IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Appeals No.D-29 & 30 of 2018
Before:
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Abdul Mobeen Lakho
Date of hearing: 17.09.2019
Mr. J.K.Jarwar, Advocate for the
appellants
Mr. Shafi Muhammad Mahar, D.P.G
JUDGMENT
Abdul Mobeen Lakho, J: Appellants
Dawood and Ameen faced trial before learned Judge Anti-terrorism Court, Naushahro Feroze for offences u/s 302,
363, 337-H(2), 147, 148, 149 PPC r/w Section 7 ATA, 1997, registered at Police
Station New Jatoi. After regular trial vide judgment dated 28.02.2018 accused
were convicted under Sections 302, 149
PPC r/w section 7(1)(a) of Anti-Terrorism Act, 1997, and sentenced to imprisonment
for life and to pay compensation of Rs.200,000/- each to be paid to the legal
heirs of deceased in terms of Section 544-A Cr.P.C. In case
of default to undergo S.I for 01 year more. Accused Aameen was also
convicted for the offence punishable u/s 23(1)(a) r/w
section 25 of Sindh Arms Act 2013 and sentenced him to suffer R.I for five
years. They preferred these appeals against their conviction and sentences
recorded by the trial Court.
2. Briefly
the facts leading to filing of aforesaid appeals are that FIR
No.88/2016 was lodged by the complainant Jamaluddin Qambrani at police station
New Jatoi, alleging therein that on 18.03.2016 at 08:30 hours, his cousin Umaid
Ali son of Ali Bux aged about 40 years, was serving as dispenser in RHC New
Jatoi, about two years back he had contracted marriage with Mst.Farzana. It is alleged
that she was divorced by her previous husband Abbas Mastoi, out of said wedlock
she had one baby Dilkash aged about 04 years. Accused were annoyed with Umaid
Ali and had issued threats of murder. On 17.03.2016 complainant along with his
cousin Umaid Ali, Mst. Farzana relative Sajid Ali son of Muhammad Yaqoob and
Niaz son of Muhammad Baqar resident of village Old Jatoi, boarded in carry van
driven by Abdul Qayoom Jatoi, at about 0830 hours reached in City New Jatoi
near Al-Falah Hospital, then from back side one white color Cultus car and two motorcycles crossed the
complainant party and they pointed out their weapons at the complainant party
and gave signal to stop them, driver stopped carry van. It is alleged that all
accused got down from the vehicles, they were (i) Abbas son of Ali Bux Mastoi,
(ii) Nazeer son of not known , (iii) Dawood Mastoi son
of not known, (iv) Nasrullah son of Umaid Ali, (v) Aameen son of Ali Bux, (vi) Asghar son of Ali Sher all by caste
Mastoi, armed with pistols and three unknown accused persons with deadly
weapons with open faces, if seen again will be recognized. It is stated that
accused Abbas Mastoi with intention of murder fired upon Umaid Ali which hit
him on chest, accused Aameen fired from his pistol which hit Umaid Ali on his
left side of chest, accused Nazeer fired from his pistol which hit Umaid Ali on
left cheek, accused Nasrullah fired upon Mst. Farzana, which hit her on
abdomen, accused Asghar and Dawood fired upon Mst. Farzana, which hit her on
neck and on face, within the sight of complainant party both expired at spot. Accused
persons kidnapped baby Dilkash, drove away by firing to create terror.
Meanwhile ASI Ishaque reached at the place of incident he brought the dead bodies
at Taluka Hospital. After the postmortem and burial of dead bodies complainant
lodged FIR it was recorded vide Crime No.88/2016 at Police Station New Jatoi.
After usual investigation, challan was submitted against the accused u/s 302,363,
337-H(2), 148, 149 PPC r/w Section 7 ATA.
3. Trial Court framed the charge against
accused Abbas, Dawood Kano, Akbar, Sono, Nazir and Abdul Hameed at Ex.19, to
which they pleaded not guilty and claimed trial.
4. In
order to prove its case prosecution examined witnesses, PW-1 complainant
Jamaluddin at Ex.26, PW-2 Niaz Ali at Ex.27, PW-3
5. Statements
of accused were recorded u/s 342 Cr.P.C at Ex.65 to 71. Accused denied
prosecution allegations and claimed innocence. On the conclusion of trial, accused
Ameen and Dawood were convicted vide judgment dated 28.02.2018 as stated above.
6. During
pendency of the appeal absconding accused Nasrullah,
Naeem, Asghar and Nazir were arrested and they faced trial before the learned
Judge Anti-Terrorism Court, Naushahro Feroze and they were acquitted by him
vide judgment dated 25.09.2018.
7. Mr.
J.K Jarwar learned counsel for the appellants mainly contended that during the
subsequent trial of accused Nasrullah,
Naeem, Asghar and Nazir, evidence of
complainant Jamaluddin and PWs Sajid and Niaz Ali was recorded. PWs deposed
that accused present before the trial court were not same. It is argued that complainant and PWs were telling
lie before trial court. As such, they were not reliable witnesses and he invoked
the principle of falsus in uno, falsus in omnibus and argued that on this ground alone appeals may be allowed. In
support of his contentions he relied upon the case of Notice to Police Constable Khizar
Hayat son of Hadait Ullah (PLD
2019 Supreme Court 527).
8. Mr.
Shafi Muhammad Mahar DPG is present along with complainant while realizing the legal
position recorded no objection for acquittal of the accused.
9. During
trial against the appellants in special case No.22/2016 evidence of the
complainant Jamaluddin and PW Niaz Ali was recorded on 20.09.2017. For the sake
of convenience examination-in-chief of aforesaid witnesses is reproduced as
under:
Examination-in-chief of PW-1 complainant Jamaluddin (Ex.46)
“I am complainant in this case. Deceased
Umaid Ali was my cousin. Mst. Farzana was wife of Umaid Ali. My cousin Umaid
Ali son of Ali Bux aged about 40 years was dispenser at RHC New Jatoi. About
two years back he married with Mst. Farzana and performed Nikah according to
Muhammadan Law. Mst. Farzana was divorced by her previous husband Abbas Ali
Mastoi. Minor girl Dilkash was residing with her mother Mst.Farzana. On
17.03.2016 I, my cousin Umaid Ali, Mst. Farzana, relatives Sajid and Niaz
alongwith minor baby Dilkash were going in the carry from Old Jatoi to New
Jatoi, which was being driven by driver Abdul Qayoom. When we reached at New
Jatoi Town at Al-Falah hospital where accused persons on two motorcycles and
Cultus car crossed our van. They all were armed with weapons. They alighted
from their vehicles and signaled the carry van driver for stopping, who stopped
the carry van. We Identified accused persons to be Abbas, Aameen, Nazir,
Nasrullah, Dawood, Asghar all armed with pistols and three others were unidentified
persons, out of whom two were armed with K.Ks and one was armed with Pistol.
Accused persons took me, Sajid, Niaz and Dilkash out from carry van. Accused
Abbas fired straight at my cousin Umaid Ali Which hit him at chest. Accused
Aameen fired at Umaid Ali which hit at His left nipple. Accused Nazir fired
upon Umaid Ali which hit him at the right side of his neck. Accused Nasrullah
fired upon Mst. Farzana which hit at her abdomen. Accused Dawood and Asghar
fired upon Mst. Farzana which hit on her right side face and neck. They fired
indiscriminately in the air for creating the terrorism and harassment. All
accused persons abducted Dilkash and put her in the car. All accused persons
left the place of incident on their respective vehicles. Umaid Ali and Mst.
Farzana died inside the carry van. I informed police of PS New Jatoi through my
cell phone. In that response ASI Muhammad Ishaque Mallah alongwith four police
constables came at the place, of incident and completed legal formalities of
the dead bodies. Dead bodies were brought in ambulance at Taluka Hospital Moro
and we accompanied with ASI Muhammad Ishaque Mallah in his police mobile. He
sent the dead bodies for post mortem and after completing the post mortem dead
bodies were handed over to me at 1.30 a.m. I see receipts of dead bodies
already produced at Ex.26/A and Ex.26/B. These are
same, correct and bear my LTI. I brought dead bodies in protection of police at
my village and completed funeral ceremonies. On 18.03.2016 I appeared at police
Station New Jatoi, where we met with ASI Muhammad Ishaque Mallah Who told that
FIR book of PS New Jatoi is at PS Moro. Thereafter we alongwith ASI Muhammad
Ishaque went to PS Moro where my FIR was Registered at 7.00 p.m. I see copy of
FIR No.88/2016 already produced at Ex.26/C, it is same, correct and bears my
LTI. Thereafter I came back at my house. On 19.03.2016 Inspector Hamid Ali
Jumani called me on cell Phone for showing the place of incident. I went to the
place of incident Alongwith my witnesses and mashirs where carry van was
standing. Inspector Hamid Ali Jumani also came at the place of incident, he Inspected the same and secured bloodstained
foot mates of the carry van and sealed the same. He prepared the memo and
obtained signatures of Mashirs. On 26.03.2016 I produced Nikahnama of deceased
Umaid Ali with Mst. Farzana. I also produced papers of divorce of Mst. Farzana
from her Ex-Husband Ghulam Abbas Mastoi before Inspector Muhammad Essa Dahiri.
He secured the same. On 10.04.2016 I Alanowith Niaz and Sajid on motorcycle
were going to New Jatoi town where we saw two unidentified accused persons
involved in the offence who were sitting in the hotel. We stopped infront of
the hotel, but accused on seeing us left the hotel and went to northern side on
Motorcycle. I inquired about the name of said persons from the persons sitting
at the hotel, they told me their names to be Naeem son
of Alam And Ali Gul son of Dawood. Thereafter I informed Inspector Muhammad
Essa Dahiri who recorded my statement on 12.04.2016. I see my further statement
already produced at Ex.26/D, it is same, correct and bears my LTI. Accused
Ameen, Dawood and Ali Gul present in the court are same.”
Examination-in-chief
of PW-2 Niaz Ali (Ex.47)
“Complainant Jamaluddin is my cousin.
Deceased Umaid Ali was my cousin. Deceased Mst. Farzana was wife of Umaid Ali.
Deceased Umaid Ali was dispenser in Government Hospital New Jatoi. About two
years back Umaid Ali married with Mst. Farzana according to Muhamadan Law.
After divorce from her ex-husband Abbas Ali Mastoi Minor baby Dilkash from
previous wedlock was residing with Mst. Farzana. On 17.03.2016 I alongwith my cousins Umaid Ali, Jamaluddin,
Mst. Farzana, relative Sajid Ali were going in the carry van from old Jatoi to
New Jatoi, carry van was being driven by driver Abdul Qayoom. At 8.30 a.m we
reached near Al-Falah Hospital New Jatoi town. Accused persons on two
motorcycles and one Cultus car crossed us, stood in front of us and signaled
the carry van for stopping it. Accused persons alighted from their vehicles
they were with open faces. We identified them to be Abbas, Aameen, Nazir,
Nasrullah, Dawood and Asghar armed with pistols and three were unidentified
persons out of them two were armed with K.K and one was armed with pistol.
Accused Abbas fired at Umaid Ali with intention to commit his murder which hit
on his chest. Accused Aameen fired at Umaid Ali which hit him on his left
nipple. Accused Nazir fired upon Umaid Ali which hit him on left side of his
face. Accused Nasrullah fired upon Mst. Farzana which hit on her abdomen.
Accused Dawood and Asghar fired upon Mst. Farzana which hit on her face and
neck on right side. All the accused persons fired in the air, abducted baby
Dilkash and put her in the car, thereafter they all went towards northern side.
ASI Muhammad Ishaque Mallah alongwith police constables came at place of
incident. He inspected the dead bodies, and sent the dead bodies to Taluka
hospital Moro. Thereafter dead bodies were handed over to us after conducting
post mortem. We brought the dead bodies for funeral purpose. On 19.03.2016
Inspector Hamid Ali Jumani recorded my statement u/s 161 Cr.P.C. On 10.04.2016
I, Jamaluddin and Sajid went to New Jatoi Town where we saw on hotel two persons who were
involved in our offence. On seeing us they left the hotel and went away. We
inquired about the names and whereabouts from the persons sitting on the hotel.
They told their names to be Ali Gul son of Dawood and Naeem son of Alam Khan.
On 12.04.2016 I told the names of unidentified accused persons at our Otaq to
Inspector Muhammad Essa Dahiri who recorded my statement u/s 162 Cr.P.C. I see
my further statement already produced at Ex.27/A, it is same, correct and bears
my signature. Accused Dawood, Aameen and Ali Gul present in the court are same.”
10. After
assessment of evidence of complainant and PWs, trial Court vide judgment dated
28.02.2018 convicted and sentenced the appellants for the following reasons:-
“32. To
prove this point prosecution has examined PW-Jamaluddin at Ex.46, who has
deposed the same fact as contended in the FIR and he has attributed the
specific role of firing upon deceased Umaid Ali to accused Abbas Mastoi
(expired), Aameen and Nazir. Firing upon deceased Mst. Farzana has been
attributed to accused Dawood, Nasrullah and Asghar. It is specifically alleged
that the accused persons fired indiscriminately in the air. This incident took
place due to the motive that Mst. Farzana had got divorce from accused Abbas
Mastoi and contracted marriage with deceased Umaid Ali. This fact has been
established by producing the divorce deed free will affidavit and Nikahnama
between the deceased persons. PW-Naz Ali has full supported the version of the
complainant regarding date, time, place of the incident and he has also
attributed the role of fiiring to the accused persons upon both deceased. The
prosecution story has been further strengthen from the
statement MLO, WMLO and the postmortem reports of both deceased. It has further
been strengthen from the chemical reports and FSL report of the 30 bore pistol
crime weapon used in the commission of offence. Learned defence counsel has
though pointed out some contradiction but same does not affect the truth of the
prosecution story, in my opinion the prosecution has established the case against
present accused Dawood and Aameen beyond shadow of doubt.”
11. Subsequently
absconding accused Nasrullah, Asghar, Nazir and Naeem were
arrested who faced trial before the trial Court in Special Case No.20/2018.
Again evidence of complainant Jamaluddin and PWs Niaz Ali and Sajid were recorded.
Counsel for the appellants placed on record copies of the depositions of the above
named complainant and PWs. In order to appreciate contentions raised by
complainant same are reproduced as under:-
Examination-in-chief of PW-1 complainant Jamaluddin(Ex.18)
“I am complainant in this case.
Deceased Umaid Ali was my cousin. Mst.Farzana was wife of Umaid Ali. My cousin
Umaid Ali son of Ali Bux aged about 40 years was dispenser at RHC New Jatoi.
About two years back he married with Mst. Farzna and performed Nikah according
to Muhammadan law. Mst. Farzana was divorced by her previous husband Abbas Ali
Mastoi. Minor girl Dilkash was residing with her mother Mst. Farzana. On
17.03.2016 I, my cousin Umaid Ali, Mst. Farzana, relatives Sajid and Niaz along
with minor baby Dilkash were going in the carry from Old Jatoi to New Jatoi,
which was being driven by driver Abdul Qayoom. When we reached at new Jatoi
Town at Al-Falah hospital where accused persons on two motorcycles and Cultus
car crossed our van. They all were armed with weapons. They alighted from their
vehicles and signaled the carry van driver for stopping, who stopped the carry
van. We identified accused persons to be Abbas, Ameen, Nazir, Nasrullah,
Dawood, Asghar all armed with pistols and three other were unidentified
persons, out of whom two were armed with K.Ks and one was armed with pistol.
Accused persons took me, Sajid, Niaz and Dilkash out from carry van. Accused
Abbas fired straight at my cousin Umaid Ali which hit him at chest. Accused
Aameen fired at Umaid Ali which hit at his left nipple. Accused Nazir fired
upon Umaid Ali which hit him at the right side of his neck. Accused Nasrullah
fired upon Mst. Farzana which hit at her abdomen. Accused Dawood and Asghar
fired upon Mst. Farzana which hit on her fright side face and neck. They fired
indiscriminately in the air for creating terrorism and harassment. All accused
persons abducted Dilkash and put her in the car. All accused persons left the
place of incident on their respective vehicles. Umaid Ali and Mst. Farzana died
inside the carry van. I informed police of PS New Jatoi through my cell phone.
In that response ASI Muhammad Ishaque Mallah along with four police constables
came at the place of incident and completed legal formalities of the dead
bodies. Dead bodies were brought in
ambulance at Taluka Hospital Moro and we accompanied with ASI Muhammad Ishaque
Mallah in his police mobile. He sent the dead bodies for post mortem and after
completing the postmortem dead bodies were handed over to me at 1.30 a.m. I produce attested
copies of receipts of dead bodies at Ex.18/A and Ex.18/B, these are same,
correct and bear my LTs. I brought dead bodies in protection of police at my
village and completed funeral ceremonies. On 18.03.2016 I appeared at Police
station New Jatoi, where we met with ASI Muhammad Ishaque Mallah who told that
FIR book of PS New Jatoi is at PS Moro.
Thereafter we alongwith ASI Muhammad Ishaque went to PS Moro where my FIR
was registered at 7.00 P.m. I produce FIR No.88/2016 at Ex.18/C, it is same, correct and bears my LTI. Thereafter I came
back at my house. On 19.03.2016 Inspector
Hamid Ali Jumani called me on cell phone for showing the place of incident. I
went to the place of incident along with my witnesses and mashirs where carry
van was standing. Inspector Hamid Ali Jumani also came at the place of
incident, he inspected the same and secured blood stained foot mates of the
carry van and sealed the same. He prepared the memo and obtained signatures of
mashirs. On 26.03.2016 I produced Nikahnama of deceased Umaid Ali with Mst.
Farzana. I also produced papers of divorce of Mst. Farzana from her ex-husband
Ghulam Abbas Mastoi before Inspector Muhammad Essa Dahiri. He secured the same.
On 10.04.2016 I along with Niaz and
Sajid on motorcycle were going to Neww Jatoi town where we saw two unidentified
accused persons involved in the offence who were sitting the hotel. We stopped
in front of the hotel, but accused on seeing us left the hotel and went to northern
side on motorcycle. I inquired about the name of said person from the persons
sitting at the hotel, they told their names to be Naeem son of Alam and Ali Gul
son of Dawood. Thereafter I informed Inspector Muhammad Essa Dahiri who recorded
my statement on 12.04.2016. I produce attested copy of my further statement at
Ex.18/D, it is same correct and bears my LTI. Accused present in the court
are not same.”
Examination-in-chief of
PW-2 Niaz Ali (Ex-19)
“Complainant
Jamaluddin is my cousin. Deceased Umaid Ali was my cousin. Deceased Mst.
Farzana was wife of Umaid Ali. Deceased Umaid Ali was dispenser in Government
Hospital New Jatoi. About two years back Umaid Ali married with Mst. Farzana
according to Muhammadan Law. After divorce from her Ex-husband Abbas Ali Mastoi
Minor baby Dilkash from previous wedlock was residing with Mst. Farzana. On
17.03.2016 I along with my cousins Umaid Ali, Jamaluddin, Ms.t Farzana,
relative Sajid Ali were going in the carry van from old Jatoi to New Jatoi, carry
van was being drive by driver Abdul Qayoom. At 08:30 a.m we reached near
Al-Falah Hospital New Jatoi Town. Accused persons on two motorcycles and one
Cultus car crossed us, stood in front of us and signaled the carry van for
stopping it. Accused persons alighted from their vehicles they were with open
faces. We identified them to be Abbas, Ameen, Nazir Nasrullah Dawood and Asghar
armed with pistols and three were unidentified out of them two were armed with
KK and one was armed with pistol. Accused Abbas fired at Umaid Ali with
intention to commit his murder which hit on his chest. Accused Aameen fired at
Umaid Ali which hit him on his left nipple. Accused Nazir fired upon Umaid Ali
which hit him on left side of his face. Accused Nasrullah fired upon Mst. Farzana
which hit on her abdomen. Accused Dawood and Asghar fired upon Mst. Farzana
which hit on her face and neck on right side. All the accused persons fired in
the air, abducted baby Dilkash and put her in the car, thereafter, they all
went towards northern side. ASI Muhammad Ishaque Mallah alongwith police
constables came at place of incident. He inspected the dead bodies, and sent
the dead bodies to Taluka Hospital Moro. Thereafter, dead bodies were handed
over to us after conducting the post mortem. We brought the dead bodies for
funeral purpose. On 19.03.2016 inspector Hami Ali Jumani recorded my statement
u/s 161 Cr.P.C. On 10.04.2016 I, Jamaluddin and Sajid went to New Jatoi town
where we saw on hotel two person who where involved in our offence. On seeing
us they left the hotel and went away. We inquired about the names and
whereabouts from the persons sitting on the hotel. They told their names to be
Ali Gul S/o Dawood and Naeem son of Alam Khan. On 12.04.2016 I told the names
of unidentified accused persons at our otaq to Inspector Muhammad Essa Dahiri
who recorded my statement u/s 161 Cr.P.C. I produce attested copy of my further
statement at Ex.19/A, it is same, correct and bears my signature. Accused
present in the Court are not same.
Examination-in-chief of
PW-3 Sajid (Ex.20)
“Complainant
Jamaluddin is my maternal uncle
Deceased Umaid Ali was my maternal uncle. Deceased Mst. Farzana was wife of
Umaid Ali. Deceased Umaid Ali was dispenser in Government Hospital New Jatoi.
About two years back Umaid Ali marriedwith Mst. Farzana according to Muhammadan
Law. After divorce from her Ex-husband Abbas Ali Mastoi Minor baby Dilkash from
previous wedlock was residing with Ms. Farzana. On 17.03.2016 I alongwith my
cousins Umaid Ali, Jamaluddin, Mst. Farzana, relative Sajid Ali were going in
carry van from old Jatoi to New Jatoi, carry van was being driven by driver
Abdul Qayoo. At 8.30 a.m we reached near Al-Falah Hospital New Jatoi Town.
Accused persons on two motorcycles and one Cultus car crossed us, stood in
front of us and signaled the carry van for stopping it. Accused persons
alighted from their vehicles they were with open faces. We identified them to
be Abbas, Aameen Nazir, Nasurllah, Dawood and Asghar armed with pistols and
three were unidentified persons out of them two were armed …..Ali with intention to commit his murder which hit on his chest.
Accused Aameen fired at Umaid Ali which hit him on his left nipple. Accused Nazir
fired upon Umaid Ali which hit him on left side of his face. Accused Nasrullah
fired upon Mst. Farzana which hit on her abdomen. Accused Dwood and Asghar
fired upon Mst. Farzana which hit on her face and neck on right side. All the
accused persons fired in the air, abducted baby Dikash and put her in the car,
thereafter, they all went towards northern side. ASI Muhammad Ishaque Mallah
alongwith police constables came at place of incident. He inspected the dead
bodies, and sent the dead bodies to Taluka Hospital Moro. Thereafter, dead
bodies were handed over to us after conducting postmortem. We brought the dead
bodies from funeral purpose. On 19.03.2016 Inspector Hamid Ali Jumani recorded
my statement u/s 161 Cr.P.C. On 10.04.2016 I, Jamaluddin and Sajid went to New
Jatoi town where we saw on hotel two persons who were involved in our offence.
On seeing us they left the hotel and went away. We inquired about the names and
whereabouts from the persons sitting on the hotel. They told their names to be
Ali Gul son of Dawood and Naeem son of Alam Khan. On 12.04.2016 I told the names
of unidentified accused persons at our otaq to Inspector Muhammad Essa Dahiri who
recorded my statement u/s 162 Cr.P.C. I produce my further statement at
Ex.20/A, it is same correct and bears my signature. Accused present in the
court are not same.
12. Trial court on conclusion of trial vide judgment dated 25.09.2018 acquitted accused Nasrullah,
Asghar, Nazir and Naeem for the following reasons:-
“19. Heard
learned APG for the State, learned counsels for the accused and perused
evidence brought on the record. PW/complainant has not supported the case of
prosecution by deposing that accused persons present in the court are not same,
he was declared as hostile by the learned APG for the State but nothing
favorable to prosecution has come on record. PW Niaz Ali and Sajid Ali Qambrani
eyewitnesses of the incident, also not supported the case of prosecution by
deposing that accused person present in the court are not same. The evidence of
remaining witnesses is not helpful to prosecution to prove its case when complainant
and both eye witnesses have not supported the case of prosecution by not
implicating accused in the commission of offence. From above discussion I have
come to the conclusion that the prosecution has failed to prove the guilt of
accused beyond shadow of reasonable doubt therefore, I answer this point as
doubtful.”
13. Now
the question arises that what will be the evidentiary value of evidence of
complainant Jamaluddin and PWs Niaz Ali and Sajid Ali in view of the dictum laid down by Hon’ble Supreme Court in the case of Notice
to Police Constable Khizar Hayat son of Hadait Ullah (PLD 2019
Supreme Court 527). The principle falsus in uno, falsus in omnibus is to be
applied in our judicial dispensation with full force and witness found to be
lying on one material aspect is to be disbelieved on all other aspects of the
case. Relevant portion of the judgment is reproduced
as under:
“ 21. 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. ”
14. It
is matter of record that complainant and PWs were lying.
Same PWs in the subsequent trial found to be lying on material aspects before
the trial court and deposed that accused present before court were not same.
Therefore, their evidence is to be disbelieved on all other aspects in present
case. The conduct of eye-witnesses at the time of incident created doubt in
prosecution case, as they remained calm and did not try to rescue the deceased.
Moreover, there is no independent piece of evidence against the appellants to
connect them in the commission of the offence. Learned DPG while
realizing legal position has also rerecorded no objection.
15. For
the above stated reasons, we have come to the conclusion that prosecution has
utterly failed to prove its’ case against the
appellants. Resultantly, Cr. Appeal No.D-30/2018 filed by appellants Dawood
Kano and Ameen and Cr.Appeal No. D-29/2018 filed by appellant Ameen are allowed. Conviction and sentence recorded by the trial
court vide judgment dated 28.02.2018 is set-aside. Appellants are acquitted of
the charges. They are ordered to be released from the jail forthwith if not
required in some other case.
16. These
are the reasons for our short order announced by us on 17.09.2019.
JUDGE
JUDGE
SulemanKhan/PA