Complainant Fakhar Waheed has filed this private complaint against the above named accused persons/respondents, contending therein that on 03.05.2013 at about 9.00 P.M he left the house of his sister to proceed to his own home alongwith his sister Mst. Rasheeda Bibi, his wife Mst. Nargus Perveen, his other sister Bashiran Bibi. His son Zeshan Waheed and his daughter Kehkshan were also with him. That he was walking by holding the hand of his son Zeshan Waheed and his daughter Kehkshan. The moment he reached in street “Sher Shah” electric bulb was lit and all of sudden accused Muhammad Hussain Azad alias Baghi equipped with pistol 30-bore, Munir Ahmad, Muhammad Ahmad and Jehanzab alongwith two unknown persons appeared at the site of occurrence and the accused Munir Ahmad, Muhammad Ahmad etc raised Lalkara to kill Fakhar Waheed (complainant) and the accused Muhammad Hussain made a fire from his pistol 30 bore and They all rushed to save their life and fire hit on right thigh of his daughter Kehkshan. The remaining accused started aerial firing and fled away from the site of occurrence. The complainant and eye witnesses witnessed the occurrence and raised hue and cry and people from the locality gathered there and shifted the injured to Hospital but she succumbed to the injuries.
2 Motive behind the occurrence has been stated the dispute of money and previous litigation between the parties.
3 After lodging the FIR local police thoroughly investigated the matter and after collecting evidence, placed the names of accused persons Muhammad Hussain, Munir Ahmad, Muhammad Ahmad and Jehanzaib in column No.2 and submitted report under section 173 Cr.P.C. Being dissatisfied with the defective investigation of the local police complainant has filed this private complaint.
4 After completing all the due legal formalities, the above mentioned four accused persons were summoned to face the trial in this private complaint and then in due course they were supplied copies of relevant documents as required under section 265-C Cr.P.C and were charge sheeted under section 302, 148, 149 PPC. All the accused persons denied the charge and opted to contest the case, whereupon prosecution evidence was summoned. Prosecution produced following witnesses:-
PW.1: Fakhar Waheed, complainant.
PW.2: Mst. Nargus Perveen, eye witness.
PW.3: Dr. Faiza WMO. She conducted postmortem examination of Kehkshan deceased.
5 The witnesses mentioned in calendar of State case titled State VS Muhammad Hussain etc FIR No.242/2013 u/s 302, 148, 149 PPC, P.S. Basirpur were summoned as court witnesses:-
6 CW.1 Sardar Ali ASI. He drafted formal FIR Ex.P.A/1 on the basis of complaint/written application Ex.P.A, of Fakhar Waheed complainant.
7 CW.2 Farooq Ahmad Draftsman. He prepared scaled site plans Ex.CW.2/.A and Ex.CW.2/B.
8 CW.3 Muhammad Ikran SI. He is I.O. of this case.
9 CW.4 Muhammad Azam 1637/C. He escorted dead body of Kehkshan deceased to DHQ Hospital Okara for postmortem examination.
10 CW.5 Ghulam Murtaza 1447/C. He took sealed parcel said to contain blood stained earth from Police station Basirpur to office of PFSA Lahore.
11 CW.6 Sajjad Hussain 1000/H.C. He being Moharrer of the P.S. Basirpur kept sealed parcel in Malkhana in safe custody.
12. Learned DDPP for the State and complainant, vide their respective statements dated 18.12.2018 tendered report of Chemical analysis as Ex.P.G and closed prosecution evidence.
13 Statements of accused persons were recorded under section 342 Cr.P.C by putting all the prosecution evidence to them, to which they controverted. In reply o the question “why this case against you and why the PWs have deposed against you accused Muhammad Hussain stated:-
“Complainant Fakhar Waheed set up a false case against me and my co-accused due to previous enmity and with his ulterior motive against us. According to the evidence of Fakhar Waheed PW.1 he confirmed that I had got lodged a case FIR No.362/2011 under section 420, 468, 471 PPC at Police Station Basirpur, against Fakhar Waheed complainant, his wife Nargus Bibi PW.2, his brother in law Naeem and mother in law Mst. Khairan Bibi, in which Fakhar Waheed complainant was challaned and later on a compromise was effected between us. I have also got lodged a case FIR No.295/2011 under section 489-F PPC at Police Station Basirpur regarding amount of Rs.400,000/-. In which Fakhar Waheed complainant was challaned and sent to judicial lock up. I had also filed suit for recovery titled Mohammad Hussain Azad VS Fakhar Waheed, which was subsequently decreed in my favour and after dismissal of the appeal of complainant, I received decreetal amount after filing the execution. My father Munir Ahmad is an old man and an infirm person who used to prosecute my cases instituted against Fakhar Waheed complainant of this case. Fakhar Waheed complainant was released from central Jail Sahiwal after effecting compromise with me and my co-accused Mohammad Ahmad. The compromise was effected between me, my co-accused Muhammad Ahmad with the intervention of respectable of the vicinity. A huge amount was due against Fakhar Waheed complainant and due date for payment was coming in near future when the present occurrence took place. I have no motive or any reason to commit murder of Fakhar Waheed or his daughter Kehkashan deceased. Complainant Fakhar Waheed falsely implicated me and my father Munir Ahmad and other accused persons due to previous enmity. I am innocent.”
Whereas accused Munir Ahmad rely on the answer of this question, given by Muhammad Hussain co-accused.
Accused Muhammad Ahmad stated:-
“Fakhar Waheed complainant falsely implicated me due to previous enmity. I got registered a case FIR No.273/2011 u/s 406 PPC Police Station Basirpur, for misappropriation of amount of Rs.42,00,000/- in which Fakhar Waheed complainant was challaned. Due to previous enmity Fakhar Waheed settled a false motive and false case against me and my co-accused. During the course of investigation carried out by different police officials the stance of complainant was found false and I was found as not involved in the occurrence. I have no reason to participate in the occurrence as stated by complainant himself. I am innocent.”
Accused Jehanzaib stated:-
“Fakhar Waheed complainant falsely implicated me due to previous enmity. According to the evidence of Fakhar Waheed complainant he was firstly married with one Amber Sharaf Rana, resident of Pakpattan and the said marriage was dissolved. The first wife of complainant Fakhar Waheed filed a suit for recovery of dowry articles amount to Rs.300,000/- at Pakpattan and the said suit was decreed in her favour. The said Amber Sharaf Rana contracted second marriage with me and I used to pursue the case filed by Mst. Ambar Sharaf Rana, against Fakhar Waheed complainant for recovery of dowry articles. Due to this grudge and enmity Fakhar Waheed implicated e in this case. I am innocent.
14 Accused Muhammad Munir did not opt to produce any evidence in his defence. Whereas Accused Muhammad Ahmad produced attested copy of civil suit titled Nargus Perveen VS Fakhar Waheed Ex.D.C alongwith attested copy of application to become party u/s 1 Rule 10 of CPC Ex.D.C/1, attested copy of list of cases against Fakhar Waheed complainant Ex.D.D, attested copy of FIR No.303/2011 u/s 489-F PPC Police Station Basirpur as Ex.D.E, attested copy of FIR No.302/2011 u/s 489-F PPC Police Station Basirpur as Ex.D.F, attested copy of FIR No.298/2011 u/s 489-F PPC Police Station Basirpur as Ex.D.G, attested copy of FIR No.299/2011 u/s 489-F PPC Police Station Basirpur as Ex.D.H, attested copy of FIR No.297/2011 u/s 489-F PPC Police Station Basirpur as Ex.D.I, attested copy of FIR No.296/2011 u/s 489-F PPC Police Station Basirpur as Ex.D.J, attested copy of FIR No.273/2011 u/s 406 PPC Police Station Basirpur as Ex.D.K, attested copy of FIR No.295/2011 u/s 489-F PPC Police Station Basirpur as Ex.D.L, attested copy of FIR No.362/2012 u/s 420, 468, 471 PPC Police Station Basirpur as Ex.D.M, attested copy of petition u/s 22-A & 22-B Cr.P.C titled Haji Ghulam Murtaza VS SHO and Muhammad Ahmad etc as Ex.D.N and attested copy of order dated 30.01.2016 Ex.D.N/1.
15 Accused Jehanzaib produced attested copy of application for execution of decree Ex.D.O, filed by Mst. Umber Sharaf Rana D/o Haji Sharaf Din, tiled Mst. Umber Sharaf Rana VS Fakhar Waheed, for recovery of Rs.300,000/- and closed his defence evidence.
16 Accused Muhammad Hussain Azad produced certified copy of civil suit titled Muhammad Hussain VS Fakhar Waheed for recovery of Rs.4,03,300/- filed under Order 37 Rule 1 & 2 CPC alongwith attested copy of Judgment Ex.D.B/1, attested copy of execution Ex.D.B/2 and closed his evidence.
17 None of the accused persons opted to appear to make statement on oath, as required under section 340(2) Cr.P.C to disprove the allegations.
18 Learned defence counsel has argued that prosecution has miserably failed to prove the charge against the accused, present in court, beyond shadow of any doubt. There are notable and glairing contradictions in FIR and private complaint. Similarly there are notable and fatal contradictions in the statements of PWs. Medical evidence does not corroborate, rather it negates the prosecution stance ruthlessly and makes the case highly doubtful. After thorough investigation investigating agency has declared the accused innocent twicely and the complainant has not challenged that investigation except to file this private complaint. Prosecution story is simply illogical and un-believable in the peculiar circumstances of this case. Mensrea has been alleged to have against the minor deceased and when there is no mensrea it altogether change the nature of the offence and once again re-iterated that prosecution has badly failed to prove the charge against the accused, present in court, beyond shadow of any doubt and prayed for to acquit all the accused from this false charge.
19 On the other hand learned counsel for complainant has argued that prosecution has successfully proved the charge against the accused, present in court, beyond shadow of any doubt. All the PWs remained quite consistent on all the material points and there is no fatal or notable contradiction in the statements of PWs and minor slips and contradictions are of no importance and shall not affect the prosecution case. All the PWs are natural witnesses and their presence at the site of occurrence is natural and plausible because all they are related inter-se and their presence at the site of occurrence is natural one in ordinary routine. He has further stressed that date, place and time of occurrence has not been challenged by the defence and medical evidence fully corroborates the prosecution stance and if there is any minor contradiction that is of no avail especially in presence of natural and strong ocular account. Previous litigation and animosity between the parties is admitted fact and motive set by prosecution has successfully been proved rather it has been admitted. He has once again highlighted that prosecution has successfully proved the charge against the accused beyond shadow of any doubt and prayed for to convict all the accused and send them to gallows.
20 I have heard arguments of learned counsel for the parties at length and perused the record with their able assistance.
21 The complainant has alleged that above named accused launched the murderous assault on him with the intention to kill him due to dispute of money and previous litigation between the parties but he luckily survived and fire hit his minor daughter Kehkshan and she succumbed to the injuries. The details of his allegations given in his private complaint Ex.P.B, have been reproduced above in Para No.1 of this Judgment.
He himself appeared in witness box as PW.1 and almost re-iterated the facts and allegation narrated in his private complaint Ex.P.B and his wife Nargus Perveen appeared as PW.2 and spoke in line with the complainant. As per complainant own version contained in Ex.P.B only the accused Muhammad Hussain Azad was equipped with pistol 30 bore and he made only one fire. For convenience, clarity and ready reference relevant portion is being reproduced as under:-
22 Whereas in his statement as PW.1 he has improved his stance containing in Ex. P.A and Ex.P.A/1 and has stated that:-
Munir Ahmad, Muhammad Ahmad etc raised Lalkara that Fakhar Waheed be murdered. Upon which Muhammad Hussain Azad alias Baghi made fire shot with his pistol, we ran to save our life and I fell on the ground, and fire hit on right thigh of my daughter Kehkashan who was on my right side.”
Same stance has been taken by PW.2 while recording her examination in chief.
23 Now, first of all, as per version of the complainant only Muhammad Hussain Azad was equipped with pistol 30-bore and he made only one fire which hit his minor daughter. The repetition of fire has not even been alleged by the complainant.
As per Ex.P.A and Ex.P.A/1 unknown persons started aerial firing and succeeded to escape whereas according to Ex.P.B and statement of PW.1 and PW.2 it has been stated that accused started aerial firing and succeeded to escape.
Secondly there are clear contradictions in his stance contained in Ex.P.A, Ex.P.A/1, Ex.P.B and his statement as PW.1. In Ex.P.A and Ex.P.A/1 (FIR) there is no mention that he fell on the ground, whereas in Ex.P.B and in his statement as PW.1 he has improved his version.
Similarly in Ex.P.A and Ex.P.A/1 he has stated that fire hit his minor daughter on the lower part of her belly whereas in Ex.P.B and in his statement as PW.1, he has stated that fire hit on her right thigh.
During cross of examination he has been confronted with all the above mentioned contradictions.
Similarly PW.2 Nargus Perveen has also been confronted with her statement under section 161 Cr.P.C Ex.D.A and above mentioned contradictions are found there.
Previous litigation and disputes between the parties is admitted factor and during his cross examination the complainant has clearly and categorically admitted that accused Mohammad Ahmad Wattoo had got lodged FIR No.273/2011 under section 406 PPC P.S. Basirpur, against him with the allegation of misappropriation of Rs.42,00,000/-. He has also admitted that he was maintaining account No.PLS-5072 in the Bank of Punjab Bahawalpur Branch and he had deposited Rs.30,00,000/- in that account.
He has also clearly admitted that Muhammad Hussain Azad accused got lodged FIR No.295/2011 under section 489-F PPC Police Station Basirpur for an amount of Rs.400,000/- and he had also filed a suit for recovery of Rs.400,000/- which was decreed and execution petition was filed and satisfied by attaching the money deposited in the above referred Bank of Punjab Bahawalpur Branch.
Munir Ahmad accused is admittedly father of accused Muhammad Hussain Azad alias Baghi.
He has also categorically admitted that accused Muhammad Ahmad had also got lodged another FIR No.362/2011 under section 420, 468, 471 PPC Police Station Basirpur against the complainant, his wife Mst. Nargus Perveen, his brother in law Naeem and his mother in law Mst. Khairan Bibi.
He has also clearly admitted that he had divorced his first wife Mst. Amber Sharaf Rana and the accused Jahanzaib has contracted marriage with her. He has also admitted the other litigation between the parties.
24 The occurrence has been stated to take place on 03.05.2013 at about 9.00 P.M, whereas Ex.P.A/1 (FIR) has been got lodged on 04.05.2013 at 12.10 A.M and during cross examination PW.1 has clearly admitted that application for registration of case Ex.P.A, was got drafted by him through a lawyer at about 11.30/11.45 P.M. In these circumstances element of deliberation and consultation could not be ruled out.
25 As per version of the complainant he was walking by holding the hand of his minor daughter Kehkashan aged about 02-years when she sustained the alleged fire arm injury by fire of accused Muhammad Hussain Azad in a street. According to the inquest report Ex.P.D height of the minor was two feet and four inches. But when PW.3 Dr. Faiza appeared in witness box she has clearly and categorically stated that “the direction of injury is from downward to upward”. Injury No.1 bearing blackish meaning that it was sustained from a distance of about four feet. She has also stated that according to the Medical Jurisprudence the death of Kehkashan deceased occurred at 11.00 P.M on 04.05.2013.
26 Now this is very astonishing situation that a minor girl having height of 02-feet 04-inches is sustaining injury on her right thigh and the exit wound is upward and the doctor has clearly stated that direction of the injury was downward to upward. How is it possible that a person of even average height fires while standing on the same level and injury caused from downwards to upward. This state of affairs puts a big question mark on the whole prosecution stance and credibility of the PWs. In this dismal state of affairs, there could be no reason, not to seek guidance and follow the golden principle, laid down in landmark Judgment by August Supreme Court of Pakistan reported as PLJ 2019 Sc 265. The Hon’ble Court was pleased to declare that: –
- A witness who lied about any material fact must be disbelieved as to all facts.
- Falsus in Uno, falsus in omnibus is a Latin phrase meaning “false in one thing, false in everything”. The rule held that a witness who lied about any material fact must be disbelieved as to all facts because of the reason that the “presumption that the witness will declare the truth ceases as soon as it manifestly appears that he is capable of perjury” and that “Faith in a witness s testimony cannot be partial or fractional.
- Earlier 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 law expressly forbids.
- Such an approach, which involves extraneous and practical considerations, is arbitrary besides being subjective and same can have drastic consequences for rule of law and dispensation of justice in criminal matters.
- When a witness has been found false with regard to implication of one accused about whose participation he had deposed on oath credibility of such witness regarding involvement of other accused in same occurrence would be irretrievably shaken.
- A fore discussed main rule shall suffer serious change if and when it is examined in light of Islamic Principles. The Holy Qur an deal with matter. It can be seen that giving testimony its due importance and weight is an obligatory duty and those who stand firm in their testimonies are among people of righteousness and faith.
- According to corpus of traditions of Holy Prophet (Peace Be Upon Him), false testimony is one of greater sins.
- Offence of Qazf, which has been defined, it can be seen that Holy Quran puts a great emphasis upon need to meet requisite standard of evidence, so much so that for a person levelling allegation of Zina but not meeting given standard, it not only provides for a penal punishment, but also for withdrawal of such a persons’ civic right to give evidence in all matters of his life.
- A Court of law cannot grant a license to a witness to tell lies or to mix truth with falsehood and then take it upon itself to sift grain from chaff when law of land makes perjury or testifying falsely a culpable offence.
- A Court also has no jurisdiction to lay down a principle of law when even Parliament is expressly forbidden by Constitution from enacting such a principle as law.
- Inapplicability of this rule in Pakistan was introduced by Chief Justice Muhammad Munir in year 1951 at a time when Article 227 of Constitution was not in field but after introduction of said constitutional prohibition enunciation of law by his lordship in this field, like infamous doctrine of necessity introduced by his lordship in constitutional field, may not hold its ground now.
- A judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct.
- Truth is foundation of justice and justice is 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 above mentioned permissible deviation from truth and it is about time that such a colossal wrong may be rectified in all earnestness.
- Therefore, in light of discussion made above, we declare that rule falsus in uno, falsus in omnibus shall henceforth be an integral part of our jurisprudence in criminal cases and same shall be given effect to, followed and applied by all Courts in country in its letter and spirit.
No doubt, strange things even stranger than fiction have ever happened in the world of criminal justice but touchstone of logic and common sense always leads to the right conclusion. Seeking guidance from the above referred golden principle given by the Hon’ble Supreme Court of Pakistan, this court is of the calculated view that ocular account of this case is not any way trustworthy and confidence inspiring and could not be relied upon to convict a person in a case of such severe punishment. Further guidance is seeking from the saying of the Holly Profit Peace be upon him, “To let nine criminals go free is preferable than to convict one innocent person.”
It is also amazing to note and mention here that as per medical report death of the minor occurred at 11.00 P.M on 04.05.2013 as it has been stated by PW.3 Dr. Faiza, whereas as per prosecution version death of the minor occurred on 03.05.2013.
27 Another aspect of the matter captures the mind with a big question mark that if the accused had the intention to kill the complainant then why all the other accused except Muhammad Hussain Azad, were not equipped with weapons and why they did not make straight firing after the firt fire while there was no resistance or apprehension of counter attack from the side of complainant and they fled away from the site of occurrence by making aerial firing.
28 No doubt, ipse-dixit of police is in no way binding upon court but there is hell of difference in being binding and to take it in account or consider for assistance, especially when it is in line with the other evidence of prosecution. Practically speaking I.O. is a trained person having ample opportunities to dig out the truth and to reach at right conclusion through open and secrete queries, whereas court has no such opportunity. Therefore, if the evidence collected by investigating agency is in line with other evidence, then it may be taken in account to reach at right conclusion and it is not mandatory or compulsory to throw it in dust-bin all the times. In the case in hand investigation was conducted twicely by different Police Officers and after thorough investigation all the accused had been declared innocent as it is visible from the record.
29 Therefore, in the light of above discussed facts, reasons and peculiar circumstances, this court is of the calculated view that prosecution has miserably failed to prove the charge against the accused, present in court, beyond shadow of any doubt. Hence, giving benefit of doubt, the accused Muhammad Hussain Azad alias Baghi, Munir Ahmad, Muhammad Ahmad and Jahanzaib are hereby acquitted from this case. They are present on bail, their sureties are discharged from the liabilities of their bail bonds.
30 Case property be disposed of after the expiry of period of limitation of appeal or revision if any. Copy of this Judgment be sent to the District Public Prosecutor Okara. File be consigned to the record room after its necessary compilation within stipulated period.