accused the same cannot be believed to the extent of remaining accused facing the same trial without there being any independent and strong corroboration. Upon scrutiny of the material available on record we have not been able to find any corroboration to maintain conviction and sentence of the appellant on a capital charge"
20. It is well settled principle of law that single dent in case of prosecution is sufficient for acquittal, in this regard, reliance can be placed upon the case of "Tariq Pervez versus The State" (1995 SCMR 1345), "Muhammad Akram versus The State" (2009 SCMR 230), "Muhammad Zaman versus The State and others" (2014 SCMR 749), "Muhammad Mansha versus The State" (2018 SCMR 772), "Abdul Jabbar and another versus The State" (2019 SCMR 129) and "Mst. Asia Bibi versus The State and others"
21. (PLD 2019 SC 64).
22. As mentioned above, since prosecution has failed to prove its case against the present appellant, hence, there is no need to discuss plea statedly taken by the appellant in his statement recorded under Section 342 Cr.P.C.; in this regard, guidance can be had from the case of "Azhar Iqbal versus The State" ( 2013 SCMR 383 ).
23. It is also important to mention here that when four accused persons were alleged to have committed murder of Mumtaz Ahmad and three of them i.e. Ghulam Rasool, Muhammad Arif and Feroz, have been acquitted on the basis of same evidence; two accused persons namely Khurshid Ahmad and Feroz have allegedly committed murder of Mst. Zohra Mai and Feroz has been acquitted, then, said evidence cannot be believed to the extent of appellant for the reason that law has now been well settled that "falsus in uno, falsus in omnibus" will be applicable in deciding criminal cases and in this regard dictum on the subject has been recently laid down and pronounced by full Bench of the Hon'ble Supreme Court of Pakistan in "Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 vide order dated 04.03.2019". 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.
24. 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)
25. When cited eyewitnesses in the case have not been believed to the extent of three co-accused of the appellant namely Ghulam Rasool, Muhammad Arif and Feroz mentioned above, then, while applying principle of "falsus in uno, falsus in omnibus" present appellant cannot be held guilty in the case.
7. Therefore, in view of what has been discussed above, prosecution has been failed to prove its case against Khursheed Ahmad appellant. Hence, instant Criminal Appeal No. 361 of 2015 filed by Khursheed Ahmad, appellant is hereby allowed, conviction recorded and sentence awarded to the appellant vide judgment dated 27.10.201 1 passed by learned Additional Sessions Judge, Rahim Yar Khan is hereby set-aside. The appellant shall be immediately released if not required in any other case.