IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Jail Appeal No.S-19 of 2013

Appellant : Abdul Kambeer s/o Bashir Ahmed Lashari,

Through Mr.Azhar Hussain Abbasi, Advocate

The State : Through Mr.Muhammad Noonari, D.P.G

Date of hearing : 20.12.2018

Date of decision : 04.01.2019

JUDGMENT

IRSHAD ALI SHAH, J.- The appellant by way of instant criminal jail appeal has impugned judgment dated 31.01.2013, passed by learned Sessions Judge, Jacobabad, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for life and to pay compensation of rupees One Lac to the legal heirs of deceased Faiz Muhammad and in case of his failure to make payment of compensation to undergo R.I for six months with benefit of Section 382-B Cr.PC.

2. The facts in brief necessary for disposal of instant criminal jail appeal are that the appellant alongwith acquitted co-accused Najamuddin, Ghulam Rasool alias Nandho and Shah Muhammad, in furtherance of their common intention, committed Qatl-e-Amd of Faiz Muhammad by causing him fire shot injury and then went away by making aerial firing to create harassment, for that they were reported upon by the police.

3. At trial, the appellant and said co-accused did not plead guilty to the charge and the prosecution to prove it, examined PW-01 ASI Shahanshah (Exh.06), he produced FIR of the present case, PW-02 complainant Khalid Hussain (Exh.07), PW-02 Nisar Ahmed (Exh.10), PW-03 Mashir Ghulam Mustafa (Exh.11), he produced memo of inspection of dead body of deceased Faiz Muhammad, Danistnama and memo of place of incident, PW-04 SIO/ASI Muhammad Hassan (Exh.13), he produced receipt with regard to delivery of dead body of the said deceased to complainant Khalid Hussain, memo of arrest and recovery, reports of ballistic expert and chemical examiner, PW-05 Tapedar Ranjho Khan (Exh.14), he produced sketch of vardat, PW-06 HC Abdul Sattar (Exh.15), PW-07 Medical officer Dr.Abdul Karim (Exh.16), he produced postmortem report on dead body of deceased Faiz Muhammad, PW-08 PC/Corpse bearer Umerddin (Exh.17), he produced Lash Chakas Form and then the prosecution closed its side by way of statement filed by incharge DPP (Exh.18).

4. The appellant and said co-accused during course of their examination u/s 342 Cr.PC denied the prosecution’s allegation by pleading innocence. They did not examine anyone in their defense or themselves on oath in disproof of the prosecution allegation.

5. On evaluation of the evidence, the learned trial Court acquitted co-accused Najamuddin, Ghulam Rasool alias Nandho and Shah Muhammad of the charge while convicted and sentenced the appellant, as detailed above.

6. It is contended by learned counsel of the appellant that the appellant being innocent has been involved in this case falsely by the complainant party, there is delay of two days in lodgment of the FIR, the complainant and his witnesses being related inter-se are not natural witnesses to the incident, PW Muhammad Sharif has been given up by the prosecution without lawful justification, the evidence which is produced by the prosecution has been believed for recording conviction against the appellant and while it has been disbelieved for recording acquittal of co-accused Najamuddin, Ghulam Rasool alias Nandho and Shah Muhammad, which is against the principle of natural justice. By contending so, he sought for acquittal of the appellant. In support of his contention, he relied upon cases of Ayub Masih Vs. The State (PLD 2002 Supreme Court-1048), 2). Zeeshan @ Shani Vs. The State (2012 SCMR-428), 3). Riaz Ahmed Vs. The State (2010 SCMR-846), 4). Ashiq Hussain Vs. The State (1993 SCMR-417), 5). Amin Ali and another Vs. The State (2011 SCMR-323) and 6).Muhammad Mansha Vs. The State (2018 SCMR-772).

7. It is contended by learned D.P.G for the State that the appellant is neither innocent nor is involved in this case falsely by the complainant party, on arrest from him has been secured the incriminating gun which has matched similar with the empty cartridge recovered from the place of incident, the complainant and his witnesses are natural witnesses to the incident and they have rightly been believed by learned trial Court while convicting the appellant and the delay in lodgment of the FIR was natural and it has been explained plausibly. By contending so, he sought for dismissal of the instant criminal jail appeal of the appellant. In support of his contention, he relied upon cases of Muhammad Saleem Vs. The State (2018 SCMR-1001), 2). Zulfikar Ali Shah and others Vs. The State and others (2000 PCr.LJ-894), 3). Bahawal Bakhsh Vs. The State (2002 PCr.LJ- 1902), 4). Muhammad Anwar Vs. The State (2017 SCMR-630) and 5). Ghulam Muhammad and another Vs. The State and another (2017 SCMR-2048).

8. I have considered the above arguments and perused the record.

9. The death of deceased Faiz Muhammad being unnatural is proved of un-rebutted evidence of medical officer Dr.Abdul Karim. As per him, the deceased was found sustaining following injury;

“1. Five lacerated punctured wound size 1 cm x diameter x muscle deep, 2 cm apart from each other with inverted margins on the left side mid chest medially near the nipple superiorly (wound of entrance) through and through. A lacerated punctured wound size 4 cm x diameter with irregular in shape with everted margins on the left side mid back of abdomen medially (wound of exit)”.

10. Now is to be examined the liability of the appellant toward the present incident. It has been stated by complainant Khalid Hussain and PW Nisar Ahmed during course of their examination that on 21.02.2010, they, PW Muhammad Sharif and deceased Faiz Muhammad were going to their village, when reached at the lands of Kangal Lashari, there at about 06.30 p.m came out from “Pall” (grass) from nearby land appellant Abdul Kambeer and co-accused Shah Muhammad, Ghulam Rasool alias Nandho and Najamuddin, they were armed with guns. Out of them, appellant Abdul Kambeer by raising “hakal” said to deceased Faiz Muhammad that he would avenge the dishonor met out to him by killing him and then straightly fired from his gun at deceased Faiz Muhammad, who by sustaining such fire died, while rest of the co-accused made aerial firing to create harassment and then they went away towards eastern direction. It is further stated by the complainant and his witness that they then took dead body of deceased Faiz Muhammad to his house and after consulting their elders, handed over the same to police, it was sent to hospital for postmortem and then the incident was reported to police after burial of dead body of deceased Faiz Muhammad. The complainant and PW Nisar Ahmed have been subjected to lengthy cross examination by learned counsel for the appellant and acquitted co-accused but they stood by their version with regard to death of the said deceased at the hands of appellant. It was denied by them that deceased Faiz Muhammad has been killed during course of robbery. The presence of the complainant and his witness at the place of incident do take mention in sketch of vardat, which was produced at trial by PW Tapedar Ranjho Khan. Significantly, the evidence of PW Tapedar Ranjho Khan has gone un-rebutted. It is true that there is delay of two days in lodgment of the FIR but there could be made no denial to the fact that such delay has been explained plausibly by complainant Khalid Hussain in his FIR and during course of his examination before learned trial Court, as is detailed above, the same even otherwise is not appearing to be enough to disbelieve the complainant and his witness only for the reason that they are related inter-se.

11. Admittedly, the deceased was in blood-relation to the complainant party and normally a blood-relation may widen the net but would always attribute specific role to culprit actually involved in the incident and normally would never prefer to let the thick blood to go in vain. In the instant case, it has been a matter of record that the complainant and his witness from very beginning though named number of persons in FIR and 161 Cr.PC statements including acquitted co-accused, but specific role of committing death of deceased Faiz Muhammad was attributed by them against the appellant. No doubt, co-accused Najamuddin, Ghulam Rasool alias Nandho and Shah Muhammad have been acquitted by learned trial Court but there could be made no denial to the fact that their case was distinguishable to that of the appellant. As said above, the role attributed to them (acquitted co-accused) in commission of incident was only to the extent of making fires in air to create harassment, which has made their involvement in the present case within the ambit of Section 34 PPC to be doubtful.

12. Even otherwise, the principle of “falsus” in “uno-falsus” in “omnibus” is not appearing to be applicable to the present case simply for the reason that the Court(s) is/are always required to follow the principle of appraisal of evidence by sifting of grain out of chaff. For example, if an ocular testimony of a witness is to be disbelieved against one set of accused and is to be believed against other set of accused facing the same trial, then the Court must search for independent corroboration on material particulars. Thus, mere acquittal of one accused would never be sufficient to earn acquittal for another accused, unless it is established that case of convicted accused squarely is similar to that of acquitted accused and there was/is no independent corroboration/supporting material for such conclusion. Reference in that respect may be placed upon case of Iftikhar Hussain and others Vs. The State (2004 SCMR-1185), wherein it has been observed by the Hon’ble Court that:-

“17. It is true that principle of falsus in uno-falsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e sifting of grain out of chaff i.e if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758, relevant para therefrom is reproduced here-in-below thus;-

the proposition of law in criminal administration of justice namely whether a common set of ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the same commission of offence is an over-worked proposition. Originally the opinion of the Court was that if a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno-falsus in omnibus but subsequently this view was changed and it was held that principle enshrined in this maxim would not be applicable and testimony of a witness will be acceptable against one set of accused though same has been rejected against another set of accused facing same trial. However, for safe administration of justice a condition has been imposed namely that the evidence which is going to be believed to be true must get independent corroboration on material particulars meaning thereby that to find out credible evidence principle of appreciation of evidence i.e sifting chaff out of grain was introduced as it has been held in the cases of Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC-502)…..

13. In case of Muhammad Raheel @ Shafique v. The State (PLD 2015 SC-145), it has been held by Hon’ble Court that:-

“5. thus, their acquittal may not by itself be sufficient to cast a cloud of doubt upon the veracity of the prosecution’s case against the appellant who was attributed the fatal injuries to both the deceased. Apart from that the principle of falsus in uno-falsus in omnibus is not applicable in this country on account of various judgments rendered by this Court in the past and for this reason too acquittal of the five co-accused of the appellant has not been found by us to be having any bearing upon the case against the appellant”.

14. The allegation against the appellant is having independent corroboration in shape of medical evidence, place of incident, manner of incident as well as recovery of gun allegedly used by him in commission of the incident and it was found matched similar with empty cartridge so recovered from the place of incident. Further, nothing has come on record which may suggest that the complainant and his witness were having any reason/motive to falsely name the appellant for an act, resulting into death of the deceased (a blood-relation of the complainant party), therefore the learned trial Court has committed no illegality while following the principle of appraisal of evidence by sifting of grain out of chaff. Reliance in that respect may be placed upon case of Ali Bux and others Vs. The State (2018 SCMR-354), wherein it has been observed the Hon’ble Court that;

“3. The occurrence in this case had taken place in broad daylight and at a place where at the same could have been seen by many persons available around the place of occurrence. An information about the said occurrence had been provided to the police on telephone within fifteen minutes of the occurrence. In the FIR lodged in respect of the incident in question the present appellants had been nominated and specific roles had been attributed to them therein. The ocular account of the incident had been furnished before the trial Court by three eye-witnesses namely Ali Akbar complainant (PW-01) Ghulam Shabir, (PW-02) and Bilawal (PW-03) who had made consistent statements and had pointed their accusing fingers towards the present appellants as the main perpetrators of the murder in issue. The said eye-witnesses had no reason to falsely implicate the appellants in a case of this nature and the medical evidence had provided sufficient support to the ocular account furnished by them”.

15. No doubt, PW Muhammad Sharif has not been examined by the prosecution, but his non examination is not appearing to be enough to draw an inference that he was given up by the prosecution only for the reason that he was not going to support the case of prosecution. If the appellant was having a feeling that PW Muhammad Sharif was not going to support the case of prosecution then the appellant ought to have examined him in his defence. It was not done by the appellant for no obvious reason. In that situation, no benefit could be extended to the appellant on account of failure of the prosecution to examine PW Muhammad Sharif. It is settled by now that it is the quality of the evidence, which has to prevail and not its quantity. The reference in that context may be placed upon case of Allah Bux Vs. Shammi and others (PLD 1980 SC-225), wherein it has been observed by the Honourable Court that;

“Conviction, even in murder cases, held, can be based on testimony of a single witness if Court satisfied as to witness being reliable-Emphasis, held further, laid on quality of evidence and not on its quantity”.

16. By putting a suggestion to the complainant and his witness that deceased Faiz Muhammad has died during course of robbery, an impression was created that the appellant has been involved in this case falsely by the complainant party instead of real culprit. The involvement of the innocent person instead of real culprit is rare phenomenon. The reference in that context may be placed upon case of Zahoor Ahmed Vs. The State (2007 SCMR-1519), wherein it has been observed by the Honourable Court that;

“6. …The petitioner is a maternal-cousin of the deceased, as also the first cousin of the deceased through paternal line of relationship and thus, in the light of the entire evidence it has correctly been concluded by the learned High Court that the blood relation would not spare the real culprit and instead would involve an innocent person in the case. Further, it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial”.

17. In view of the facts and reasons discussed above, it is concluded safely that the appellant has failed to establish any prima facie mis-reading or non-reading of the evidence/material available on record or failure on part of the learned trial Court in following the settled principle of law for appreciation of evidence. Thus, the learned trial Court has rightly found the appellant to be guilty of the offence, for which he was charged, tried and convicted.

18. The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstances. The case of Ayub Masih (supra), was relating to an offence punishable u/s 295-C PPC, the same prosecution failed to prove beyond shadow of doubt. The instant case is relating to an offence punishable u/s 302 PPC which prosecution has been able to prove beyond shadow of doubt. In case of Zeeshan alias Shani (supra), allegation that the accused were already known to the complainant and his witness remained unproved which created doubt. In the instant case, the appellant was known to the complainant and his witness and such fact has been proved beyond shadow of doubt. The case of Riaz Ahmed (supra), was rested on the solitary statement of complainant. One of eye witness of the incident died while other was given up by the prosecution. The oral evidence was in conflict with medical evidence, which resulted in acquittal of the accused. In the instant matter, the case of prosecution is not resting on the solitary evidence of the complainant, there is hardly a conflict between oral and medical evidence which may result in acquittal of the appellant. In case of Ashiq Hussain (supra), the ocular version was not found consistent with the medical evidence, which resulted in acquittal of the accused. In the instant case, the ocular version has been found to be consistent with medical evidence. In case of Ameen Ali and another (supra), it was held that the injury with blackening on the person of the deceased could not be caused from distance of less than three feet and none of the witness deposed that any of the accused has caused injury to the deceased from close range. In the instant case, no explanation in that context was sought for from medical officer, significantly his evidence has gone un-rebutted and unchallenged. In case of Muhammad Mansha (supra), it was held that it was not necessary that many but single circumstance is enough to create doubt about the case of the prosecution. In the instant case, there appears hardly a circumstance which may suggest doubt which may make the appellant entitled to such benefit.

19. In view of the facts and reasons discussed above, it is concluded that the conviction and sentence which is awarded to the appellant by learned trial Court is not calling for any interference by this Court by way of filing instant criminal jail appeal, it is accordingly dismissed.

JUDGE

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