SADIQ MAHMUD KHURRAM, J.The appellant namely Muhammad Imran son of Farzand Ali was tried by the learned Additional Sessions Judge, Kehrorpacca along with his co-accused namely Farzand Ali son of Muhammad Bakhsh, Dilawar Hussain son of Muhammad Sharif and Nazar Hussain son of Hassan Bakhsh ( all three since acquitted) in case FIR No. 492 of 2014 dated 17.08.2014 registered at Police Station Saddar Kehrorpacca District Lodhran in respect of offences under sections 302,148 and 149 PPC for committing the Qatl-i-Amd of Sana Ullah son of Muhammad Rafique (deceased). The learned trial court vide judgme nt dated 20.07.2016 convicted Muhammad Imran son of Farzand Ali (convict) and sentenced him as infra: Muhammad Imran son of Farzand Ali: Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Sana Ullah son of Muhammad Rafique (deceased) and directed to pay Rs.5 Lacs as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
The co-accused of the appellant namely Farzand Ali son of Muhammad Bakhsh, Dilawar Hussain son of Muhammad Sharif and Nazar Hussain son of Hassan Bakhsh were however acquitted by the learned trial court.
2. Feeling aggrieved, Muhammad Imran son of Farzand Ali (convict ) lodged Criminal appeal No.364-J of 2018 against his conviction and sentence. The learned trial court submitted Murder Reference No.127 of 2016 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellant Muhammad Imran son of Farzand Ali. We intend to dispose of the Criminal Appeal No. 364-J of 2018 and Murder Reference No.127 of 2016 through this single judgment.
3. Precisely the facts necessary , as divulged in the statement of Atta Ullah son of Muhammad Rafique (PW-3) are as under:- "On 16.08.2014, at 11-00 P.M, at night, I along with my brother Sana Ullah, Zafar Ullah and Jameel Ahmad son of Ghulam Nabi were present at out dera at Chah Basti Wala and were talking while lying. In the meanwhile, Muhammad Sharif, Farzand Ali sons of Muhammad Bakhsh, Imran son of Farzand and Nazar son of Hasan Bakhsh all armed with pistols 30 bore came there. We identified them in the light of blub (sic) while one unknown person was also along with them which was subsequently nominated as Bilawal son of Muhammad Sharif. In the meanwhile, Sharif fired with pistol 30-bore upon my brother Sana Ullah who was lying on right side which hit him on back site on right side. Nazar Hussain also fired with his pistol 30-bore upon my brother Sana which hit on back side on right side. Then Muhammad Imran fired with pistol 30-bore upon my brother Sana Ullah which hit him on back side to his right buttock. Then Farzand Ali fired with his pistol 30 bore on my brother Sana Ullah which hit him between his buttock. Dilawar Hussain had been firing with his pistol 30-bore. They also threatened us that if any one came to near, he would not be saved and escape from the place of occurrence. We attended my brother upon the cot but he had died at the spot. The motive behind the occurrence was that my brother Sana Ullah was an eye witness of case/FIR No. 214/2012 concerning to police station Saddar, Kehrorpacca and in that case, Muhammad Sharif, Imran and Ferzand were accused. So, due to this grudge, the accused committed the occurrence. I also got recorded my statement to the police Ex.P-F which bears my signatures.
The police officer , after arrival at the place of occurrence, examined the place of occurrence on 18.10.2014 and taken into possession the blood stained earth from the place of occurrence through recovery memo Ex.P-G, which was signed by me as well as Muhammad Jamil as attesting witness. The police officer also taken into possession the cot P-1 as well as "Gindi" bedding P-2 through recovery memo Ex.P-H. The police officer also taken into possession fourP-3 to P-6 empties from the place of occurrence and taken into possession through recovery memo Ex.P-K which was attested by me and Jamil. The police officer also taken into possession three bullets P-7 to P-9 through recovery memo Ex.P-J which was attested by me and Muhammad Jamil.
On 05.12.2014 at about 5-00 P.M, I along with Zafar Ullah was standing at Basti Talookpur on solling road where the accused Imran discloses that he led to the recovery of pistol from his house. On which, I/O along with accused and other police officials reached at Basti Talookpur in the house of accused Imran where he led to the recovery of pistol 30-bore P-10 from his residential room from northern wall of the room lying in the iron box. I/O took into possession pistol 30-bore, made into sealed parcel and also made the sketch of pistol 30-bore P-10 and took into possession through recovery memo Ex.P-L which was attested by me and Zafarullah. I/O recorded my statement u/s 161 Cr.P.C in this regard. On the same day, I along with Zafar Ullah was standing at Basti Talookpur on solling road where the accused Farzand Ali discloses that he led to the recovery of pistol from his house. On which, I/O along with accused Farzand and other police officials reached at Basti Talookpur in the house of accused Imran where he led to the recovery of pistol 30-bore P-11 from his residential room from eastern wall of the room lying in the iron box. I/O took into possession pistol 30-bore, made into sealed parcel and also made the sketch of pistol 30-bore P-11 and took into possession through recovery memo Ex.P-M which was attested by me and Zafarullah.
I/O recorded my statement u/s 161 Cr.P.C in this regard. On 26.02.2015, I along with Nazir 454/C were present at police station. The accused Nazar Hussain while under custody during physical remand discloses that he led to the recovery of pistol 30-bore P-12. On this, I along with Nazir 454/C, I/O along with other police officials went to the house of accused Nazar Hussain, where he led to the recovery of pistol 30-bore P-12 from eastern wall of his residential room lying in the iron box between the clothes. I/O took into possession pistol 30-bore, made into sealed parcel and also made the sketch of pistol 30-bore P-12 and took into possession through recovery memo Ex.P-N which was attested by me and Nazir Ahmad 454/C. I/O recorded my statement u/s 161 Cr .P.C in this regard ".
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant along with his co-accused namely Farzand Ali son of Muhammad Bakhsh, Dilawar Hussain son of Muhammad Sharif and Nazar Hussain son of Hassan Bakhsh ( all three since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 05.05.2015, to which the appellant and his co-accused pleaded not guilty and claimed trial.
5. The prosecution/complainant in order to prove its case got recorded statements of ten witnesses. Atta Ullah (PW- 3) and Jameel Ahmad (PW-4) gave evidence regarding the ocular account. Sheikh ud Din, draftsman, (PW-2) stated that on 17.08.2014 he prepared the scaled site plan of the place of occurrence (Exh.PE). Faiz Muhammad (PW-5) identified the dead body of the deceased and also witnessed the taking in possession of the last worn clothes of the deceased. Shahid Rasool 12/HC (PW-6) stated that on 17.08.2014 the Investigating Officer handed over to him two sealed parcels, one said to contain blood stained earth and one said to contain empties and on 03.09.2014 he handed over the sealed parcel said to contain blood stained earth to Muhammad Imran 483-C (PW-8) for its onward transmission to Punjab Forensic Science Agency, Lahore and on 22.09.2014 he handed over the sealed parcel said to contain empties to Muhammad Imran 483-C (PW-8) for its onward transmission to Punjab Forensic Science Agency , Lahore. Shaukat Ali 64/HC (PW-7) stated that on 05.12.2014 the Investigating Officer handed over to him two sealed parcels said to contain pistols which he on 16.12.2014 handed over to Muhammad Imran 483-C (PW-8) for its onward transmission to Punjab Forensic Science Agency , Lahore and further stated that on 26.02.2015 the Investigating Officer handed over to him one sealed parcel said to contain a pistol which he on 04.03.2015 handed over to Muhammad Imran 483-C (PW-8) for its onward transmission to Punjab Forensic Science Agency , Lahore.
Muhammad Ismail 81/HC (PW-10) stated that on 17.08.2014 he recorded the formal FIR (Exh.PT). Muhammad Bakhsh , SI (PW-9), investigated the case from 16.08.2014 till 20.09.2015 and narrated the facts of the investigation conducted by him in his statement before the leaned trial court.
6. The prosecution got examined Dr. Muhammad Rafique (PW.-1), who on 17.08.2014 was posted as Medical Officer THQ Hospital, Kehrorpacca and on the same day conducted the postmortem examination of Sana Ullah son of Muhammad Rafique (deceased). Dr. Muhammad Rafique (PW.-1), on examining Sana Ullah son of Muhammad RAfique (deceased) observed as under: "External Examination.
1. A circular lacerated wound 8x8mm x going deep on lower part of back of right chest. 19 cm below tip of right scapula (wound of entry).
2. A circular lacerated wound 8x8 mm x going deep 1.5 below and to the right of injury No.1(wound of entry)
3. A circular lacerated wound 1x1 cm x going deep on the lower part of right chest (right side), 10 cm in front of injury No.1(wound of exist)(sic).
4. A circular lacerated wound 1x1 cm x going deep, 2 cm below and front of injury No.3(wound of exist) (sic).
5. A circular wound 8x8 mm x going on upper and medial part of right buttock (wound of entry).
6. A circular lacerated wound 8x8 mm x going deep 3 cm above and to the right of injury No.5 (wound of entry).
7. A circular lacerated wound 1x1 cm x going deep, 6 cm below and to the right of umbilicus (wound of exist) (sic).
8. A circular lacerated wound 1x1 cm x going deep on the front of upper p[art of right thigh (inguinal ligament). 10 cm below and to the right of injury No.7 (wound of exist) (sic).
Final Opinion.
All injuries due to fire -arms causing fracture of right 8tha and 9th ribs coccyx, sacrum and perforation of ileum and rectum were sufficient to cause death in the ordinary course of nature . The mode of death was hemorrhagic shock.
The injures were Jurh Jaifah. I issued my post mortem report No. 22-R/14 Ex.P-A which is of my hand and bears my signatures as Ex.P-A/1. The pictorial diagram of the injuries is Ex.P-B which also bears my signatures as Ex.P- B/1. The inquest report of deceased Sana Ullah Ex.P-C which also bears my signatures as Ex.P-C/1. I also endorsed my signature alongwith post mortem report number on the application for post mortem of the deceased Sana Ullah as Ex.P-D which also bears my signature as Ex.P-D/1".
7. The learned ADPP on 31.03.2016 gave up witnesses namely Zafar Ullah and Maqbool as being unnecessary and on 19.04.2016 gave up witness namely Nazir Ahmad 454-C as being unnecessary . The learned ADPP on 31.05.2016 closed the prosecution evidence after tendering the report of Serologist (Exh.PU), report of Forensic Science Laboratory Lahore (Exh. PV) and the statement of Mst. Seema Bibi as (Exh. PW).
8. After the closure of prosecution evidence, the learned trial court examined appellant namely Muhammad Imran son of Farzand Ali 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 was innocent and had been falsely involved in the case due to previous enmity. He further stated that he had not committed the occurrence. The appellant namely Muhammad Imran son of Farzand Ali opted not to get himself examined under section 340(2) Cr.P.C however produce copies of FIR (Exh.DB), copy of judicial paper (Exh.DC) , copies of FIRs (Exh.DD to Exh.DI), report under section 173 of Cr.PC (Exh.DJ), copy of a judgment (Exh.DK)
9. On the conclusion of the trial, the learned Additional Sessions Judge, Kehrorpacca convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false. That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. He further contended that the statements of Atta Ullah (PW-3) and Jameel Ahmad (PW-4) were not worthy of reliance. He also argued that the recoveries were full of procedural defects , of no legal worth and value and result of fake proceedings. He finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
11. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses.
Learned counsels further argued that the deceased died as a result of injuries suffered at the hands of the appellant . They further contended that the medical evidence also corroborated the statements of Atta Ullah (PW-3) and Jameel Ahmad (PW-4) . They further argued that the recoveries from the appellant also corroborated the ocular account .They 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 , they prayed for the rejection of appeal.
12. We have heard the learned counsels for the appellant and learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial carefully .
13. The whole prosecution case revolves around the statements Atta Ullah (PW 3) and Jameel Ahmad (PW-4) .
These witnesses namely Atta Ullah (PW-3) and Jameel Ahmad (PW-4) were related inter se. Their relationship with the deceased is also on record. We have already mentioned that along with the appellant his co-accused namely Farzand Ali son of Muhammad Bakhsh, Dilawar Hussain son of Muhammad Sharif and Nazar Hussain son of Hassan Bakhsh ( all three since acquitted) were tried. The learned trial court acquitted the above mentioned co-accused of the charge. We have queried the learned Deputy Prosecutor General as well as the learned counsel appearing on behalf of the complainant namely Atta Ullah (PW-3) regarding the filing or otherwise of an appeal against acquittal of the said co- accused, who have stated that the acquittal of Farzand Ali son of Muhammad Bakhsh, Dilawar Hussain son of Muhammad Sharif and Nazar Hussain son of Hassan Bakhsh ( all three since acquitted) had attained finality as neither the State nor the complainant or any other aggrieved person had filed any appeal against the acquittal of namely Farzand Ali son of Muhammad Bakhsh, Dilawar Hussain son of Muhammad Sharif and Nazar Hussain son of Hassan Bakhsh ( all three since acquitted).
The question for determination before this Court now is that whether the evidence 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 a whole truth 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:-.
" The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments.
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.
Adverting to the Islamic principles relevant to the issue at hand we note that the following verses of the Holy Qur'an deal with the matter of giving testimony: "And do not mix the truth with falsehood or conceal the truth while you know [it]"
(Surah Al-Baqarah: verse 42)
"And let not the witnesses refuse when they are called upon" (Surah Al-Baqarah: verse 282)
"And do not conceal testimony , for whoever conceals it-his heart is indeed sinful"
(Surah Al-Baqarah: verse 283)
"O you who have believed, be persistently standing firm for Allah, witnesses in justice, and do not let the hatred of a people prevent you from being just. Be just, that is nearer to righteousness. And fear Allah; indeed, Allah is acquainted with what you do"
(Surah Al-Ma'idah: verse 8)
O you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves or parents and relatives"
(Surah An-Nisa: verse 135)
So follow not [personal] inclination, lest you not be just. And if you distort [your testimony] or refuse [to give it], then indeed Allah is ever , with what you do, acquainted"
(Surah An-Nisa: verse 135)
"And establish the testimony for [the acceptance of] Allah" (Surah At-Talaq: verse 2)
"...And we will not withhold the testimony of [i.e. ordained by] Allah. Indeed, we would then be of the sinful."
(Surah Al-Ma'idah: verse 106)
"And avoid false statement"
(Surah Al-Haj: verse 30)
"And they who do not bear witness to what is false"
(Surah Al-Furqan: verse 72)
From the above, it can be seen that giving testimony its due importance and weigh t is an obligatory duty and those who stand firm in their testimonies are among the people of righteousness and faith. Among the necessities of faith is giving truthful testimony even if against oneself or a relative. If there are no other witnesses that would enable justice to be done and there is a fear that someone's right may be lost, it then becomes the individual responsibility of the few available witnesses to testify. Islam not only enjoins giving testimony, it also forbids concealing it because concealing evidence is something that is disapproved in Islam and detested by nature. Giving false testimony has many evils for it supports falsehood against truth and promotes injustice and aggression against justice. It also effaces fairness and equity and poses danger to public safety and security.
18. According to the corpus of traditions of the Holy Prophet (Peace Be Upon Him), false testimony is one of the greater sins and the following Ahadith demonstrate the significance attached to giving true testimony: It was narrated by Hazrat Anas (RA) that the Prophet (PBUH) was asked about the great sins. He said, they are (1)
To join others in worship with Allah; (2) To be undutiful to one's parents; (3) To kill a person (which Allah has forbidden to kill) (i.e. to commit the crime of murdering) and (4) to give a false witness.8 It was narrated by Hazrat Abdullah (RA) that the Prophet (PBUH) said if somebody takes a false oath in order to get the property of a Muslim (unjustly) by that oath, then Allah will be angry with him when he will meet Him.
"To testify falsely tantamounts to polythe ism." It is mentioned in Tafsir Abdul Al-Fath Razi that the Holy Prophet
(PBHU) repeated said statement thrice and then quoted verse No. 30 of Surah Al-Haj stating that "... And avoid false statement."
19. The Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 deals with the offence of Qazf, which has been defined by virtue of section 2 of the said Ordinance as: "Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes an imputation of 'zina' concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm the reputation, or hurt the feelings, of such person, is said except in the cases hereinafter excepted, to commit 'qazf'."
The Holy Qur'an while dealing the offence of Qazf ordains that: "And those who accuse chaste women and then do not produce four witnesses - lash them with eighty lashes and do not accept from them testimony ever after . And those are the defiantly disobedient"
(Surah Al-Noor: verse 4)
"And those who accuse their wives [of adultery] and have no witnesses except themselves - then the witness of one of them [shall be] four testimonies [swearing] by Allah that indeed, he is of the truthful"
(Surah Al-Noor: verse 6)
"And the fifth [oath will be] that the curse of Allah be upon him if he should be among the liars"
(Surah Al-Noor: verse 7)
"But it will prevent punishment from her if she gives four testimonies [swearing] by Allah that indeed, he is of the liars"
(Surah Al-Noor: verse 8)
"And the fifth [oath will be] that the wrath of Allah be upon her if he was of the truthful"
(Surah Al-Noor: verse 9)
The verses reproduced above highlight the importance Islam places on the requisite standard of evidence to be achieved. It can be seen that the Holy Qur'an puts a great emphasis upon the need to meet the requisite standard of evidence, so much so that for a person levelling the allegation of Zina but not meeting the given standard, it not only provides for a penal punishment, but also for withdrawal of such a person's civic right to give evidence in all matters of his life.
20. Article 2 of the Constitution of the Islamic Republic of Pakistan, 1973 declares that "Islam shall be the State religion of Pakistan." Clause (1) of Article 227 of the Constitution mandates as follows: "All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions."
According to Article 189 of the Constitution "Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan".
Declaring by this Court that the rule falsus in uno, falsus in omnibus is inapplicable in Pakistan is enunciation of a principle of law and has a binding effect. If inapplicability of that rule militates against the Injunctions of Islam and if such inapplicability cannot be enacted by the Parliament on account of its repugnance to the Injunctions of Islam then this Court may not be in a position to introduce such inapplicability through an enunciation of a principle of law or to continue with the same any more. A court of law cannot grant a licence to a witness to tell lies or to mix truth with falsehood and then take it upon itself to sift grain from chaff when the law of the land makes perjury or testifying falsely a culpable offence. A court also has no jurisdiction to lay down a principle of law when even the Parliament is expressly forbidden by the Constitution from enacting such a principle as law. The inapplicability of this rule in Pakistan was introduced by Chief Justice Muhammad Munir in the year 1951 at a time when Article 227 of the Constitution was not in the field but after introduction of the said constitutional prohibition the enunciation of law by his lordship in this field, like the infamous doctrine of necessity introduced by his lordship in9 the constitutional field, may not hold its ground now, as already predicted and foreseen by this Court in the case of Ghulam Sikandar (supra) in the following prophetic words: "Expressed in a more direct manner a similar rule in the administration of criminal justice which is hall-mark of Islamic Jurisprudence, that when a witne ss has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken...... The afore discussed main rule shall suffer serious change if and when it is examined in the light of the Islamic Principles."
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 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 ."
We have perused the statements Atta Ullah (PW-3) and Jamil Ahmad (PW-4). Atta Ullah (PW-3) , in his statement before the learned trial court, stated as under: "In the meanwhile, Sharif fired with pistol 30 bore upon my brother Sana Ullah who was lying on right side which hit him on back site on right side. Nazar Hussain also fired with his pistol 30 bore upon my brother Sana which hit on back side on right side. Then Muhammad Imran fired with pistol 30-bore upon my brother Sana Ullah which hit him on back side to his right buttock.
Then Farzand Ali fired with his pistol 30-bore on my brother Sana Ullah which hit him between his buttock.
Dilawar Hussain had been firing with his pistol 30-bore. "
Similarly Jameel Ahmad (PW-9) also levelled the same allegation regarding the individual role of the appellant as well as the acquitted co-accused.W e have perused the statements of the eye witnesses and find that there was no difference in the role of the appellant and that of acquitted co-accused. We are unable to find any independent corroboration against the appellant and we are unable to distinguish the case of the appellant from the case of acquitted co-accused. This dishonesty on part of the witnesses has vitiated our trust in them. We are thus satisfied that the evidence of Atta Ullah (PW-3) and Jameel Ahmad (PW-4) has no worth and is to be rejected outright.
14. We have also noted with grave concern that the witnesses namely Atta Ullah (PW-3) and Jameel Ahmad (PW-4) made blatant and dishonest improvements to their earlier statements. The improvements were respect to role of the appellant and the source of light at the place of occurrence at the time of occurrence. A perusal of the FIR (Exh.PT) the role attributed to the appellant was that he fired on the left hip of the deceased. Similarly when the oral statement of Atta Ullah (PW-3) was reduced into writing by the Investigating Officer as (Exh.PF), the role attributed to the appellant as well as his acquitted co-accused namely Nazar Hussain was that their fires hit on the left side whereas subsequently a very visible interpolation was made in the oral statement (Exh.PF) and the word left was changed to right with regard to the seats of injuries attributed to the appellant and his acquitted co-accused namely Nazar Hussain. Similarly a perusal of the injury statement (Exh.PD) as well as the inquest report (Exh.PC) ,as prepared by the Investigating Officer, also reveals the word left was changed to right with regard to the seats of injuries attributed to the appellant and his acquitted co-accused namely Nazar Hussain. Furthermore during the cross-examination of Jameel Ahmad (PW-4), the said witness was confronted with his statement under section 161 Cr.PC wherein the seat of injury attributed to the appellant was not recorded as right hip rather the seat of injury was mentioned as "Kookh". As the witnesses namely Atta Ullah (PW-3) and Jameel Ahmad (PW-4), had improved upon their previous statements, hence their credit stands impeached and they cannot be relied upon. The august Supreme Court of Pakistan in the case of Muhammad Ashraf Vs. State (2012 SCMR 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, are satisfied that the evidence of Atta Ullah (PW 3) and Jameel Ahmad (PW-4) has no intrinsic worth and is to be rejected out rightly. The august Supreme Court of Pakistan in a recent case reported as Muhammad Mansha Vs. The State (2018 SCMR 772) has enunciated the following principle: "Once the Court comes to the conclusion that the eye witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence".
15. We have also noticed that both the witnesses namely Atta Ullah (PW-3) and Jameel Ahmad (PW-4) , during the cross examination admitted the existence of enmity between them on one part and the accused of the case on the other part. During the cross examination Jameel Ahmad (PW-4) in answer to questions replied as correct that in the case FIR No.214 of 2012 he was also a witness.Similarly Atta Ullah (PW-3) admitted during cross- examination that Jameel Ahmad was a witness in the case FIR No. 214 of 2012. He further stated that in the said case two persons of the accused party were also murdered. The motive of the occurrence as mentioned by both the witnesses namely Atta Ullah (PW-3) and Jameel Ahmad (PW-4) was that the deceased Sana Ullah was an eye witness of the case FIR No. 214 of 2012 and for this reason he was murdered. We have also minutely scanned the statements of Atta Ullah (PW-3) and Jameel Ahmad (PW-4) and find that their claim was that they were present near the assailants at the time of firing. We have also perused the scaled site plan of the place of occurrence (Exh.PE) as prepared by Sheikh Siraj Din, draftsman (PW-2) and also the un-scaled site plan (Exh.PS) as prepared by Muhammad Bakhsh SI (PW.-9). A perusal of the scaled site plan (Exh.PE) and the un- scaled site plan (Exh.PS) reveals that the occurrence took place in a cattle shed. As per the witnesses namely Atta Ullah (PW-3) and Jameel Ahmad (PW-4) the common object of the accused was that eye witness of the case FIR No. 214 of 2012 should not escape. Jameel Ahmad (PW-4) being a witness. of the case FIR No. 214 of 2012 was also a prime target. Atta Ullah (PW-3) and Jameel Ahmad (PW-4) by their own admission were in clear view, at a meagre distance, from the assailants and un-armed. The above mentioned witnesses stated that all the accused were armed with pistols and neither there was any dearth of ammunition nor that of intent and opportunity. In this scenario it is hard to believe that the prosecution witnesses would have been shown the courtesy of being not fired at. Both of these witnesses namely Atta Ullah (PW-3) and Jameel Ahmad (PW-4) did not even receive a single scratch on their person. If the witnesses namely Atta Ullah (PW-3) and Jameel Ahmad (PW-4) had been present, then they would not have been spared as the number of injuries on the person of the deceased showed the degree of venom and design the killers had for the deceased. Both Atta Ullah (PW-3) and Jameel Ahmad (PW-4) even did not depose that they were fired at during any time of the occurrence. They all were miraculously saved in the midst of all the firing. Blessing them with such incredible consideration and showing them such favor is implausible and opposed to natural behavior of the accused. It is all the more illogical that being perceptive of the fact that if the witnesses were left alive they would depose against the accused even then the assailants did not cause any injury to them. Such behavior , on part of the accused , runs counter to natural human conduct and behavior . Article 129 of the Qanun-e-Shahadat Order , 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus presume the existence of this fact, by virtue of the Article 129 of the Qanun-e-Shahadat Order , 1984, that the conduct of the assailants as deposed to by witnesses namely Atta Ullah (PW-3) and Jameel Ahmad (PW-4) was opposed to common course of natural events and human conduct. Hence we are holding that Atta Ullah (PW-3) and Jameel Ahmad (PW-4) were not present at the time of occurrence at the place of occurrence. The August Supreme Court of Pakistan in its binding judgment has repeatedly held that in a scenario where the motivation was against the complainant or the witnesses but the accused did not cause any harm to them notwithstanding being within the range of their firing would reveal that the said witnesses were not present at the place of occurrence. The August Supreme Court of Pakistan in case Rohtas Khan v . The State (2010 SCMR 566 ) at page 571 observed as under: "The alleged motive was against the complainant, but it is noted that the appellan t did not cause any injury to the complainant, though he was present within the range of firing, thus it supports the contention of the learned counsel of appellant that P .Ws. were not present at the place of occurrence."
The August Supreme Court of Pakistan in the case of Muhammad Farooq & another v. The State (2006 SCMR 1707 ) at page 1712 held as under:- "Had P.W.9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased."
We are also guided by the binding judgment of the August Supreme Court of Pakistan passed in the case of Mst.
Rukhsana Begum & others v . Sajjad & others (2017 SCMR 596 ) where at page 601 it was observed as under:- "Another intriguing aspect of the matter is that, according to the FIR, all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye witness. The site plan positions would show that, he and the other PWs were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story. Such behavior, on the part of the accused runs counter to natural human conduct and behavior explained in the provision of Article 129 of the Qanun-e Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition."
16. We have also noticed that as per the prosecution story the place of occurrence was a cattle shed. The witnesses namely Atta Ullah (PW-3) and Jameel Ahmad (PW-4) claimed that at 11.00 p.m they along with the deceased were talking with each other while lying on the cots. The Investigating Officer of the case namely Muhammad Bakhsh , SI (PW-9) did not take any cot into possession from the place of occurrence during the investigation of the case so as to substantiate the presence of the witnesses at the place of occurrence at the time of occurrence. Furthermore we have also perused the scaled site plan of the place of occurrence (Exh.PE) as prepared by Sheikh Ud Din, draftsman (PW 2) and also the un-scaled site plan (Exh.PS) as prepared by Muhammad Bakhsh SI (PW. 9). A perusal of the scaled site plan (Exh.PE) and the un-scaled site plan (Exh.PS) reveals that only one cot was shown to be present at the place of occurrence. Moreover the names of the accused and the roles attributed to them are also not mentioned in the five points noted in the scaled site plan (Exh.PE) and the un scaled site plan (Exh.PS). Furthermore the place of occurrence was not a place of residence of the witnesses. Both the witnesses namely Atta Ullah (PW-3) and Jameel Ahmad (PW-4) also were neither the ones who identified the dead body at the time of post mortem examination nor they were mentioned as being present near the dead body at the time of preparation of the inquest report (Exh.PC) by Muhammad Bakhsh SI (PW 9). The statement made by the said eye witnesses has failed to receive any independent corroboration or support.
17. We have also noted that no source of light, which could have been available at the place of occurrence at the time of occurrence allowing the witnesses to identify the assailants, was mentioned in the oral statement (Exh.PF) of Atta Ullah (PW-3) reduced into writing by Muhammad Bakhsh SI (PW-9) despite the fact that as per prosecution's own claim the occurrence had taken place during the night.. Muhammad Bakhsh SI (PW-9) , the Investigating Officer of the case, during his investigation did not take into possession any article so as to prove that sufficient light was present at the place of occurrence at the time of occurrence for the witnesses to make a positive identity of the assailants. Muhammad Bakhsh SI (PW 9) , the Investigating Officer of the case, during cross-examination admitted as under:- " I did not take into possession the bulb from the place of occurrence."
The prosecution failed to establish the fact of such availability of light source and in absence of their inability to do so, we cannot presume the existence of such a light source. Reliance is 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:- "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 witnesse d 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 .."
Reliance is 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 witnesse d 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 ."
18. We have also perused the scaled site plan (Exh.PE) prepared by Sheikh Siraj Din, draftsman (PW-2) and the un-scaled site plan (Exh.PS) as prepared by the Investigating Officer. We have also noticed that as per the said site plans (Exh.PE) and (Exh.PS) the deceased had received injuries from a very short distance. Furthermore both the witnesses namely Atta Ullah (PW-3) and Jameel Ahmad (PW-4) stated that the deceased had received the injuries from a distance of 5-6 feet. We have also perused the statement of Dr. Muhamma d Rafique (PW-1). The Medical Officer namely Dr. Muhammad Rafique (PW-1) did not find the presence of any blackening on any of the four entry wounds which should have been there if the distance of fire was as short as suggested by the eye witnesses.
Reliance is placed on the case of Mian SOHAIL AHMED and others Vs. The State and others (2019 SCMR 956) wherein it has been held as under:- " Site-plan (Ex-PL) shows one of the appellants to be standing next to the driving seat of the car at a distance of 4 feet. A fire-shot from this distance is likely to cause blackening but the medical evidence (Post-mortem examination reports Ex-PM and Ex-PM/1 and the statement of PW-10) does not support this, once again raising a suspicion that the events may have unfolded differently than as reported."
19. Learned Deputy Prosecutor General alongwith the learned counsel for the complainant have laid much stress on the promptitude in reporting the matter to the police. The oral statement of Atta Ullah (PW-3) was reduced into writing by Muhammad Bakhsh, SI, (PW-9) who sent the said statement (Exh.PF) to the police station where Muhammad Ismail 81-HC registered the formal FIR (Exh.PT). When Muhammad Bakhsh, Inspector (PW-9) was allegedly present near Pull Gopal he got information about the occurrence and reached the place of occurrence.
No one out of the eye witnesses had told him about the occurrence. We have also observed that none of the witnesses including Atta Ullah (PW-3) and Jameel Ahmad (PW-4) ever proceeded to report the matter to the police.
This has left no doubt in our minds that the witnesses were not present at the place of occurrence at the time of occurrence and proves that the said oral statement reduced into writing as Exh.PF is just a compromised and fake document The August Supreme Court of Pakistan in the case of Abdul Jabbar alias Jabbari v. The State (2017 SCMR 1 155) has observed as under: "An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot."
20. Learned District Prosecutor General has also relied upon the recoveries made from the appellant. The recovery of the pistol (Exh.P10) from the appellant Muhammad Imran cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of said pistol (Exh.P10) from the appellant which was in clear violation of section 103 Cr.PC and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. 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."
21. Learned Deputy Prosecutor General and learned counsel for the complain ant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence, given in the oral statement (Exh.PF), was that the deceased had appeared as a witness in a case FIR No. 214 of 2012. No further details of said motive were not mentioned in the oral statement (Exh.PF).There is a haunting silence with regard to the minutiae of motive alleged. Furthermore during cross-examination Atta Ullah (PW-3) admitted as correct that in case FIR No. 214 of 2012 two persons of the accused party were also murdered. No independent witness was produced by the prosecution to prove the motive as alleged. 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 said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case."
It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance.
22. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Muhammad Imran, appellant, in the present case. 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 the 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. The august Supreme Court of Pakistan in the case of Muhammad Mansha Vs. The State ( 2018 SCMR 772 ) has enunciated the following principle: "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 ), Muhammad Akram 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 Muhammad Akram Vs. 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."
23. For what has been discussed above Criminal Appeal No.364-J of 2018 filed by Muhammad Imran son of Farzand Ali (appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 20.07.2016 are hereby set-aside. Muhammad Imran son of Farzand Ali (appellant) is ordered to be acquitted. Muhammad Imran son of Farzand Ali (appellant) is directed to be released forthwith if not required in any other case.
24. Murder Reference is answered in Negative and the death sentence of Muhammad Imran son of Farzand Ali is Not Confirmed .