PLJ 2023 Cr.C. 481 (DB)
[Lahore High Court, Lahore]
Present: Malik Shahzad Ahmad Khan and Muhammad Amjad Rafiq, JJ.
GHULAM YASIN etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. Nos. 199788, 211790 & Crl. Rev. 211791 of 2018,
heard on 16.6.2022.
Falsus in Uno, Falsus in Omnibus--
----It is trite law that on principle of falsus in uno, falsus in omnibus, if witnesses are disbelieved against one set of accused; their testimony cannot be accepted qua other accused; yet under principle of abundant caution, an accused can be singled out from others.
[P. 486] A
2020 SCMR 664.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 324, 337-F(i) & 337-F(iii)--Murder reference--Conviction and sentence--Challenge to--Mitigating circumstances--Qatl-e-amd--Motive--Firstly in a situation of melee it cannot be expected from witnesses to have remembered and given exact distance between accused and victim; secondly accused/appellant or injured would not have remained stagnant during occurrence, and thirdly in same series of events, even if accused/appellant is presumed to be at a distance of 6 feet from victims, if he had fired with a stretched arm, then definitely range between weapon and target must have been reduced to such an extent that wounds would have carried blackening, thus, we do not see any abnormality in medical evidence qua existence of blacking around wounds of both injured persons--So for as motive is concerned, apart from consistent statements of witnesses giving background of dispute over a piece of land, it is admitted position that both parties i.e. complainant and accused already carried differences and litigation between them remains pending and even registration of number of criminal cases against each other, stand projected from record available on file--Therefore, motive appears to have been established in this case--Prosecution has successfully proved charge against present appellant on touchstone of standard required in a criminal case, on basis of ocular account, supported by medical evidence and recovery--Consequently, conviction of accused/appellant u/S. 302(b), PPC is upheld--However, considering quantum of sentence, as detailed above, co-accused who too had been nominated in FIR stood acquitted and reasoning behind such acquittal has been found by us to be convincing, this factor creates mitigation--As such, while maintaining conviction under Section 302(b), PPC, sentence of death is altered to imprisonment for life--imposition of compensation and punishment in case of default thereof, as ordered by trial Court shall remain intact--Similarly, charges u/S. 324, 337-F(iii) and 337-F(i), PPC having been fully proved, said convictions and sentences recorded thereunder, stand upheld--All sentences, shall however, run concurrently and benefit of Section 382-B, Cr.P.C. is extended--Criminal Appeal is dismissed with above modification in sentence. [P. 488, 489 & 490] B, D & E
PLD 2008 SC 123.
Dying declaration--
----It has been held that if dying declaration is made even before a private person, which is free from influence and persons before whom such dying declaration was made were examined then it becomes substantive piece of evidence and for that no corroboration is required and such declaration can be made basis of conviction--apex Court further clarified that there is no specified forum before whom such declaration is required to be made--In this view of matter, no illegality was committed by Investigating Officer while recording statement of PW whose statement otherwise, has been found by us to be in line with narration of FIR. [P. 489] C
2010 SCMR 55.
Syed Ijaz Qutab, Advocate for Appellant.
Mr. Munir Ahmad Sial, Deputy Prosecutor General for State.
Mr. Mudassir Naveed Chatha and Mr. Muhammad Waqas Jutt, Advodates for Complainant.
Date of hearing: 16.6.2022.
Judgment
Muhammad Amjad Rafiq, J.--Having been named as accused in case FIR No. 315 dated 14.07.2016 under Sections 302, 324, 337-F(i), 337-L(ii), 148, 149, PPC registered at police station Satellite Town, Jhang, six accused persons namely Ghulam Yasin (appellant) as well as Zia Ullah, Aman Ullah, Zafar Ullah, Habib Ullah and Ayyub faced trial before learned Additional Sessions Judge, Jhang and on conclusion of trial vide judgment dated 14.04.2018, five accused namely Zia Ullah, Aman Ullah, Zafar Ullah, Habib Ullah and Ayyub were acquitted of the charges, whereas, Ghulam Yasin was convicted and sentenced as under:
Sentenced to death under Section 302(b), PPC and also to pay Rs. 500,000/-as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased, in case of default to suffer simple imprisonment for six months;
Rigorous imprisonment for ten years and Rs. 50,000/-as fine under Section 324, PPC, in case of failure to pay fine, to further undergo simple imprisonment for six months;
Rigorous imprisonment for three years and to pay daman of Rs. 10,000/-under Section 337-F(iii), PPC;
Rigorous Imprisonment for one year and to pay daman of Rs. 10,000/-under Section 337-F(i), PPC.
All the sentences of imprisonment were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was extended. Criminal Appeal No. 199788/2018 has been filed by Ghulam Yasin against his conviction and sentence, Criminal Appeal No. 211790/2018 has been filed by the complainant against the acquittal of five accused, Criminal Revision No. 211791/2018 has also been filed by the complainant for enhancement of amount of compensation, whereas, Murder Reference No. 179/2018 has been sent by the learned trial Court. All these matters are being decided by this single judgment.
2. The prosecution case in brief as reported by Imran Zafar complainant (PW-9) through statement (Ex.PL) is that on 13.07.2016 at about 8.30 a.m., accused Ghulam Yasin (armed with 12-bore repeater), Zafar Ullah, Habib Ullah, Ayyub and Aman Ullah (carrying sotas) and Zia Ullah (carrying an iron rod) on a tractor came to Square No. 135 Killa No. 23 (jointly owned by accused Ghulam Yasin and the complainant). Ghulam Yasin was driving the tractor. Ayyub accused raised a lalkara to take over possession of land of Imran and whosoever create hurdle be killed, whereas, Ghulam Yasin dismantled the partition-line (WATT). Muhammad Yousaf and Mohsin Raza, father and brother of the complainant, who were in their house in the nearby Square No. 135 Killa No. 22 on hearing the noise of tractor came and forbade the accused from taking over possession. Ayyub accused raised lalkara to kill them, whereupon, Ghulam Yasin came down from the tractor and made a straight fire at Mohsin Raza which hit his abdomen who fell down, second fire by Ghulam Yasin hit left leg of Muhammad Yousaf and third fire landed on his left upper arm who also fell down. Mst. Asia (sister of complainant) and Mst. Mondan Bibi (his aunt) on hearing noise of firing rushed to the place of occurrence. Mst. Asia Bibi and Mst.Monda Bibi, laid themselves over Mohsin Raza and Muhammad Yousaf, respectively and entreated the accused to leave them alive but Zia Ullah accused inflicted two blows with iron rod on the head of Mst. Asia Bibi and afterwards accused Ayyub, Aman Ullah and Habib caused injuries on her right flank, backside of right shoulder and back. Sota blow by Ayyub landed on forehead of Mst. Mondan Bibi and similar blow by Aman Ullah hit her left wrist. On hearing hue and cry, Ijaz Ahmad, Allah Ditta and others also reached, witnessed the occurrence, begged the accused and rescued the injured. The accused went away from the spot by brandishing their weapons, whereas, injured were removed to DHQ Hospital Jhang by the witnesses through 1122-Rescue Service. Mohsin Raza was referred to Allied Hospital, Faisalabad, where he succumbed to the injuries.
Dispute over a piece of land purchased by the complainant from Mst. Gullan Bibi was alleged to be the bone of contention and formed motive behind the occurrence.
3. The investigation was initiated by Aman Ullah Qamar Sub-Inspector (PW-13) who on receiving information about the occurrence visited District Headquarter Hospital, Jhang, prepared injury statements of Mohsin Raza, Muhammad Yousaf, Mst. Asia Bibi and Mst. Mondan Bibi, inspected the place of occurrence and prepared unscaled site plan, secured blood stained earth, secured crime empties and then the investigation was handed over to Akhlaq Ahmad Sub-Inspector (PW-14), who later, on 29.08.2016 after the death of Mohsin Raza (injured) prepared his injury statement and inquest report. After postmortem examination of Mohsin Raza (deceased) his last worn clothes were produced before him and taken into possession, got effected recoveries of crime weapons on the lead of respective accused, including recovery of repeater 12-bore with two live cartridges from Ghulam Yasin and after performing certain other formalities, submitted report under Section 173, Cr.P.C. The accused were charge sheeted, to which they pleaded not guilty and claimed to be tried, whereupon, the prosecution produced Dr. Nuzhat Asad (PW-3) who had medically examined Mst. Asia Bibi and Mst. Moondan Bibi; Dr. Muhammad Ashgar Bhatti (PW-4) had conducted medical examination of Muhammad Yousaf and Mohsin Raza; Dr. Hafiz Muhammad Mohsin (PW-6) had conducted postmortem of Mohsin Raza (deceased); Aman Ullah Qamar SI (PW-13) and Akhlaq Ahmad SI (PW-14) deposed about investigation; Muhammad Yousaf (PW-7), Mst. Asia Bibi (PW-8) and Allah Ditta (PW-10) furnished the ocular account and Imran Zafar (PW-9) is the complainant of the case and rest of the witnesses are formal in nature. The accused persons in their statements recorded under Section 342, Cr.P.C. refuted the prosecution evidence, however, neither appeared in the witness box as required by Section 340(2), Cr.P.C. nor produced any defence and thus the trial ended in the terms detailed above.
4. We have heard the arguments of learned counsel for the parties at full length and perused the available record.
5. The main thrust of learned counsel for the accused/appellant was that the same set of witnesses has already been disbelieved by the learned trial Court to the extent of five co-accused, who too had been nominated in the FIR and specific allegation had been levelled against four of them and by this fact the prosecution case was seriously damaged and accused/appellant is also entitled for such relief. It is true that five out of six accused stood acquitted but it is equally admitted fact that they were acquitted by the learned Court inter-alia on the ground that none of them was carrying firearm and none from them had caused injury to the deceased or to Muhammad Yousaf injured. We are mindful of the fact that Zia Ullah accused was assigned specific role of causing injuries to Mst. Asia Bibi and similarly other accused were also attributed general role of causing injuries to Mst. Asia Bibi, but Dr. Nuzhat Asad (PW-3) who had conducted medical examination of Mst. Asia Bibi, in clear words stated that possibility of fabrication qua such injuries could not be ruled out and such opinion of the doctor remained unchallenged by the prosecution. As regards injuries allegedly sustained by Mst. Moondan, whatever may be reason, admittedly the said injured was not produced in the witness box. These were the reasons which weighed with the learned trial to record acquittal of the remaining accused persons. Therefore, stricto-senso it cannot be said that prosecution witnesses were disbelieved to the extent of acquitted accused persons. Even otherwise, it is trite law that on the principle of falsus in uno, falsus in omnibus, if the witnesses are disbelieved against one set of accused; their testimony cannot be accepted qua other accused; yet under the principle of abundant caution, an accused can be singled out from the others; here are the verdict of Honourable Supreme Court on this principle:
Principle of Abundant Caution
2020 SCMR 664 (Muhammad Rafique alias Neela and another v. The State)
“Doctrine of abundant caution--Scope--Said doctrine was a silver lining in jurisprudence to ensure safe administration of criminal justice and application thereof did not necessarily imply destruction of entire volume of evidence, if otherwise found sufficient to sustain the centrality of the charge”.
“Acquittal of one of the co-accused seemingly out of abundant caution, did not adversely reflect upon the case qua the other accused persons --Said co-accused was assigned a general role and in his case crime empties were dispatched subsequent to his arrest, which would not qualify to the required standard of proof so as to view presence of intention beyond reasonable doubt”. 2019 SCMR 1368 (Muhammad Sharif v. State).
“Acquittal of Sher Zamin, respondent, seemingly out of abund ant caution, particularly having regard to his mute presence does not offend any principle of law”; 2019 SCMR 1309 (Saleem Zada v. State)
“Acquittal of co-accused, tried for being in the community of intention, out of abundant caution, does not adversely impact upon prosecution’s case. Responsibility for the crime, unambiguously, revolves around the appellant alone”. 2019 SCMR 1362 (Muhammad Bilal v. State)
In case law reported as 2020 SCMR 2143, Honourable Supreme Court has observed as under:
“During the investigation of this case a joint investigation team was constituted and, for whatever its evidentiary value, the opinion recorded by said Team was that the accused was not present at the spot at the time of alleged occurrence. It is not denied that many co-accused of the appellant attributed effective firing have already been acquitted by the Courts below. For all these reasons we have decided to exercise caution in the matter of appellant’s sentence of death which was reduced to imprisonment for life”
6. The case of the present accused/appellant is entirely different from the acquitted co-accused, as it was only Ghulam Yasin accused/appellant who was carrying firearm weapon with him, he was nominated in the FIR with specific attribution of causing injuries to Mohsin Raza as well as Muhammad Yousaf. Mohsin Raza succumbed to such injuries, whereas, Muhammad Yousaf survived, appeared in the dock as PW-7 and made statement in line with the narration of the FIR. He was the resident of land adjoining to the place of occurrence, therefore, was a natural witness. Further he was shifted to the hospital on the same day at 10.15 a.m. where he was medically examined by Dr. Muhammad Asghar Bhatti (PW-4), as such, his presence at the place of occurrence at the relevant time remains far from any doubt. Apart from the fact of having sustained injuries during the occurrence, he while appearing in the dock made statement which is consistent on all crucial aspects of the case i.e. the date and the time of occurrence, the mode and the manner in which occurrence ignited and also the role played by the accused/appellant during the occurrence. He was subjected to cross-examination at considerable length but nothing damaging to the prosecution or favourable to the defence could be elicited from his mouth. Similar is the position with Allah Ditta (PW-10) who also toed Muhammad Yousaf (PW-7) and his statement also remained un-shattered during cross-examination. In any way, if the statements of Allah Ditta (PW-10) or that of Mst. Asia Bibi (PW-8) are thrown out of consideration, even then sole unimpeachable statement of Muhammad Yousaf (PW-7) has been found by us sufficient to believe the prosecution case.
7. We have not lost sight of the fact that occurrence in this case took place on 13.07.2016 at 8.30 a.m. but the FIR was recorded on the next day i.e. 14.07.2016 at 9.15 a.m, but we are conscious of the fact that mere delay in lodging the FIR is never considered sufficient to disbelieve the prosecution case. Delay in lodging of the FIR only puts the Court on notice to undertake close scrutiny of evidence available on record to avoid false involvement of the accused. If evidence recorded in Court appears to be trustworthy and convincing, then delay in lodging of the FIR can be ignored, keeping in view the peculiar circumstances of each case. Here in the instant case, as discussed above, four persons of one family were injured; Mohsin Raza and Muhammad Yousaf were medically examined on the same day at 10.15 a.m. by Dr. Muhammad Asghar Bhatti (PW-4) at DHQ, Jhang, upon dockets by the police, which fact is established by MLCs of both the injured persons i.e. Mohsin Raza (Ex.PE) and that of Muhammad Yousaf (Ex.PF). Mohsin Raza was in precarious condition; therefore, from DHQ Hospital, Jhang he was referred to Allied Hospital, Faisalabad. Complainant himself was away from his house due to his occupation in a case pending before the Board of Revenue at Lahore. Thus, his traveling back from Lahore to Jhang and then to Faisalabad as a first priority to see the injured as stable, has been found by us to be quite usual and normal human conduct. In this view of the matter when the injured were medically examined well within reasonable promptitude, considering that complainant party must be in extreme panic and anxiety, the main consideration would have been to save the lives of injured persons. Therefore, keeping stock of all above, we are of the view that delay in lodgment of the FIR in the peculiar facts and circumstances of this case, is not fatal to the prosecution, especially when nothing has come on the record from the defence that by such delay what benefit the prosecution would have derived.
8. As regards medical evidence, it has been observed that Dr. Muhammad Asghar Bhatti (PW-4) when medically examined Mohsin Raza on 13.07.2016 found eight firearm entry wounds each measuring 2 cm x 2 cm x DNP on the left side of abdomen near the umbilicus, with blackening and inverted margins and similarly when Muhammad Yousaf was medically examined by the same doctor on the same day, firearm entry wound .8 cm x .8 cm x DNP on outer side of left knee, left leg and 4 cm x 1cm on outer side of left upper arm were found on his person. The locale of injuries, dimension, kind of weapon used and also the duration of such fully in line with the prosecution case. Though the learned counsel for the accused/appellant tried to question the medical evidence by referring that the wounds were carrying blackening, but we have noticed that in the site plan (Ex.PG), Ghulam Yasin accused/appellant has been shown present at a distance of 4 to 6 feet from the place where-from Mohsin Raza and Muhammad Yousaf sustained injuries. In this view of the matter, firstly in a situation of melee it cannot be expected from the witnesses to have remembered and given the exact distance between the accused and the victim; secondly the accused/appellant or the injured would not have remained stagnant during the occurrence, and thirdly in the same series of events, even if the accused/appellant is presumed to be at a distance of 6 feet from the victims, if he had fired with a stretched arm, then definitely the range between the weapon and the target must have been reduced to such an extent that the wounds would have carried blackening, thus, we do not see any abnormality in the medical evidence qua existence of blacking around the wounds of both the injured persons. The learned counsel for the accused/appellant while referring to the statement of Dr. Hafiz Muhammad Mohsin (PW-6), who had conducted postmortem examination on the dead body of Mohsin Raza, argued that the said doctor had clearly observed that cause of death was due to septic shock due to infection of injury and that infection in the injury occurred due to improper medication as well as improper treatment. The learned counsel, therefore, argued that accused/appellant cannot be held responsible for the death. We are least impressed with such argument of the learned counsel for the reason that mere chances of survival could not reduce the liability of the accused/appellant and death in the hospital after quite some time also could not be, as such, considered a mitigating circumstance. Reliance is placed on the case reported as “Dilawar Hussain versus The State” (PLD 2008 Supreme Court 123). In this view of the matter, we are convinced that the medical evidence lends support to the ocular account.
9. Another important aspect of the case is that the occurrence in this case took place on 13.07.2016 and Mohsin Raza died on 29.08.2016 i.e. more than one and half month after sustaining the injuries and Aman Ullah Qamar SI (PW-13) in his statement has clarified that after getting permission (Ex.PKK) he had recorded the statement of said Mohsin Raza (Ex.PLL) on 22.08.2016. Though, during cross-examination of Investigating Officer, question was raised about formal permission by the doctor, but the position was clarified by the witness, relevant part of his statement is as under:
“PW volunteer that my application for the permission of recording of statement was referred by the doctor to the Registrar Admin Surgical Unit. I reached there and record the statement of Mohsin Raza injured u/S. 161, Cr.P.C. as my purpose was fulfilled.”
In the case “Majeed versus The State” (2010 SCMR 55), it has been held that if dying declaration is made even before a private person, which is free from influence and the persons before whom such dying declaration was made were examined then it becomes substantive piece of evidence and for that no corroboration is required and such declaration can be made basis of conviction. The apex Court further clarified that there is no specified forum before whom such declaration is required to be made. In this view of the matter, no illegality was committed by the Investigating Officer while recording the statement of Mohsin Raza, whose statement otherwise, has been found by us to be in line with the narration of the FIR.
10. As regards recovery, three crime empties was collected from the spot on 14.07.2016 and the same were received in the office of Punjab Forensic Science Agency on 19.09.2016. Subsequently, the accused/appellant was arrested on 17.10.2016 and on 21.10.2016 during interrogation he led to recovery of repeater along with live cartridge from the room of his house which was submitted in the said office of PFSA on 24.10.2016 and the PFSA report (Ex.PDDD) has been found in the positive, in the sense that weapon was found in mechanical operating condition with safety features functions property and the empties were identified of having been fired from the said weapon. Therefore, recovery evidence also lends full support to the ocular account.
11. So for as motive is concerned, apart from the consistent statements of witnesses giving background of dispute over a piece of land, it is admitted position that both the parties i.e. the complainant and the accused already carried differences and litigation between them remains pending and even registration of number of criminal cases against each other, stand projected from the record available on the file. Therefore, motive appears to have been established in this case.
12. For what has been discussed above, the prosecution has successfully proved the charge against the present appellant on the touchstone of standard required in a criminal case, on the basis of ocular account, supported by medical evidence and the recovery. Consequently, the conviction of accused/appellant under Section 302(b), PPC is upheld. However, considering the quantum of sentence, as detailed above, the co-accused who too had been nominated in the FIR stood acquitted and the reasoning behind such acquittal has been found by us to be convincing, this factor creates mitigation. As such, while maintaining the conviction under Section 302(b), PPC, the sentence of death is altered to imprisonment for life. The imposition of compensation and punishment in case of default thereof, as ordered by the learned trial Court shall remain intact. Similarly, the charges under Section 324, 337-F(iii) and 337-F(i), PPC having been fully proved, the said convictions and the sentences recorded thereunder, stand upheld. All the sentences, shall however, run concurrently and benefit of Section 382-B, Cr.P.C. is extended. Criminal Appeal is dismissed with above modification in sentence.
13. For the same reasons, Criminal Appeal against acquittal as well as Criminal Revision for enhancement in amount of compensation fail and are dismissed. The case property, if any, shall be disposed of in accordance with law and the record of the learned trial Court be sent back immediately.
Murder reference is answered in the negative.
Sentence of death is not confirmed.
(A.A.K.) Appeal dismissed
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