Through this criminal appeal under Section 410, Cr.P.C. appellant Sikandar Hayat has challenged the vices of judgment dated 21.1.2010 passed by a learned Additional Sessions Judge at Phalia in a private complaint titled "Mukhtar Ahmad vs. Muhammad Akram, etc" in respect of offences under Sections 302, 109 & 34, PPC arising out of case FIR No. 316, dated 20.05.2006 under Sections 302, 109 & 34, PPC Police Station, Phalia District Mandi Baha-ud-Din, whereby he was convicted and sentenced as under .
Under Section 302(b) of Pakistan Penal Code.
Imprisonment for life and to pay the compensation of Rs. 2,00,000/- to the legal heirs of deceased Ansar under Section 544-A, Cr .P.C. and in default thereof to farther undergo simple imprisonment for six months.
Appellant was extended the benefit of Section 382-B, Cr .P.C.
2. The prosecution story unfolded in the crime report (Ex.P A) registered on the complaint of Mukhtar Ahmad (PW-1) is that three years prior to the occurrence, his younger brother namely , Muhammad Arif had divorced Mst. Razia Bibi. Muhammad Akram, Safdar , Muhammad Anwar and Muhammad Asghar used to favour Mst. Razia Bibi and asked his brother to return her dowry articles but the complainant party insisted that since whole of the dowry articles had already been return through Court orders, therefore, they had no article with them. A few days earlier to the occurrence, Sikandar Hayat (appellant), who was relative of Anwar and Asghar also came to them and made the demand of returning dowry articles but the complainant refused whereupon they extended threat that if the dowry articles are not returned, they would face the consequences. On 20.5.2006 at about 6/7:00 a.m. the complainant alongwith his younger brother Ansar (deceased) was returning to their home after milking the buffalos Ansar was little ahead of the complainant at few paces with milk at'his head and he alongwith Pervaiz Iqbal and Muhammad Rafi were little behind him, when Muhammad Ansar (brother ) reached near the graveyard chowk, Muhammad Akram and Muhammad Asghar accused (since acquitted) while armed with 12-bore guns, Sikandar Hayat appellant armed with 12-bore pump action emerged there. They raised lalkara that Ansar be taught a lesson for not returning the dowry articles of Mst. Razia Bibi. Sikandar Hayat, appellant made fire shot with his gun which hit at the back and Muhammad Asghar accused (since acquitted) made fire shot which hit on left hand of Ansar deceased, who fell down on the ground and succumbed to the injuries at the spot. The occurance was witnessed by PWs Nazar Muhammad and Shan Ali guests of the complainant.
3. The case was registered on 20.05.2006 at 08:20 a.m., and in consequence thereof, Ghulam Abbas, SI (CW-10) took all the necessary steps of investigation and after thorough investigation found co-accused Razia Bibi, Akram, Asghar , Anwar and Safdar Iqbal being not involved in this occurrence. He got declared the appellant being a proclaimed of fender .
Muhammad Aslam SI (CW-4) arrested the appellant on 16.08.2007 and during investigation the appellant made a disclosure and led to the recovery of a gun pump action (P-1) on 24.08.2007. After completion of investigation, he got prepared report under Section 173, Cr .P.C.
4. Being dissatisfied with the outcome of investigation declaring the aforeme ntioned accused innocent, the complainant was constrained to file the private complaint (Ex.PB).
5. Dr. Ghulam Abbas Nasir (PW-3) held autopsy on the dead body of deceased Anser on 20.05.2006 at 03:45 p.m. and observed following injuries:
1. A fire-arm entry wound with inverted edges 6 cm x 3 cm on posteromedial parts of right thigh going antero supero laterally with, multiple small entry wounds around the original wound.
2. A fire-arm lacerated wound 7 cm x 2 cm on posterior part of right buttock skin deep with multiple small entry wounds around original injury .
3. A fire-arm lacerated wound 4 cm x 4 cm on ulnar side of left hand with exposing bone and damaging muscles.
The cause of death was due to hemon-hage, shock and injury to vital organ right femoral blood vessels due to Injury No. 1. Injuries No. 2 & 3 were contributory to Injury No. 1. All the injuries were anti-mortem in nature and caused by fire-arm weapon. Injury No. 1 was sufficient to cause death in ordinary course of nature. The probable duration between injuries and death was within 3 hours, whereas between death-and post-mortem examination, it was 5 to 1 1-hours.
6. At the commencement of trial, the prosecution produced 04-witnesses whereas ten witnesses were examined as Court Witnesses. The appellant and his co-accused Muhammad Asghar , Muha mmad Anwar , Safdar and Mst.
Razia Bibi in their statements, recorded under Section 342, Cr.P.C., had denied and controverted all the allegations of fact leveled against them, they neither opted to make statements under Section 340(2), Cr.P.C. on oath, nor produced any evidence in their defence.
7. Learned trial Court, upon conclusio n of the trial, proceeded to acquit co-accused Muhammad Akram, Muhammad Asghar , Muhammad Anwar , Safdar and Mst. Razia Bibi, whereas convicted and sentenced the appellant, as stated above. Hence, this criminal appeal.
8. Learned counsel for the appellant submits that the appellant is quite innocent and has falsely been implicated in this case; that the private complaint was got filed with the delay of ten months of the alleged occurrence wherein the complainant changed the appellant's role as well as the set of eye-witnesses that co-accused Muhammad Asghar and Muhammad Akram having exactly identical role, have already been acquitted of the charge by the trial Court; that role of the appellant has further been replaced with co-accused Muhammad Asghar by Shan Ali (PW-2); that ocular account gets no support from the medical evidence; that all the injuries were result of one fire-arm weapon as opined by the medical officer, which makes the case of prosecution highly doubtful; that co-accused Muhammad Akram was not assigned any role in the crime report but thereafter he was attributed the role of causing fire-arm injury at the back of the deceased in the private complaint; that the eye-witnesses were quite inconsistent inter-se qua the role attributed to all the accused persons; that the presence of Shan Ali (PW-2) at the spot has already been disbelieved by the trial Court; that the eye-witnesses cannot be considered truthful witness when some part of their testimony to the extent of acquitted accused have been found false in view of the prevailing principle of "falsus in uno falsus in omnibus " that the recovery of .12-bore pump actio n at the instance of the appellant remained inconsequential; that the motive behind the occurrence remains a shrouded mystery being not proved. At the end, the prayer has been made for acquittal of the appellant.
9. Conversely , learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant has vehemently contended that it was a day light occurrence and the appellant is named in the crime report with specific role of making fire shots at the deceased; that the complaina nt's stance to the extent of the appellant remained, consistent, which is being supported with the medical evidence; that the recovery of weapon of offence, gun 12-bore from the appellant provides further corroboration to the ocular account; that the prosecution has been able to prove the charge against the appellant beyond shadow of reasonable doubt. Finally , he has prayed for dismissal of the appeal.
10. I have heard learned counsel for the appellant, learned Deputy Prosecution General appearing for the State assisted by learned counsel for the complainant and perused the record with their able assistance.
11. Complainant Mukhtar Ahmed set the law in motion while making the statement before the police regarding the murder of his son stating that on 20.5.2006 at 06/07:00 a.m. he alongwith his brother Muhammad Ansar , Pervaiz Iqbal and one Muhammad Rafi was coming back to their home from their cattle shed carving milk, Ansar was a few paces ahead of them, at the distance of one acre prior to the graveyard chowk, appellant Sikandar Hayat armed with gun pump action, Muhammad Akram armed with pistol and Muhammad Asghar armed with gun .12-bore. halted his son and raised alarm for denying the return of dowry articles. Muhammad Ansar turned back to save his life whereupon the appellant made a fire shot, which hit at the back, second fire made by Muhammad Asghar with his gun .12-bore landed at the left hand of Muhammad Ansar , who fell down. All the accused ran away with their respective fire-arm weapons. They took Muhammad Ansar to the hospital but he had succumbed to the injuries on the way. He had alleged that Muhammad Anwar , Safdar and Mst. Ruqaya Bibi played the role of providing abetment and behind the scene conspiracy to the principal accused. During investigation all accused except the appellant were found to be not involved in .this occurrence which constrained him to file the private complaint, but in the said complaint he deviated from his previous stance in the following manner: i) Muhammad Akram was shown to be armed with pistol .30-bore but in the private complaint it was replaced with gun .12-bore. ii) He was not attributed any fire shot in the crime report but subsequently in the private complaint he was assigned the role of making fire shot at the back of deceased Muhammad Ansar . iii )Appellant Sikandar Hayat was assigne d the role of fire shot at the back but in private complaint it was changed to right thigh of the deceased. iv) Earlier , injury at the back of right thigh of the deceased was not attributed to anyone. v)In the crime report Pervaiz Iqbal and Muhammad Rafi's name were mentioned as witnesses but in the private complaint, their names were replaced with Shan Ali (PW -2) and Nazar Muhammad. vi) Shan Ali (PW -2), further changed the role of the appellant from the right thigh to the left hand of the deceased.
The deviating stance of the witnesses qua role of the appellant for causing fire-arm injuries to the deceased clearly shows that either they were not present at the place of occurrence at the relevan t time or there had intentionally made false statement before the learned trial Court. The authenticity/legality of the private complaint is also not free from doubt being afterthought story , different to that of the previous one. Shan Ali (PW-2) was father-in-law of the complainant, he was residing at a distance of 15/16 kilometers away from the venue of occurrence and he could not urge any plausible reason of his presence at the place of occurrence. He remained fail to establish his presence at the spot and, thus; his presence at the venue of occurrence has rightly been discarded by the trial Court.
12. In order to believe the sole statement of the complainant the Court is to take caution over there. He attributed two fire shots specifically , in the crime report and then 3 to three accused in the complaint, one each. The post- mortem examination, report (Ex.PC) of the deceased shows that the deceased had received three fire-arm injuries, one at the back, second at the back of right thigh and the third one at his left hand. Two co-accused namely Akram and Asghar have already been acquitted of the charge though their role was identical to that of the appellant. In such a scenario when co-accused are acquitted of the charge in identical role, the appellant also deserves. to be treated in the same manner . Reliance is placed on cases titled "Shahbaz versus The State " (201'6 SCMR 1763), "Tariq versus The State and others " (2017 SCMR 1672 ) and "Imtiaz alias Taj versus The-State and others "
(2018 SCMR 344 ). A ready reference may be made to the last one wherein it has been held as under: "The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witne sses cannot be believed against anoth er accused person attributed a similar role unless such eye-witness receive independent corroboration qua the other accused person ...... "
13. The appellant was initially attributed the role of causing fire-arm injury at the back of the deceased. In second phase, he was given the role of causing fire-arm injury at the right thigh of the deceased. In third phase, Shan Ali (PW-2) saddled the appellant with the role of causing fire-arm injury at the left hand of the deceased. Meaning thereby , the appellant was attributed all the three injuries one-by-one, which shows the non-seriousness of the acclaimed eye-witnesses and their non-presence at the venue of occurrence. It has already been discussed that two of the accused having identical role have already been acquitted of the charge by disbelieving the ocular account to their extent, which shows the real possibility that all the three fire-arm injuries had been caused through one fire-arm weapon. It has been decided once for all by the Apex Court of Pakistan in case titled 'NOTICE TO POLICE CONST ABLE KHIZAR HA AT SON OF HADAIT ULLAH on account of his false statement ' (PLD 2019 Supreme Court 527) wherein the principle of falsus in uno falsus in omnibus' false in one thing, false in everything has been reinforced. The prevailing principle in the dispensation of criminal admin istration of justice is that if any part of the evidence of witness is disbelie ved, his evidence is liable to be discarde d as a whole. Meaning thereby truth and falsehood are two separate entitles, if intermingled, the only falsehood will left to be considered.
14. Admittedly , no crime empty was secured from the place of occurrence. Muhammad Aslam, SI (CW-4) arrested the appellant on 16.08.2007 and during investigation the appellant made a disclosure and led to the recovery of a gun pump action (P-1) on 24.08.2007. The report of Forensic Science Laboratory Punjab, Lahore (Ex.PG) is positive only to the extent of working condition of the weapon as no crime empty was sent for comparion. In absence of comparison report, the recovery of weapon of of fence from the appellant remained inconsequential.
15. The motive as set up by the prosecution has already been discarded by the trial Court and upon my own independent evaluation of the evidence available on record, I have found the said observation is well reasoned and had rightly been discarded.
16. Having scanned the entire evidence, I have no manner of doubt in my mind that the prosecution has failed to prove the charge against the appellant beyond shadow of reasonable doubt. The complainant changed his version as to the role of the, appellant as well as the set of eye-witnesses in the private complaint, which was filed after ten months of the occurrence. The appellant's role was not only changed by the complainant but also Shan Ali (PW-2) in his deposition before the trial Court. Co-accused namely , Akram and Asghar who were saddled with the responsibility of causing fire-arm injuries to the deceased, have already been acquitted of the charge by the trial Court and thereby disbelieved the prosecution evidence to their extent. The injury attributed to the appellant in the private complaint was not Court on oath in an offence entailing the capital punishment. The initially assigned' to any of the accused in the crime report. The testimony of Shan Ali (PW-2) has already been disbelieved by the trial Court, being a chance witness and even his name was not incorporated in the first crime report, The ocular account is neither trustworthy nor confidence inspiring rather they made false statement before the trial medical evidence furnished by Dr. Ghulam Abbas Nasir (PW-3) clearly shows that the possibility could not be ruled out that all three injuries might have been caused through one fire-arm weapon. The recovery of weapon of offence from the appellant, in absence of crime empties and comparison report, remained inconseq uential. The motive, being bald and fabricated story , has already been discarded by the trial Court. From this discussion there remains no iota of evidence against the appellant to connect him with the murder in issue.
17. For what has been discussed above, the appeal in hand is allowed, the conviction and sentence of the appellant are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He is directed to be released from jail forthwith, if not required to be detained in connection with] any other criminal case.
18. Before parting with this judgment, it is observed that Shan Ali (PW-2) made false statement before the learned trial Court on oath against the appellant in an offence entailing the capital punishm ent. His name did not figure in the crime report and his name was incor porated in the private complaint filed after ten months of the occurrence.
He volunteered himself to become an eye-witness of the occurrence and made an attempt to implicate the appellant and his co-accused therein as perpetrators. He made an abortive attempt to provide corroboration to the complainant and thereby ostensibly committed the offence of perjury . The practice of giving false statement has become fashion and habit of our society , which has been discouraged by august Supreme Court of Pakistan in a recent esteemed judgment in a case reported as PLD 2019 Supreme Court 527' with the observation/direction to the inferior Courts to curb such practice in future. So, on the same analogy , learn ed District and Sessions Judge, Mandi Band-ud-Din is directed to initiate proceedings against Shan Ali (PW-2) under Section 194, PPC in accordance with law .