PLJ 2022 Cr.C. (Note) 63
"Falsus in un falsus in omnibus"--
---- It is settled by now that a witness who lied about any material fact must be disbelieved as to all other facts by applying principle of falsus in uno falsus in omnibus. [Para 8] B
PLD 2019 SC 527.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence--Challenge to--Benefit of doubt--Chance witness--Medical evidence--Held: It is well settled by now that when a witness improves his statement to strengthen prosecution case and moment it is concluded that improvement was made deliberately and with malafide intention testimony of such witness does not remain reliable--Evidence of above all eye-witnesses is shaky in nature and cannot be relied upon for maintaining conviction/sentence of appellants--Medical evidence produced by prosecution was not of much avail to prosecution because murder in issue had remained unwitnessed and thus medical evidence could not point an accusing finger towards any of culprits implicated in this case--Prosecution could not prove its case against appellants beyond any shadow of doubt--It is, by now well established principle of law that it is prosecution, which has to prove its case against accused by standing on its own legs and it cannot take any benefit from weaknesses of case of defence--In instant case, prosecution remained failed to discharge its responsibility of proving case against appellants--Further held: It is also well established that if there is a single circumstance which creates doubt regarding prosecution case, same is sufficient to give benefit of doubt to accused, whereas, instant case is replete with number of circumstances which have created serious doubt about prosecution story--Appeal allowed. [Para 8, 11 & 13] A, C & D
2011 SCMR 323, 2016 SCMR 1605 and 2009 SCMR 230.
Syed Asim Ali Bukhari, Advocate and Khawaja Umaiz. Advocate/Defence Counsel along with Muhammad Usman alias Shani, for Appellants (on bail).
Rai Akhtar Hussain, Deputy Prosecutor General for State.
M/s. Muhammad Amin Ashraf Khan and Ishfaq Ahmad Gujjar, Advocates for Complainant.
Date of hearing: 9.11.2020.
PLJ 2022 Cr.C. (Note) 63
[Lahore High Court, Lahore]
Present: Sadaqat Ali Khan and Shehram Sarwar Ch., JJ.
GHULAM FARID and another--Appellants
versus
STATE and another--Respondents
Crl. A. No. 727 of 2017 & Crl. P.S.L.A. No. 30 of 2018 &
M.R. No. 39 of 2017, decided on 9.11.2020.
Judgment
Shehram Sarwar Ch., J.--Ghulam Farid and Muhammad Usman alias Shani (appellants) along with their co-accused namely Taj Muhammad, Farooq Ahmad, Muhammad Akram, Muhammad Mazhar, Muhammad Mansha and Saeed Ahmad were tried by the learned Addl. Sessions Judge, Minchinabad District Bahawalnagar in a private complaint under Sections 302, 324, 337-F(iii), 148 and 149, PPC instituted by Rashid Ahmad, complainant (PW.1) being dissatisfied with the investigation conducted by the police in case FIR No. 45 dated 01.03.2016, offence under Sections 302, 324, 148 and 149, PPC registered at Police Station Mcleod Gunj District Bahawalnagar for the murder of Tahir Rashid (deceased) and launching murderous assault on Shahid Rashid (injured) sons of complainant. Vide judgment dated 31.10.2017 passed by the learned trial Court, Ghulam Farid (appellant) has been convicted under Section 302(b), PPC and sentenced to death, with a further direction to pay Rs. 2,00,000/- (rupees two lakh only) -as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months. Muhammad Usman alias Shani (appellant) has also been convicted under Section 337-F(iii), PPC and sentenced to imprisonment for three years R.I., with daman of Rs. 20,000/- (rupees twenty thousand only) payable to Shahid Rashid (injured) and in default thereof to further undergo simple imprisonment for one month. Benefit of Sectidn 382-B, Cr.P.C. was awarded to the said appellant. Through the same judgment, Taj Muhammad, Farooq Ahmad, Muhammad Akram, Muhammad Mazhar, Muhammad Mansha and Saeed Ahmad, co-accused of the appellants were acquitted of the charge. Assailing the above convictions and sentences, the appellants have filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 39 of 2017 for confirmation or otherwise of Ghulam Farid, appellant's sentence of death, as required under Section 374 of the Code of Criminal Procedure. The complainant has also filed Crl. P.S.L.A. No. 30 of 2018 against acquittal of co-accused of the appellants. Since all these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.CW-1/A) registered on the statement (Ex.PA) of Rashid Ahmad (PW.1) is that on 01.03.2016 at around 9.00 a.m.; he along with his brother Muhammad Munir and sons Shahid Rashid, Tahir Rashid and Nasir Rashid was present at his land situated at square No. 521/07 Killa No. 6 for cutting fodder (barseem) for the cattle. At about 11.00 a.m. when they were cutting fodder, Ghulam Farid (appellant), Taj Muhammad both armed with rifles, Farooq Ahmad, Muhammad Akram armed with pistols, Muhammad Usman alias Shani (appellant) armed with rifle and three unknown co-accused (who can be identified on confrontation) armed with fire-arms arrived there on three motorcycles, encircled the complainant party; Ghulam Farid raised lalkara to teach them a lesson for beating him and made a straight fire with rifle with intent to kill Tahir Rashid which landed on his head. Then Taj fired with rifle which also hit Tahir Rashid on his head. Muhammad Usman alias Shani also fired at Shahid Rashid which landed on his left shoulder. The accused persons fled away on motorcycles towards bhaini of Sardar Ali. Motive behind the occurrence as alleged in the FIR was that about 4/5 months earlier, a quarrel took place between Tahir Rashid and Ghulam Farid, for which a criminal case under Section 337, PPC was got registered at Police Station Saddar Pakpattan and due to that grudge, the accused committed this occurrence. Tahir Rashid succumbed to the injuries on the spot whereas Shahid Rashid was shifted to RHC Mcleod Gunj.
3. Being dissatisfied with the investigation conducted by the police, Rashid Ahmad, complainant instituted a private complaint titled as "Rashid Ahmad vs. Ghulam Farid etc.", almost on the same facts as narrated in the FIR.
4. After recording of cursory evidence in the present case, the appellants and their co-accused namely Taj Muhammad, Farooq Ahmad, Muhammad Akram, Muhammad Mazhar, Muhammad Mansha and Saeed Ahmad were summoned by the learned trial Court to face the trial. Copies of relevant documents were provided to them, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 302, 324, 337-F(iii), 148 and 149 PPC was framed against them on 05.11.2016, to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as five witnesses whereas ten were examined as Court witnesses. Statements of the appellants and their co-accused under Section 342 of the Code of Criminal Procedure were recorded on 30.10.2017, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. The appellants neither opted to appear as their own witnesses in disproof of the prosecution allegations as provided under Section 340(2) of the Code of Criminal Procedure nor did they produce any defence evidence. However, after conclusion of trial, the learned trial Court convicted and sentenced the appellants and acquitted their co-accused, as detailed above. Hence this appeal, murder reference and Crl. P.S.L.A.
5. Learned counsel for the appellants, in support of their appeal, contends that the appellants have falsely been implicated in this case; that the matter was reported to the police with due deliberation and consultation on the part of the complainant; that Rashid Ahmad, complainant (PW.1), Shahid Rashid, injured (PW.2) and Muhammad Munir (PW.3), alleged witnesses of ocular account are closely related to each other; that the eye-witness have not given any plausible reason for their presence on the spot at relevant time and while appearing before the learned trial Court, they made dishonest improvements in order to strengthen the prosecution case; that even they made contradictory statements; that Taj Muhammad, co-accused of the appellants, having similar role with that of Ghulam Farid, appellant as well as other co-accused have been acquitted by the learned trial Court, therefore, evidence of the prosecution which has been disbelieved to the extent of acquitted co-accused of the appellant could not be believed against the appellants without there being any strong and independent corroboration which is very much lacking in this case; that ocular account is in direct conflict with the medical evidence; that a vague motive was set up by the prosecution in the FIR, private complaint and brought before the learned trial Court which has not been proved; that the recovery of 44 bore rifle (P.7) at the instance of Ghulam Farid, appellant is inconsequential; that nothing was recovered at the instance of Muhammad Usman alias Shani, appellant; that the versions of the appellants are more probable, convincing and even get full support from prosecution's own case; that viewing from all angles, the prosecution case is doubtful in nature and the appellants are entitled to acquittal.
6. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that the matter was reported to the police with promptitude; that Rashid Ahmad, complainant (PW.1), Shahid Rashid, injured (PW.2) and Muhammad Munir (PW.3), who witnessed the incident, have reasonably explained their presence on the spot at relevant time which is quite natural and probable; that the eye-witnesses have no enmity with the appellants to falsely implicate them in this case; that Shahid Rashid (PW.3) is the injured witness of this case and the medical officer (CW.8), who medically examined the said injured witness did not state any where that the injuries on his person were self inflicted; that a specific motive was set out in the FIR, private complaint and brought before the learned trial Court which has been proved against the appellants; that the appellants cannot get any benefit from the acquittal of their co-accused namely Taj Muhammad, Farooq Ahmad, Muhammad Akram, Muhammad Mazhar, Muhammad Mansha and Saeed Ahmad because they were declared innocent during the course of investigation whereas the appellants were found guilty; that ocular account is fully supported by medical evidence; that the prosecution case is corroborated by the recovery of 44 bore rifle (P.7) at the instance of Ghulam Farid, appellant and positive report of Punjab Forensic Science Agency (Ex.PM); that the prosecution has successfully brought home guilt against the appellants to the hilt and there is no merit in this appeal. So far as Crl. P.S.L.A. No. 30 of 2018 is concerned, learned counsel for the complainant contends that co-accused of the appellants were present on the spot and even Taj Muhammad, co-accused caused fire-arm injury on the head of the deceased but they were acquitted by the learned trial Court without assigning any convincing or cogent reasons.
7. We have heard arguments of learned counsel for the parties as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record very minutely.
8. The ocular account in this case has been furnished before the learned trial Court by Rashid Ahmad, complainant (PW.1), Shahid Rashid, injured (PW.2) and Muhammad Munir (PW.3), who were closely related to the deceased as the complainant (PW.1) was father whereas Shahid Rashid injured (PW.2) was brother and Muhammad Munir (PW.3) was paternal uncle of the deceased. It was case of the prosecution in the FIR and before the learned trial Court in respect of the deceased that firstly Ghulam Farid, appellant fired with rifle at Tahir Rashid (deceased), which landed on his head and thereafter, Taj Muhammad (acquitted co-accused) made a fire hitting the deceased on his head. Dr. Muhammad Nadeem Iqbal (CW.6) conducted post mortem examination of the dead body of deceased, who observed only one fire-arm entry wound on forehead of the deceased and one exit wound, which clearly suggests that there was conflict between ocular account and medical evidence. Moreover, Rashid Ahmad, complainant (PW.1) and Shahid Rashid, injured (PW.2) made contradictory statement while appearing before the learned trial Court as the complainant stated during his cross examination that at the time of occurrence, they have shifted three bundles of fodder to the boat and two bundles of fodder crop were lying at the spot whereas the stance of Shahid Rashid, injured was altogether different, who stated that at the time of incident, they cut three bundles of fodder crop, which were available at the place of occurrence and no one was sent to the bank of river for unloading the same. We have further noted that all the eye-witnesses while appearing before the learned trial Court, in order to strengthen the prosecution case, made dishonest improvements, they were confronted with their previous statements and the improvements were brought on record. It is well settled by now that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with malafide intention the testimony of such witness does not remain reliable. While holding so we are fortified by the dictum laid down by the Hon'ble Supreme Court of Pakistan in the Cases reported as "Muhammad Rafique and others versus The State and others" (2010 SCMR 385) and "Syed Saeed Muhammad Shah and another versus The State" (1993 SCMR 550). We have further noted that Taj Muhammad, co-accused of the appellant having similar role of causing fire-arm injury on the head of deceased as well as other co-accused of the appellants have been acquitted by the learned trial Court, therefore, the question for determination before us, is whether the evidence which has been disbelieved qua the acquitted co-accused of the appellants can be believed against the appellants? In this regard, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan reported as "Shahbaz vs. The State" (2016 SCMR 1763), wherein it was held at page 1765 as under:
"2. ...The law is settled by now that if some eye-witnesses are disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6). In the case in hand no independent corroboration worth its name was available to the extent of Shahbaz appellant inasmuch as the trial Court and the High Court had disbelieved the motive set up by the prosecution, the alleged recovery of a chhurri from the custody of the appellant was inconsequential because the recovered chhurri was not stained with blood, post-mortem examination of the deadbody of Aftab Akhtar deceased was noticeably delayed as the same had been conducted in the following morning and the duration between death and post-mortem examination was recorded as about eleven hours. It appears that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and in cooking up a story for the prosecution. The said story of the prosecution already stands substantially disbelieved to the extent of Muhammad Abbas co-accused and we have found that the same was not free from doubt even to the extent of Shahbaz appellant."
The above said view has been further fortified in the case titled as "Imtiaz alias Taj vs. The State and others" (2018 SCMR 344). It is settled by now that a witness who lied about any material fact must be disbelieved as to all other facts by applying the principle of falsus in uno falsus in omnibus. We respectfully relied upon the case law reported as "PLD 2019 Supreme Court 527" in the matter of Crl. Misc. Application No. 200 of 2019 in Crl. Appeal No. 238-L of 2013 decided on 4th March, 2019. As far as Shahid Rashid, injured (PW.2) is concerned, we have noted that in the MLR (Ex.CW.8/A), the columns of time and date of arrival of injured and examination of injured are blank and it was admitted by Dr. Nadeem Ismail (CW.8) in his cross examination that neither any police docket was handed over to him nor he mentioned the same in the MLC at the time of examination of injured. To assess the fire-arm injury, there must be inverted and everted margins around the wounds but the medical officer (CW.8) has not mentioned in the MLC any inverted or everted margins during examination of Shahid Rashid, injured (PW.2). The argument of the learned DPG that presence of Shahid Rashid (PW.2) cannot be doubted at the place of occurrence due to the injuries on his person has no substance because merely the injuries on the body of a person would not stamp him/her truthful witness. Reliance is placed on case law titled as "Amin Ali and another vs. The State" (2011 SCMR 323). Therefore, we hold that the evidence of above all the eye-witnesses is shaky in nature and cannot be relied upon for maintaining the conviction/sentence of the appellants.
9. Motive behind the occurrence as alleged in the FIR and private complaint was to the effect that about 4/5 months earlier to the present incident, a quarrel took place between Tahir Rashid (deceased) and Ghulam Farid (appellant), regarding which case FIR No. 537/2015 was got registered against the appellants and his co-accused. During cross examination, the complainant stated that the relations between father or forefather of accused and his forefathers remained cordial, however, he volunteered that thereafter, the relations amongst both the parties start to constraint due to scuffle between them as FIR was lodged at Police Station Pakpattan Sharif against Tahir Rashid (deceased). The complainant further stated that a family suit was filed by one Muhammad Yar uncle of Saeed Ahmad against them and said Saeed Ahmad pursued the said family case. No documentary proof such as copy of FIR or said family suit was brought on record. We have also observed that no independent witness qua motive was produced during the course of investigation or brought in the witness box at trial. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence.
10. So far as the alleged recovery of 44 bore rifle (P.7) at the instance of Ghulam Farid (appellant) which was taken into possession vide recovery memo Ex.PH is concerned, the same is inconsequential for the reason that the same was got recovered from the river bed underneath bushes of field belonging to one Shah Muhammad, which was an open place accessible to everyone. However, no recovery was effected at the instance of Muhammad Usman alias Shani (appellant).
11. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and thus the medical evidence could not point an accusing finger towards any of the culprits implicated in this case. Reliance is placed on case law titled as "Muhammad Saleem vs. Shabbir Ahmad and others" (2016 SCMR 1605).
12. So far as the defence pleas taken by the appellants in their statements under Section 342, Code of Criminal Procedure are concerned, since; the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which are exculpatory in nature.
13. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellants beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellants. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may be place on the case law reported as "Muhammad Akram versus The State' (2009 SCMR 230).
14. For the, foregoing reasons, Criminal Appeal No. 727 of 2017 filed by Ghulam Farid and Muhammad Usman alias Shani (appellants) is allowed, convictions and sentences awarded to the appellants vide judgment dated 31.10.2017 passed by the learned Addl. Sessions Judge, Minchinabad District Bahawalnagar are set aside and they are acquitted of the charges levelled against them while extending them benefit of doubt Ghulam Farid (appellant) is in jail. He shall be released forthwith if not required to be detained in any other case. Muhammad Usman alias Shani (appellant) is present in Court on bail; his surety stands discharged from the liability of bail bond.
15. Murder Reference No. 39 of 2017 is answered in the NEGATIVE and the sentence of death awarded to Ghulam Farid (convict) is NOT CONFIRMED.
16. In view of above discussion, Crl. P.S.L.A. No, 30 of 2018 filed by the complainant against acquittal of Taj Muhammad, Farooq Ahmad, Muhammad Akram, Muhammad Mazhar, Muhammad Mansha and Saeed Ahmad, co-accused of the appellants having no merits is dismissed.
(A.A.K.) Appeal allowed
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