IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Crl. Appeal No.S-131 of 2011.

Before:-

Mr.Justice Muhammad Iqbal Mahar

Mr.Justice Irshad Ali Shah

Appellant : Sajjad Hussain son of Muhammad Ramzan

Bycaste Kalwar.

Through Mr. Ghulam Shabbir Dayo, advocate

State : Through Mr. Aftab Ahmed Shar, A.P.G

Crl. Revision Application No.D-101 of 2011.

Appellant : Muhammad Pathan s/o Razi Khan Kalwar,

Through Mr. Hadi Bux Bhatt, Advocate

Respondent. : Sajjad Hussain son of Muhammad Ramzan

Bycaste Kalwar.

Through Mr. Ghulam Shabbir Dayo, advocate.

State : Through Mr. Aftab Ahmed Shar, A.P.G

Date of hearing : 02-05-2019.

Date of decision : 02-05-2019.

J U D G M E N T

IRSHAD ALI SHAH, J.- The appellant Sajjad Hussain by way of instant Crl. appeal has impugned judgment dated 06-10-2011, passed by learned 1^st Additional Sessions Judge, Sukkur, whereby he for an offence punishable u/s 302 (b) PPC has convicted and sentenced to undergo rigorous imprisonment of life and to pay fine of Rs. 200,000/- to legal heirs of deceased Saeedullah and on account of his failure to make payment of fine, to undergo rigorous imprisonment for six months, which is sought to be enhanced by the appellant/complainant by way of filing a Crl. revision application.

2. The fact in brief leading to passing of instant judgment are that the appellant/accused allegedly with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object by committing trespass in house of applicant/complainant Muhammad Pathan fired and injured his son Saeedullah with intention to commit his murder, who died of such injuries in hospital, for that they were booked and reported upon by the police.

3. At trial, the appellant/accused and co-accused Manzoor Ahmed, Ghulam Shabbir, Aijaz Ali and Mujahid did not plead guilty to the charge and prosecution to prove it examined PW/1 appellant/complainant Muhammad Pathan at Ex. 26, he produced copy of FIR at Ex. 26/A, PW/2 Faheemullah at Ex. 27, PW/3 Asadullah at Ex. 28, PW/4 Dr. Muhammad Abdullah at Ex. 29, he produced inquest report at Ex. 29/A and post mortem report at Ex. 29/B, PW/5 mashir Hafiz Muhammad Siddiq at Ex. 30, he produced memo of injuries at Ex. 30/A, memo of vardat at Ex. 30/B, PW/6 mashir Hamidullah at Ex. 31, he produced memo of examination of dead body of the deceased at Ex. 31/A, Danistnama at Ex. 31/B, memo of clothes of deceased at Ex. 31/C, memo of arrest of accused at Ex. 31/D, PW/7 Mehboob Ali at Ex. 32, PW/8 ASI Allah Dino at Ex. 33, he produced Dasnistnama at Ex. 33/A, case diary at Ex. 33/B, PW/9 Inspector Hafiz Rehman at Ex. 34, PW/10 PC Rafique Ahmed at Ex. 35, PW/11 Tapedar at Ex. 37, he produced copy of sketch at Ex. 37/A and then closed the side vide statement at Ex. 38.

4. The statements of appellant/accused and co-accused Manzoor Ahmed, Ghulam Shabbir, Aijaz Ali and Mujahid were recorded under section 342 Cr.P.C at Ex. 39 to 43 wherein they denied the prosecution allegation by pleading innocence, they did not examine themselves on oath or anyone in their defence, but produced certain documents to prove their innocence.

5. On evaluation of evidence, so produced by the prosecution, the learned trial Court acquitted co-accused Manzoor Ahmed, Ghulam Shabbir, Aijaz Ali and Mujahid while convicted appellant/accused Sajjad Hussain and sentenced as detailed above, which is sought to be enhanced by the applicant/complainant by way of filing Cr. Revision Application, as stated above.

6. Both, the appeal filed by the appellant/accused and revision application filed by the applicant/complainant now are being disposed of by this Court through single judgment.

7. It is contended by learned counsel of the appellant/accused that he being innocent has been involved in this case by the complainant party in order to satisfy their enmity with him over possession of plot; the FIR of the incident has been lodged with delay of two days; 161 CrPC of the PWs has been recorded with the delay of one month; on same set of evidence co-accused Manzoor Ahmed, Ghulam Shabbir, Aijaz Ali and Mujahid have been acquitted while appellant/accused has been convicted by learned trial Court without cogent reason. By contending so he sought for acquittal of the appellant/accused. In support of his contention he relied upon cases of AMIN alias MUHAMMAD AMIN BROHI Vs. THE STATE (2001 P.Cr.L.J 845) (2) ABDUL HAMID Vs. The STATE (PLD 1980 Peshwar 25) and (3) RAHAT ALI Vs. THE STATE (2010 S.C.M.R 584).

8. The learned A.P.G for the State sought for dismissal of the appeal and revision application by supporting the impugned judgment.

9. It is contended by learned counsel for the applicant/complainant that when the appellant/accused was found to be guilty for having committing murder of the deceased, then he ought to have imposed penalty of death. By not imposing such penalty learned trial Court has committed wrong which could be made right by this Court by modifying the imprisonment of life into death.

10. We have considered the above arguments and perused the record.

11. The un-natural death of deceased Saeedullah is proved by the prosecution through evidence which has been furnished by medical officer Dr. Muhammad Abdullah. Even otherwise, there is no dispute with anyone with regard to the death of the said deceased being un-natural. It is established principle of law that medical evidence neither pin-points the accused nor establishes the identity of the accused but is supportive piece of evidence only to the extent of specification of seat of injuries, the weapon used, duration between injuries and death and the cause of death etc.

12. Once, the un-natural death of the deceased is proved, then only question which remains to be answered would be the guilt or innocence of the accused reported upon. Since, in instant case the un-natural death of the deceased is undisputed, hence is to be examined the liability of the appellant/accused towards the incident.

13. It has inter-alia stated by applicant/complainant and PWs Faheemullah and Asadullah that they were having a dispute with appellant and others over the closure of the street and plot for that a civil suit was also pending. On 19^th July 2003 when they and deceased after taking meal were sleeping in their house, there at about 2-00 am time, they woke up on noise of fallen bricks, there under the light of bulbs, they found accused Manzoor with T.T pistol, Sajjad alias Bidi (appellant/accused) with Kalashnikov, Khalid Hussain with gun, Mujahid Hussain with T.T pistil, Aijaz Ahmed with T.T pistol and Shabbir with gun standing in courtyard of their house. On instigation of accused Manzoor, appellant/accused Sajjad Hussain fired at deceased Saeedullah with intention to commit his murder, who by sustaining that fire shot injury fell down on the ground. On that they raised cries and then accused ran away by making aerial firing to create harassment. They shifted Saeedullah in injured condition to PS Baiji Sharif, obtained letter for treatment, he was then taken to Taluka Hospital Pano Aqil, there from he was referred to Civil Hospital Sukkur, there from he was referred to Chandika Medical College Larkana, there he died and incident then was reported to police formally. Despite lengthy cross examination, they have stood by their version on all material point with regard to the death of the deceased. If for the sake of argument, evidence of PWs Asadullah and Faheemullah is taken out of consideration for the reason that their 161 CrPC statements were recorded with delay of one month to the incident, even then the evidence of the complainant is enough to maintain conviction, as it transpires confidence.

14. In case of Allah Bux Vs. Shammi and others (PLD 1980 SC-225), it has been held 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”.

15. The priority with the applicant/complainant being father was to save life of his son (deceased) and achieve such object, he took his son (deceased) from one hospital to other. In that situation, it could be concluded safely that delay of two days in lodgment of the FIR has been explained plausible by the prosecution.

16. No doubt co-accused Manzoor Ahmed, Ghulam Shabbir, Aijaz Ali and Mujahid have already been acquitted by learned trial Court. They apparently have a different case. Even otherwise, it is observed that the principle of falsus in unofalsus in omnibus is hardly applicable to the present case because of certain aspects but for assuring safe administration of justice. The Court(s) 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 a particular set of accused and is to be believed against another 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 of another accused (convicted person), unless it is established that case of convicted accused squarely is similar to that of acquitted accused and there was/is no independent corroboration/supportive material for such conclusion.

17. In case of Iftikhar Hussain v. State (2004 SCMR-1185), it has been observed by the Hon’ble apex Court that:-

“17. It is true that principle of falsus in unofalsus 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 unoflasus 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)…..

18. In case of Muhammad Raheel @ Shafique v. State (PLD 2015 SC-145), it has also been observed held by Hon’ble apex 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 unofalsus 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”.

19. Admittedly, the deceased was in blood-relation of the complainant and normally a blood-relation may widen the net but would always attribute specific role to real culprit 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 applicant/complainant since very beginning though named number of persons in FIR, including acquitted accused, but specific role of committing death of the deceased by causing him fire-shot injuries has been attributed by him to the appellant/accused. The allegation against the appellant/accused does have independent corroboration in shape of medical evidence; place of incident; manner of incident as well weapon used by him. More so, there is nothing on record which may suggest that the applicant/complainant had any reason/motive to falsely name the appellant/accused for an act, resulting into death of his son, therefore the learned trial Court has committed no illegality while following the principle of appraisal of evidence by sifting of grain out of chaff.

20. In case of Ali Bux v. State (2018 SCMR 354), it has been observed by Hon’ble apex 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”.

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

22. It is stated that there was no long enmity between the parties. The dispute between the parties was on closure of the street and possession of the plot. The appellant/accused is in custody for about 17 years. In that situation no case for modification of sentence from ‘imprisonment for life’ to ‘death’ is made out.

23. In case of Ghulam Mohiuddin alias Haji Babu and others Vs. The State (2014 SCMR-1034), it has been held by the Honourable Court that;

“---S.302(b)---Qatl-e-amd---Sentence---Death sentence or imprisonment for life---Single mitigating circumstance---Sufficient to award life imprisonment instead of death penalty---Single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment---If a single doubt or ground was available, creating reasonable doubt in the mind of Court/Judge to award either death penalty or life imprisonment, it would be sufficient circumstance to adopt alternative course by awarding life imprisonment instead of death sentence---No clear guideline, in such regard could be laid down because facts and circumstances of one case differed from the other, however, it became the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case---If the Judge/Judges entertained some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows---Better to respect human life, as far as possible, rather than to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed”.

24. The case law relied upon by learned counsel for the appellant/accused is on distinguishable facts and circumstance. In case of Amin alias Muhammad Amin Brohi (Supra) the incident was found to be unseen. In the instant matter, the incident is found to be seen. In case of Abdul Hamid (Supra) the delay in lodgment of FIR was found to be unexplained. In the instant matter the delay in lodgment of FIR is found to be explained. In case of Rahat Ali (Supra) the late recording of statement of PWs was found to be fatal to the case of prosecution. In the instant case, if the evidence of PWs Asadullah and Faheemullah is taken out of consideration, even then solitary evidence of the complainant is found to be sufficient to uphold the conviction, which is record against the appellant.

24. In view of the facts and reasons discussed above, both the appeal preferred by the appellant/accused for his acquittal and revision application preferred by applicant/complainant for enhancement of the sentence are dismissed.

Judge

Nasim/P.A