PLJ 2023 SC (Cr.C.) 192
[Appellate Jurisdiction]
Present: Sardar Tariq Masood, Amin-ud-Din Khan and Muhammad Ali Mazhar, JJ.
versus
STATE and others--Respondents
Crl. A. No. 295 of 2021, decided on 26.9.2022.
(On appeal against the judgment dated 20.02.2017 passed by the Lahore High Court, Lahore, in Crl. Appeal No. 1340 of 2012)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--Eye-witnesses were not reliable--No corroboration in evidence--Before High Court complainant had no objection on acquittal of those two accused persons but all legal heirs of deceased had not given any no objection Certificate nor made any statement regarding compromise and that conceding statement of counsel has no value--But prior to that Court has already discussed evidence and has extended benefit of doubt to those accused--Held: It is almost settled in latest judgments of High Court, that when evidence of witnesses is disbelieved to extend of several accused who have actively participated in occurrence and cause injuries to deceased then said evidence cannot be taken into consideration against other accused without any independent corroboration--In present case--When eye-witnesses have not been found reliable to extent of five accused who actively participated in occurrence then said evidence cannot be believed to extent of petitioner as there is no corroborative piece of evidence available on record--Appeal allowed.
[Pp. 194 & 195] A & B
2002 SCMR 1842.
Sardar Akbar Ali Dogar, ASC for Appellant (via video link from Lahore).
Mirza Abid Majeed, DPG for State.
Date of hearing: 26.9.2022.
Judgment
Sardar Tariq Masood, J.--Through this appeal the appellant Aish has impugned the judgment dated 20.02.2017 of the Lahore High Court, Lahore, whereby his sentence of death under Section 302(b) of the Pakistan Penal Code was altered to imprisonment for life.
2. Precise facts of the case are that the petitioner alongwith other co-accused was involved in case FIR No. 445/2010 registered on 15.07.2010 at Police Station Landianwala, Faisalabad, under Sections 302/148 and 149, PPC. Subsequently, the complainant filed private complainant and the appellant alongwith other co-accused were tired in the said private complainant. On completion of trial, appellant alongwith his co-accused were convicted and sentenced as under:
Name | Conviction | Sentence |
Aish | U/S. 302(b), PPC | Sentenced to death for committing murder of Muhammad Akram. He was also directed to pay Rs. 100,000/-as compensation to the legal heirs of the deceased in terms of Section 544-A Cr.PC. or in default thereof to further undergo S.I. for six months. |
Ghulam Muhammad | U/S. 302(b), PPC | Sentenced to imprisonment for life for committing murder of Abdul Hameed. He was also directed to pay Rs. 100,000/-as compensation to the legal heirs of the deceased in terms of Section 544-A, Cr.P.C. or in default thereof to further undergo S.I. for six months. |
Siraj Ali | U/S. 302(b), PPC | Sentenced to imprisonment for life for committing murder of Abdul Hameed. He was also directed to pay Re.100,000/- as compensation to the legal heirs of the deceased in terms of Section 544-A, Cr.P.C. or in default thereof to further undergo S.I. for six months. |
The appellant and his co-accused filed appeals against their convictions and sentences and the High Court while dismissing the appeal through impugned judgment reduced the sentence of the appellant from death to imprisonment for life whereas co-convict of the appellant were acquitted of the charge through the impugned judgment, hence, this appeal by leave of the Court.
3. Learned counsel for the petitioner contends that Muhammad Nawaz, Umraiz and Muhammad Siddique who according to FIR actively participated in the occurrence and caused blows with Soota to the deceased, have been acquitted by the Trial Court and no appeal against their acquittal has been filed; that Ghulam Muhammad who fired a shot hitting the deccased Muhammad Akram on his right knee and Siraj Ali who fired a shot hitting Muhammad Akram at his right shin have been acquitted by the High Court; that it is mentioned in the FIR that the fire shot of the petitioner hit the deceased on the back of chest of the deceased but in order to improve the version the complainant claimed that the same was hit the deceased on the back of shoulder: that Ali Asghar complainant categorically stated in his statement that Muhammad Riaz (PW-2) and other witnesses reached thereafter so witnessing of occurrence by Muhammad Riaz and others is questionable; that case of the petitioner is at par with other co-accused who have been acquitted while disbelieving the evidence of the eye-witnesses and there is no independent corroborative piece of evidence against the petitioner as no recovery was affected and even according to the police investigation he did not fire upon the deceased.
4. Learned counsel for the State argued the case, according to him, although the trial Court and the High Court have acquitted the accused persons, who actively participated in the occurrence and fired upon the deceased, but there is corroborative piece of evidence available against the petitioner and the prosecution has relied upon the same.
5. Heard and perused the record. Admittedly, in the FIR seven accused were nominated, but subsequently the complainant filed private complainant against nine accused including the appellant. Six accused were acquitted by the trial Court, out of them three had actively participated in the occurrence. Two accused persons namely Ghulam Muhammad and Siraj Ali who fired shots hitting the deceased on right knee and right shin, were also acquitted by the High Court by extending them the benefit of doubt. Although it was argued by the counsel for the complainant that before the High Court the complainant had no objection on the acquittal of those two accused persons but we observed that all the legal heirs of the deceased had not given any No Objection Certificate nor made any statement regarding compromise and that conceding statement of the learned counsel has no value. But prior to that the Court has already discussed the evidence and has extended the benefit of doubt to those accused.
6. Learned High Court distinguished the case of the petitioner from the others in the following words:
“So far as case of Aish appellant is concerned, Ali Asghar PW-1 and Muhammad Riaz PW-2 stated in their statements (examination-in-chief) regarding role of the appellant Aish that
he (Aish) made fire shot with his .30-bore pistol which hit on the back of chest of Muhammad Akram deceased. Although other accused namely Ghulam Muhammad, Muhammad Nawaz, Muhammad Shahbaz, Siraj Ali, Umraiz, Muhammad Siddique and Sarja a/o Bahadar have been acquitted by disbelieving the evidence of these two eye-witnesses, yet the law is settled by now that maxim falsus in uno falsus in omnibus has no universal application. It is Burden duty of the Court to sift the grain from the chaff.”
The High Court relied upon the judgment in the case of Elahi Bakhsh vs. Rab Nawaz an another (2002 SCMR 1842) but now it is almost settled in latest judgments of this Court, that when the evidence of the witnesses is disbelieved to the extend of several accused who have actively participated in the occurrence and cause injuries to the deceased then the said evidence cannot be taken into consideration against other accused without any independent corroboration. In the present case, when the eye-witnesses have not been found reliable to the extent of five accused who actively participated in the occurrence then the said evidence cannot be believed to the extent of the petitioner as there is no corroborative piece of evidence available on record.
7. For the forging, this appeal is allowed. The convictions and sentences passed by the trial Court and reduced by the High Court are set aside. The appellant Aish is acquitted of the charge in this case. He be released from jail forthwith if not required to be detained in any other case.
(A.A.K.) Appeal allowed
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