RAJA SHAHID MAHMOOD 'ABBASI, J.---Through this appeal under section 410, Cr.P.C. Iqbal Hussain appellant has challenged the vires of judgment dated 31.01.2017 handed down by learned Additional Sessions Judge, Ahmad Pur Sial in case FIR No.231 dated 19.09.2015, registered under sections 302, 337A(vi), 337A(ii), 34, P.P.C., at Police Station Ahmad Pur Sial, District Jhang, whereby he was convicted under section 302(b),P .P.C. read with section 459, P.P.C. and sentenced to death for committing Qatl-e-Amd of Sajjad Hussain deceased with direction to pay compensation of Rs.200,000/- (Rupees two hundred thousand only) to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default thereof to further undergo simple imprisonment for six months. He was further convicted under section 324, P.P.C. and sentenced to imprisonment for 07-years with fine of Rs.20,000/- or in default thereof to further undergo simple imprisonment for three months. He was further convicted under section 337A(vi), P.P.C. and sentenced to imprisonment for 07-years with direction to pay Arsh of Rs.840135/- (1/2 of Diyat). He was further convicted under section 337A(ii), P.P.C. and sentenced to imprisonment for 02-years with direction to pay Arsh of Rs.84013/- (5% of Diyat). All the sentences awarded to the appellant were ordered to run concurrently and the benefit of section 382-B, Cr.P.C. was also extended in his favour . However , his co-accused Nazar Husain was acquitted of the charge by extending the benefit of doubt in his favour . On the other hand, learned trial court has sent a Reference under section 374, Cr.P.C. which has been numbered as Murder Reference No.167 of 2017 for confirmation or otherwise of the death sentence passed against the appellant. We propose to decide both these matters together through this single judgment.
2. Briefly stated the facts of the case set forth in FIR (Ex.P A), lodged on the written application (Ex.P A/1) of Syed Jauhar Abbas complainant are that during the intervening night of 15th and 16th September 2015, he along with his father Sajjad Hussain, mother Mst.T asleem Mai and sister Mst.Khazina Mai were sleeping in their house. At about 12:30 a.m. (night) Iqbal Hussain along with an unknown accused, both equipped with hatchets, after scaling over the wall, entered in the house. Iqbal Hussain inflicted three hatchet blows on right side of head above the ear of Sajjad Hussain, due to which he became senseless. Mst.T asleem Mai woke up and unknown accused inflicted hatchet blow on right side of her head whereas Iqbal Hussain inflicted hatchet blow on right side of her forehead, due to which she fell down on the ground. Meanwhile, Mst.Khazina Mai also woke up, who was given hatchet blows by Iqbal Hussain on right side of her forehead and right ear and the unknown accused also inflicted hatchet blow on right side of her head. On the hue and cry of the injured ladies, the complainant, Syed Athar Abbas, Mushtar Abbas and Aoun Abbas who had come as guests and were sleeping outsid e the house woke up and came into the haveli while running and saw the occurrence with their eyes in the light of bulb . They also tried to apprehend the accused, who escaped while brandishing their hatchets.
According to the complainant the accused had committed the occurrence on the backdrop of a grudge that it was an exchange marriage (Wata Sata) marriage of Iqbal Hussain accused with Mst. Khazina Mai injured, but he ousted his better half about one month prior to the incident, but subsequently wante d to rehabilitate her forcibly and on refusal of her father , Iqbal Hussain extended threats to him. Hence, the crime report.
3. After registration of FIR, investigation of the case was entrusted to Ejaz Hussain S.I. (PW16). During investigation, the complainant nominated Nazar Hussain in place of unknown accused. After completion of investigation, the investigating officer submitted report under section 173, Cr.P.C. before the court.
4. The accused, on indictment, pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced sixteen witnesses in all, out of whom, Syed Jauhar Abbas complainant (PW14), Mst.Khazeena Mai (PW1 1), Mst. Tasleem Mai (PW12) and Syed Mushtaher Abbas (PW13) furnishe d eye-witness account and the latter also testified about the recovery of blood stained hatchet from Iqbal Hussain appellant. Ejaz Hussain S I . /1.0. (PW16) testified about various steps taken by him during the investigation of the case. Medical evidence was furnished by lady Dr. Sumaira Arif (PW6) and Dr. Abdul Rahim Khan Ghallu (PW8 ). Lady Dr. Sumaira Arif (PW6), on 16.09.2015, medically examined Mst.T asleem Mai (PW12) vide MLC (Ex.PC) and noted the following injuries:--
1. An incised wound measuring 3 x 1 cm x bone exposed present on right side of head near hair line.
2. An incised wound measuring 2cm x bone exposed present on right side of forehead above right eyebrow .
Both injuries were kept under observa tion and subsequently declared as 337A(ii), P.P.C. Probable duration between injuries was within twenty four hours and weapon used was sharp-edged.
On the same day, Lady Dr. Sumaira Arif (PW6) also medically examined Mst. Khazeena Bibi (PW1 1) vide MLC (Ex.PF) and noted the following injuries:--
1. An incised wound measuring 3 x 1 cm x bone exposed present about 4 cm above right eyebrow .
2. An incised wound measuring 1 cm x 1 cm x bone exposed present just above injury No. 1 .
3. An incised wound measuring 3 cm x 1 cm x bone exposed present on right side close to right ear .
4. Incised wound measuring 3 cm x 1 cm x cartilage deep present on right ear dividing the ear .
Injuries Nos.1, 2 and 3 were kept under observation and injury No.4 was declared as 337A(i), P.P.C. and subsequently injuries Nos.1, 2 and 3 were declared as 337A(vi), P.P.C. Probable duration between injuries was within eight hours and weapon used was sharp-edged.
On the same day, Dr. Abdul Rahim Khan Ghallu (PW8) medically examined Sajjad Husain, in an injured condition, vide MLC (Ex.PM) and noted three incised wounds, duration of which was within two to three hours. Sajjad Hussain could not recover and breathed his last on 19.09.2015 and autopsy on his dead body was also conducted by Dr . Abdul Rahim Khan Ghallu (PW8) vide postmotem report (Ex.PN), who observed the following injuries:--
1. An incised stitched wound 3.5 cm on left side of skull 2 cm above left ear .
2. An incised stitched wound 4 cm on the left side of skull 4 cm above the injury No. 1 .
3. An incised stitched wound 3 cm on the left side of skull 1 cm above the injury No.2.
According to the medical officer, the cause of death in this case was due to injury to vital organ i.e. brain. These injuries individually and collectively were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem and inflicted by sharp weapon. Duration between the injuries and death was 64 to 80 hours and between death and postmortem examination was about 12 to 16 hours.
The remaining prosecution witnesses, more or less, are formal in nature. The prosecution gave up PWs Athar Abbas, Aouon Abbas, Jamshaid Ali and Raees Ali being unnecessary and after tendering in evidence, the reports (Ex.PW and Ex.PX) of the Punjab Forensic Science Agency , closed its evidence.
Thereafter , the accused were examined under section 342, Cr.P.C. whereby they professed their innocence in the matter and denied all the allegations levelled against them. They did not opt to depose within the scope of section 340(2), Cr.P.C. or adduce evidence in their defence. The contention adopted by Iqbal Hussain appellant in reply to the question as to why this case against him and Why the PWs had deposed against him, read as under:-- "The PWs are close relatives due to which they have falsely deposed against me. 1 was residing in Mohallah Jattan Wala Garh Maharaja which is 25 kilometers away from the place of occu rrence. I am alone issue of my parents. When I was four years of age, my father died. My mother feed up me and now she is about 70 years old. I am only hope and support of my old mother . I am a poor man. I am earning my livelihood through running of donkey cart. About 8/9 years ago, I contra cted marriage with Mst.Khazina Mai (PW.11). 1 fulfilled all the reasonable wishes and paid maintenance allowance and household expenses of my wife Mst. Khazina Mia (PW.11). I have a single daughter aged 04 years. Mst. Khazina Mai was in habit of quarreling and used to beat my old mother in my absence from the house. She demanded to left away my old mother and live separately in Mauza Kulachi but I denied because of my old mother . My mother never told me about beating/cruelty by Mst. Khazina Mai. One day, when I came back to my house in the evening time, my wife was beating my mother upon which I forcefully ousted my wife from my house, then she called her mother Mst. Tasleem Mai (PW.12) who apologized upon the acts of her daughter and requested me for rehabilitating Mst. Khazina Mai but I refused to do so. I do not want to rehabilitate Mst.. Khazina Mai in my house again. I verbally divorced her. Mst. Khazina Mai was residing with her parents two years before the alleged occurrence. Syed Jauhar Abbas (PW.14) is real brother Mst. Khazina Mai who is residing in a separate with his wife at a distance of one square from the place of alleged occurrence. So many times, Jauhar Abbas complainant came to my house and tried to rehabilitate Mst. Khazina Mai with me but I refused I did not want to have any kind of relation with this family .
Mst. Khazina Mai and Mst. Taleem Mai are very clever , cunning and fraudulent ladies having immoral character .
Mst. Khazina Mai had illicit relations with so many persons through telephone. She had promised different persons to marry after obtaining divorce from me, thus she looted so many persons through her immoral activities. Before this occurrence, she eloped with one person namely Asif Bhutta who got sent her in Darul Aman, Multan due to fear of registration of criminal case. Jauhar Abbas complainant took back his sister Mst. Khazina Mai from Darul Aman, Multan. After that, so many times, the complainant came to my house and told whole above said story and asked me for written divorce to his sister in the presence of Mujtahid because they belong to Shia sect but I do not want to go anywhere with them. I did not want to have any kind of relation with them. After some days of above said demand, instant occurrence took place. I was sleeping in my house and early in the morning police apprehended me from my house and the police told me about the occurrence of this case which allegedly happened in previous night. The police took me to Police Station Ahmad Pur Sial and confined me in lock-up and after five days instant case was registered against me and one unknown person. I am innocent and I have been involved in this false case due to previous family enmity/ grudge."
The learned trial judge on conclusion of the trial held the appellant guilty of the offence charged and sentenced him as mentioned hereinabove, however , proceeded to acquit his co-accused Nazar Hussain, hence, the instant appeal and connected murder reference.
5. Learned counsel for the appellant emphatically contended that the impugned judgment is against law and facts of the case; that the material available on record does not justify the conviction and sentence awarded to the appellant and the same is not sustainable in the eyes of law; that the appellant has been falsely involved in this case by the complainant; that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt; that the story narrated by the complainant in FIR is false and frivolous; that it was a nighttime occurrence committed by some unknown accused and the appellant was made a scapegoat on account of previous enmity/family grudge; that the statements of the prosecution witnesses are full of contradictions and discrepancies which were not properly appreciated by learned trial court in its true perspective and passed the impugned judgment in hasty manner; that the ocular account in this case has been furnished by interested and highly inimical witnesses; that the medical evidence runs contrary to the ocular account and the recovery of weapon of offence is also fake and plant ed by the police upon the appellant in connivance with the complainant party; that motive also remained far from being proved by the prosecution against the appellant. Learned counsel further argued that Nazar Hussain co-accused of the appellant has been acquitted of the charge by declaring the prosecution witnesses to his extent unworthy of reliance, so in view of recent pronouncement of the Hon'ble Supreme Court, they cannot be relied upon against the appellant, hence, prayed that the appellant may be acquitted of the charge.
6. On the other hand, learned ' Additional Prosecutor General contended that the appellant is nominated in FIR with the attribution of specific role to him and the role attributed to him is borne out from postmortem report of the deceased as well as medico legal certificates of injured ladies; that the prosecution witnesses had no reason to falsely implicate the appellant in this case or to substitute him in lieu of real culprits, which is a rare phenomena and it cannot be imagined that one can involve an innocent person in such a heinous offence by leaving the real culprit; that the medical evidence furnished by the doctor in this regard fully corroborates the ocular account; that during investigation, the weapon of offence was recovered from the appellant and the recovery proceedings were proved through reliable evidence adduced by the recovery witnesses; that the prosecuti on witnesses are consistent on each and every material point and there seem no discrepancies in their statements; that the motive part of the occurrence has also successfully been established by the prosecution before the trial court; that acquittal of co- accused is not fatal in this case; that the prosecution has proved its case against the appellant beyond any reasonable shadow of doubt, thus, the appeal filed by the appellant may be dismissed, his death sentence may be confirmed and murder reference may be answered in af firmative.
7. We have heard the learned counsel for the parties. at length, have given our anxious consideration to their arguments and have scanned the record with their assistance.
8. For reappraisal of evidence, we have taken everything into our consideration in the light of arguments advanced by both the sides. It is cardinal principle of law that each criminal case has its own peculiar facts and circumstances and same hardly coincide with each other on salient features. Undoubtedly it was an unfortunate incident in which an innocent person namely Sajjad Hussain was done to death while his daughter Mst. Khazeena Mai and wife Mst.T asleem Mai sustained injuries during the intervening night of 15th and 16th September 2015 at about 12:30 a.m. but surprisingly the FIR (Ex.P A) was lodged by Syed Jauhar Abbas complainant (PW14) on 19.09.2015 at 12:50 p.m. at Police Station Ahmad Pur Sial, located at a distance of seven kilome ters from the venue of incident, wherein the allegation was levelled against Iqbal Hussain appellant that he along with an unknown accused, while equipped with hatchets, inflicted hatchet blows on the persons of Sajjad Hussain deceased, Mst. Khazeena Mai (PW1 1) and Mst. Tasleem Mai (PW12). It is case of the complainant in the FIR as well as before the learned trial court that he along with five other persons namely Mst.Khazeena Mai (PW1 1), Mst.T asleem Mai (PW12), Syed Mushtaher Abbas (PW13) and PWs Athar Abbas, Aouon Abbas (given up) had witnessed the tragedy with their own eyes, amongst whom the female witnesses along with the deceased, in injured condition, were shifted to the hospital, but neither complainant himself nor Syed Mushtaher Abbas (PW13) and PWs Athar Abbas, Aouon Abbas (given up) bothered to report the incident to the police and get the FIR instantaneously registered. There is an inordinate delay of long three and half days in setting the machinery of law in motion, but the prosecution has not advanced any plausible explanation in this regard and this sole circumstance make s the story incorporated in FIR (Ex.P A) doubtful in nature. There is another interesting aspect of the case that the injured persons were shifted to the hospital and were examined there on the basis of their medical dockets/injury statements (Ex.PD, Ex.PH and Ex.PH) on 16.09.2015, which suggests that the occurrence was in the notice of the police but even then case was not registered. It is worthwhile noticeable that Iqbal Hussain appellant was the husband of Mst.Khazeena Mai (PW1 1), son-in-law of Mst.T asleem Mai (PW12) and brother-in-law of Syed Jauhar Abbas complainant (PW 14) and according to crime report, he had deserted Mst.Khazeena Mai (PW1 1) a month prior to the incident, meaning thereby , previous grudge and malice of complainant party existed against the appellant, so in the given circumstances, chances for deliberations and consultation on the part of the comp lainant party for false implication of the appellant cannot be ruled out.
9. In order to prove its case through direct evidence, the prosecution has heavily relied on the statements of Mst.Khazeena Mai (PW1 1), Mst.T asleem Mai (PW12), Syed Mushtaher Abbas (PW13) and Syed Jauhar Abbas complainant (PW14). A deep analysis of their statements reveals that though Mst.Khazeena Mat (PW1 1) reiterated the story incorporated in FIR (Ex,P A) that the appellant Iqbal Hussain along with co-accused Nazar Hussain, while equipped with hatchets, entered in the house after scaling over the wall and inflicted injuries to her as well as her father Sajjad Hussain deceased and mother Mst.T asleem Mai (PW12) and thereafter Syed Mushtaher Abbas (PW13) and Syed Jauhar Abbas compla inant (PW14) along with other so-called eye-witnesses attracted to the spot, but contrary to the narrations of crime report as well as the statement of Mst.K hazeena Mai (PW1 1), the other witnesses Mst Tasleem Mai (PW12), Syed Mushtaher Abbas (PW 13) and Syed Jauhar Abbas complainant (PW 14) deviated from their earlier version by stating that as soon as the accused treapased into the house, the female witnesses raised hue and-cry upon which the complainant along with male witnesses also attracted to the spot and witnessed the tragedy with their own eyes whereby Iqbal Hussain appellant and his co-accused Nazar Hussain inflicted injuries to the deceased and female witnesses. It appears to us that the above noted majjerial contradiction and crucial improvement was introduced only to establish the presence of Syed Mushtaher Abbas (PW13), Syed Jauhar Abbas complainant (PW14) and given up witnesses namely Athar Abbas and Aouon Abbas at the spot at relevant time. Such an attempt on the part of the prosecution has badly shattered their credence and credibility .
Guidance can be sought from the cases of "laved Iqbal v. State" (2016 SCMR 787) and "Zaheer Sadiq v.
Muhammad ljaz" (2017 SCMR 2007 ). We are mindful of the fact that Mst. Khazeena Mai (PW1 1) and Mst.T asleem Mai (PW12) had sustained injuries during the incident, but those injuries only indicate their presence at the place of occurrence but do not necessarily amount that whatever the injured witnesses had stated was a gospel truth. While holding so, we are fortified our view from the cases of "Muhammad Pervez and another v.
The State " (2007 SCMR 670), "Amin Ali and another v. The State " (2011 SCMR 323) and "Nazar Ahmad v.
Muhammad Iqbal and another" 2011 SCMR 527). As noted hereinabove, the complainant party had serious grudge and malice against the appellant and had also not promptly reported the incident to the police, so there was every possibility that the injured witnesse s may also depose falsely in order to take revenge of previous grudge against him. Even otherwise, all the witnesses had attributed identical role of giving hatchet blows on the persons of injured females to co-accused Nazar Hussain. who was acquitted during the same trial and while pronouncing the judgment of acquittal, they all were held untrustworthy and unreliable witnesses. It may also be observed here that the complainant party has shown satisfaction over the findings of learned trial court regarding acquittal of said co-accused of the appellant by not challenging the same, however , their testimony was partially accepted to the extent of appellant without realizing that independent and strong corroboration from unimpeachable source was required, which is conspicuously missing in this case. Reliance can be placed on the case reported as "Ghulam Sikandar and another v. Mamraz Khan and others" (PLD 1985 SC 11), Iftikhar Hussain v. The State" (2004 SCMR 1185) and "Akhtar All and others v. The State" (2008 SCMR 6) and "Ghulam Mustafa and another v.
State" (2009 SCMR 916), wherein, at page 924, the learned apex Court of the country , has been pleased to hold as under:- ".... In our jurisdiction it is by now well established that the legal maxim falsus in uno falsus in omnibus is not a universal principle to be applied in all criminal cases. However , according to settled case law there are exceptions and if evidence on the record warrants a doubt in the credibility of such witnesses than indeed their testimony regarding another set of co-accused is to be considered with caution and cannot be accepted without strict corroboration from other independent and credible sources. In this connection reference can be made to the case of Muhammad Nawaz v. State (1969 SCMR 132), Shafoo v. State (1968 SCMR 719) and Allah Ditta v. State (PLD 2002 SC 52 )...."
Guidance can also be sought from the pronouncement of the Hon'ble Supreme Court of Pakistan reported as "PLD 2019 Supreme Court 527" wherein it has been held 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 leyer and spirit". Following the dictum of law laid down by the Apex Court of the country in the afore-referred pronouncements, we feel no hesitation to hold that Mst.Khazeena Mai (PW 11), Mst.T asleem Mai (PW12), Syed Mushtaher Abbas (PW13) and Syed Jauhar Abbas complainant (PW14) are untrustworthy and unreliable witnesses and as such conviction and senten ce of the appellant cannot be maintained on the basis of such type of shaky evidence.
10. As far as the medical evidence is concerned, it is well settled by now that the medical evidence may confirm the ocular account with regard to seat, nature and duration of injuries and the kind of I weapon used for causing such injuries but it cannot connect the accused with the commission of crime. In this regard, we are fortified by the judgments passed by the Hon'ble Supreme Court of Pakistan reported as "Muhammad Tasaveer v. Hafiz Zulqurnain and 2 others" (PLD 2009 SC 53), "Mursal Kazmi alias Qamar Shah and another The State" (2009 SCMR 1410 ) and "Ghulam Mustafa and another v. The State' (2009 SCMR 916). In the absence of any trustworthy and confidence inspiring eye-witness account, medical evidence is not at all helpful to the prosecution case.
11. As far as evidence of recovery of blood stained hatchet (P7) at the instance of the appellant and report (Ex.PW) issued by the Punjab Forensic. Science Agency are concerned, we have observed that the said recovery was shown to have been effected from a field of sugarcane and that was testified by Syed Mushtaher Abbas (PW13), who, while appearing in the witness box did not utter a single word to the effect that the appellant had made any disclosure in furtherance thereof he had got recovered the weapon of offence. The recovery of weapon of offence has not been proved by the prosecution beyond the shadow of doubt. Even otherwise, the recovery of hatchet (P7) and the report (Ex.PW) being supportive of direct evidence and not the evidence of charge do not offer any help to the prosecution case in the absence of any trustworthy and confidence inspiring eye-witness account.
12. Now the only evidence left with the prosecution is in the shape of motive set up by Syed Jauhar Abbas complainant (PW14) in FIR (Ex.P A) that the appellant had ousted his wife Mst.Khazeena Mai (PW1 1) a month prior to the occurrence but thereafter he was intending to forcibly rehabilitate her and on refusal of her father , he along with co-accused committed the occurrence. On the other hand, the appellant maintained that his wife Mst.
Khazeena Mai (PW 11) used to beat his old mother , due to which he had divorced her and sent her to the house of her parents, but her in-laws were forcing him to take her back and on refusal, they implicated the appellant in this mysterious incident which had taken place during odd hours of night. Such type of motive is double edge weapon which may cut either side. If it may be the reason for the appellant to commit the occurrence, it is equally a reason for his false implication in-the case.
13. The upshot of our discussion made above is that the prosecution has failed to prove its case against Iqbal Hussain appellant beyond any reasonable shadow of doubt. It is by now well settled law that not many circumstances creating doubt in the prosecution story are required to acquit an accused rather one circumstance creating doubt is enough to extend benefit of same to the accused. It is also golden principle of Islamic jurisprudence that it is better to acquit ten guilty persons than to convict a single innocent person. So by extending the benefit of doubt to Iqbal Hussain appellant, we accept his criminal appeal and acquit him of the charge. He shall be released from the jail forthwith, if not required to be detained in connection with any other case.
14. Murder Reference No.167 of 2017 is answered in negative and death sentence passed by learned trial court against Iqbal Hussain appellant is not confirmed .