PLJ 2021 Cr.C. (Note) 8
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Qatl-e-amd--Benefit of doubt to accused--High Court is convinced that since name of accused/appellant was not mentioned in FIR; his features were not given therein, nor even there is any supplementary statement to his effect, identification before Court after so long, is highly doubtful and further motive is also not established against him, therefore, prosecution has badly failed to prove charge against accused/appellant--Co-accused was implicated in case only to extent of motive, which has been disbelieved by High Court--As such, irrespective of fact that co-accused has been acquitted and said acquittal has not been challenged by complainant or prosecution, in light of principle “sifting grain from chaff, case of accused/appellant can be examined separately--It is a case wherein FIR was lodged with all possible promptness; accused/appellant was nominated in FIR with specific attribution; role assigned to him with regard to infliction of injury on person of deceased, stands fully corroborated by post-mortem examination of deceased and further prosecution witnesses also toes line of each other with regard to his participation in occurrence as well as role--Therefore, prosecution remained fully successful in establishing its case against accused/ appellant, as such, his conviction u/S. 302(b) PPC appears to be unexceptionable--At same time High Court with reference to report of Punjab Forensic Science Agency has observed that crime weapon recovered from accused/appellant did not match with crime empties collected from place of occurrence, as such, though recovery is just a corroborative piece of evidence, still said factum along with fact that motive also could not be established by prosecution, same can be taken as mitigating factors while imposing sentence--It otherwise, life imprisonment is equally a legal sentence under Section 302(b), PPC, therefore, sentence of life imprisonment recorded against accused/appellant also befits in facts and circumstances of instant case--Appeal was dismissed.
[Para 14, 15 & 16] A, C & D
“Falsus in uno-falsus in omnibus”--
----Legal proposition is well settled on point, as Ilon’ble Supreme Court of Pakistan in its various judgments has already held that doctrine of “falsus in uno falsits in omnibus” (false in one thing, false in all), is not applicable in prevalent system of criminal administration of justice--Similarly, there is no rule having universal applicability that where some accused were not found guilty, other accused would ipso facto stand acquitted, rather it is primary duty of Court to sift grain from chaff--Similarly, there is no cavil to proposition that grain has to be sifted from chaff in each case, in light of its own peculiar circumstances. [Para 15] B
1973 SCMR 162, 2001 SCMR 177 and PLD 2007 SC 71.
Mr. Shafiq Ahmad Bhutta, Advocate for Appellants.
Nemo for Complainant.
Mr. Muhammad Amjad Rafiq, Additional Prosecutor General for Respondent.
Date of hearing: 11.1.2018.
PLJ 2021 Cr.C. (Note) 8
[Lahore High Court, Lahore]
Present: Muhammad Qasim Khan, J.
versus
STATE and another--Respondents
Crl. A. No. 547 of 2016, heard on 11.1.2018.
Judgment
Muhammad Arif, Muhammad Yaqoob (accused/appellants) along with Mst. Azra Bibi (acquitted co-accused) were tried by learned Additional Sessions Judge, Pasrur in case FIR No. 223 dated 07.08.2014 for offences under Sections 302/109/34, PPC registered at police station Sabazpir District Sialkot and vide judgment dated 24.02.2016, Mst. Azra Bibi was acquitted of the charges, whereas, Muhammad Arif and Muhammad Yaqoob (accused/appellants) were convicted under Section 302(b), PPC and both were sentenced to imprisonment for life. They were further directed to pay Rs. 200,000/- as compensation to the legal heir of the deceased, failing which they had to suffer simple imprisonment for six months each. Benefit of Section 382-B Cr.P.C was extended. Through this appeal, above conviction and sentence has been challenged.
2. Briefly the facts of the case are that vide complaint Ex.PB Muhammad Maskin complainant reported the matter to the police to the effect that on 07.08.2014 he along with his brother Abdul Rasheed, nephews Zain, Muhammad Samma and “Bhanja” Muhammad Tanvir, went to village Naungaran at darbar “Baba Kokey Shah” on motorcycles to pay their “salaam”. On way back to village Jandiala at about 5.00 p.m., when they reached near “Defence Bund Badhari” accused Muhammad Arif along with an unknown accused armed with pistols .30-bore came on motorcycle, intercepted the complainant and others. Accused Muhammad Arif gave pistol fire shot on complainant brother Abdul Rasheed which landed on his head. Unknown accused also made fire shot with his pistol which hit the abdomen of Abdul Rasheed, who fell on the ground and succumbed to the injuries, whereas, accused fled away from the spot on their motorcycle by making aerial firing. According to the complainant the occurrence was witnessed apart from him, by Muhammad Samma and Muhammad Tanvir.
The motive was alleged to be that murder was commitment under the abetment of Mst. Azra Bibi (wife of Abdul Rasheed deceased) because Muhammad Arif accused had illicit relations with her and Abdul Rasheed used to forbid her.
Subsequently, on 09.08.2014 the complainant moved another application Ex.PC to the police, wherein, he disclosed the name of unknown accused as Muhammad Yaqoob.
3. Investigation in this case was conducted by Yafat Bar Sub-Inspector (PW-12) who while appearing in the witness box deposed that after receiving information he proceeded to the place of occurrence, inspected the dead body, prepared application for post-mortem examination Ex.PN, injury statement Ex.PO, inquest report Ex.PP and sent the dead body for post-mortem examination. He recorded statements of witnesses, took three empties P.6/1-3 and four live bullets vide memo. Ex.PG, took into possession blood stained earth vide memo. Ex.PA, motorcycle P.7 vide memo. Ex.PH. He took into possession cash and mobile phone from the pocket of the deceased, prepared rough site plan Ex.PQ and searched for the accused. On 08.08.2014, last worn clothes Shirt P.1, Shalwar P.2, Vest P.3 of the-deceased along with some papers were handed over to him, which he took into possession vide memo. Ex.PA. On 09.08.2014 the complainant submitted another application Ex.PE wherein he nominated Muhammad Yaqoob as accused. On 12.08.2014, he arrested Muhammad Arif accused, on whose disclosure and pointation on 23.08.2014 the I.O. recovered pistol P.4 along with three live bullets P.5/1-3 taken into possession vid memo. Ex.PE, prepared site plan of place of recovery Ex.PR. On 13.08.2014 Mst. Ara Bibi was arrested, whereas, Muhammad Yaqoob was arrested on 28.08.2014 and on 31.08.2014 on the disclosure and pointation of Muhammad Yaqoob, pistol .30-bore P.8 along with two live bullets P.9/1-2 was recovered and taken into possession vide memo. Ex.PK, the site plan of place of recovery is Ex.PS. On conclusion of investigation, he found all the three persons as accused and sent them to trial.
4. Charge was framed against the accused persons, they pleaded not guilty and claimed trial, where after the trial commenced and prosecution produced evidence, which consisted of statement of Yafat Sub-Inspector (PW-12) whose statement in brief has been given above; Muhammad Maskin complainant (PW-2) furnished eye-witness account as well as made statement about recoveries, Tanvir (PW-3) is another eye-witness of the occurrence and Dr. Muhammad Junaid (PW-9) who furnishing details of post-mortem conducted by him on 08.08.2014 at 5.30 a.m, deposed that deceased had the following external injuries:
“I) An oval wound 0.3 x 0.4 cm with jagged inverted margins back of left car. (entry wound)
II) An oval wound 1.3 x 1.4 cm with jagged everted margins above right ear. (exit wound).
III) An oval wound 0.4 x 0.5 cm with jagged inverted margins right cheek near right eye. (entry wound)
IV) A circular wound 1.5 x 1.5 cm with jagged everted margin back of lower part right of skull, (exit wound).
V) An oval wound 0.5 x 0.4 cm with jagged inverted margins and blacking around it right side outer aspect of lower chest, (entry wound).
VI) Circular wound 1 x 1 cm with jagged everted margins left side lower chest outer part. (exit wound).”
The rest of the witnesses are all formal and they made statements about various functions performed by them during the course of investigation. On close prosecution evidence, the accused when examined under Section 342, Cr.P.C. denied the prosecution evidence, however, they neither opted to produce defence evidence nor to appear on oath as required by Section 340(2), Cr.P.C. and on conclusion of the trial the accused/appellants were convicted and sentenced as detailed in opening paragraph of this judgment, whereas, co-accused Mst. Azra was acquitted.
5. It is argued by learned counsel for the accused/appellants that Mst. Azra who had been nominated in the FIR with the allegation of abetment and source of motive has been acquitted by the learned trial Court by disbelieving the same set of witnesses; therefore, the entire prosecution case has become doubtful. The learned counsel further argued that Muhammad Yaqoob was not nominated in the FIR and his name was introduced by the complainant subsequently without any solid reasons. The learned counsel added that there are material contradictions in the statements of prosecution witnesses, who even otherwise, are related and chance witnesses and furthermore the medical evidence also contradicts the ocular account, whereas, the recoveries also remain doubtful, but the learned trial Court recorded conviction against the accused/appellants without proper and correct appraisal of evidence on record.
6. The learned law officer however, opposed the above arguments and contended that FIR was lodged with all possible promptness; the prosecution witnesses in their statements fully justified their presence at the place of occurrence at the time incident. Further argued that although name of Muhammad Yaqoob was not mentioned in the FIR but in the FIR one unknown person had been cited as accused and specific role had been attributed to him, therefore, if subsequently without any loss of time the complainant through application Ex.PC mentioned the name of Muhammad Yaqoob as accused, the defence cannot get any benefit of it. It was argued that even if one of the co-accused has been acquitted by the learned trial Court, no benefit thereof can be claimed by the accused/appellants, as the prosecution fully succeeded in establishing its case against both of them by ocular account, medical evidence as well as recoveries.
7. I have heard the arguments of learned counsel for the parties and perused the record.
8. It is case of the prosecution set out in the FIR and coming through statements of Maskin complainant (PW-2) and Tanvir (PW-3) that occurrence took place on 07.08.2014 at about 5.00 p.m. near “Badhiari Bund” and the matter was reported to the police through written complaint on the same evening at 6.30 p.m. Considering that police station was situated at a distance of fifteen kilometers from the place of occurrence, it can safely be said that FIR was lodged with promptness.
9. The ocular account in this case has been furnished by Muhammad Maskin complainant (PW-2) and Tanvir (PW-3). It is admitted fact that Muhammad Maskin is brother of Abdul Rasheed (deceased) and Tanvir is “Bhanja” of the complainant (related to the deceased). Therefore, being related witnesses, extra caution would be required to evaluate their statements to sustain the conviction of the accused/appellants. It is normal course in the villages that common villagers do visit shrines/darbar for their inner satisfaction. In the FIR as well as through their statements before the Court, both the witnesses have satisfactorily explained their presence at the time and place of occurrence, which falls on way to the “Darbar Baba Kokey Shah”.
10. In the FIR Muhammad Arif was nominated as the accused who inflicted .30-borc pistol fire shot injury on the head of Abdul Rashid, which pierced through his head. Second fire was alleged to have been filed by an unknown accused with .30-bore pistol which pierced through the belly of deceased. Furthermore, it was specifically alleged that murder was committed as Muhammad Arif accused/appellant had illicit relations with Mst. Azra (wife of the deceased) and deceased used to forbid Muhammad Arif. The prosecution witnesses also stuck to their stance during their statements before the Court to the extent of ocular account and role of Muhammad Arif accused/appellant and lengthy cross-examination on these witnesses could not shatter their testimonies.
11. Coming to the medical evidence, Dr. Muhammad Junaid (PW-9) explained that all the injuries were ante mortem caused by fire arm weapon and were sufficient to cause death in ordinary course of nature. The doctor had observed six injuries on the dead body, out of which three were entry and three exit wounds. According to the prosecution case both the accused including Muhammad Arif and one unknown (subsequently named as Muhammad Yaqoob) had similar kinds of weapons and considering the nature of injuries, there could be possibility that all injuries might have been caused by one and the same accused namely Muhammad Arif who was specifically nominated in the FIR with specific role. It is correct that in one of the entry wounds, blackening around it has been observed, whereas, rest of the two entry wounds do not have blackening, but this factor alone is not enough to say that injuries were caused by two accused from different angles or distances. The deceased once received the fire shot, could not have remained idle and as a natural course he might have been trying his best to shift and shuffle his place. Similarly, the accused while making repeated fire shots could not have remained stagnant and must have been changing his position to hide himself from the accused or to keep himself away from the counter attack, therefore the distance between the deceased and the attacker could vary during infliction of repeated fire arm injuries.
12. As regards motive, although it was specifically alleged in the FIR that Muhammad Arif accused/appellant had illicit liaison with Mst. Azra and as Abdul Rasheed used to forbid them, therefore, he was murdered under abetment by Mst. Azra wife of the deceased, but it has been observed that neither any witness was produced to establish the element of abetment, and for the same reason Mst. Azra was acquitted by the learned trial Court and furthermore, there is nothing on the record that said alleged illicit relationship of Muhammad Arif with Mst. Azra was ever raised by the deceased or the witnesses in the family or reported to the police. In addition to the above, the learned trial Court very rightly observed that the evidence of the PWs was clear which shows that during abadi of Azra Bibi and Abdul Rasheed deceased neither any quarrel look-place between them nor she filed any suit for dissolution of marriage, therefore, these facts are sufficient to infer that motive although set, yet the same could not be established by the prosecution.
13. (i) After discussing the prosecution evidence as a whole, now I would take up the case of Muhammad Yaqoob accused/appellant. It is obvious that the FIR was got lodged by Maskin complainant (PW-2) through a written complaint Ex.PB on 08.08.2014, wherein, the name of Muhammad Yaqoob was not mentioned nor even the feature of unknown accused had been given, therefore, it cannot be said that omission of name of one of the accused was a slip of tongue or the police did not mention the name of Muhammad Yaqoob as accused for ulterior motives. Rather it was well thought out move by the complainant in lodging the FIR through a written complaint wherein details of the occurrence were given, Muhammad Arif and Mst. Azra were nominated as accused and one accused was shown to be unknown, but as discussed above no features were given by the complainant about said unknown assailant.
(ii) Furthermore, although motive was set in the FIR against Mst. Azra (acquitted accused) and Muhammad Arif (accused/appellant) but Muhammad Yaqoob was not linked with motive part in any manner. Afterwards, through application dated 9.8.2014 the complainant named Muhammad Yaqoob as one of the accused but neither any solid source was disclosed by the complainant as to how he could nominate Muhammad Yaqoob as one of the accused, nor in this application there is even a single word that said Muhammad Yaqoob was also tagged with the motive part of the occurrence. Furthermore, to his effect even there is no supplementary statement of PW-3 Muhammad Tanvir and accused Yaqoob was also not subjected to identification parade. I have minutely gone through the statement of Maskin complainant PW-2 and observe that even in his statement the complainant has not explained that how he came to know that the unknown accused shown in FIR was in fact Muhammad Yaqoob and furthermore, when no features were given in the FIR and no formal identification parade was held, involvement of said Muhammad Yaqoob accused/appellant in this case remains extremely doubtful, even if the witnesses say that they had identified Muhammad Yaqoob to be one of the accused who participated in the occurrence. Even otherwise, identification of the accused before the Court during the course of trial after quite a long period, is highly doubtful, for the reason that accused might have been appearing in the Court for the last so many dates and thus the witnesses had all opportunity to have repeatedly seen him before pointing out his identification.
14. As a result of above discussion, this Court is convinced that since the name of Muhammad Yaqoob accused/appellant was not mentioned in the FIR; his features were not given therein, nor even there is any supplementary statement to his effect, identification before the Court after so long, is highly doubtful and further motive is also not established against him, therefore, the prosecution has badly failed to prove the charge against Muhammad Yaqoob accused/ appellant. Consequently, this appeal to his extent is allowed, his conviction and sentence is set-aside and he is ordered to be released forthwith if not required in any other case.
15. Taking up the case of Muhammad Arif accused/appellant, through the learned counsel appearing on his behalf has tried to take the benefit of acquittal of co-accused Mst. Azra, but the legal proposition is well settled on the point, as the Ilon’ble Supreme Court of Pakistan in its various judgments has already held that the doctrine of “falsus in uno falsits in omnibus” (false in one thing, false in all), is not applicable in prevalent system of criminal administration of justice. Similarly, there is no rule having universal applicability that where some accused were not found guilty, other accused would ipso facto stand acquitted, rather it is the primary duty of the Court to sift the grain from chaff. In this regard, reliance can be placed on the case titled “Somano v. State” (1973 SCMR 162). Similarly, there is no cavil to the proposition that the grain has to be sifted from the chaff in each case, in the light of its own peculiar circumstances. In this regard, guidance is sought from the case titled “Riaz Hussain v. The State” (2001 SCMR 177). I would also like to refer the case of “Ghulam Husain Soomro v. The State” (PLD 2007 SC 71), wherein Hon’ble Supreme Court of Pakistan was pleased to hold as under:
“We may not be misunderstood to mean that an innocent person wrongly roped by prosecution or falsely involved by an unscrupulous Investigating Officer should be unreasonably dealt with or made escape goat but the Courts must maintain balance while arriving at the truth or falsehood of the matter by sifting the grain from the chaff. This may he treated as a rule of caution and circumspection.”
In addition to above, it has been observed that Mst. Azra co-accused was implicated in the case only to the extent of motive, which has been disbelieved by this Court. As such, irrespective of the fact that Mst. Azra co-accused has been acquitted and said acquittal has not been challenged by the complainant or the prosecution, in the light of principle “sifting grain from the chaff”, the case of Muhammad Arif accused/appellant can be examined separately.
16. Having held so, it has been observed that it is a case wherein the FIR was lodged with all possible promptness; Muhammad Arif accused/appellant was nominated in the FIR with specific attribution; the role assigned to him with regard to infliction of injury on the person of the deceased, stands fully corroborated by post-mortem examination of the deceased and further the prosecution witnesses also toes the line of each other with regard to his participation in the occurrence as well as the role. Therefore, the prosecution remained fully successful in establishing its case against Muhammad Arif accused/appellant, as such, his conviction under Section 302(b), PPC appears to be unexceptionable. At the same time this Court with reference to the report of Punjab Forensic Science Agency (Ex.PV) has observed that crime weapon recovered from Muhammad Arif accused/appellant did not match with the crime empties collected from the place of occurrence, as such, though the recovery is just a corroborative piece of evidence, still the said factum along with the fact that motive also could not be established by the prosecution, the same can be taken as mitigating factors while imposing the sentence. Even otherwise, life imprisonment is equally a legal sentence under Section 302(b), PPC, therefore, the sentence of life imprisonment recorded against Muhammad Arif accused/appellant also befits in the facts and circumstances of the instant case. Consequently, this appeal to the extent of Muhammad Arif accused/ appellant is dismissed, his conviction/sentence as recorded by the learned trial Court is sustained. The case property, if any, shall be disposed of in accordance with law, whereas, the record of the trial Court be sent back immediately.
(A.A.K.) Appeal dismissed
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