Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Appeal No. D – 118 of 2017

Cr. Appeal No. D – 89 of 2018

Before :

Mr. Justice Naimatullah Phulpoto

Mr. Justice Rasheed Ahmed Soomro

Date of hearing : 20.08.2019.

Mr. Dareshani Ali Haider ‘Ada’, Advocate for the appellant in Criminal Appeal No. D-118/2017.

Mr. Zafar Ali Eidan Mangi, Advocate for the appellant in Criminal Appeal No. D-89/2018.

M/s Zulfiqar Ali Jatoi, Additional Prosecutor General and Abdul Rehman Kolachi, Deputy Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Hakim son of Muhammad Waris was tried by learned Judge, Anti-Terrorism Court, Naushahro Feroze in Special Case No.07/2015. On the conclusion of the trial vide judgment dated 24.08.2017, appellant Hakim was convicted under Section 302(b) / 149, PPC read with Section 7(1)(a) of Anti-Terrorism Act, 1997 and sentenced to imprisonment for life. Accused Hakim was also ordered to pay compensation of Rs.1,00,000/- (Rupees one lac) in terms of Section 544‑A, Cr.P.C to be paid to the legal heirs of deceased Dildar Ali Chandio; in case of default in the payment of said compensation, accused Hakim was ordered to suffer further R.I for one year. Co-accused Gul Meer, Hameer, Atta Muhammad, Suhbat, Qabil and Shamshad were declared as proclaimed offenders and their case was kept on dormant file. Appellant Hakim filed Criminal Appeal No. D-118/2017 against his conviction and sentence recorded by the trial Court.

2. During pendency of appeal of accused Hakim, accused Gul Meer was arrested and faced trial before learned Judge, Anti-Terrorism Court, Naushahro Feroze in Special Case No.98/2017. On the conclusion of the trial, in the same crime vide judgment dated 09.08.2018, appellant Gul Meer was also convicted under Section 302(b) / 149, PPC read with Section 7(1)(a) of Anti-Terrorism Act, 1997 and sentenced to imprisonment for life. Accused Gul Meer was also ordered to pay compensation of Rs.2,00,000/- (Rupees two lac) in terms of Section 544‑A, Cr.P.C to be paid to the legal heirs of deceased Dildar Ali Chandio; in case of default in the payment of said compensation, accused Gul Meer was ordered to suffer further R.I for one year. He has also filed Criminal Appeal No. D-89/2018.

3. During the pendency of these appeals, co-accused Suhbat, Hameer, Atta Muhammad, Qabil and Shamshad were arrested and they faced trial before the trial Court in Special Case No.37/2018. Vide judgment dated 14.06.2017, all the accused were acquitted of the charges except Suhbat.

4. Brief facts leading to the filing of aforesaid appeals, as reflected in the judgment of the trial Court, are that there was dispute over the landed property between Jatoi community and relatives of the complainant, the land of complainant is situated in Johi Deh. On 25.12.2014, complainant along with his brother Dildar aged about 29/30 years (now deceased) and uncle Manzoor Ali son of Hussain Bux, cousin Lakhmeer son Muhammad Bux Chandio together boarded on two motorcycles went to land where gave oil to farmers and were returning to village, above named witnesses were coming on the motorcycle behind him. It is alleged that headlights of motorcycles were on, when at about 7.15 p.m they reached near Dadu Moro road at link road leading to Danoo Chandio, on the headlight of motorcycles identified accused Gulmeer, Hameer both sons of Malhar both armed with G-3 Rifles, Atta Muhammad son of Rustam with K.K, Suhbat armed with G-3 Rifle, Hakim armed with K.K, both sons of Waris, Qabil son of Saindad armed with repeater, Shamshad son of Imam Bux armed with K.K all by caste Jatoi, all R/o Village Ghahno Jatoi, Taluka Dadu, they encircled/surrounded the complainant party and on the pointation of weapons they stopped complainant party and accused Gulmeer challenged to Dildar that he would be murdered; by saying these words, it is stated that he made direct fire from his G-3 Rifle upon Dildar which hit him on the back side of Spine, accused Hameer fired directly from his G-3 Rifle upon his brother which hit him on back side of ribs, accused Atta Muhammad directly fired upon Dildar with G-3 Rifle which hit him on back right side of ribs, accused Suhbat directly fired upon Dildar with K.K which hit him on back right side of Spine, accused Hakim directly fired upon Dildar with K.K, which hit him on right side, accused Qabil directly fired upon Dildar with repeater which hit him on Pelvis he raised cries and fallen down, due to fear of murder complainant party was hiding themselves, then all accused persons started aerial firing for creating terror and raised slogans, and went towards southern side. Then complainant along with above named witnesses saw Dildar who received firearm injuries, blood was oozing form body, complainant informed to his relatives on mobile phone and they took Dildar on the motorcycle and brought him at Dadu Hospital, but his brother expired on the way to hospital. Complainant party furnished such information to police on cell number. Police reached and completed all the legal formalities and got postmortem examination conducted. Thereafter, dead body was handed over to complainant for burial ceremony then complainant appeared at PS and lodged FIR against the accused. It was recorded on 30.12.2014 at 18:30 hours for offences under Sections 302, 337-H(2), 148, 149, PPC, 7-ATA, 1997.

5. After usual investigation, challan was submitted against accused under Sections 302, 337-H(2), 148, 149, PPC, 7-ATA, 1997.

6. Trial Court framed the charge against both the accused while trying them in separate cases. They pleaded not guilty and claimed to be tried.

7. At the trial of appellant Hakim, prosecution examined nine (09) PWs and prosecution side was closed while at the trial of appellant Gul Meer, prosecution also examined nine (09) PWs and prosecution side was closed.

8. Statement of accused Hakim was recorded under Section 342, Cr. P.C in which he claimed false implication in this case and denied the prosecution allegation. Statement of accused Gul Meer was also recorded under Section 342, Cr. P.C in which he claimed false implication in this case and denied the prosecution allegation.

9. After hearing the arguments of the learned counsel for the parties, trial Court by separate judgments dated 24.08.2017 and 09.08.2018, respectively, convicted and sentenced both the appellants as stated above. Hence, separate appeals are filed.

10. By this single judgment, we intend to decide both appeals together as the same have arisen out of same crime and require same appreciation of evidence.

11. Mr. Dareshani Ali Haider, advocate for appellant Hakim argued that ocular evidence was contradictory to the medical evidence. He referred to the evidence of the doctor, in which the doctor has replied that all injuries wounds were from backside. According to defence counsel, all the eyewitnesses have deposed that deceased sustained firearm injuries from front side. It is also argued that three times evidence of the eyewitnesses was recorded before the trial Court and different versions have been given by the prosecution witnesses and major improvements have been made. It is also argued that on the basis of same set of witnesses, trial Court has acquitted accused Hameer, Atta Muhammad, Qabil and Shamshad vide judgment dated 14.06.2017, therefore, evidence of the eyewitnesses could not be believed to the extent of the present accused. Reliance is placed upon the principle “falsus in uno, falsus in omnibus” reported in PLD 2019 Supreme Court 527.

12. Mr. Zafar Ali Eidan Mangi, advocate for appellant Gul Meer adopted the same arguments.

13. Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General conceded to the legal position that principle of falsus in uno, falsus in omnibus is attracted to this case and did not support the case of prosecution.

14. After hearing the learned counsel for the appellants as well as Additional Prosecutor General, we have carefully perused the evidence recorded by the trial Court during the trial of Hakim, Gul Meer and during the trial of remaining accused namely Hameer, Atta Muhammad, Qabil and Shamshad, who have been acquitted by the trial Court.

15. Record reflects that for the first time, when accused Hakim was arrested and tried, evidence of the complainant namely Manthar Ali was recorded and he assigned the following roles to the accused persons. Relevant portion of his evidence to the extent of roles is reproduced as under:

“ We saw seven armed persons on road, they encircled us. We identified them to be Gul Meer Jatoi, Hameer and Suhbat armed with G-3 Rifles, Atta Muhammad, Shamshad and Hakim with K.Ks, Qabil with Repeater. Accused Gul Meer disclosed and asked my brother Dildar that he will commit his murder. Accused Gul Meer Jatoi fired from his G-3 Rifle which hit on spinal cord of my brother Dildar. Accused Hameer Jatoi fired from G-3 which hit at right scapula of Dildar. Accused Atta Muhammad Jatoi fired from his K.K which hit my brother of left scapula. Accused Suhbat Jatoi also fired from his G-3 which hit at right side spinal cord of my Dildar. Accused Hakim fired from his K.K which hit on the left side of abdomen of my brother Dildar. Accused Qabil fired from his repeater which hit at penis of my brother Dildar. Accused Shamshad fired indiscriminately in air for creating harassment and terror. Thereafter all accused while firing in air went southern side while raising slogans. ”

16. After arrest of accused Gul Meer, again evidence of complainant Manthar Ali was recorded. He assigned the following roles to the accused persons. Relevant portion of his deposition recorded before the trial Court is reproduced as under:

17. Both accused on the basis of above evidence were convicted, however, accused Hameer, Atta Muhammad, Qabil and Shamshad were subsequently arrested and deposition of complainant Manthar Ali and eyewitness Lakhmeer has been discussed by learned Judge, Anti-Terrorism Court, Naushahro Feroze in the judgment dated 14.06.2017. Relevant paragraphs are reproduced as under:

“ 13. To prove this point prosecution examined PW-Complainant Manthar Ali Chandio at Ex.28, he deposed that deceased Dildar Ali was his brother. There is dispute between Jatoi and their caste fellows on the matter of agricultural land. On 25.12.2014 he, his brother Dildar, uncle Manzoor and Cousin Lakhmeer went to his agricultural land for providing fuel for the tube-well on two motorcycles. After visiting the agricultural land and handing over the fuel to farmers while they were returning back on same motorcycles, when they reached at old Dadu-Moro Link Road at the road leading to village Danoo Chandio. They saw seven armed persons on road, they encircled them. They identified them to be Gul Meer Jatoi, Hameer and Suhbat armed with G-3 Rifles, Atta Muhammad, Shamshad and Hakim with K.Ks, Qabil with Repeater. Accused Gul Meer disclosed and asked his brother Dildar that he will commit his murder. Accused Gul Meer Jatoi fired from his G-3 Rifle which hit on spinal cord of his brother Dildar. Accused Hameer Jatoi fired from G-3 which hit at right scapula of Dildar. Accused Atta Muhammad Jatoi fired from his K.K which hit his brother of left scapula. Accused Suhbat Jatoi also fired from his G‑3 which hit at right side spinal cord of his brother Dildar. Accused Hakim fired from his K.K which hit on the left side of abdomen of his brother Dildar. Accused Qabil fired from his repeater which hit at penis of his brother Dildar. Accused Shamshad fired indiscriminately in air for creating harassment and terror. Thereafter all accused while firing in air went on southern side while raising slogans. ……………

14. PW-Lakhmeer at Ex.29, stated that Complainant Manthar is his cousin. Deceased Dildar Ali was also his cousin. There was dispute between Jatoi and their caste fellows on the agricultural land. They have agricultural land in Deh Choi. On 25.12.2014 he alongwith Dildar, Manthar and Manzoor Ali went to their land on two motorcycles. They had fuel with them. They visited their agricultural land and handed over fuel to their farmer. Thereafter they all returned back on same motorcycles. They were coming through old Dadu-Moro Link Road. When reached at Link Road leading to village Danoo Chandio they saw seven armed persons who stopped them. They identified them to be Gul Muneer, Hameer armed with G-3 Rifles, Atta Muhammad with K.K, Suhbat with G-3, Hakim with K.K, Qabil with Repeater, Shamshad with K.K, all by caste Jatoi, R/o. village Gahno Khan Jatoi, District Dadu. They encircled them. Accused Gul Muneer told nephew Dildar Ali that they will kill him and fired upon Dildar Ali which hit on his spinal cord. Accused Hameer fired from his G-3 Rifle which hit him on left scapula. Accused Atta Muhammad fired his K.K which hit him on right scapula. Accused Suhbat fired upon his newphew Dildar Ali which hit on his spinal cord. Accused Hakim fired from K.K which hit on the right side of abdomen. Accused Qabil fired from his Repeater which hit at penis of Dildar Ali. Dildar Ali raised cries and fell down. Accused Shamshad having K.K fired indiscriminately in the air. Thereafter accused persons while raising slogans, spreading terrorism and harassment by firing in the air went away towards southern side. …………… ”

18. Trial Court on the basis of evidence of complainant Manthar Ali and eyewitness Lakhmeer acquitted the above named accused namely Hameer, Atta Muhammad, Qabil and Shamshad for the following reasons:

“ 19. Heard learned APG for the State, learned counsel for the accused and perused the evidence carefully. Complainant Manthar Ali Chandio disclosed the facts of FIR in detail, but did not identify accused present in the court to be same. PW-Lakhmeer Chandio also disclosed the facts of incident in detail, but did not identify accused present in the court. Complainant and PW-Lakhmeer Chandio have been declared hostile by learned APG for the State and cross examined them at length, but nothing favorable to prosecution has come on record. PW/Mashir Khadim Hussain Chandio produced memos and other relevant documents prepared in respect of dead body of the deceased and place of incident and supported the same. ASI Sheral Mallah, prepared memo of inspection of dead body of deceased Dildar Chandio, Danishnama, lash chakas form and registered FIR at the verbatim of the complainant and identified his signatures on the above documents to be same. I.O Inspector Akhtar Ahmed Abbasi recorded statements of witnesses u/s 161 Cr.P.C and after completing investigation submitted final report. Since complainant Manthar Ali and PW-Lakhmeer Chandio who are eyewitnesses of the incident did not identify present accused in the court. Evidence of remaining witnesses is formal in nature, therefore, under these circumstances case of prosecution is not free from doubt, I, therefore, reply this point as doubtful. ”

19. We have noticed that on same set of witnesses / ocular evidence, trial Court acquitted co-accused Hameer, Atta Muhammad, Qabil and Shamshad, but on the basis of evidence of same witnesses in the same crime convicted accused Hakim and Gul Meer. Law is very settled that said evidence cannot be believed to the extent of present appellants Hakim and Gul Meer for the reasons that principle of sifting grain from chaff is no more applicable rather principle of falsus in uno, falsus in omnibus has been invoked for deciding criminal cases through the order recently pronounced by the Hon'ble Supreme Court of Pakistan in the case of Notice to Police Constable Khizar Hayat son of Hadait Ullah reported in PLD 2019 Supreme Court 527. Relevant paragraph No. 21 is being reproduced:

“ 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 of 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. ”

20. Apart from that evidence of complainant Manthar Ali and eyewitness Manzoor Ali was recorded in three different trials in the same crime. There are major improvements in their evidence with regard to the role of the accused persons. Moreover, according to the Medical Officer, deceased had sustained injuries from the backside, whereas, prosecution case is that injuries were caused to the deceased from the front side. Presence of the complainant and other PWs at the time of incident appears to be highly doubtful for the reasons that at the time of firing no effort was made by them to rescue the deceased. It is also very strange that no fire hit the complainant party, when according to the case of prosecution, deceased was at the distance of four feet from the complainant. Keeping in view the provision of Article 129 of the Qanun-e-Shahadat Order, which is to the following effect:

“ S. 129. Court may presume existence of certain facts.---The Court may presume the existence of any fat which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case–– ”

The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore, no explicit reliance can be placed on their testimony. They had only given photogenic / photographic narration of the occurrence but did nothing nor took a single step to rescue the deceased.

21. Whole story appears to be unnatural and unbelievable. There is also background of the enmity between the parties. There was five (05) days delay in lodging of the FIR, for which no plausible explanation has been furnished. There is also another crucial aspect of the case that soon after the incident, complainant while taking the injured who subsequently succumbed to the injuries, informed the incident to the police through his mobile phone. Such entries No.13 and 14 were registered at the police station, but complainant did not disclose the names of the accused persons, which creates serious doubts in the case of prosecution. Complainant in his cross-examination has replied that he had identified the accused persons on the light of motorcycle. It clearly shows that it was night time incident, but source of light has not been disclosed by the complainant in his FIR. Moreover, Investigation Officer failed to recover the motorcycle on which accused were identified. There are several circumstances in this case which create doubts in the case of prosecution. It is settled law that a single circumstance which creates doubt in the case of prosecution is sufficient to extend the benefit of doubt to accused.

22. In the light of above evidence and circumstances, prosecution has failed to prove its case against the appellants beyond shadow of doubt. Resultantly, Criminal Appeals No. D-118/2017 and D-89/2018 filed by appellants Hakim and Gul Meer, respectively, are allowed. Conviction and sentence recorded by the trial Court vide judgment dated 24.08.2017 and 09.08.2018 are set aside. Appellants are acquitted of the charge. They are ordered to be released from the jail forthwith if not required in some other case.

23. These are the reasons for our short order announced by us on 20.08.2019.

J U D G E

Abdul Basit