The State vs Allah Dewaya etc.

Stereo. H.C. JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No. 09 of 2020 (The State Vs. 1. Allah Diwaya

2.Muhammad Riaz)

Criminal Appeal No. 181 of 2020 (Allah Diwaya and another Vs. The State and another)

JUDGMENT

Date of hearing: 12.12.2022.

Appellants by: Syed Zeeshan Haider, Advocate.

State by: Mr Najeeb Ullah Jatoi, Deputy Prosecutor General.

Complainant by: Mr. Muhammad Umair Mohsin, Advocate.

SADIQ MAHMUD KHURRAM, J. –Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya (convicts), were tried along with Muhammad Mumtaz alias Dhoola son of Allah Ditta, the co-accused of the convicts, by the learned Additional Sessions Judge, Khairpur Tamewali in case F.I.R No. 363 of 2018 dated 14.11.2018 registered at Police Station Khairpur Tamewali District Bahawalpur in respect of offences under sections 302, 337- L(2) and 34 P.P.C. for committing the Qatl-i-Amd of Allah Wisaya son of Khuda Bakhsh (deceased). The learned trial court vide judgment dated 01.09.2020, convicted Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya (convicts) and sentenced them as infra:

Criminal Appeal No. 181 of 2020

Allah Diwaya son of Khuda Bakhsh:

Death under section 302(b) P.P.C. as Tazir for committing Qatl- i-Amd of Allah Wisaya son of Khuda Bakhsh (deceased) and directed to pay Rs.500,000/- as compensation under section 544- A, Cr.P.C. to the legal heirs of the deceased namely Allah Wisaya son of Khuda Bakhsh (deceased) and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

The convict was ordered to be hanged by his neck till dead.

Muhammad Riaz son of Allah Diwaya :

Death under section 302(b) P.P.C. as Tazir for committing Qatl- i-Amd of Allah Wisaya son of Khuda Bakhsh (deceased) and directed to pay Rs.500,000/- as compensation under section 544- A, Cr.P.C. to the legal heirs of the deceased namely Allah Wisaya son of Khuda Bakhsh (deceased) and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

The convict was ordered to be hanged by his neck till dead.

Muhammad Mumtaz alias Dhoola son of Allah Ditta, the co- accused of the convicts, was however acquitted by the learned trial court.

2.Feeling aggrieved, Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya (convicts) lodged Criminal Appeal No.

181 of 2020, assailing their convictions and sentences. The learned trial court submitted Murder Reference No.09 of 2020 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya. We intend to dispose of the Criminal Appeal No. 181 of 2020 and Murder Reference No.09 of 2020 through this single judgment.

Criminal Appeal No. 181 of 2020

3.Precisely, the necessary facts of the prosecution case, as stated by Muhammad Sajjad (PW-1), the complainant of the case, are as under:- “Stated that I reside in Mouza Chaley Wahan with my father, brother and other family members. My father Allah Wasaya (deceased) and uncle Allah Dewaya (accused) inherited the land measuring 4 acres each from their father. Though land is recorded in Joint Khata but we do cultivate such land separately. We both families irrigate our separate pieces of lands through same water course as well as from the tube well of Ahmed Nawaz Nangana.

On 13.11.2018 it was our turn to water our fields which we did accordingly but Allah Dewaya (accused) present in the court along with Muhammad Riaz and Muhammad Mumtaz alias Dhola dismantled water course in order to intentionally cause restriction qua watering our portion of fields. My father AllahWasaya (deceased) did resist but Allah Dewaya (accused) and his companion did not stop themselves and resultantly we were completely failed in watering our fields.

On the very next day i.e. 14.11.2018 in between 11/12 am we saw that Allah Dewaya alongwith his son Muhammad Riaz and Muhammad Mumtaz alias Dhola were repairing the broken water course for watering their fields, My father alongwith me and witness Muhammad Bilal went there and asked them why they are repairing the water course which they have already broken day earlier. Upon this, accused Allah Dewaya who was armed with Sota accused Muhammad Riaz armed with Kassi and accused Muhammad Mumtaz alias Dhola armed with Sota got annoyed and became abusive and rash with us. My father asked them not to do so whereupon Allah Dewaya (accused) present in the court inflicted Sota blow on the top of my father's head. Muhammad Mumtaz alias Dhola present in the court armed with Sota caused (sic) injury on the back of my father with Sota. Muhammad Riaz inflicted Kassi blow from rear side on my father's head. We tried to save the life of my father and step forward whereupon Muhammad Mumtaz alias Dhola (accused) inflicted Sota blow on my head and also gave Sota blow on the right calf of my brother Muhammad Bilal. Meanwhile, Rabnawaz son of Ahmed Bukhsh, Allah Wasaya son of Allah Bukhsh and other people of vicinity attracted at the spot who rescued us from the clutches of the accused. We immediately shifted injured Allah Wasaya in severe injured condition to Civil Hospital Khairpur Tamewali but unfortunately my father did not survive the injuries and died in the way to Hospital. Police reached at hospital and I handed over the written complaint (Exh. P.A.) to him. The police officer took my thumb-impression on the said application as (Exh.PA/1) and also observed my injuries as well as the injuries of my brother Muhammad Bilal. Meanwhile another police officer joined him and prepared our injury statements along with my father's injury statement (deceased). The body of my father was handed over to constable for post mortem examination. The police also visited the place of occurrence. I was also medically examined. Dead body was

Criminal Appeal No. 181 of 2020

handed over to me through receipt Exh. P.B. over which I pasted my thumb-impression as Exh.PB/1.”

4.After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused were sent to face trial. The learned trial court framed the charge against the accused on 27.02.2019, to which the accused pleaded not guilty and claimed trial.

5.The prosecution, in order to prove its case, got statements of as many as twelve witnesses recorded. The ocular account of the case was furnished by prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2). Khalil Ahmad (PW-3) stated that on 14.11.2018, he identified the dead body of the deceased at the time of post mortem examination of the dead body and the Medical Officer handed over the last worn clothes of the deceased to the police officials after post mortem examination. Muhammad Haji (PW-4) stated that on 14.12.2018, the appellant namely Allah Dewaya got recovered the Sota (P-3) and on the same day the appellant namely Muhammad Riaz got recovered the Kassi (P-4) which were taken into possession by the Investigating Officer of the case in his presence. Abdul Jabbar, A.S.I. (PW-6) stated that on 14.11.2018 he got recorded the formal F.I.R (Exh. P.N.). Muhammad Aslam 135/C (PW-7) stated that on 14.11.2018, he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Muhammad Aslam 135/C (PW-7) further stated that on 18.12.2018, four photographs (P-6 to P-9) of the dead body of the deceased were produced before the Investigating Officer of the case by Mazhar Hussain 2104/HC (PW-

Criminal Appeal No. 181 of 2020

10). Azhar Mahmood, Patwari (PW-9) prepared the scaled site plan of the place of occurrence (Exh. P.P.). Ghulam Murtaza, SI (PW-11) stated that on 14.11.2018, he received the written application (Exh. P.A.) of the complainant Muhammad Sajjad (PW-1).Shahzad Sarwar, SI (PW-12), investigated the case from 14.11.2018 till 02.01.2019, arrested the appellants in this case on 03.12.2018 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

6.The prosecution also got Dr. Salman Ahmed (PW-5) examined, who on 14.11.2018 was posted as Medical Officer at the T.H.Q. hospital, Khairpur Tamewali and on the same day conducted the post mortem examination of the dead body of the deceased namely Allah Wisaya son of Khuda Bakhsh. Dr.

Salman Ahmed (PW-5) on conducting the post mortem examination of the dead body of the deceased namely Allah Wisaya son of Khuda Bakhsh observed as under:-

“Description of injuries

Injury No. 1. Swelling and bruise on the parietal area.

Injury No.2. Scratch mark on the right side of scalp.

Injury No.3. Another scratch mark seen on the left side of scalp.

Injury No.4. A bruise and swelling at the right side of the occipital area.

Injury No.5 A scratch on the toe and finger of left foot.

Injury No.6 A 5 x 1 cm bruise seen at left side of back of chest..

FINAL OPINION.

After thoroughly viewing the post mortem findings, I am of the opinion that injury No.1 and 2 are the cause of death which are caused by

Criminal Appeal No. 181 of 2020

a blunt weapon causing the fracture of the skul (sic) bone hematoma formation and concussion to the brain.”

On the same day i.e. 14.11.2018, Dr. Salman Ahmed (PW-5) medically examined the injured namely Muhammad Sajjad (PW-1) and observed as under:-

“Description of injuries:

Injury No. 1. An abrasion of 2 x 0.5 cm on the top of head which is skin deep only.”

On the same day i.e. 14.11.2018, Dr. Salman Ahmed (PW-5) also medically examined the injured namely Muhammad Bilal (PW-2) and observed as under:-

“Description of injuries:

Injury No. 1. A scratch mark on lateral side of right leg.”

7.On 22.11.2019, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Rabnawaz son of Ahmad Bukhsh, Allah Wisaya alias Bhoora, Muhammad Rafique and Dr. Niaz Liaquat as being unnecessary and closed the prosecution evidence after tendering the Rapt No.

17 dated 14.11.2018 of Police Station Khairpur Tamewali (Exh. P.S.).

8.The learned trial court also recorded the statement of Dr. Niaz Liaquat (CW-1) who on 14.11.2018 had examined the appellant namely Allah Diwaya and issued the Medico Legal Examination Certificate (Exh.CW-1/CA).

Criminal Appeal No. 181 of 2020

9.After the closure of prosecution evidence, the learned trial court examined the appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya under section 342 Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, they replied that they had been involved in the case falsely and were innocent. The appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya opted not to get themselves examined under section 340(2) Cr.P.C and did not adduce any evidence in their defence.

10.At the conclusion of the trial, the learned Additional Sessions Judge, Khairpur Tamewali convicted and sentenced the appellants as referred to above.

11.The contention of the learned counsel for the appellants precisely is that the 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 appellants further contended that the story of the prosecution mentioned in the statements of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2), on the face of it, was highly improbable. Learned counsel for the appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellants also argued that the appellants had been involved in the occurrence only on suspicion. The learned counsel for the appellants finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.

Criminal Appeal No. 181 of 2020

12.On the other hand, the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. They further argued that the deceased died as a result of injuries suffered at the hands of the appellants. They further contended that the medical evidence also corroborated the statements of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2).

They further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General and the learned counsel appearing on behalf of the complainant prayed for the rejection of the appeal as lodged by the appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya.

13.We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General, the learned counsel appearing on behalf of the complainant and with their able assistance perused the record and evidence recorded during the trial.

14.No doubt that the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) were injured during the occurrence however the stamp of injuries on the person of a witness may be proof of his presence at the place of occurrence, at the time of occurrence, however the same can never guarantee a truthful deposition. Injuries statedly received by a witness during an incident do not warrant acceptance of his evidence without scrutiny. At the most, such traumas can be taken as an indication of his presence

Criminal Appeal No. 181 of 2020

on the spot, but still his evidence is to be scrutinized on the benchmark of principles laid down for the appraisal of evidence. It is not a given that a witness who suffered injuries during the occurrence will depose nothing but the truth.

Even otherwise, it is not a simple presence of a witness at the crime scene but his credibility, which makes him a reliable witness. It has been held by the august Supreme Court of Pakistan repeatedly that the facts which an injured witness narrates are not to be implicitly accepted rather, they are to be attested and appraised on the principles applied for the appreciation of evidence of any prosecution witness regardless of him being injured or not. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Nazir Ahmad vs. Muhammad Iqbal and another (2011 SCMR 527) where at page 534 the august Supreme Court of Pakistan was pleased to hold as under:

“It is settled law that injuries of P.W. are only indication of his presence at the spot but are not affirmative proof of his credibility and truth”.

Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Amin Ali and another Vs. The State (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to hold that presence of injuries does not stamp a witness to be a truthful one and observed as under :-.

“12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses. It has been held in the case of Said Ahmed supra 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 s h o w that they had, in view of the aforenoted circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye-

Criminal Appeal No. 181 of 2020

witnesses mentioned in the F.I.R. namely, Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eyewitnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused."

In the case of Mehmood Hayat supra at page 1417, it has been observed as under:--

"10. There is no cavil with the proposition laid down in the case of Zaab Din and another v. The State (PLD 1986 Peshawar 188) that merely because the P.Ws. had stamp of firearm injuries on their person was not per se tantamount to a stamp of credence on their testimony."

In the case of Mehmood Ahmed supra, this Court at page 7 observed as under:

"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."

13.From the above evidence of the P. Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence.”

With this principle of appreciation of evidence in our minds that an injured witness can not be presumed to be also a truthful witness, we have proceeded to examine the statements of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2). We find that both the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2), blatantly and dishonestly, proceeded to make improvements in their previous statements, having no regard for truth or deposing truthfully. A careful scrutiny of the statements of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) recorded by the learned trial court reveals that both the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) made

improvements in their previous statements , however, did the same in a very subtle, however, dishonest manner. Both the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2), not only changed the whole inception of the occurrence but also went on to substantially change

Criminal Appeal No. 181 of 2020

their previous versions regarding the details of the occurrence during their statements recorded by the learned trial court. We have noticed that according to the written application (Exh. P.A.) submitted by the prosecution witness namely Muhammad Sajjad (PW-1) and the statement recorded under section 161 of the Code of Criminal Procedure, 1898 (Exh. DA) of Muhammad Bilal (PW-2), on the day of occurrence, the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) along with the deceased had themselves broken the watercourse used by the appellants to irrigate their lands, however, this version was subsequently changed.

According to the written application (Exh. P.A.), the prosecution witness namely Muhammad Sajjad (PW-1) had stated as under:- بجیدن میں اور محمد بالل برادرم میرے والد نے ہللا ڈیوایا11/12 آج قریب کے رقبہ سے کھال پانی گرا دیا کہ اگر تم ہمیں پانی رقبہ کو نہیں لگانے دیتے تو تم بھی اپنے رقبہ کو پانی نہیں لگاؤ گے

In his statement before the learned trial court, the prosecution witness namely Muhammad Sajjad (PW-1), contrary to his written application (Exh. P.A.), stated as under:-

“On the very next day ie. 14.11.2018 in between 11/12 am we saw that Allah Dewaya alongwith his son Muhammad Riaz and Muhammad Mumtaz alias Dhola were repairing the broken water course for watering their fields. My father alongwith me and witness Muhammad Bilal went there and asked them why you are repairing the water course which you have already broken day earlier. Upon this, accused Allah Dewaya who was armed with Sota accused Muhammad Riaz armed with Kassi and accused Muhammad Mumtaz alias Dhola armed with Sota got annoyed and became abusive ”(emphasis supplied)

Criminal Appeal No. 181 of 2020

Observing the said improvement, the prosecution witness namely Muhammad Sajjad (PW-1) was duly confronted with his written application (Exh. P.A.)

during cross examination and the learned trial court observed as under:- “I got incorporated in my complaint Exh. P.A. that on 14.11.2018, I alongwith my brother Bilal and father Allah Wasaya went at the water course and asked the accused today present in the court that why they are repairing the water course which they dismantled one day earlier.

Confronted with Exh. P.A. the said words are not mentioned in the complaint Exh. P.A. clearly. I got recorded in Exh. P.A. that on 14.11.2018 at about 11/12 a.m we saw that Allah Dewaya along with his sons were repairing the broken water course. Confronted with Exh. P.A. where it is not so recorded.”(emphasis supplied).

Similarly, Muhammad Bilal (PW-2) was also duly confronted during cross examination with his previous statement recorded under section 161 of the Code of Criminal Procedure, 1898 (Exh. DA) and the learned trial court observed as under:-

“I got recorded in Exh.DA that on 14.11.2018 at 11/12 noon we saw that Allah Dewaya and his sons Riaz and Mumtaz were repairing the broken water course for watering their fields. Confronted with Exh DA where it is not recorded. I got recorded in Exh.DA that I, my father and my brother Sajjad went to accused persons and asked them as to why they are repairing the water course which they have already broken a day earlier. Confronted with Exh. DA where it is not so recorded. I did not get record in Exh.DA that on the day of occurrence at about 11/12 noon I, Muhammad Sajjad, and my father Allah Wasaya dismantled the water course running in the land of accused Allah Dewaya. Confronted with Exh.DA where it is so recorded I did not get record in Exh.DA that after dismantling the water course by us accused persons present in court arrived

Criminal Appeal No. 181 of 2020

at the place of occurrence. Confronted with Exh.DA where it is so recorded.”(emphasis supplied)

Shahzad Sarwar, SI (PW-12), the Investigating Officer of the case, stated during cross-examination as under:-

“It was the version of witnesses appeared before me that on the day of occurrence complainant party dismantled the water course running in the land of Allah Dewaya accused.

As per my conclusion on 14.11.2018 Allah Wasaya deceased alongwith his sons Sajjad and Bilal dismantled the water course running in the land of accused persons and went to their houses so that the accused persons could not irrigate their lands”(emphasis supplied)

The above referred portions of the cross-examination of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) clearly reflect that the prosecution witnesses namely Muhammad Sajjad (PW-

1)and Muhammad Bilal (PW-2) introduced the above-mentioned blatant improvements in their statements. By improving their previous statements, the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) impeached their own credit. It was also brought on record that the place of occurrence belonged to the appellants. Shahzad Sarwar, SI (PW-

12), the Investigating Officer of the case , admitted during cross-examination as under:-

“ The place of occurrence which is pointed out by P.W.S. was situated in the land owned by Allah Dewaya accused.

Criminal Appeal No. 181 of 2020

As per rough site plan place of occurrence was the land of accused Allah Dewaya.”

It has been now proved on record that the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) could not prove the genesis of the occurrence and in what circumstances and for what purpose the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) as well as the deceased had gone to the place of occurrence, which place belonged to the appellants. Reliance is placed on the case of Raaqat Ali Versus The STATE (2022 SCMR 1107) wherein the august Supreme Court of Pakistan has held as under: -

“Acquittal of identically placed co-accused without challenge is another predicament confronting the prosecution in addition to massive improvements in the statement of the complainant, duly confronted in the witness-box. Argument that occurrence having not taken place in the manner as alleged in the crime report and reality still in the shroud, it would be unsafe to maintain appellant's conviction on a speculative moral ground is an argument, found by us, as difficult to dismiss. There are doubts, more than one, each deducible from prosecution's own evidence, benefit whereof, cannot be withheld. Appeal is allowed; impugned judgment dated 20.02.2017 is set aside; the appellant is acquitted from the charge and shall be released forthwith if not required to be detained.” (emphasis supplied)

15.We have also noted with grave concern that the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) also made blatant improvements in their previous statements in order to bring their statements in line with the medical evidence available on record. In the written application (Exh. P.A.) submitted by Muhammad Sajjad (PW-1) as well as the statement recorded under section 161 of the Code of Criminal Procedure,

Criminal Appeal No. 181 of 2020

1898 (Exh.DA) of Muhammad Bilal (PW-2), it had been got recorded by the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) that the appellant namely Muhammad Riaz was armed with a Kassi and had inflicted repeated blows with the same, landing on the head of Allah Wisaya (deceased) , however, after realizing that Dr.Salman Ahmad (PW-5) , who had conducted the post mortem examination of the dead body of the deceased, had not observed any injuries present on the head of the dead body of the deceased which injuries had been caused by a sharp edged weapon, the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) conveniently went on to change their versions as recorded in the written application (Exh. P.A.) and the statement recorded under section 161 of the Code of Criminal Procedure, 1898 (Exh.DA) of Muhammad Bilal (PW-2) and stated before the learned trial court that the appellant namely Muhammad Riaz had used the blunt side of the Kassi to inflict the injury on the head of the deceased. Not only the above mentioned change was made, but the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2), also went on to claim in their statements before the learned trial court that only one injury had been caused by the appellant namely Muhammad Riaz, whereas in the written application (Exh. P.A.) and the statement recorded under section 161 of the Code of Criminal Procedure, 1898 (Exh.DA) of Muhammad Bilal (PW-2), it had been recorded that the appellant namely Muhammad Riaz had inflicted repeated blows with his Kassi on the head of the deceased. Both the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) were badly exposed during cross-examination for having made these blatant improvements in their statements so as to bring their statements in line with

Criminal Appeal No. 181 of 2020

the opinion and observations of Dr. Salman Ahmad (PW-5). Muhammad Sajjad (PW-1) was duly confronted with his written application (Exh. P.A.)

during cross examination and the learned trial court observed as under:- “I got recorded in my complaint Exh. P.A. that the accused Allah Dewaya gave sota blow to my father at the top of head. Confronted with Exh. P.A.

the word top is not mentioned. I incorporated in Exh. P.A. that accused Muhammad Riaz gave Kassi blow to my father with its rear side.

Confronted with Exh. P.A. where the words "rear side" is not mentioned. In my complaint Exh.PA I did not record that accused Riaz Ahmed gave Kassi blows. Confronted with Exh. P.A. where it is mentioned that accused Riaz gave Kassi blows.” (emphasis supplied) Similarly, Muhammad Bilal (PW-2) was also duly confronted during cross examination with his previous statement recorded under section 161 of the Code of Criminal Procedure, 1898 (Exh.DA) and the learned trial court observed as under:-

“ I got recorded in Exh.DA that Allah Dewaya accused inflicted sota blow on the "Top" of head of my deceased father. Confronted with Exh.DA where word "Top" is not recorded. I got recorded in my statement u/s 161 Cr. P.C. that Riaz accused inflicted kassi blow on the head of my deceased father with its rear side. Confronted with Exh.DA where word "rear side" is not recorded. I got recorded in Exh.DA that Mumtaz accused inflicted sota blow on the top of head of my brother Sajjad. Confronted with Exh.DA where word "Top" is not recorded. ”

Shahzad Sarwar, SI (PW-12) , the Investigating Officer of the case , admitted during cross-examination as under:-

Criminal Appeal No. 181 of 2020

“P.W.s did not depose before me about infliction of Kassi blow by Riaz accused from rear side Volunteered it was stated before me that Kassi blow was inflicted by Riaz accused.”

Article 151 of the Qanun-e-Shahadat Order 1984 provides as under: - “151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:

(1)by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit;

(2)by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence

(3)by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted ;”

As the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) introduced dishonest, blatant and substantial improvements to their previous statements and were duly confronted with their former statements, hence their credit stands impeached and the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) cannot be relied upon on, being proved to have deposed with a slight, intended to mislead the court. The august Supreme Court of Pakistan in the case of “Muhammad Ashraf Vs. State” (2012 SCMR 419) took a serious notice of the improvements introduced by witnesses and rejected their evidence. We, thus, are satisfied that the evidence of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) has no intrinsic worth and is to be rejected outrightly. The august Supreme Court of Pakistan in the case reported as “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

Criminal Appeal No. 181 of 2020

“Once the Court comes to the conclusion that the eye witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence”.

The august Supreme Court of Pakistan in the case reported as Muhammad Arif Vs. The State (2019 SCMR 631) has enunciated the following principle:

“It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge.”

Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of “Amin Ali and another Vs. The State” (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of injured witnesses and held as under:- “11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recovered from wound No.1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body. The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.15 had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. have shown one exit wound as entry wound. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry

Criminal Appeal No. 181 of 2020

wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance. From the above position it is manifest that the ocular testimony is in conflict with the medical evidence. Thus, the deceased and injured did not receive the injuries in the manner, as alleged by the prosecution.

13.From the above evidence of the P. Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence.”

16.We have noted that the medical evidence brought on record was contradictory to the ocular account of the occurrence as narrated by the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2). Both the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) did not explain the presence of as many as three independent injuries present on the body of the deceased namely Allah Wisaya son of Khuda Bakhsh as noted by Dr. Salman Ahmed (PW-5).

According to the statements of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) made before the learned trial court , the deceased had been inflicted three injuries by the accused , two on his head and one on his back, whereas according to the observations of Dr.

Salman Ahmed (PW-5), besides the two injuries on the head and one on the back, the deceased had also suffered from three other injuries out of which two were present on his head, mentioned as injury No.2 and injury No.3 in the Post-Mortem Examination Report (Exh. P.G.) and one on the toe of his left foot, mentioned as injury No.5 in the Post-Mortem Examination Report (Exh.

P.G.). The abject failure of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) to observe and give evidence of

Criminal Appeal No. 181 of 2020

the infliction of injuries No.2,3 and 5 found present on the dead body of the deceased by Dr. Salman Ahmad (PW-5), proves that the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) did not narrate the occurrence with any truth. The contradictions in the ocular account of the occurrence, as narrated by the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) and the medical evidence as furnished by Dr. Salman Ahmed (PW-5) , sound the death knell for the prosecution case against the appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya and proves to be the cause of its sad demise. The prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) were proved not to have deposed truthfully with regard to the appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya . Reliance is placed on the case of “Muhammad Ashraf Vs. The State” ( 2012 S C M R 419) where the august Supreme Court of Pakistan was pleased to hold as under “Both the eye-witnesses are not natural witnesses and they claimed that they had seen the incidence but had failed to explain two injuries caused with blunt weapon on the forehead and below the left eye of the deceased and had only attributed one injury to the appellant at the back of his ear.”

Reliance is also placed on the case of USMAN alias KALOO Vs. The State (2017 S C M R 622) where the august Supreme Court of Pakistan was pleased to hold as under:-

“Some of the above mentioned eye-witnesses had maintained that the deceased had received only one injury at the hands of the appellant but the Post-mortem Examination Report shows that the deceased had received as many as 8 injuries on different parts of his body.”

Criminal Appeal No. 181 of 2020

Reliance is also placed on the case of Muhammad Hussain Vs. The State (2008 S C M R 345) where the august Supreme Court of Pakistan was pleased to hold as under:-

“Only one fire-arm injury was attributed to Muhammad Hussain petitioner but according to the post-mortem report there was another injury on the person of deceased caused with blunt weapon.”

Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of “Amin Ali and another Vs. The State” (2011 SCMR 323) where the august Supreme Court of Pakistan was pleased to reject the evidence of injured witnesses and held as under:- “11. All the three witnesses deposed that the deceased had received three injuries, but the Medical Officer found six injuries on the person of the deceased. One of them had blackening. None of the witnesses deposed that any of the appellants had caused the injuries from a close range but on the contrary in the site plan the place of firing has been shown 8 feet away from the deceased. Thus from such a distance injury with blackening cannot be caused as it can be caused from a distance of less than 3 feet as per Modi's Medical Jurisprudence. The Medical Officer did not show as to which of the injury was entry or exit wound on the person of the deceased. The medical officer stated that metalic projectile was recovered from wound No.1/B which was an exit wound. If it was an exit wound then the metalic projectile would have been out of the body. The presence of metalic projectile in the body clearly establishes the fact that it is not an exit wound but an entry wound. The medical officer has not shown that any of the injuries had inverted or averted margins so as to ascertain as to which of the injuries is entry or exit wound. Thus on this count there is a conflict between the medical and oral evidence. Furthermore, according to Medical Officer, the P.W.15 had four injuries out of them two were entry and two were exit wounds but the P.Ws. 13 and 14 deposed that the injured had received three injuries. Thus the P.Ws. have shown one exit wound as entry wound. With regard to the injured Tanveer Hussain, the Medical Officer showed two injuries one entry wound on the chest and one exit wound on the back but all the three eye-witnesses deposed that

Criminal Appeal No. 181 of 2020

P.W.14 had received two injuries on his chest. As regards injuries on the person of Mst. Maqbool Bibi. The Medical Officer found one entry wound on her back with blackening, whereas P.Ws. 13, 14 and 15 deposed that the fire shot was fired from the roof of the shop. Entry wound with blackening marks cannot be caused from such a long distance. From the above position it is manifest that the ocular testimony is in conflict with the medical evidence. Thus, the deceased and injured did not receive the injuries in the manner, as alleged by the prosecution.

13.From the above evidence of the P. Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence.”

Reliance is also placed on the case of Irfan Ali Vs. The State (2015 S C M R

840)where the august Supreme Court of Pakistan was pleased to hold as under:-

11.The most striking feature of the case is that in the F.I.R. complete photographic narration of the entire tragedy has been given so much so, Muhammad Khan acquitted accused and the appellant were attributed causing specific injuries with the fire shots of 30-bore pistols at the deceased. With such degree of accuracy each and every detail of the incident was given however, it was not due to mental disorientation that the dagger blows inflicted on the deceased found during the autopsy on the dead body, could not be noticed by the complainant. This doubt of reasonable nature and substance would strongly suggest that the complainant and the other eye-witnesses were not present at the spot, otherwise, lodging the report after more than 3 hours and spending 1- 1/2 hour at the spot with the dead body, no room was left for this glaring omission. This omission is very fatal to the prosecution case and it is established that crime was an unwitnessed one”.

Criminal Appeal No. 181 of 2020

17.We have also noted that the facts leading to the registration of the formal F.I.R (Exh. P.N.) could also not be proved and contradictory evidence was brought on record in this regard, diminishing any value which could have been attached to the written application (Exh. P.A.) and the formal F.I.R (Exh.

P.N.). According to the statement of the prosecution witness namely Muhammad Sajjad (PW-1) , he , in an injured condition ,himself proceeded from the place of occurrence along with the deceased to the hospital, however, the deceased died on his way to the hospital and Muhammad Sajjad (PW-1) presented the written application (Exh. P.A.) for the registration of the F.I.R at the hospital himself. According to the prosecution witness namely Ghulam Murtaza, SI (PW-11), he arrived at the T.H.Q., hospital Khairpur Tamewali and received the written application (Exh. P.A.) from Muhammad Sajjad (PW- 1). A perusal of the written application (Exh. P.A.) itself reveals that the same was received at the hospital by Ghulam Murtaza, SI (PW-11) on 14.11.2018 at about 03.55 p.m. On the basis of the said written application (Exh. P.A.) , the formal F.I.R (Exh. P.N.) was recorded at the Police Station by Abdul Jabbar, A.S.I. (PW-6) on 14.11.2018 at 04.25 p.m. What has piqued out concern is the fact that despite the claim of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) that they had accompanied the deceased to the hospital and had also met with Ghulam Murtaza, SI (PW-11) and the injury statements (Exh. P.K. and Exh.PM) prepared by Shahzad Sarwar, SI (PW-12) , the Investigating Officer of the case, and the written application (Exh. P.A.) received at the hospital by Ghulam Murtaza, SI (PW-11) on 14.11.2018 at about 03.55 p.m., however according to the Medico Legal Examination Certificate (Exh. P.J.), Dr. Salman Ahmad (PW-5), had examined the prosecution witness namely Muhammad

Criminal Appeal No. 181 of 2020

Sajjad (PW-1) on 14.11.2018 at 07.15 p.m and according to the Medico Legal Examination Certificate (Exh. P.L.), Dr. Salman Ahmad (PW-5), had examined the prosecution witness namely Muhammad Bilal (PW-2) on 14.11.2018 at 07.10 p.m. Dr. Salman Ahmad (PW-5), also explained during cross-examination that he immediately examined both the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) as and when they appeared before him. In his statement before the learned trial court, Dr. Salman Ahmad (PW-5) stated as under:-

“On the same date, I conducted M.L.C. of injured Muhammad Sajjad son of Allah Wasaya, Caste Randoo, Aged about 28/29 years r/o Chah Hameedan Challaywahin at 7:15 p.m and I observed as under:- On the same date, I conducted M.L.C. of injured Muhammad Bilal son of Allah Wasaya, Caste Randoo, Aged about 17/18 years r/o Chah Hameedan Chailaywahin at 7:10 pm and I observed as under:-

There is no delay on my part in conducting medical examination of Sajjad and Bilal. As soon as Sajjad and Bilal appeared I examined them.”

(emphasis supplied)

The above referred portion of the statement of Dr. Salman Ahmad (PW-5) and the perusal of the Medico Legal Examination Certificates (Exh. P.J. and Exh.

P.L.) reveals that the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) had arrived at the T.H.Q. hospital at 07.05 p.m and 07.10 p.m respectively and the time of their arrival at the hospital was recorded the Medico Legal Examination Certificates (Exh. P.J. and Exh. P.L.),

Criminal Appeal No. 181 of 2020

therefore, the time mentioned as 03.55 p.m of receiving the written application (Exh. P.A.) from the prosecution witness namely Muhammad Sajjad (PW-1) is obviously manipulated, denuding the fact that the written application (Exh.

P.A.) was prepared much later in time and was a bogus and a compromised document. Moreover, Dr.Salman Ahmad (PW-5) also stated that despite having received the dead body at 04.05 p.m, he could not start the post mortem examination as he had to wait for the papers. Dr. Salman Ahmad, (PW-5) during cross-examination stated as under:-

“In between 4:00 pm to 5:30 p.m, 1 remained in wait for completion of police documents. ”

Had the written application (Exh. P.A.) been actually submitted by the prosecution witness namely Muhammad Sajjad (PW-1) at the hospital at 03.55 p.m. then Dr. Salman Ahmad, (PW-5) would not have had to wait for the papers as it had been recorded in the proceedings recorded on the written application (Exh. P.A.) that all the paper work had been completed by 03.55 p.m. During the course of cross-examination, the prosecution witness namely Muhammad Sajjad (PW-1) tried to explain the above mentioned fact by stating that initially, after arriving at the hospital, the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) were not examined by the Medical Officer rather they were subsequently examined, when they had returned to the hospital after their visit to the place of occurrence with the Investigating Officer of the case, however, this claim of Muhammad Sajjad (PW-1) was not supported by Dr. Salman Ahmad (PW-5), who, in no uncertain terms, stated that firstly the dead body of the deceased was received at the hospital at 04.00 p.m and then the injured arrived at the hospital at 07.05 pm and 07.10 p.m. This

Criminal Appeal No. 181 of 2020

also fully sheds away any sanctity which could have been attached to the statements of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2). We have thus reached an irresistible conclusion that the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) did not make honest and truthful statements before the learned trial court.

18.We have already mentioned that along with the appellants their co- accused, namely Muhammad Mumtaz alias Dhoola son of Allah Ditta, since acquitted by the learned trial court, was also tried. The learned trial court acquitted the above mentioned co-accused of the charges. We have queried the learned Deputy Prosecutor General and the learned counsel for the complainant regarding the filing or otherwise of an appeal against the acquittal of the said co-accused, who have stated that the acquittal of Muhammad Mumtaz alias Dhoola son of Allah Ditta, since acquitted by the learned trial court, had attained finality as neither the State nor the complainant or any other aggrieved person had filed an appeal against the acquittal of Muhammad Mumtaz alias Dhoola son of Allah Ditta , the co-accused of the appellants. 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 appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya. 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 repeatedly held that partial truth cannot

Criminal Appeal No. 181 of 2020

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 the whole truth, then his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238- L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles: -

“The Pakistan Penal Code, 1860 (P.P.C.) contains many offences dealing with perjury and giving false testimony. The very fact that there is a whole chapter, numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony were taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan through which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of False Evidence And Offences Against Public Justice", highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments.

Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country. A court of law cannot permit something which the law expressly forbids.

Criminal Appeal No. 181 of 2020

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 statements of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2). The prosecution witness namely Muhammad Sajjad (PW-1) in his statement before the learned trial court, stated as under:- “Muhammad Mumtaz alias Dhola present in the court armed with Sota cuased (sic) injury on the back of my father with Sota. Muhammad Riaz inflicted Kassi blow from rear side on my father's head. We tried to save the life of my father and step forward whereupon Muhammad Mumtaz alias Dhola (accused) inflicted Sota blow on my head and also gave Sota blow on the right calf of my brother Muhammad Bilal.” (emphasis supplied)

The prosecution witness namely Muhammad Bilal (PW-2) in his statement before the learned trial court, stated as under:-

“Muhammad Mumtaz alias Dhola present in the court armed with Sota cuased (sic) injury on the back of my father with Sota. Muhammad Riaz inflicted Kassi blow from rear side on my father's head. We tried to save

Criminal Appeal No. 181 of 2020

the life of my father and step forward whereupon Muhammad Mumtaz alias Dhola (accused) inflicted Sota blow on toe of my brother’s head and also gave Sota blow on the right calf of me.” (emphasis supplied) The perusal of the above-mentioned portions of the statements of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) clearly reveals that according to the said eye witnesses, Muhammad Mumtaz alias Dhoola son of Allah Ditta, the acquitted co-accused of the appellants, not only caused an injury to the deceased but it was him who injured both the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2). We are unable to find any independent corroboration of the prosecution case against the appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya and we are unable to distinguish the case of the appellant from the case of acquitted co-accused namely Muhammad Mumtaz alias Dhoola son of Allah Ditta (since acquitted) as the prosecution evidence with regard to the appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya and regarding their co-accused namely Muhammad Mumtaz alias Dhoola son of Allah Ditta (since acquitted), is similar, being based on the statements of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2). Prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) were adjudged to have deposed falsely against Muhammad Mumtaz alias Dhoola son of Allah Ditta (since acquitted). We find no reason to believe their statements with regard to the appellants in absence of any reason to do so. This lying on the part of the witnesses with regard to Muhammad Mumtaz alias Dhoola son of Allah Ditta (since acquitted) has vitiated our trust in them. We are thus

Criminal Appeal No. 181 of 2020

satisfied that the evidence of the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) has no worth and is to be rejected outright. Both the injured witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) have been disbelieved with regard to their allegations against Muhammad Mumtaz alias Dhoola son of Allah Ditta (since acquitted). A witness who has been disbelieved with regard to his statement about an accused who had injured the said witness cannot be believed with regard to his statement about the other accused. Reliance in this regard is placed on the case of MUNIR AHMED and others the State and others (2019 S C M R 2006) wherein the august Supreme Court of Pakistan has held as under: -

“Loss of precious lives, within a family fold, though on rocks, confirmed by the witnesses including the one with a stamp of injury, notwithstanding, there are certain intriguing aspects, haunting the prosecution, in the totality of circumstances, a hugely large number of assailants, including the unknown, being the most prominent. In the face of indiscriminate firing, a case unambiguously put forth by the prosecution, receipt of single shot by each deceased as well as the injured belies the hypothesis of massive indiscriminate firing by each member of unlawful assembly comprising no less than 26, the unknown included; from amongst the volley of assailants, precision attribution, in an extreme crisis situation, is a feat, beyond human capacity, it sans forensic support as well; quite a few from amongst the array were let off at investigative stage, on the basis of an affidavit sworn by no other than the injured himself; prosecution's dilemma is further compounded by acquittal of four accused, framed through the same set of evidence by the Trial Court; a severer blow came from the High Court that acquitted all others except the petitioners. The petitioners, though distinctly assigned single shot qua the deceased and the injured, nonetheless, are identically placed with those by now, off the hook. Inclusion of the unknown, eight in numbers, if factually correct was certainly not without a purpose; if at all, they were there, the petitioners and other known members of the family had no occasion to carry out the assault without being out of mind. Notwithstanding the magnitude of loss of lives, the totality of circumstances,

Criminal Appeal No. 181 of 2020

unambiguously suggest that the occurrence did not place in the manner as is alleged in the crime report; argument that number of assailants has been hugely exaggerated, as confirmed by the acquittals of the co-accused with somewhat identical roles, though without specific attributions, is not entirely beside the mark and in retrospect calls for caution. It would be unsafe to maintain the convictions. Consequently, Jail Petitions are converted into appeals and allowed; impugned judgment is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case.”

Reliance is also placed on the case of SAFDAR ABBAS and others Versus The STATE and others (2020 S C M R 219) wherein the august Supreme Court of Pakistan has held as under: -

“Petitioners' father, namely, Charagh co-accused is assigned multiple club blows to Muhammad Bukhsh deceased; same is charge against Muzaffar co-accused; remainder of the accused, though assigned no harm to the deceased, nonetheless, are ascribed effective roles to the P.W.s; they are closely related being members of the same clan and in the totality of circumstances given the accusation, their roles cannot be bifurcated without nullifying the entire case. Motive cited in the crime report is non- specific; investigative conclusions were inconsistent with the case set up by the complainant. Recoveries are inconsequential. Complainant abandoned his case against the acquitted co-accused after failure of his petition seeking leave to appeal in the High Court. In this backdrop, no intelligible or objective distinction can be drawn to hold the petitioners guilty of the charge in isolation with their co-accused. Prosecution evidence, substantially found flawed, it would be unsafe to maintain the conviction without potential risk of error. Criminal Petition No.955-L/2016 is converted into appeal and allowed, impugned judgment is set aside, the petitioners/appellants shall be released forthwith, if not required to be detained in any other case.”

Reliance is also placed on the case of “Muhammad Ilyas and another Versus Ameer Ali and another” (2020 S C M R 305) wherein the august Supreme Court of Pakistan has held as under: -

“8. It is crystal clear that the case of the prosecution, against the appellant and his co-accused/co-convict Shahbaz to the extent of murder of Ijaz Ahmed (deceased) was on the same pedestal. At the cost of reiteration, it has been observed by us that significantly one injury was attributed to the appellant on the chest of Ijaz Ahmed, whereas two injuries were attributed to Shahbaz on the chest and neck of deceased and as per

Criminal Appeal No. 181 of 2020

doctor all the three injuries contributed towards the death of Ijaz Ahmed. Since the prosecution failed to bring on record any strong and independent corroboration to distinguish the case of appellant from that of his co- accused Shahbaz, therefore, in the circumstances of the case, it can safely be held that case of prosecution against the appellant for the murder of Ijaz Ahmed (deceased) is not proved beyond reasonable doubt.”

19.The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the recovery of the Soti (P-3) from the appellant namely Allah Diwaya and the recovery of Kassi (P-4) from the appellant namely Muhammad Riaz and have submitted that the said recoveries from the appellants offered sufficient corroboration of the ocular account of the occurrence as furnished by the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2).The recovery of the Soti (P-3) from the appellant namely Allah Diwaya and the recovery of Kassi (P-4) from the appellant namely Muhammad Riaz cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the Soti (P-3) from the appellant namely Allah Diwaya and the recovery of Kassi (P-4) from the appellant namely Muhammad Riaz, which action of his was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898 and therefore the evidence of the recoveries cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The provisions of section 103 Code of Criminal Procedure, 1898 , unfortunately, are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:- "103.--(1) Before making a search. under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness

Criminal Appeal No. 181 of 2020

the search and may issue an order in writing to them or any of them so to do.

Therefore the evidence of the recovery of the Soti (P-3) from the appellant namely Allah Diwaya and the recovery of Kassi (P-4) from the appellant namely Muhammad Riaz cannot be used as incriminating evidence against the appellants, being evidence which was obtained through illegal means and 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.”

Moreover, it is also an admitted part of the prosecution case that the recovered Soti (P-3) and Kassi (P-4) were never sent for analysis to the Punjab Forensic Science Agency, Lahore. No fingerprints were lifted and preserved from the recovered Soti (P-3) and Kassi (P-4), which could have offered evidence that the appellants had handled the said weapons. In this manner, the recovery of the Soti (P-3) from the appellant namely Allah Diwaya and the recovery of Kassi (P-4) from the appellant namely Muhammad Riaz could not be proved and cannot be considered as a relevant fact for proving any fact in issue.

20.The learned Deputy Prosecutor General and the learned counsel for the complainant, have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive behind the occurrence of this case, as stated by the prosecution witness namely Muhammad Sajjad (PW-1), in his written application (Exh. P.A.) was that one day prior to the occurrence,

Criminal Appeal No. 181 of 2020

the accused had not let the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) and the deceased water their land, therefore, on the day of occurrence, the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) and the deceased then damaged the watercourse through which the land of the accused was being irrigated, however, as mentioned above, both the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) changed their version with regard to the events which took place on the day of occurrence and claimed in their statements recorded by the learned trial court that they had not damaged the watercourse rather the same had been damaged by the accused one day prior to the occurrence. As has been discussed above, both the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) were duly confronted with their previous statements. Moreover, it was also brought on record that the prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) made dishonest and blatant improvements in their statements with regard to the events which happened on 13.11.2018, one day prior to the occurrence, which resulted in the happening of the occurrence. Observing the said improvement, the prosecution witness namely Muhammad Sajjad (PW-1) was duly confronted with his written application (Exh. P.A.) during cross- examination and the learned trial court observed as under:- “In complaint Exh.PA I have incorporated the names of Muhammad Riaz and Muhammad Mumtaz in dismantling the water course. Confronted with Exh. P.A. the names of Muhammad Riaz and Muhammad Mumtaz are not mentioned in Exh. P.A. that they dismantled the water course of complainant party.”

Criminal Appeal No. 181 of 2020

Similarly, Muhammad Bilal (PW-2) was also duly confronted during cross- examination with his previous statement recorded under section 161 of the Code of Criminal Procedure, 1898 (Exh.DA) and the learned trial court observed as under:-

“I got recorded in my statement before the 10 that we as well as accused persons used to irrigate our separate piece of land through same water course as well as from tube well of Ahmed Nawaz Nungana. Confronted with Exh.

P.A. where it is not recorded. I did not get record my statement before this court that on 13.11.2018 it was our turn of water which we did accordingly. Volunteered rather accused persons did not allow us to irrigate- our land. I got recorded in my statement u/s 161 Cr.P.C Exh.DA that Muhammad Riaz and Mumtaz also participated in dismantling the water course on 13.11.2018. Confronted with Exh.DA where the names of the accused except Allah Dewaya are not mentioned. I got recorded in Exh.DA that on 13.11.2018 we completely failed in watering our field.

Confronted with Exh.DA where it is not so recorded however it is mentioned that on 13.11.2018 the khall which was irrigating land of complainant party was dismantled.” (emphasis supplied)

Moreover, Shahzad Sarwar, SI (PW-12), the Investigating Officer of the case, admitted during cross-examination that he did not mention, in the inspection note as well as site plan of the place of occurrence prepared by him, any place where a watercourse had been damaged by the accused and also admitted that he did not even collect any documentary evidence with regard to the fact that on 13.11.2018 and 14.11.2018 which party had the turn of watering their lands. Shahzad Sarwar, SI (PW-12), the Investigating Officer of the case, admitted during cross-examination, as under:-

Criminal Appeal No. 181 of 2020

“As per rough site plan place of occurrence was the land of accused Allah Dewaya. It is correct that in inspection note as well as in rough site plan no point was mentioned by me from where allegedly accused persons dismantled the water course of complainant party. I did not record the statement of any witness in hospital. During investigation I did not collect any proof of ownership of land of complainant party. During my investigation I did not collect any proof of wara bandi of the water course. I did not collect any proof of any land owned by complainant party.

Through out my investigation no evidence of any previous enmity between the parties was produced before me. ” (emphasis supplied) The above referred portions of the statements of the prosecution witnesses clearly prove that 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 compelling that it could have led the appellants, namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya to have committed the Qatl-i-Amd of the deceased. There are haunting contradictions with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Moreover, it is an admitted rule of appreciation of evidence that motive is only a corroborative piece of evidence and if the ocular account is found to be unreliable, then motive alone cannot be made the basis of conviction. Even otherwise, 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.”

Criminal Appeal No. 181 of 2020

21.Learned Deputy Prosecutor General and learned counsel for the complainant have also laid much stress upon the stance taken by the learned counsel representing the appellants, namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya during the cross- examination of prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2). It was suggested by the learned counsel representing the appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya to prosecution witnesses namely Muhammad Sajjad (PW-1) and Muhammad Bilal (PW-2) that they and the deceased had attacked the appellant namely Allah Diwaya and during that attack, the deceased also suffered injuries at the hands of the prosecution witness namely Muhammad Sajjad (PW-1) due to which he died.

Furthermore, the learned Deputy Prosecutor General has referred to the statement of Dr. Niaz Liaquat (CW-1) who on 14.11.2018 had examined the appellant namely Allah Diwaya. Dr. Niaz Liaquat (CW-1) had examined the appellant namely Allah Diwaya on 14.11.2018 at 01.10 p.m and while recording the history of the incident as narrated by the appellant namely Allah Diwaya to the Medical Officer, Dr. Niaz Liaquat (CW-1) recorded that according to Allah Diwaya, he had suffered the injuries during a fight on 14.11.2018 at 10.00 a.m. Obviously, according to the prosecution evidence, the occurrence in which Allah Wisaya (deceased) lost his life took place on 14.11.2018, between 11.00 a.m-12.00 p.m, therefore, no presumption can be drawn that the appellant namely Allah Diwaya must have been injured during the occurrence in which Allah Wisaya (deceased) lost his life. The suggestions

Criminal Appeal No. 181 of 2020

as put by the learned counsel representing the accused and the statement of Dr. Niaz Liaquat (CW-1) hardly provide any substantiation to the prosecution case. Suffice it to observe that the onus to prove the facts in issue never shifts and always lies on the prosecution. That the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. Reliance is placed on the case of Azhar Iqbal Vs. The State (2013 SCMR 383) wherein the august Supreme Court of Pakistan has held as under:-

“It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR 1139). The law is equally settled that the statement of an accused person recorded under section 342, Cr.P.C. is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad Tashfeen and others v. The State and others (2006 SCMR 577) and Faqir Muhammad and another v. The State (PLD 2011 SC 796). It is unfortunate that the Lahore High Court, Lahore had failed to apply the said settled law to the facts of the case in hand.”

22.Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of the appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya in the present case. It is a 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

Criminal Appeal No. 181 of 2020

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 Akramv.The State (2009 SCMR 230) and Muhammad Zamanv.The State (2014 SCMR 749).”

Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah Vs. the State (2021 S C M R 736) in which it has been observed as infra:

“9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the the earlier judgments of We have categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being

Criminal Appeal No. 181 of 2020

doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused.”

23.For what has been discussed above Criminal Appeal No.181 of 2020 lodged by the appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya is allowed and the convictions and sentences of the appellants awarded by the learned trial court through the impugned judgment dated 01.09.2020 are hereby set-aside. The appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya are ordered to be acquitted by extending them the benefit of the doubt. The appellants namely Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya are in custody and are directed to be released forthwith if not required in any other case.

24.Murder Reference No.09 of 2020 is answered in Negative and the sentences of death awarded to Allah Diwaya son of Khuda Bakhsh and Muhammad Riaz son of Allah Diwaya are Not Confirmed.

(MUHAMMAD TARIQ NADEEM) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel

APPROVED FOR REPORTING.

JUDGE JUDGE