Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Acq. Appeal No. D 99 of 2011
Cr. Rev. App. No. D 112 of 2011
Cr. Jail Appeal No. S 159 of 2011
Before :
Mr. Justice Naimatullah Phulpoto
Mr. Justice Rasheed Ahmed Soomro
Date of hearing : 29.08.2019.
Mr. Ghulam Shabbir
Dayo, Advocate for appellant in Criminal Jail Appeal No. S-159/2011 and for
private respondents No.1 to 4 in Criminal Acquittal Appeal No. D-99/2011 and
for respondent No.1 in Criminal Revision Application No. D-112/2011
Mr. Shabbir Ali
Bozdar, Advocate for appellant in Criminal Acquittal Appeal No. D-99/2011 and
for applicant in Criminal Revision Application No. D-112/2011.
Mr. Zulfiqar Ali
Jatoi, Additional Prosecutor General.
J U D G M E N T
NAIMATULLAH PHULPOTO, J. Muhammad Paryal Soomro, appellant along
with co-accused Sobharo, Muhammad Saleem, Gulab and Ghazi (since acquitted),
was tried by learned Ist Additional Sessions Judge, Sukkur in Sessions
Case No.239/2007, Crime No.72/2007 registered at Police Station Baiji Sharif
for offences under Sections 302, 452, 148, 149, 504, PPC. On the conclusion of
the trial, vide judgment dated 23.11.2011, co‑accused Sobharo, Muhammad
Saleem, Gulab and Ghazi were acquitted. However, Muhammad Paryal, appellant was
convicted under Section 302(b), PPC and sentenced to imprisonment for life and
to pay the 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 the deceased. In
case of the default in the payment of fine, he was ordered to suffer R.I for
six months more. Appellant was extended benefit of Section 382(b) Cr.P.C.
2. Brief facts of
the prosecution case, as disclosed in the FIR, are that complainant Farooq
Ahmed lodged FIR on 24.08.2007 alleging therein that Altaf Hussain aged about
23-24 years (now deceased) was the brother of the complainant. House of accused
Muhammad Paryal is adjacent to the house of the deceased and there was old
dispute between the complainant party and accused over the rotation of water.
It is further alleged that on the day of incident at about 1530 hours,
complainant and his brother Altaf and relatives Sain Dino and Kamran were
present in the house and saw that accused Muhammad Paryal and his son Gulab
were connecting the electric line passing over the house of the complainant. It
is alleged that complainant protested and accused became annoyed and went to
his house. After sometime, accused namely Muhammad Paryal, Ghazi, Abdul Momin,
Gulab, Saleem and Sobharo returned to the house of the complainant angrily. Out
of them, it is alleged that accused Muhammad Paryal abused the complainant and
said as to why he had objected on connection of the electricity wire. Thereafter,
declared that complainant party would not be spared. On saying so, it is stated
that Muhammad Paryal fired from his pistol upon the complainant party, which
hit to deceased Altaf and he fell down. Thereafter, complainant party entered
the accused persons in the name of Almighty Allah. Thereafter, accused persons went
away. Complainant saw that his brother Altaf had sustained firearm injury at
his chest and he went unconscious. Thereafter, complainant party took Altaf in
the injured condition to Taluka Hospital, Pano Aqil where he succumbed to the
injuries. Complainant went to the Police Station Baiji Sharif and lodged FIR on
the same date. It was recorded on 24.08.2007 at 1645 hours vide Crime
No.72/2007 for offences under Sections 302, 452, 148, 149, 504, PPC, 13(d) A.O.
3. Learned counsel for appellant Muhammad
Paryal Soomro pointed out that with regard to the same incident, FIR was also
lodged by appellant Muhammad Paryal at the same Police Station. It was recorded
on the same date i.e. 24.08.2007 at 1830 hours vide Crime No.73/2007 for
offences under Sections 324, 452, 336, 148, 149, 114, 337-H(2), 436, 427, 504,
PPC.
4. After
usual investigation, challan was submitted in this case / Crime No.72/2007
against appellant Paryal and his sons namely Sobharo, Muhammad Saleem, Gulab
and Ghazi for offences under Sections 302, 452, 148, 149, 504, PPC, whereas,
the name of Abdul Momin was placed in column No.2 of the challan. As regard to
the case lodged by Muhammad Paryal is concerned, it was also challaned against
the complainant party, in which accused persons were shown as Abdul Hafeez,
Sain Dino, Abdul Latif, Malik Dino, Abdul Qadir, Abdul Khaliq, Nek Muhammad,
Gul Muhammad, Abdul Raheem and Zamir Ahmed. Unfortunately, learned Ist
Additional Sessions Judge, Sukkur held separate trials of both cases.
5. Charge
against appellant Muhammad Paryal, Sobharo, Muhammad Saleem, Gulab and Ghazi under
above referred sections was recorded at Ex.11. All the accused pleaded not
guilty and claimed to be tried.
6. At
the trial, prosecution examined nine (09) PWs namely Farooq Ahmed, Sain Dino,
Kaman Khan, Ghulam Nabi, Kashmir Ahmed, Ghulam Shabir, Gul Hassan, Wazir Ahmed
and Ubedullah. Thereafter, learned DDPP closed the prosecution side.
7. Statements
of accused were recorded under Section 342, Cr. P.C at Ex.31 to 35, in
which accused claimed false implication in this case and denied the prosecution
allegations. Accused declined to examine themselves on oath in disproof of
prosecution allegations and led no evidence.
8. After
hearing the arguments of the learned counsel for the parties and assessment of
the evidence available on record, trial Court vide judgment dated 23.11.2011,
convicted appellant Muhammad Paryal under Section 302(b), PPC and sentenced him
imprisonment for life, however, Sobharo, Muhammad Saleem, Gulab and Ghazi were
acquitted.
9. It may be mentioned here that a case
bearing Crime No.73/2007 lodged by appellant Muhammad Paryal had proceeded
before the trial Court and ended to the acquittal vide judgment dated 23.11.2011.
Acquittal was challenged by the appellant before this Court and Criminal
Acquittal Appeal No. S-101/2011 was dismissed by this Court.
10. Facts of this case as well as evidence
find and elaborate mention in the judgment of the trial Court. We avoid
repetition and duplication.
11. Mr. Ghulam Shabbir Dayo, learned advocate
for appellant Muhammad Paryal Soomro has mainly contended that on the same set
of evidence, accused Sobharo,
Muhammad Saleem, Gulab and Ghazi have been acquitted and appellant has been
convicted. It is submitted that evidence of the eyewitnesses could not be
believed to the extent of the present accused. He has placed reliance upon the
principle of falsus in uno, falsus in omnibus
reported in PLD 2019 Supreme Court 527. Mr. Dayo further
submitted that presence of eyewitnesses at the place of incident was doubtful
as their 161 Cr.P.C statements were recorded after seven days. He has also
submitted that recovery of the pistol from the possession of the appellant
would not be helpful to the case of prosecution as it was not dispatched to
ballistic expert promptly and it was retained by the Investigation Officer for
more than one month. It is further submitted that safe custody and safe transmission
of the pistol to the ballistic expert have also not been established. Lastly
submitted that there are several circumstances in the case which created
reasonable doubt in prosecution. In support of his contention, he relied upon
the case of Allah Bachaya and another v. The State reported in PLD
2008 Supreme Court 349.
12. Mr. Zulfiqar Ali Jatoi, Additional
Prosecutor General conceded to the legal position that principle of falsus
in uno, falsus in omnibus is attracted to the case of the appellant
and he did not support the case of prosecution.
13. In order to properly appreciate the
contentions of learned counsel for the parties, relevant portion of judgment of
trial Court dated 23.11.2011 is reproduced as under:
Point No.02
This is the most
important point where we are to sift the chaffs
from the grains in order to arrive at a right
conclusion. The prosecution has brought the evidence of complainant Farooq
Ahmed and P.Ws Saindino and Kaman, mashir Ghulam Nabi, Kashmir Ahmed, Inspector
Ghulam Shabir, HC Wazir Ahmed and Tapedar Ubedullah, there are the material
witnesses of the incidnent.
Complainant
Farooq Ahmed is brother of deceased Altaf Hussain. The complainant has deposed
that on 24.8.2007, he alongwith deceased Altaf Hussain, Saindino and Kaman were
available at his house. It was about 3.15/3.30 p.m, they saw accused Muhammad
Paryal and his son Gullab were available on the roof of their house for
electric connection, on that his younger brother Altaf Hussain asked them as to
why they have come at the roof of their house inspite of the fact that there is
a dispute between them over a rotation of water and use of public passage. On
that both Muhammad Paryal and his Gullab came down from the roof. After five
minutes five persons alongwith Muhammad Paryal, Ghazi, Saleem Sobaro and Gullam
came at their house. Accused Muhammad Paryal armed with pistol, Ghazi with gun,
Gullab, Saleem and Sobharo were armed with Danda. Accused Muhammad Paryal
threatened to Altaf Hussain that they would kill him. Accused Muhammad Paryal
made straight fire at Altaf Hussain which hit him on chest and he fell down.
They gave them the names of Almighty ALLAH, thereafter all the accused
persons run away to their house. During running accused Sobharo fallen down and
sustained injuries. Thereafter they brought Altaf Hussain to Taluka Hospital
Pano Aqil where doctor declared Altaf Hussain dead. He left the P.Ws Saindino
and Kaman over dead body of Altaf Hussain and went to police station Baiji
Sharif for lodging of FIR, where he lodged report against the accused persons.
He showed the dead body of Altaf Hussain at Taluka Hospital Pano Aqil where the
dead body was inspected by the police officer. Thereafter he showed the place
of incident where the incident had happened. Police collected blood stained
earth and one empty of T.T pistol and sealed it and earth separately at the
spot. He identified all the accused persons available in the court who have
committed the murder of deceased Altaf Hussain. His evidence is challenged by
the defence counsel in cross-examination. He has denied the suggestions of
defence counsel and nothing was extracted excepting some minor contradictions,
which are bound to be occurred as the incident took place in the year 2007 and
complainant was examined after lapse of 2/3 years in the year 2010.
Next
is evidence of eye witnesses namely Saindino and Kaman who have fully supported
the evidence of complainant Farooq Ahmed as well as version of FIR, their
evidence is also challenged by the defence counsel in cross-examination. They
have dened the suggestions of defence counsel and nothing was extracted
excepting some minor contradictions. They have also fully supported the case of
prosecution on point of occurrence of incident, place of occurrence, date and
time of occurrence.
Next
is evidence of SIO/Inspector Ghulam Shabir Areejo, who has deposed that on
24.8.2007 he was posted as SIO/SIP at police station Baiji Sharif and received
FIR of Crime No.72/2007 under section 302 PPC PS Baiji Sharif for
investigation. Complainant Farooq Ahmed Soomro also appeared to him and he
disclosed the culprits namely Muhammad Paryal, Sobharo, Gullab, Saleem and
Abdul Momin, Ghazi have murdered his brother namely Altaf Hussain in first
instance he was injured and removed by him to hospital where deceased died
away. Thereafter, he proceeded towards hospital Pano Aqil alongwith his
sub-ordinate police officials and private mashirs were available there, their
names were Sikander Ali and Kashmir Khan. He checked the dead body which was
lying in mortuary room in presence of above named private mashirs, prepared
such mashirnama of dead body. He seek the mashirnama at Ex.24/A, admitted the
same to be correct. He also prepared inquest form in the mortuary room while
visiting the dead body in presence of both mashirs. Post mortem was conducted in
the hospital thereafter P.C who had produced the dead body before doctor Nazir
Ahmed Shaikh received and produced the clothes of deceased to him and dead
body. He prepared such mashirnama with signatures of mashirs Sikander and
Kashmir Khan. He handed over the dead body to brother of deceased Farooq under
receipt. Thereafter, he visited the palce of vardat in presence of above named
mashirs found the house of complainant having two pacca rooms and one wooden
door at the corner of south and east, entered into the house in presence of
mashirs and found the blood was lying on the ground nearby kitchen of the house
in the courtyard of it. Complainant was available there and he disclosed that
accused Muhammad Paryal fired upon his brother Altaf Hussain which he received
and fell down on the ground. He further disclosed that the blood was of his
brother. He collected the blood from ground in one Jar in presence of mashirs,
sealed the same. He collected one empty bullet on 6/7 paces from blood lying on
the ground on southern side in the courtyard. He sealed the recovered empty in
presence of mashirs, prepared mashirnama with their signatures. He came to know
in the instant case one accused became injured who was admitted in Taluka
Hospital Pano Aqil. He arrested him in the hospital under mashirnama of same
mashirs with their signature. Then returned to P.S in the office of WHC where
accused Muhammad Paryal of Crime No.72/2007 under section 302 PPC was available
and sitting arrested, in presence of HC Lal Dino and PC Shafi Muhammad. He
prepared such mashirnama of arrest of accused Muhammad Paryal with signatures
of mashirs named above. He issued letter to Mukhtiarkar Revenue Taluka Pano
Aqil for sketch. He sent sealed blood to chemical examiner Rohri with letter
for its report. On 31.8.2007 he recorded the statements of P.Ws Saindino and
Kaman under section 161 Cr. PC at P.S excepting accused Abdul Momin all accused
were involved by them in their statement in this case. He got recorded the
statement of P.Ws Saindino and Kaman from Judicial Magistrate concerned under
section 164 Cr. PC. He started interrogation to accused Muhammad Paryal on the
same date 31.8.2007 while taking out from lockup of P.S in presence of PC Shafi
Muhammad and PC Manzoor Ahmed and PC Ghulam Qadir, who admitted the guilt and
disclosed that the same pistol with which he committed murder of deceased Altaf
and kept the same in shade of kitchen while wrapping in the plastic bag,
thereafter he took the accused handcuffed in private vehicle towards his house
in presence of PC Ghulam Qadir, PC Shafi Muhammad and PC Manzoor Ahmed vide
entry No.13 at 1530 hours, when they reached at Degree college Pano Aqil,
mashir Sikander Ali and Kashmir were taken and they disclosed them that accused
had admitted his guilt of present offence and he is ready to produce such
incriminating weapon from his house. They accompanied with themselves, reached
at house and accused led them in his house it was 1550 hours, produced pistol
while taking out from the plastic from the pointed place viz. shade of kitchen.
He checked the pistol and found loaded with three live bullets. He enquired
from the accused about its valid license but he could not produce the same.
Mashirnama was prepared by him in presence of both private mashirs with their
signature. He sealed the recovered pistol alongwith bullets in presence of
mashirs and returned to P.S and lodged FIR under section 13 (e) A.O against the
accused. On 01.9.2007 accused Sobharo, Saleem and Gullab voluntarily prepared
to produce the lathies used in crime and then we on their pointation proceeded
towards their village and reached outside of the village near date palm trees,
where accused taken out the lathies while digging the earth from there in
presence of both mashirs. Prepared such mashirnama in presence of two private
mashirs Sikander and Kashmir Khan. He sealed the lathies separately recovered
from each accused. He also then sent the recovered pistol and bullets to
ballistic expert AIR criminal for expert opinion. He received the reports of
chemical examiner and ballistic expert report. After usual investigation he
submitted the challan of instant case in the court of law. He identified the
accused and case property are the same.
Next
is evidence of mashirs Kashmir, LPC Ghulam Nabi, they have supported the
evidence of SIO Inspector Ghulam Shabir as well as mashirnamas.
The
learned counsel for the defence despite of lengthy cross examination to S.I.O
and mashirs have not succeeded to shatter/shake their evidence and there is no
any material contradiction to disbelieve the said recovery of incriminating
weapons which has come on record.
It
is quite clear that the recovery of weapon used in the crime by the accused
Muhammad Paryal is proved which was produced by accused before police in
presence of mashirs and the same is also corroborated by the recovery of some
blood stained earth and empty of pistol from the scene of offence. As such the
ocular evidence is corroborated circumstantial evidence.
1.
MOTIVE.
I
have already mentioned above that the complainant Farooq and P.Ws Saindino and
Kaman Khan have stated in their depositions clearly that there is going on old
enmity over the rotation of water of land (Kasi), criminally assaulted and
challenged deceased that he will be murdered due to old enmity going on with
complainant and accused party. Resultantly accused Muhammad Paryal made fire shot
from his respective weapon at deceased, the accused have failed to
prove/establish their defence plea, which is discussed as under:-
Contrary
it is proved that on 24.8.2007 at 1530 hours at the house of complainant
situated at village Bahadur Dakhan Taluka Pano Aqil, District Sukkur duly armed
with deadly weapons viz. Pistol, Gun and lathies tress passed in the house of
complainant forcibly and on prevention of complainant party not to take the
electric connection over their house annoyed accused Muhammad Paryal committed
the murder of deceased Altaf while giving him fire arm injuries. The fire shot
injuries to deceased Altaf is attributed to accused Muhammad Paryal. The
evidence of complainant and eye witness named above appears to be transparent
and confidence inspiring which is corroborated by medical and circumstantial
evidence. There appears no any inconsistency in Medical, ocular and
circumstantial evidence brought by prosecution on these points. The deceased is
a real brother of complainant. There is no reason to believe that he has
substituted the present accused in place of real culprits. Therefore, I answer
the point under discussion as affirmative.
So
far case against co-accused Sobharo, Muhammad Saleem, Gullab and Ghazi is
concerned, the allegation against them is that they were present at the place
of incident but no specific role of causing injury or committing murder of
deceased is attributed upon them, though they were sons of co-accused Muhammad
Paryal and brothers inter-se, in this regard complainant and P.Ws have not
deposed against the accused persons whether they have played any role while
committing the murder of deceased Altaf, therefore, case against accused
Sobharo, Muhammad Saleem, Gullab and Ghazi is not proved.
14. After hearing learned counsel for the
appellant as well as Additional Prosecutor General and Mr. Shabbir Ali Bozdar,
counsel for the complainant, we have carefully perused the evidence recorded by
the trial Court. Record reflects that complainant has deposed as under:
I am
complainant in this case. Deceased Altaf Hussain was my younger brother. On
24.8.2007 I alongwith deceased Altaf Hussain; Saindino and Kaman were available
at my house. It was about 3.15/3.30 p:m, we saw accused Muhammad Paryal and his
son Gulab were available on the roof of our house for electric connection. On that
my younger brother Altaf Hussain asked them as to why they have come on at the
roof of their house inspite of the fact that there is a dispute between them
over a rotation of water and used of a public passage. On that both Muhammad
Paryal and his son Gulab came down from thereof. After five minutes five
persons alongwith Muhammad Paryal and Ghazi, Saleem, Sobharo and Gulab came in
our house. Accused Saleem and Sobharo were armed with Danda. Muhammad Paryal
accused threated to Altaf Hussain that they would kill him. Accused Muhammad
Paryal made straight fire at Altaf Hussain which hit him on chest and he fell
down. We gave them the names of Almighty Allah, thereafter all the accused
persons run away to their house. During running accused Sobharo fallen down and
sustained injuries. Thereafter we brought Altaf Hussain to Taluka Hospital Pano
Akil where doctor declared Altaf Hussain dead. I left PWs Saindino and Kaman
over dead body of Altaf Hussain and came at the Police Station Baiji Sharif for
FIR, where I lodged report against the accused persons. I produce the FIR as
Ex.17/A. It is same correct and bears my signature. Thereafter I showed
the dead body of Altaf Hussain at Taluka Hospital Pano Akil where the dead body
was inspected by the Police officer. Thereafter I showed the place of incident
where the incident had happened. Police officials collected blood stained earth
and an empty of TT pistol and sealed it and earth separately at the spot.
Accused Muhammad Paryal, Gulab, Ghazi, Saleem and Sobharo are present in
the Court are same while accused Abdul Momin is absconder.
15. Other eyewitnesses have also given more
or less same version before the trial Court at the time of evidence. We have
noticed that on the same set of evidence / ocular evidence of complainant and
PWs, trial Court has acquitted co-accused Sobharo, Muhammad Saleem, Gulab and Ghazi, but on the basis of evidence
of same witnesses, trial Court has recorded conviction against the appellant. It
is settled law that by now if a set of witnesses is disbelieved to the extent
of some accused the same cannot be believed to the extent of remaining accused
facing the same trial without there being any independent and strong
corroboration. In this regard, Hon'ble Supreme Court in the case of Altaf
Hussain v. The State reported in 2019 SCMR 274 held as
under:
7. There is another aspect of the case. As
stated earlier besides the appellant three other persons were also indicted in
this case three of whom namely Nisar Ahmad, Muhammad Aslam and Mst. Amiran were
acquitted by the learned trial court. PSLA No.67 of 2013 filed by the
complainant against their acquittal was dismissed by the learned appellate
court which was not assailed any further either by the complainant or the State
and as such their acquittal attained finality. It is well settled by now that
if a set of witnesses is disbelieved to the extent of some accused the same
cannot be believed to the extent of remaining accused facing the same trial
without there being any independent and strong corroboration. Upon scrutiny of
the material available on record we have not been able to find any
corroboration to maintain conviction and sentence of the appellant on a capital
charge.
16. Law
is very settled that said evidence cannot be believed to the extent of the
present appellant for the reason that principle of sifting
grain from chaff is no more applicable and trial
Court has wrongly relied upon it, rather principle of falsus in uno, falsus in omnibus
has been made applicable for deciding the criminal cases by the judgment
recently by Hon'ble Supreme Court in the case of Notice to Police
Constable Khizar Hayat son of Hadait Ullah reported in PLD
2019 Supreme Court 527. 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 societys 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.
17. Apart from the above legal position, it
is the matter of record that deceased was accompanied by other eyewitness
namely Farooq Ahmed, Sain Dino
and Kaman Khan. Presence of the eyewitnesses on the crime spot due to their
unnatural conduct has also become highly doubtful and we have examined their
conduct in the view of provisions 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 fact 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
Therefore, no reliance can be placed
upon their testimony. Moreover, 161 Cr.P.C statements of the PWs were recorded
after about seven days without any plausible explanation. Rightly reliance has
been placed upon the cases of Syed Saeed Muhammad Shah and another v. The
State reported in 1993 SCMR 550 and Rahat Ali v.
The State reported in 2010 SCMR 584. There is also background
of enmity between the parties. Appellant had also lodged counter case FIR
bearing Crime No.73/2007 at the same Police Station, but it is surprising to
note that trial Court did not try both cases together, which was the requirement
of the law.
18. In the view of above evidence, legal position
and circumstances of the case, we have come to the conclusion that there are
several circumstances in the case, which created genuine doubt. It is cardinal
principle of criminal jurisprudence that any genuine doubt arising out of the
circumstances of the case should be extended to the accused as of right and not
as concession. Resultantly, Criminal Jail Appeal No. S-159/2011 is allowed.
Conviction and sentence recorded by learned Ist Additional Sessions
Judge, Sukkur vide judgment dated 23.11.2011 passed in Sessions Case
No.239/2007, Crime No.72/2007 registered at Police Station Baiji Sharif for
offences under Sections 302, 452, 148, 149, 504, PPC are set aside.
Appellant Muhammad Paryal son of Muhammad Ishaque Soomro is acquitted; he is
ordered to be released from jail forthwith, if he is not required in some other
criminal case. So far Criminal Acquittal Appeal No. D-99/2011 is
concerned, Additional Prosecutor General has submitted that trial Court has
rightly acquitted the co-accused and in the view of above discussion, we find
no merit in it; the same is dismissed. Consequently, Criminal Revision
Application No. D-112/2011 is also without merit; same is also dismissed.
19. These are the reasons for our short
order announced by us on 29th August 2019.
J U D G
E
J U D G
E
Abdul Basit