PLJ 2022 Cr.C. 570
Complaint--
----Delay of 3 years--Complaint was filed after a period of three years which in normal circumstances may not be a serious consideration but if it is established that it was done with a purpose based on dishonesty, said delay shall be fatal for prosecution. [P. 574] A
"Sifting grain from chaff"--
----"Principle"--Evidence which has already been disbelieved as a whole in first round and partly in second round, how can be believed qua appellant--Principle of "sifting grain from chaff is no more applicable in Courts of Pakistan. [P. 574] C
PLD 2019 SC 527.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--In medical report no firearm but blunt injury was found on his body and that too on his head so in complaint he alleged first time that “S” gave an injury on his head with butt of Kalashnikov--Similarly on conducting post-mortem examination Injury No. 1 that was entry wound was too having blackening--In site-plan, appellant when made fire was at a distance of three Karam, whereas Nasir was at a distance of about four Karam which almost becomes near to 20-feet so how was it possible to have blackening on injuries of complainant and deceased--Serious contradictions between medical and ocular account has smashed prosecution's case--Allegedly after specific fires, eight accused as a whole made reckless firing in ear but only six empties of Kalashnikov were found at crime scene--Discussion of recovery of weapons will be a futile exercise because on record there is only one repot of PFS (PH) showing that none of empties were fired from riffle 44-bore that was one of recoveries at instance of accused side--Prosecution has badly failed to prove its case--Appeal allowed. [Pp. 574, 575 & 576] B, D, E, F & G
2007 SCMR 1812, 2014 SCMR 749.
Malik Aamir Manzoor Awan, Advocate for Appellant.
Mr. Muhammad Laeeq-ur-Rehman, ADPP for State.
Nemo for Complainant.
Date of hearing: 6.10.2021.
PLJ 2022 Cr.C. 570
[Lahore High Court, Multan Bench]
Present: Sohail Nasir, J.
MUREED HUSSAIN--Appellant
versus
STATE--Respondent
Crl. A. No. 880-J of 2019, decided on 6.10.2021.
Judgment
Mureed Hussain (appellant) along with Nasir was tried in a private compliant filed by Zafar Iqbal (PW-5) and on conclusion thereof vide a judgment dated 06.07.2019 passed by the learned Additional Sessions Judge, Rajanpur he was convicted under Section 302(b), PPC and sentenced to imprisonment for life. He was also ordered to pay Rs. 100000/- (one lac) as compensation to the legal heirs of deceased in terms of Section 544-A, Cr.P.C. and in default thereof to further undergo six months S.I. Benefit of Section 382-B, Cr.P.C. was too extended to him.
2. Bing aggrieved from the judgment of learned trial Court, appellant has filed the instant Criminal Appeal.
3. On the strength of complaint filed on 19.03.2016, version of Zafar Iqbal was that on 15.09.2013 his father Ranjha Khan (deceased) being free from work was returning home at Fazal Pur; at about 'Asar Wela' when he was at a distance of 3/4 Acres, he was waylaid by Mureed Hussain/appellant who was armed with Kalashnikov; he also made fires in the air; Ranjha Khan immediately ran and arrived at his house on motor-bike; he told this fact to him/complainant; thereafter he/complainant, Rab Nawaz (PW-6) and Ranjha Khan proceeded to Mian Asghar Arain landlord to inform him about this incident; at about 08:00 pm, when they reached near the land of Rab Nawaz, they found there Mureed Hussain, Saif Ullah both armed with Kalashnikoves, Haleem and Kaleem both in possession of rifles, Abid Hussain and Irshad Ahmad both equipped with guns, Shakeel Ahmad in possession of 12-bore pistol and Nasir having a pistol of 30-bore; Mureed Hussain/appellant raised a Lalkara and then made a fire with Kalashnikov that hit in between the left eye and ear of Ranjha Khan who fell down on the ground; thereafter Saif Ullah gave an injury with butt of Kalashnikov on his/ complainant's head; the fire made by Nasir with 30-bore pistol hit on his/complainant's back; subsequent thereto, all accused made reckless firing in the air; on arrival of Haq Nawaz and others all accused escaped. Motive alleged was enmity. Complainant further stated that although he got registered FIR about the occurrence, but police concocted and fabricated the story and did not record correct statements so he was compelled to file private complaint.
4. After recording cursory statements, processes were issued against all accused. Mureed Hussain appellant and Nasir did not turn up so in first round all remaining accused Saif Ullah, Haleem, Kaleem, Abid Hussain, Irshad Ahmad and Shakeel Ahmad faced the trial. All they were acquitted vide judgment dated 07.03.2017 passed by the learned Additional Sessions Judge Rajanpur.
5. Later on, appellant and Nasir were taken to task. A charge under Sections 302/324/148/149, PPC framed against them was not pleaded guilty where after complainant had produced Dr. Abdul Hakeem (Pw-1) Mukhtar Ahmad/Patwari (Pw-2), Ghulam Asghar/ Constable (Pw-3), Muhammad Saleem (Pw-4), Zafar Iqbal/ complainant (Pw-5) and Rab Nawaz/an eye witness (Pw-6).
6. The learned trial Court also examined Siraj Ahmad/Constable (CW-1), Shah Jahan ASI (CW-2), Zulfiqar Ali/SI (CW-3). Rashid Ali Constable (CW-4), Muhammad Riaz/Constable (CW-5), Muhammad Aslam (CW-6), Irshad Hussain (CW-7), Nazar Hussain/Constable (CW-8) and Shamas-ud-Din (CW-9).
7. In his examination made under Section 342, Cr.P.C. version of appellant was that he was falsely involved in this case; it was a blind murder as occurrence took place in the night; complainant involved him due to previous enmity and that the witnesses were related to each other.
8. Appellant opted not to produce defence evidence or to appear in terms of Section 340(2) Cr.P.C.
9. Learned counsel for appellant contended that acquittal of six accused in earlier round and one accused in second round is alone a strong reason to acquit the appellant because statements of same witnesses have already been disbelieved; the complaint was filed after more than three years with a changed version, showing malafide and dishonesty of complainant; previous enmity between the parties is an admitted fact therefore, in absence of any independent corroboration ocular account cannot be believed; medical evidence does not stand with the ocular account hence no conviction could be recorded in this case.
10. On the other hand learned ADPP maintained that parties were familiar to each other therefore at 08:00 pm in the month of September, identification of any of the accused was not a difficult task for complainant and the witnesses; matter was reported to police without loss of time and the promptly lodged FIR is having complete details of occurrence in all respect; defence in cross-examination was not successful to shatter the credibility of any of the witnesses; statements of two eye witnesses are supported and corroborated by the medical evidence, motive and recovery of weapon. He finally argued that the learned trial Court after appreciating the entire evidence rightly convicted the appellant by assigning strong reasons.
11. It is important to mention here that despite service of complainant in person he never bothered to appear.
12. HEARD
"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."
17. The apex Court in "Barkat Ali vs. Muhammad Asif & Others 2007 SCMR 1812' on the question of contrast in medical and ocular account was pleased to hold as under:
"It is an admitted fact that eye witnesses had stated that the deceased was hit by the respondents at about 30-35 feet whereas according to the medical report, there was burning and blackening and is evident from the statement of PW.2, therefore, ocular account furnished by the two eye witnesses in not in consonance with the medical evidence which clearly contradicts the statements of the eye-witnesses. It is a settled law that blackening appears on the dead body in case the deceased has received injuries at a distance of 4 feet according to medical jurisprudence by Modi. It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with the medical evidence. See Mardan Ali's case 1980 SCMR 889, Bagh Ali's case 1983 SCMR 1292, Sain Dad's case 1972 SCMR 74 and Zardshad case 1969 SCMR 644" Criminal Appeal No. 88-J of 2015 Muhammad Umar vs. The State & 2 others".
18. Same view finds support from "Amin Ali & Another vs. The State 2011 SCMR and Muhammad Zaman vs. The State & Others 2014 SCMR 749.
19. The same proposition was taken into account in a recent judgment by the Honourable Supreme Court of Pakistan reported as ''Muhammad Mehboob vs. The State 2021 SCMR 366" and it was observed that:
"Two .12 caliber shot guns, one produced by the complainant and the second recovered pursuant to a disclosure, spell out a confrontation in close blank proximity; on the contrary, in scaled site-plan (Ex. PE/2), inter se distance between the appellant and the deceased is shown as 9-½ Karams, a scenario that does not accommodate autopsy findings of burning surrounding each wound."
23. I, in above circumstance, find no difficulty to hold that prosecution has badly jailed to prove its case beyond shadow of doubt against appellant hence this Criminal Appeal is allowed. Impugned judgment dated 06.07.2019 is set-aside. Appellant is acquitted from the case. He is in jail and shall be released forthwith if not required in any other case.
(A.A.K.) Appeal allowed
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