Rizwan Ahmad, Muhammad Arif, Ghulam Qadir and Zafar Iqbal (Petitioners) along with seven others were tried in case FIR No. 22 (Ex-PW) recorded at Police Station Civil Line Mandi Bahauddin on 12.01.2011, under Sections 324/337-A(i)/353/186/148/149 Pakistan Penal Code, (XLV of 1860)
(P.P.C.) on the complaint of Muhammad Abbas (Respondent No. 2) for the allegations of attempting to commit the Qatl-e-Amd of Shahid Iqbal (PW-2). On conclusion of trial vide judgment dated 09.07.2018 passed by learned Judicial Magistrate, Mandi Bahauddin with powers under Section 30 of the Code of Criminal Procedure (Act V of 1898) {Code} all petitioners were convicted and sentenced as under: i. Under Section 337-A, P.P.C. for causing injury to the person of injured Shahid Iqbal to pay Rs.
25000/-by each convict as Daman to the injured Shahid Iqbal. ii. Under Section 337-A, P.P.C. for causing injury to the person of injured Shahid Iqbal to pay Arsh Rs.
1,46,516/- (ten percent of Diyat amount of Rs. 14,65,163/-) by each convict to the injured Shahid Iqbal. iii. Under Section 337-F(vi), P.P.C. for causing injury to the person of injured Shahid Iqbal to pay Rs.
25,000/-by each convict as Daman to the injured Shahid Iqbal. iv. Under Section 337-L(2), P.P.C. for causing injury to the person of injured Shahid Iqbal to pay Rs.
25,000/-by each convict as Daman to the injured Shahid lqbal. v. Under Section 147, P.P.C. to imprisonment for 02 years S.I. and fine of Rs. 20000/-to each convict.
In case of default of payment of fine by any convict, he shall further undergo for 02 months S.I
2. Benefit of Section 382-B of the Code was extended to all the petitioners with direction that their sentences will run concurrently. By way of same judgment Amir Shahzad, Azeeni Samar, Imtiaz Ahmad, and Muhammad Iqbal were acquitted from the charges whereas during trial proceedings Muhammad Iqbal, Muhammad Ansar and Saad Iqbal had disappeared so they were declared as Proclaimed Offenders.
3.Being dissatisfied, petitioners filed a criminal appeal which after modification in sentences was dismissed vide a judgment dated 28.02.2019 passed by learned Sessions Judge, Mandi Bahauddin.
Paragraphs Nos. 21 and 22 of the judgment with regard to modification are as under:- "21. While following the said principle, all the four convicts are liable to pay 1/10th of amount of the Diyat collectively, which is equal to 14,65.1631 and if the same is further divided on four convicts, the same amount comes to the amount liable to pay by each convict is about Rs. 36,630/, Therefore, the conviction under S.337-A-3 of all four accused are modified and they are held liable to pay amount of arsh equal to 1,46,516/ jointly and individually Rs,36,630/-.
22. The learned trial Court had also convicted the appellants under 5.147, P.P.C. As mentioned above the total number of convicts are four and for forming unlawful assembly, at least five persons are required. Therefore, the conviction of the appellants under S.147, P.P.C. is set aside and appellants stand acquitted under 5.147, P.P.C. The remaining findings of learned trial Court shall be kept intact."
4. Through, this criminal revision all petitioners/convicts now have called in question the correctness, legality and propriety of judgments of both the Courts below.
5. Facts of the case are that on 12.01.2011 Muhammad Munawar S.I (PW-7) upon receipt of information of the occurrence arrived at Civil Hospital Mandi Bahauddin where Muhammad Abbas (PW-1) appeared before him who made a statement (PA) and maintained that on that day he along with Ashiq Hussain were proceeding towards Katcheri on a motorbike while following Shahid Iqbal (PW-2), who was a police employee and performing the duty as gunman of Additional Sessions Judge Mandl Bahauddin; when at about 07:30 am they reached near a bridge, there was already present Rizwan Ahmad, Ghulam Qadir, Saad Iqbal, Muhammad Arif, Zafar Iqbal (all armed with Sotas), Muhammad Iqbal and Imtiaz Ahmad (armed with ftre-arm weapons) besides 2/3 unknown persons; all they waylaid Shahid Iqbal; Rizwan Ahmad gave a Sota blow on the forehead of Shahid Iqbal; he was followed by Ghulam Qadir who gave an injury with Sota on the left eye of injured; thereafter, Saad Iqbal inflicted an injury with Sota on the nose of Shahid Iqbal; Muhammad Arif and Zafar Iqbal caused injuries on right hand and left arm respectively on the person of injured; then Ghulam Qadir again gave an injury on the right calf of Shahid Iqbal; Muhammad Iqbal and Imtiaz Ahmad had been raising lalkara.
6. The complaint was sent to police station on the basis of which FIR No. 22, on 12.01.2011, under Sections 324/337-A(i)/337- A(iii)/337-F(ii)(vi)/337-L(2)/ 186/ 109/353/148/149, P.P.C. was recorded by Ameer Hamza ASI (PW-8) at Police Station Civil Line Mandi Bahauddin.
7. Muhammad Abbas (complainant), on 13.01.2011, through a supplementary statement also implicated Azeem Sarwar, Imtiaz, Aamir Shahzad and Ansar Iqbal as accused.
8. On conclusion of investigation report under Section 173 of the Code (Challan) was submitted in Court.
9. On 16.05.2011 a charge under Sections 324/ 337-A(i)/ 337- A(iii)/ 337-F (ii)(vi)/ 337-L(2)/ 186/ 109/ 353/ 148/ 149, P.P.C. was framed against Saad Iqbal, Moazzam Iqbal, Muhammad Arif, Rizwan Ahmad, Azeem Sarwar, Aamir Shehzad and Muhammad Ansar, who pleaded not guilty and demanded their trial. Before the prosecutions' evidence was produced, the learned Magistrate issued the processes against Zafar Iqbal, Ghulam Qadir, Muhammad Iqbal and Imtiaz Ahmad, who were placed in column No. 2 of the Challan. They turned up accordingly and another charge to their extent, on 12.12.2012, under the same penal provisions was framed, which they too pleaded not guilty and demanded their trial.
10. In support of its case prosecution had produced Muhammad Abbas/ complainant (PW-1), Shahid Iqbal/injured (PW-2), Doctor Muhammad Nawaz (PW-3), Kamran Rasheed Constable/ witness to recovery of motorbike etc. (PW-4), Zameer Abbas/witness to memo. of cloths of injured (PW-5), Aurangzeb/ witness to recovery of weapons (PW-6), Muhammad Munawar S.I/Investigating Officer (PW-7) and Ameer Hamza ASI/ author of FIR (PW-8).
11. After the prosecution's evidence was closed, all petitioners and their co-accused were examined under Section 342 of the Code and their common version was that they were involved due to enmity and in fact injured was assaulted by some unknown dacoits.
12. Learned counsel for petitioners contends that both the Courts below had disbelieved the presence of complainant therefore, it was a case of sole injured witness, whose testimony could not be relied upon because of admitted enmity between the parties; there were total nine minor injuries on the person of injured, who was at the mercy of eleven assailants, thus the story appears to be doubtful; Muhammad Iqbal and Imtiaz Ahmad were armed with fire-arm weapons, but not a single fire was made by any of them; recoveries at the instances of petitioners being inconsequential cannot be considered as corroborative pieces of evidence; learned Trial Court and learned Court of appeal did not take pain to appreciate the evidence in a proper manner, therefore, both the judgments require interference by this Court in exercise of its revisional jurisdiction conferred upon under Sections 435/439 of the Code.
13. On the other hand, learned DDPP maintains that presence of Shahid Iqbal, the inured witness because of injuries on his body has been proved, therefore, his statement cannot be disbelieved; injured was shifted to hospital within shortest possible time as he was medically examined at 08:10 am whereas FIR was also registered without any delay that was at about 09:00 am; this Court cannot interfere in the findings of both the learned Courts below in exercise of its revisional jurisdiction because petitioners have failed to show any illegality or irregularity in the proceedings or orders passed by the said Courts.
14. Notice was issued in this revision to complainant, who according to report has died. However, Shahid Iqbal/injured despite service in person has not turned up.
HEARD
15. The learned Trial Magistrate had disbelieved the presence of Muhammad Abbas/complainant (PW-1) due' to the reason that there was no occasion for him to be present at crime scene on the relevant date and time and that, if he was present there, why he did not interfere and why none from eleven accused inflicted any injury to him? The learned Sessions Judge also concurred with these findings of learned Trial Court.
16. So the prosecution in this case is left with the solitary statement of Shahid Iqbal/injured (PW-2).
In this view of the matter, there are following questions before this Court: - i. If conviction can be recorded on the statement of solitary witness? ii. What is the presumption about an injured witness with regard to his presence at crime scene? iii. If presumption of presence is in favour of injured witness, has he the stamp of truth? iv. If sole inimical injured witness can be believed without any independent corroboration?
17. First question that conviction can be recorded on the statement of solitary statement is answered in affirmative. By now it is a settled principle that he can be relied, but certainly subject to fulfillment of criteria on the touchstone of appreciation of evidence. The honorable Supreme Court of Pakistan, in a recent pronouncement "Saleem Zada v. The State and others (2019 SCMR 1309)" while believing the confidence inspiring testimony of sole injured witness was pleased to uphold the sentences.
18. The presumption about presence of injured witness, too, is a settled proposition that his/her presence at place of occurrence cannot be disputed or doubted because of injuries on his body (See: Amin Ali v. The State 2011 SCMR 323).
19. Third question however is very important that despite the fact that presence of an injured witness is established, can he be relied upon? The honorable Supreme Court of Pakistan in "Said Ahmad v. Zammured Hussain (1981 SCMR 795)" taking into consideration similar proposition was pleased to observe as under: It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-, suffered. But that by itself would not show that they had, in view of the aforenoted circumstances, told the truth in the Court about the occurrence"
20. In "Muhammad Hayat v. State (1996 SCMR 1411)" on the same question it was laid down that: "There is no cavil with the proposition that merely because the P.Ws had stamp of fire-arm injuries on their persons was not per se tantamount to a stamp of credence on their testimony."
21. A Similar proposition was considered in "Mehmood Ahmad v. State (1995 SCMR 127)" and was answered as follow: "For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested- and appraised on the principles applied for appreciation of any other prosecution witness."
22. Keeping in view the facts and circumstances of this case, now this Court reverts to the last but most significant question that if the testimony of sole injured inimical witness can be believed without any corroboration? This principle is not absolute that injury on the persons of a witness is an in-built guarantee that whatever he states that is truth and not less than truth. An injured witness loses his evidentiary value, if it is found that he is inimical, interested and responsible for dishonest declaration by involving the persons as accused one after the other. In case of 'Azeem Khan and others v. Zahid Khan and others (2016 SCM R 274)" it was held that "It is a cardinal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or innocence of an accused person.
Even evidence of uninterested witness, not inimical to the accused, may be corrupted deliberately while evidence of inimical witness, if found consistent with the other evidence corroborating it, may be relied upon (emphasized).
23. In the light of above principles, now I proceed to discuss the merits of the case in hand.
24. It is an admitted position that parties were having enmity with each other. In cross-examination Muhammad Abbas (PW-1) replied as under (translated): - "It is correct that various cases between accused and me are pending in Court."
25. Shahid Iqbal (PW-2) in cross-examination also responded as under (translated): "It is correct that parties are having serious enmity; it is correct that when any step is to be taken against accused, all family members make consultations."
26. Record indicates that Shahid Iqbal (PW-2) was having considerable time for consultations and deliberations as his statement was recorded on 15.01.2011, after three days of the occurrence.
Statement of Shahid Iqbal makes it clear that when he was taken to hospital, he was conscious where his relatives and police also arrived. He admitted that till his shifting to Hospital for Lahore, police was there Muhammad Munawar S.I (PW-7), who is the Investigating Officer in his examination-in-chief maintained that on 12.01.2011 he could not record statement of Shahid Iqbal as he was seriously injured and on 15.01.2011 he after seeking permission from doctor recorded his statement under Section 161 of the Code. If, before 15.01.2011, the injured was unfit to make statement for that it was the duty of Investigating Officer to seek an opinion in writing in this regard from Medical Officer. His version about non-fitness of injured is belied by himself when he in, cross- examination, admitted that according to Medico Legal Report the injured was stable. The delayed statement of Shahid Iqbal is strong hurdle in the way of persecution because the Investigating Officer also conceded in cross-examination that there was no application on file showing that before 15.01.2011 he moved any application and doctor declared that Shahid Iqbal was unfit to make statement.
27. During his examination-in-chief Shahid Iqbal also made material improvements to bring his evidence in line with medical evidence. In cross-examination he was duly confronted from his previous statement, and it was found so. It is a settled proposition that no reliance can be made on the testimony of a witness who deliberately introduces improvements in his statement so as to cover the lacunas or to bring his testimony in line with other pieces of evidence. (Sardar Bibi and another v. Munir Ahmad and others (2017 SCMR 344).
28. The dishonest conduct of complainant is evident, when on 13.01.2011 Azeem Sarwar, Imtiaz, Aamir Shahzad and Ansar Iqbal were also involved in this case on the basis of supplementary statement.
Many of the accused were declared innocent during investigation and this fact was also admitted by Shahid Iqbal during the course of cross-examination.
29. The learned Courts below were of the views that statement of Shahid Iqbal was corroborated by medical evidence. There is no dispute on this proposition that medical evidence only describes the nature of injuries, kind of weapons used and duration thereof. It never tells the names of assailants?
Even otherwise on perusal of medical evidence, it can never be said as corroborative. Injured was at the mercy of eleven persons and out of them Muhammad Iqbal and Imtiaz Ahmad were stated to be equipped with fire-arm weapons. According to MLR as a whole there were nine injuries on the person of injured, and most of those were swelling or contused swelling.
30. The sequence of allegations against each accused show that it was a dancing show or it was a stage drama where every character was making his performance and leaving the stage. Rizwan Ahmad gave Sota blow then holy assignment was taken by Ghulam Qadir, who too inflicted a Sota blow on the person of injured. Thereafter, Saad Iqbal came forward standing in queue as he was waiting for his turn and he did his job. This continued one by one in the similar manners. Two persons, who were armed with pistols, it appears, had brought those weapons only as "show- pieces" and for no use as not a single fire was made by any of them.
31. There is unchallenged acquittal of many accused in this case. Principle of "sifting the grain from the chaff' is no more applicable in the Courts of Pakistan as the honorable Supreme Court of Pakistan in its landmark judgment (PLD 2019 (sic) 527) has declared that "Rule falsus in uno, falsus in omnibus" shall henceforth be an integral part of our jurisprudence in criminal cases. The concluding paragraph was as under: "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."
32. Finally coming to the question of exercise of powers under Sections 435/439 of the Code, it is sufficient to say that the High Court has authority, not only suo motu but also on an application of an aggrieved party, to call for and examine the record of any proceedings before any inferior criminal Court and pass appropriate orders. In order to invoke the revisional jurisdiction two conditions precedent constituting jurisdictional facts would require to be fulfilled: first, it should relate to proceedings and second, the said proceedings should be before an inferior criminal Court. (Ali Gohar v. The State PLD 2020 SC 427). This Court under revisional jurisdiction has to examine the record for the purpose of satisfying its conscience to check the correctness, legality or propriety of any findings, sentence or order passed by the Courts subordinate to it. Therefore, the duty casted upon the High Court on its revisional side compels it to reappraise the entire evidence, if it is found that the Courts below did not appreciate the evidence and the decision is on the basis of erroneous findings.
33. In view of discussion made above, the judgments recorded by both the Courts below are not sustainable, therefore, this Criminal Revision is allowed. Judgments dated 09.07.2018 passed by learned Judicial Magistrate and dated 28.02.2019 passed by learned Sessions Judge, Mandi Bahauddin are set aside and all petitioners are acquitted form the case. They are on bail. Their sureties are discharged from terms and conditions of bail bonds.