SADIQ MAHMUD KHURRAM, J. Khalil-ur-Rehman son of Chiri Rehman (convict) was tried by the learned Additional Sessions Judge, Rawalpindi along with his co-accused namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah (all since acquitted)in the case instituted upon the private complaint titled "Javed Iqbal Vs. Khalil ur Rehman and three others" (relating to FIR No. 615 of 2015 dated 14.06.2015 registered at Police Station Airport, District Rawalpindi) in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Sami ul Haq son of Javed Iqbal (deceased). The learned trial court vide judgment dated 02.12.2017, convicted Khalil-ur-Rehman son of Chiri Rehman (convict) and sentenced him as infra: Khalil-ur-Rehman son of Chiri Rehman: Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Sami ulHaq son of Javed Iqbal (deceased) and directed to pay Rs.200,000/- 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 namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidaya t Ullah son of Hanif Ullah were acquitted by the learned trial court.
2. Feeling aggrieved, Khalil-ur-Rehman son of Chiri Rehman (convict) lodged Criminal appeal No.66-J of 2018 against his conviction and sentence through jail. The learned trial court submitted Murder Reference No.104 of 2017 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Khalil-ur-Rehman son of Chiri Rehman. We intend to dispose of the Criminal Appeal No. 66-J of 2018 and Murder Reference No.104 of 2017 through this single judgment.
3. Precisely the facts necessary , as divulged in the statement of Javed Iqbal son of Raza Khan (PW-4) are as under:- "Stated that on 14.6.2015, Sahib Gul and NabiurReham came in our house as a guest to receive their son who was arriving from Oman to Pakistan. I served meal upon them and after GUPSHAP my son Sami Ullah now deceased who was driver of NihmatUllah accused also came in house. On said date, neither was electric facility in my house nor space for sleeping of guest. My son Sami Ullah deceased asked me that he brought the guest with him for sleeping in the godown of present accused Nihmat Ullah. He alongwith my other son Zabi Ullah PW went with the guest for sleeping in godown. After offering fujar prayer I made telephonic call to Sahib Gul my guest who responded me that they were going to Airport. Sahib Gul also told me that due to them altercation took place in the night in between Sami Ullah and Khalil-ur -Rehman present accused. He also told me that Sami Ullah and Khalil-ur - Rehman delivered abuses to each other however , they rescued them and settled down the matter but Khalil-ur - Rehman present accused continusely (sic) gave intimidation of dire consequence s. After that I went to purchase vegetables from vegetable market as I was dealing in vegetable. After purchasing vegetable I reached at about 8:15 a.m in my shop. In the meanwhile my son Zabi Ullah PW came with me in weeping condition. I inquired the reason behind in weeping and also gave water for drinking then he told me that Nihmat Ullah, Hadayat, Jamil and Khalil-ur -Rehman have beaten Sami Ullah togetherly (sic). Leaving the shop I rushed to the police chowky which was near to the godown where I inquired from the police and they told me that my son received injuries and they shifted him in BBH hospital Rawalpindi. When I reached in hospital I met with Jamil and Hadayat Ullah accused. I have already knowledge with regard to the occurrence but I went to emergence ward to my son but doctor did not allow me to see my son due to his critica l condition. In the meantime my son Haroon, Zabi Ullah and my brother Shouaib also reached in the hospital. On the asking of police I got recorded my statement as was narrated by my son Zabi Ullah PW to the police. Police also inquired from Zabi Ullah PW who also told the same facts as I have already told to the police. I made telephonic call to Sahib Gul and Nabi-ur -Rehman at that time they were reached near Attock Bridge. I told them with regard to the occurrence and presence of my son in BBH hospital in injured condition. At that time Sahib Gul told me that in league of right altercation Khalil-ur -Rehman accused committed murder of my son as he was giving criminal intimidation to my son in the night time. I asked to Sahib Gul to come with me he replied that he is on motorway and after reaching next U-turn/turning stop he will come Rawalpindi. At the time of my statement in hospital police satisfied me that I should take care my son they would definitely arrested the real culprits. At about 12/12:30 p.m doctor of BBH hospital referred my son to DHQ hospital for his operation of head injuries. We shifted Sami Ullah my son of DHQ hospital where my guest Sahib Gul etc and other relative also reached in DHQ hospital where doctor conducted operation of my son and police visited the place of occurrence in the company of Sahib Gul and Nabi-ur -Rehman, Haroon-ur -Rasheed and Zabi Ullah. My son Sami Ullah died in the mid night of 15/16.6.2015. We went to our village for his burial and on 26.6.2015 we came back to Rawalpindi. Police of P.S Airport summon ed us, I alongwith my sons Zabi Ullah and Haroon went to police of PPS Airport. Police recorded my statement and ZabiUllah and Haroon were directed to reach the place of occurrence whereas police went to the place of occurrence on white colour car and after visiting the place of occurrence came back to PPS. I am poor man accused committed cruelty and also committed murder of my son they may be punished in accordance with law . "
4. The accused i.e. the appellant and his co-accused namely Jamil son of Chiri, Naimat son of HanifUllah and Hidayat Ullah son of Hanif Ullah (all since acquitted),were summoned to face trial in the case instituted upon the private complaint titled "Javed Iqbal Vs. Khalil ur Rehman and three others" (relating to FIR No. 615 of 2015 dated 14.06.2015 registered at Police Station Airport, District Rawalpindi ) in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Sami ul Haq son of Javed Iqbal (deceased). The learned trial court framed the charge against the accused on 26.07.2016, to which the appellant pleaded not guilty and claimed trial.
5. The complainant in order to prove its case got statements of as many as four witnesses recorded. The ocular account of the case was furnished by Zabi Ullah (PW-1) Saeed Gul alias Sahab Gul (PW-2) stated that he witnessed the altercation between the appellant and the deceased prior to the murder of the deceased. Haroon ur Rasheed (PW-3) stated that on 15.06.201 5 he was informed about the occurrence by his brother Zabi Ullah (PW-1) and he further stated that on 26.06.2015 , the appellant got recovered a cement block and a piece of brick which were taken into possession by the Investigating. Javed Iqbal (PW-4) made the statement as reproduced in paragraph No. 3 of the judgment. The learned trial court also examined as many as eight witnesses as court witnesses. Khurram Shahzad draftsman (CW-1) prepared the scaled site plan of the place of occurrence (Exh.CA).Mushtaq Hussain Shah 2044/C (CW-2) stated that on 16.06.2015 he escorted the dead body of the deceased for the post mortem examinatio n and also received the last worn cloth of the deceased. Akhtar Mehmood 4251/HC (CW-3) stated that on 15.06.2015 Muhammad Yaqoob, SI (CW-7) handed over to him one sealed parcel said to contain blood-stained cloth and on 16.06.2015 the Investigating Officer handed over to him three sealed phials and he handed all the said parcels to Mazhar Abbas 587/C (CW-8) on 05.7.2015 for their onward transmission to Punjab Forensic Science Agency , Lahore. Muhammad Saeed SI (CW-6) stated that on 15.06.2015 he recorded the formal FIR (Exh. CG).Rana Muhammad Yaqoob, SI (CW-7) investigated the case from 15.06.2015till 10.07.2015, arrested the appellant on 26.06.2015 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
6. The learned trial court also examined Dr. Muhammad Jamal ud Din (CW-5) , who on 15.06.2015 was posted as Medical Officer at Benazir Bhutto Hospita l, Rawalpindi and on the same day examined Sami UlHaq son of Javed Iqbal (then injured later deceased). Dr. Muhammad Jamal ud Din (CW-5) on examining Sami Ul Haq son of Javed Iqbal (then injured later deceased ) observed as under: "Stated that on 15.06.2015, I examined Mr. Sami-ul-Haq son of Javed Iqbal who was brought in the hospital in injured state by Jamil-ur -Reham son of Char -ur-Rehman. Clothes Shalwar Qam eez blood stained. On general physical examination he was confuse/semiconscious Gcs 1 1/15.
Following injuries noted.
1. Marked swelling and echymosos of both eyes with a lacerated wound over the right eye size 2.5cm. Eye consultation please.
2. Swelling of both sides of face.
3. Deformity with depression of left side of mouth and mandible.
4. A lacerated wound measuring 2.5cm over the chin.
5. Swelling of the upper lip.
6. Broken teeth with bleeding from mouth. Dental consultation please.
7. Bleeding from left Ear . ENT consultation.
Referred to surgical unit SU-I for management and expert opinion please. Advise X-ray skull. APPELLANT & LAT.
X-ray facial bones. X-ray chest P/A. X-ray mandible A/P & LA T.
Nature of injury .Kept under observation. Kind of W eapon. Blunt.
Possibility of fabrication. Nil.
Probable duration of injuries. W ithin 10 to 12 hours approximately ."
The learned trial court also examined Dr. Ahmad Ali (CW-4) , who on 16.06.2015 was posted as Medical Officer at DHQ Hospital, Rawalpindi and on the same day conducted the postmortem exami nation of the dead body of Sami ulHaq son of Javed Iqbal (deceased). Dr. Ahmad Ali (CW-4), on examining the dead body of Sami ulHaq son of Javed Iqbal (deceased) observed as under: "It was a dead body of young man wearing white Shalwar , Qameez with postmortem staining and rigor mortis present with injuries as below .
Injuries.
1. A stitched wound about 3cm long on right side of chin with three stiches on it.
2. Stitched wound about 2.5cm long on middle of chin about the injury No.1 with two stitches on it.
3. A stitched wound about 2.5cm long on right eye brow with two stitches on it.
4. A surgical stitched wound U-shaped on left parieto occipital region of skull with 13 stitches on it.
5. Bilateral raccoon' s eye.
6. Swelling of both cheeks more on right side.
7. Depressed left side of face.
REMARKS BY MEDICAL OFFICER.
After conducting the postmortem, I am of the opinion that injuries to the skull (specially at 04) caused severe damage to the brain and its vessel resul ting in his death. However final opinion regarding cause of death will be given after reports of chemical examination.
Probable time that elapsed: 24 hours.
Time between death and postmortem: within six hours."
7. On 08.07.2017 the complainant gave up the witness namely Nabi ur Rehman as being unnecessary and on 25.10.2017, the learned ADPP , on the request of the complainant, gave up the witnesses namely Akbar Ali and Khair ur Rehman as being unnecessary . On 28.10.2017 the learned ADPP closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore regarding detection of poison (Exh.CF) and the report of Punjab Forensic Science Agency , Lahore regarding the examination of the piece of cloth (Exh.CP).
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Khalil-ur- Rehman son of Chiri Rehman 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 had been involved in the case falsely and was innocent. The appellant namely Khalil-ur-Rehman son of Chiri Rehman opted not to get himself examined under section 340(2) Cr .P.C. and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Rawalpindi 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 and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly impro bable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity . The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution has proved its case beyond the shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statement of Zabi Ullah (PW-1) Ullah (PW-1) .The learned Deputy Prosecutor General further argued that the recovery from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly , he prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their able assistance perused the record and evidence recorded during the trial.
13. We have noted with grave concern that when Javed Iqbal (PW-4) , the compl ainant of the case, reported the matter to the police, he only stated that he had received information regarding his son namely Sami ul Haq being injured and he immediately proceeded to Benazir Bhutto Hospital, Rawalpindi, to inquire about his son and there, at the hospital, got recorded his oral statement (Exh.CJ). The oral statement (Exh.CJ) of Javed Iqbal (PW-1) was recorded by Rana Muhammad Yaqoob, SI (CW-7), the Investigating Officer of the case, when the said Rana Muhammad Yaqoob, SI (PW-7) was present at the Benazir Bhutto hospital. On the basis of the said oral statement (Exh. CJ) of Javed Iqbal (PW-4), the formal FIR (Exh.CG) was recorded by Muha mmad Saeed, SI (CW-6) at the police station. The oral statement (Exh.CJ) was recorded at 8.00 p.m on 15.06.2015 and on the basis of the said oral statement (Exh.CJ), the formal FIR (Exh.CG) was recorded on the same day at 8.30 pm. A perusal of the oral statement (Exh.CJ) and the FIR (Exh.CG ) reveals that Javed Iqbal (PW-4) had not mentioned the identity of the source of the information regarding the receiving of injuries by his son namely Sami ul Haq (deceased) and the presence of Sami ul Haq (deceased ) at the Benazir Bhutto Hospital, Rawalpindi in an injured condition.
Subsequently , the name of Zabi Ullah (PW-1) was introduced as an eye witness of the occurrence with the contention that it was Zabi Ullah (PW-1) in whose presence the whole occurrence had taken place and it was Zabi Ullah (PW-1) who had reported the matter to Javed Iqbal (PW-4) at his shop. The said Zabi Ullah (PW-1) was not mentioned as a witness in the oral statem ent (Exh.CJ). The said Zabi Ullah (PW-1) is the son of Javed Iqbal (PW- 4), the complainant of the FIR and brother of the deceased. The prosecution remained unable to explain plausibly the absence of the name of Zabi Ullah (PW-1) as an eye witness of the occurrence in the oral statement (Exh.CJ).
It has been mentioned in the oral statement that Javed Iqbal (PW-4) received information regarding the receiving of injuries by his son Sami Ul Haq (deceased) at the hands of appellant, however , it was not mentioned that this information was given to him by his own son namely Zabi Ullah (PW-1) . While filing the private complaint Javed Iqbal (PW-4) stated that it was his son who came to him at his shop and told him that his other son namely Sami ulHaq (deceased) had been beaten by the appellant and his co-accused. According to Javed Iqbal (PW-4) this information was given to him by Zabi Ullah (PW-1) before the recording of the oral statement (Exh.CJ). There is no reason for not having named Zabi Ullah (PW-1) as an eye witness by Javed Iqbal (PW-4) complainant of the case at the time of recording of oral statement (Exh.CJ) when Javed Iqbal (PW-4) had already met Zabi Ullah (PW-1) at his shop prior to the recording of the said tatement (Exh.CJ). Zabi Ullah (PW-1) stated during the statement before the learned trial court that he left the place of occurrence after the accused had gone from the same and directly went to the shop of Javed Iqbal (PW-4) his father and told him regarding the occurrence and Javed Iqbal (PW-4) then proceeded to the police station and the said witness went to the hospital. It has been repeatedly asserted by Zabi Ullah (PW-1) that prior to recording of the oral statement (Exh.CJ) he had told his father that he had seen the occurrence with his own eyes, however Javed Iqbal (PW-4) still failed to name Zabi Ullah (PW-1) as a witness.
Even otherwise the oral statement (Exh.CJ) was being lodged after proper inquiry and not spontaneously as admitted by Javed Iqbal (PW-4), hence there was no reason for him not to have mentioned the name of Zabi Ullah (PW-1) as an eye witness of the occurr ence. It is noted that this failure of Javed Iqbal (PW-4) complainant in naming Zabi Ullah (PW-1) as a witness in his oral statement (Exh.CJ) has put a gaping hole in the prosecution case. This failure in mentioning Zabi Ullah (PW-1) as an eye witness has resulted in our reaching a conclusion that had Zabi Ullah (PW-1) witnessed the occurrence and reported the same to his father Javed Iqbal (PW-4) prior to the recording of the oral statement (Exh.CJ) then there was no reason for him not to have named Zabi Ullah (PW- 1) as a witness in the same. We have reached an irresistible conclusion that the introduction of Zabi Ullah (PW-1) as an eye witness was an afterthought manipulation to create evidence and the prosecution failed to establish that Zabi Ullah (PW -1) had indeed witnessed the said occurrence in any manner .
14. We have also observed that Zabi Ullah while appearing as PW-1 during cross-examination stated that it was the co-accused of the appellant namely Jamil and Hidayat Ullah (both since acquitted) who brought the police to the place of occurrence prior to the lodgin g of the FIR and it was the police who brought Sami Ul Haq (then injured late deceased) to the Benazir Bhutto Hospital in the company of both Jamil and Hidayat Ullah (both since acquitted), the co-accused of the appellant. Zabi Ullah (PW-1) further stated during cross-examination that at the time of arrival of police he was still present at the place of occurrence however , he pretended to be sleeping and did not report the matter to the police and when the police left the place of occurrence he went to the shop of his father namely Javed Iqbal (PW-4) and told him regarding the occurrence. Zabi Ullah (PW-1) , even after the arrival of the police at the place of occurrence, by his own admission did not find it necessary to report the matter to the police and pretended to have been sleeping during the said visit. This conduct of Zabi Ullah (PW-1) is unnatural and suf ficient to discard his evidence in its entirety .
15. We have also gone through the statement of Dr. Jamal ud Din (CW-5) who stated that the injured was brought to the hospital by Jamil (since acquitted), the co-accused of the appellant. Samiul Haq (deceased), was examined by Dr. Jamal ud Din (CW-5) in an injured condition at the hospital at 9.45 a.m on 15.06.2015. It is noteworthy to mention that oral statement of Javed Iqbal (PW-4) (Exh.CJ) was recorded at 8.00 a.m on 15.06.2015 and the formal FIR (Exh.CG) was recorded at 8.30 a.m, however , as mentioned above, Sami ul Haq (the then injured later deceased) was brought to the hospital at 9.45 a.m according to the medico-legal examination certificate (Exh.CH) as prepared by Dr. Jamal ud Din (CW-5).Rana Muhammad Yaqoob, SI (CW-7), the Investigating Officer of the case, admitted during cross-examination as under:- "It is correct that injured was shifted to the hospital by accused Jamil ur Rehman."
This clearly establishes that had Zabi Ullah (PW-1) narrated the occurrence to Javed Iqbal (PW-4) prior to the recording of oral statement (Exh.CJ) , as suggested by ZabiUllah (PW-1) and if the co-accused of the appellant namely Jamil (since acquitted) had brought the injured to the hospital then there was no reason for him not to have been arrested by the Investigating Officer who had already recorded the oral statement (Exh.CJ) of Javed Iqbal, complainant (PW-4) at 8.00 a.m and the formal FIR (Exh.CG) had also been registered at 8.30 p.m. This also creates an irreconcilable doubt regarding the whole prosecution story .
16 We have also descried that Dr. Muha mmad Jamal Din (CW-5), who examined Sami ul Haq (deceased) in an injured condition on 15.06.2015 at 9.45 a.m, had opined that the probable duration of injuries was within ten to twelve hours approximately . Zabi Ullah (PW-1) during cross-examination stated that he could not tell the time of occurrence, however , Saeed Gul alias Sahab Gull (PW-2) stated that they had remained at the place of occurrence with the accused and the deceased till 6.00 a.m on 15.06.2015 and had left thereafter meaning thereby that the occurrence took place sometime after 6.00 a.m. This timing of the occurrence as determined by the perusal of the statements of the prosecution witnesses is not consistent with what was opined by the Medical Officer namely Dr. Jamal Din (CW-5) who opined that the injured had received the injuries within 10-12 hours of his examination, meaning thereby that the injured had received the injuries at about 9.45 p.m to 11.45 p.m on 14.06.2015 . This totally shatters the prosecution case and contradicts the time of occurrence as deposed by the witnesses. The occurrence does not appear to have taken place at the point of time mentioned by the witnesses .In the aftermath of the above-discussion, we are swayed to hold that time of occurrence as deposed by the prosecution witnesses is not free from uncertainty . Furthermore, the prosecution evidence is silent as to why Sami ul Haq (deceased) was not provided with any medical treatment for as many as 10-12 hours.
17. We have already mentioned that along with the appellant his co accused namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah (all since acquitted) were tried by the learned trial court. The learned trial court acquitted the co-accus ed of the appellant namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah. Javed Iqbal (PW-4) the complainant, filed a petition seeking grant of special leave to appeal from the order ofacquittal of the said co-accused of the appellant bearing Crl. PSLA No. 13 of 2018 titled as "Javed Iqbal Vs. Jamil and three others" and the said application came up for hearing before this Court on 18.12.2018 and the same was dismissed as withdrawn. In this manner the acquittal of the co-accused of the appellant namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah has attained finality . 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 canno t 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 XW, 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 XW 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. .............................................. ..............................................
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 ."
Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. We have scrutinized the statem ent of Zabi Ullah (PW-1), the sole eye witness of the occurrence. Zabi Ullah (PW -1) in his statement before the learned trial court, stated as under: "Hidayat accused sat on the legs of my deceased brother . Jamil accused fastened the hands of my deceased brother . Naimat accused was having a brick in his hand and Khalil was armed with a concrete block. They beated
(sic) my deceased brother with brick and block in result whereof my brother lost his senses."
The perusal of the above-mentioned portion of the statement of Zabi Ullah (PW-1) clearly reveals that according to the said eye witness it was the appellant and his co-accused namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah ( all since acquitted) who all gave beating to Sami Ul Haq (deceased) and no distinction was drawn by the said eye witness with regard to the role of the appellant and his co-accused namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah (all since acquitted) during the occurrence. We are unable to find any independent corroboration of the prosecution case against the appellant and we are unable to distinguish the case of the appellant from the case of acquitted co-accused namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah (all since acquitted) as the prosecution evidence with regard to the appellant namely Khalil ur Rehman and with regard to his co-accused namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah (all since acquitted), is similar . The prosecution examined Zabi Ullah (PW-1) to depose against the appellant namel y Khalil-ur-Rehman and his co- accused namely Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah (all since acquitted). The acquittal of Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah (all since acquitted), the co-accused of the appellant, has attained finality as Javed Iqbal (PW-4), the complainant of the case, preferred to withdraw his petition seeking grant of special leave to appeal against the acquittal of Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah (all since acquitted). Zabi Ullah (PW-1) was adjudged to have deposed falsely against Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah (all since acquitted). We find no reason to believe his statement with regard to the appellant in absence of any reason to do so. This lying on part of the witness with regard to Jamil son of Chiri, Naimat son of Hanif Ullah and Hidayat Ullah son of Hanif Ullah (all since acquitted) has vitiated our trust in him. We are thus satisfied that the evidence of Zabi Ullah (PW -1) has no worth and is to be rejected outright.
18. Learned Deputy Prosecutor General has also relied upon the recovery made from the appellant. The recovery of the cement block (Exh.P-3) from the appellant namely Khalil ur Rehman cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said cement block (Exh.P-3) 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."
Furthermore according to Rana Muhammad Yaqoob, SI (CW-7) , the Investigating Officer of the case, the appellant was arrested on 26.06.2015 and on the same day he led to the recovery of the cement block (P-3) lying underneath an electricity transformer carriage. According to Zabi Ullah (PW-1) the cement block (P-3) was lying under the transformer carrying carriage in view of all and sundry . The prosecution failed to provide evidence that the place of recovery of the cement block (P-3) was in the exclusive possession of the appellant rather according to the witnesses of the recovery the said place was an open place, accessible to the public. Further more, Zabi Ullah (PW-1) did not state in his statement before the learned trial court that the said cement block (P-3) was stained with blood. Moreover , the prosecution did not produce any report of Punjab Forensic Science Agency , Lahore so as to prove that the said cement block (P-3) was stained with human blood.
19. Learned Deputy Prosecutor General has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as mentioned in the oral statement (Exh.CJ) of Javed Iqbal (PW-4) was that an altercation had taken place between the deceased and the appellant on 14.06.2015 in the presence of Saeed Gul alias Sahab Gull (PW-2) and Nabi ur Rehman( not produced). No further details of said motive were mentioned in the oral statement (Exh.CJ). Saeed Gul alias Sahab Gul (PW-2) , the witness of the recovery , was related to the complainant as Javed Iqbal (PW-4) the complainant of the case is the husband of the niece of the said Javed Iqbal (PW-4). Saeed Gul alias Sahab Gull (PW-2) admitted during cross- examination that the quarrel between the appellant and the deceased was not reported to Javed Iqbal, complainant and stated as under:- "With regard to the quarrel no one informed to the owner of go down or complainant."
Furthermore Saeed Gul alias Sahab Gull (PW-2) further stated that the altercation had taken place on the night of 14.06.2015 whereas he left the place of occurrence at 6.00 a.m without their taking place any further altercation between the parties . The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so comp elling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased. There is a haunting silence with regard to the minutiae of motive alleged. 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.
20. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of Khalil ur Rehman son of Chiri Rehman, the appellant, in the present case. It is settled principle of law that for giving the benefit of the 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 Pakist an 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."
21. For what has been discussed above Criminal Appeal No.66-J of 2018 lodged by Khalil ur Rehman son of Chiri Rehman(appellant) is accepted and the conviction and sentence of the appellant awarded by the learned trial court through the impugned judgment dated 02.12.2017 are hereby set-aside. Khalil ur Rehman son of Chiri Rehman (appellant) is ordered to be acquitted. Khalil ur Rehman son of Chiri Rehman (appellant) is directed to be released forthwith if not required in any other case.
22. Murder Reference is answered in Negative and the death sentence of Khalil ur Rehman son of Chiri Rehman is Not Confirmed.