Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Jail Appeal No. S – 14 of 2010

Date of hearing : 01.11.2019.

Date of announcement : 08.11.2019.

Mr. Muhammad Qayyum Arain, Advocate for appellant.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Shahzado alias Shado, appellant along with Ghulam Akbar and Qurban Ali (since acquitted) was tried by learned I^st Additional Sessions Judge, Sukkur in Session Case No.28/2002 for offences under Sections 302, 34, PPC. After regular trial, vide judgment dated 14.01.2010, appellant was convicted under Section 302(b), PPC as Ta’zir and sentenced to imprisonment for life. He was directed to pay compensation Rs.50,000/- (fifty thousand) to the legal heirs of the deceased. In case of failure thereof, he was ordered to suffer S.I for one year. He has been extended benefit of Section 382-B, Cr.P.C.

2. Brief facts of the prosecution case, as reflected in the judgment of the trial Court, are as under:

“ The brief facts necessary for disposal of the above mentioned case as unfolded in the FIR lodging by complainant Shahzado on 13.1.2002 are that he resides with his father Muhammad Pathan aged about 48 years. One day before the incident viz 12.1.2002 his father proceeded to Kandhra and did not return home. On 13.1.2002 in the morning the complainant was sitting in the house when Mumtaz Ali came and narrated about the dead body of Muhammad Pathan lying in the land of Ghulam Qadir Chandio out side the village. The complainant then proceeded with Muhammad Murad, Mumtaz Ali Chadhar and other villager to the land of Ghulam Qadir Chandio and found the dead body of Muhammad Pathan having fire arm and lathi injuries on his neck. The complainant then left the witnesses with the dead body and visited the Police Station Kandhra where he lodged the FIR suspecting each Shahzado @ Shado, Akbar, Muhammad Ali, Ali Nawaz, Rashid @ Deni, Bakhsho and Gulzar for committing murder of his father deceased Muhammad Pathan. ”

FIR was recorded on 13.01.2002 at P.S Kandhra, District Sukkur vide Crime No.03/2002 for offences under Sections 302, 147, 148, 149, PPC and 13(d), A.O.

3. After usual investigation, challan was submitted against appellant Shahzado and co-accused Akbar Ali, Qurban Ali and Ali Nawaz for offences under Sections 302, 34, PPC, whereas, the names of Abdul Rasheed, Gulzar, Bakhsho and Muhammad Ali were placed in column No.2 of the challan. Co-accused Ali Nawaz was under 18 years of age, therefore, he was tried as juvenile offender and his case was bifurcated and tried separately.

4. Trial Court framed the charge against the appellant / accused at Ex.13, who pleaded not guilty and claimed to be tried.

5. In order to substantiate the charge, prosecution examined eleven (11) PWs. Thereafter, prosecution side was closed.

6. Statement of the appellant / accused was recorded under Section 342, Cr.P.C, in which accused claimed false implication in this case and denied the prosecution allegations. He did not lead evidence in his defence and declined to give statement on oath in disproof of prosecution allegations.

7. Trial Court, after hearing the learned counsel for the parties and assessment of the evidence available on record, vide judgment dated 14.01.2010, convicted and sentenced the appellant / accused as stated above. Appellant has impugned the said judgment before this Court.

8. The facts of this case as well as evidence find an elaborate mention in the judgment of the trial Court and, therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.

9. Record reflects that according to the FIR incident had occurred at night time and complainant had suspected several persons in the FIR. During investigation, 161, Cr.P.C statements of PWs Arbab and Muhammad Suleman were recorded, in which they had stated that they were returning from Kandhra and saw accused persons namely Shahzado, Akbar, Qurban and Ali Nawaz, who told these witnesses that they will kill Pathan (now deceased). Thereafter, accused Akbar and Shahzado fired upon the deceased, in presence of the eyewitnesses. Eyewitnesses were related to the deceased. Other accused persons caught hold the deceased and gave him lathi blows. PW Arbab, in his cross-examination, has replied that “I am deposing falsely.” In his cross-examination, he has stated that police recorded his 161 Cr.P.C statement on 19.02.2009, whereas, incident had occurred on 12/13.01.2002. Eyewitnesses deposed that they had gone to Kandhra to purchase household articles. Investigation Officer did not interrogate them with regard to those articles. It has also not come on record that as a routine, these PWs used to go to Kandhra for purchasing the household articles. Co-accused Ali Nawaz, was juvenile offender; he was tried separately under the provisions of the Juvenile Justice System Ordinance, 2000, and he has been acquitted by the trial Court. Co-ccused Qurban Ali has also been acquitted more or less on same set of evidence. Co-accused Ghulam Akbar was acquitted by way of the compromise. In support of the contention, he has relied upon the case reported as Notice to Police Constable Khizar Hayat son of Hadait Ullah (PLD 2019 Supreme Court 527).

10. Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General conceded that co‑accused Qurban Ali has been acquitted on same set of evidence by trial Court, therefore, the principle of falsus in uno, falsus in omnibus is attracted to the case of the appellant and after seeking instructions from the complainant, he did not support the case of prosecution.

11. I have carefully heard the learned counsel for the parties and perused the material available on record.

12. In my considered view, evidence of eyewitnesses Arbab and Muhammad Suleman is not reliable for the reasons that they were chance witnesses. They had stated that at the time of incident, they were returning after purchase of household articles from Kandhra by bus. These witnesses no where had mentioned that as a routine, they used to purchase household articles from Kandhra. Investigation Officer had failed to interrogate the witnesses about the articles purchased by them from Kandhra. In my considered view, they were chance witnesses and related to the deceased. Evidence of these eyewitnesses required independent corroboration, which is lacking in this case. As regards to the evidence of chance witnesses, it is settled law that a chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime sport. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt. Reliance is placed upon the case of Sughra Begum v. Qaisar Pervaiz (2015 SCMR 1142).

13. Moreover, there are material contradictions in the evidence of eyewitnesses on material particulars of the case. PW Arbab, in his cross-examination, has replied that “I am deposing falsely.” In the cross-examination, PW Arbab has further deposed that his 161, Cr.P.C statement was recorded on 19.02.2009, though the incident had occurred on 12/13.01.2002. In case, he was present at his village on the day of incident, his 161, Cr.P.C statement should have been recorded soon after the registration of FIR. It is the question, which prosecution could not answer. Co-accused Qurban Ali and Ali Nawaz, on the same set of evidence, have been acquitted. The contradictions and discrepancies in the prosecution case, as stated above, are sufficient for holding that occurrence had not taken in the mode and manner as alleged by the eyewitnesses, rather in some other mode which PWs have concealed. The learned trial Court has squarely overlooked the material contradictions and discrepancies in the prosecution evidence and thereby has arrived at an erroneous conclusion by holding the appellant guilty of the offence. The learned trial Court has also erred in law of the convicting the appellant on the same set of evidence which has been disbelieved to the extent of acquitted co-accused Qurban Ali and Ali Nawaz. By now the principle of sifting grain from the chaff has been done away with and the principle of falsus in uno, falsus in omnibus has been made applicable in dispensation of criminal justice by the Hon’ble Supreme Court in its authoritative judgment dated 04.03.2019, rendered in Crl. Misc. Appln. No.200 of 2019 in Crl. A No.238-L of 2013, reported as (PLJ 2019 SC (Cr.C.) 265. In the judgment (supra) the principle of rule of “falsus in uno, falsus in omnibus” and “sifting grain from the chaff” was the main point for consideration. After exhaustive discussion, the Hon’ble Supreme Court held that rule falsus in uno, falsus in omnibus shall henceforth be an integral part of the 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. The relevant part of the judgment is reproduced as under:

“ We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerate 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. ”

14. It has come on record that co-accused Qurban Ali and Ali Nawaz have been acquitted on same set of evidence by the trial Court and prosecution had not filed any appeal against acquittal of co-accused as such their acquittal has attained finality which means that the findings of learned trial Court disbelieving the same set of evidence to the extent of acquitted co-accused are still intact. This aspect of the case would advance the case of the appellant. Besides, as stated above, the prosecution evidence is pregnant with doubts and according to golden principle of benefit of doubt; one substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. Conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case, must be resolved in favour of the accused. The said rule is based on the quote “it is better that ten guilty persons be acquitted rather than one innocent person be convicted” which occupied a pivotal place in the Islamic Law and is enforced strictly in view of the saying of the Holy Prophet (PBUH) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent”. Wisdom in this regard can also be derived from the judgments of the apex Court in the case titled “Muhammad Khan and another v. The State” (1999 SCMR 1220) and case titled “Muhammad Ikram v. The State” (2009 SCMR 230).

15. It is a well settled principle of criminal law that it is for the prosecution to prove its case against the accused beyond a shadow of a doubt and if there is any doubt in the prosecution case the benefit of such doubt, as set out in the case of Tariq Pervez v. The State (1995 SCMR 1345) must go to the appellant as of right as opposed to concession. However, in considering this aspect of the case we are also guided by the case of Faheem Ahmed Farooqui v. The State (2008 SCMR 1572) where it was held as under at P.1576 at Para D:

“ It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt. ” (bold added)

16. For what has been discussed above, I have come to the conclusion that there are more than one reasons / circumstances, which create reasonable doubt regarding presence of the eyewitnesses at the time of incident, therefore, by extending benefit of doubt, appeal is allowed. Conviction and sentence of the appellant recorded by learned trial Court vide judgment dated 14.01.2010 are set aside. Accused is acquitted of the charge. He be set at liberty forthwith, if not confined in any other case.

J U D G E

Abdul Basit