IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Jail Appeal No.S-49 of 2020.
Appellant : Qadir Bux Buledi, through Mr. Mohammad Afzal
Jagirani, Advocte.
Respondent : The State, through Mr. Ali Anwar Kandhro, Additional
Prosecutor General.
Dates of hearing : 12-09-2022 & 19-09-2022.
Date of Judgment : 19-09-2022.
J U D G M E N T.
NAIMATULLAH PHULPOTO, J.- Appellant Qadir Bux Buledi was tried along with accused Ali Hyder(since acquitted) by the learned Additional Sessions Judge-I/MCTC, Jacobabad, in Sessions Case No.85/2018, for offences under Sections 302, 311, 324, 34, PPC. After regular trial, appellant was found guilty and vide judgment dated 16.09.2020, he was convicted under Section 302(b) PPC and sentenced to imprisonment for life as Tazir and to pay compensation of Rs.10,00,000/- (Rupees ten lac) to the legal heirs of deceased in terms of Section 544-A, Cr.P.C, and in case of default thereof he was ordered to suffer S.I for one year more. Appellant was extended benefit of Section 382-B, Cr.P.C.
2. The prosecution story as given in the judgment of the learned Trial Court reads as under:-
“Briefly, facts of the prosecution case as per FIR lodged by complainant SIP Abdul Qadir Pathan at PS Garhi Khairo on 15.12.2017 at about 1700 hours are that on the same date he along with his subordinate staff namely HC Mumtaz Ali, PC Gulab Khan, PC Muhammad Malook, PC Abdul Sattar and PC Aamir Ali, duly armed with arms and ammunition in government vehicle being driven by driver PC Muhammad Hayat left PS as per entry No.8 at 1300 hours for patrolling purpose. After patrolling various places when at about 1515 hours they reached at Usta Muhammad road near Jara Wah, where he received spy information that accused Qadir Bux, Ali Hyder, Ghulam Akbar and Ghulam Shabir, all by caste Lerwani Buledi, in furtherance of their common intention, in the house of accused Qadir Bux situated near Village Pahlwan Buledi, Taluka Garhi Khairo, on the allegation Siyahkari are committing murder of one Shahzado aged about 18/19 years and Mst. Popri aged about 15/16 years by means of hatchet blows and throttling. It is further alleged by the complainant that on receipt of such information they proceeded towards the pointed place and when at about 1530 hours they reached near the house of accused Qadir Bux where they saw and identified accused Qadir Bux and Ali Hyder having hatchets while accused Ghulam Akbar and Ghulam Shabir having rope in their hands. It is alleged that accused Qadir Bux was inflicting hatchet blows to a man who was fallen down on the ground and accused Ghulam Akbar and Ghulam Shabir were throttling a lady with rope and were committing their murders. It is further alleged by the complainant that all accused seeing police party, leaving both injured fled away towards western side along with hatchet and rope. The complainant party got stopped the vehicle and chased the accused but they fled away by taking advantage of jungle and bushes. Thereafter police party returned back at place of wardat where they saw that injured lady was lying there unconscious, hence complainant inspected the lady and found marks of throttling with rope on her neck hence he referred her to Civil Hospital Garhi Khairo for treatment through HC Mumtaz Ali. Thereafter complainant inspected the injuries of another injured who had sustained injuries on left side his neck and left ear was cut, was lying dead and blood was oozing out from his wounds. Thereafter complainant appointed PCs Gulab Khan and Muhammad Malook as mashirs and then prepared memos of inspection of injuries, dead body and lash chakas form and then referred dead body to Civil Hospital Garhi Khairo through PC Abdul Sattar for postmortem. Thereafter complainant party returned back at PS, where complainant lodged the FIR against accused on behalf of the State alleging that accused persons in furtherance of their common intention committed murder of deceased Shahzado by causing him hatchet blows and attempted to commit murder of Mst. Popri by throttling her neck with a rope.”
3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case examined 5 witnesses. Trial Court recorded statement of accused under Section 342 Cr.P.C, the appellant/convict pleaded his innocence and refuted all the allegations leveled against him. However, he did not make his statement on oath under Section 340(2) Cr.P.C in disproof of allegations leveled against him. He also did not produce any evidence in his defence.
4. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the judgment passed by the trial Court. Therefore, same may not be reproduced here so as to avoid duplication and unnecessary repetition.
5. Learned trial Court after hearing the learned Counsel for the parties and assessment of evidence, vide judgment dated 16.09.2020 convicted and sentenced the appellant, as stated above.
6. Learned advocate for the appellant mainly argued that Ms. Popri was the injured witness of the case; that she was declared hostile by the prosecution, but trial Court relied upon her evidence; that police officials, namely, complainant SIP Abdul Qadir Pathan PW-2 (Ex.9) and HC Gulab PW-5 (Ex.12) had not witnessed the actual incident; that it was the case of spy information but SHO failed to associate with him private persons to witness the incident. Lastly, it is submitted that it was unbelievable that appellant ran away from the place of incident while seeing the police party though police party was armed with arms and ammunition. Learned defence Counsel in support of his contentions placed reliance upon the cases reported as Muhammad Asif v. The State (2017 SCMR 486), Nazir Ahmad v. The State (2018 SCMR 787) and Wajahat v. Gul Daraz and another (2019 SCMR 1451).
7. On the other hand, learned Addl. P.G. contended that evidence of the police officials was reliable as they had no motive to falsely implicate the appellant in this case. Learned Addl. P.G. submitted that a circumstance goes against appellant Qadir Bux that incident had occurred in his house, where he committed murder of one Shahzado and his daughter was injured, and prayed for dismissal of the appeal.
8. I have carefully heard learned advocate for the appellant, learned Addl. P.G. for the State and have re-examined and re-assessed the evidence recorded by the trial Court.
9. From the re-appraisal of the evidence, I have come to the conclusion that trial Court failed to appreciate the evidence according to the settled principles of the law, for the reasons that Ms. Popri was an injured witness, she was declared hostile by the prosecution; but trial Court wrongly relied upon her evidence. According to the evidence of SIP Abdul Qadir Pathan, he along with subordinate staff had proceeded to the place of incident/house of the appellant on spy information, where he found appellant armed with hatchet, but SHO did not see the appellant while causing hatchet blows to deceased Shahzado. PW HC Gulab Khan was also not eye-witness of the incident. In this case, fate of the accused hinges upon the testimony of above police officials alone because Ms. Popri was declared hostile. In the case of capital punishment, it is always necessary to find out if there was any possibility of securing independent witnesses at the time of incident. Judicial approach has to be cautious in dealing with such evidence, as held in the case reported as Saifullah v. The State (1992 MLD Karachi 984). Relevant portion is reproduced as under:-
“8. The evidence of police officials cannot be discarded simply because they belong to police force. In Qasim and others v. The State, reported in PLD 1967 Kar. 233, it was held:-
“A police officer is as good a witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judges.”
However, in a case of this nature where the fate of an accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at that time. Judicial approach has to be cautious in dealing with such evidence.”
9. As regards to the last contention of the Addl. P.G. for the State that deceased in this case was murdered by the appellant in his house, as he had declared deceased to be on illicit terms with his daughter; thus, by virtue of the law laid down in the cases reported as Saeed Ahmed v. The State (2015 SCMR 710) and Arshad Mehmood v. The State (2005 SCMR 1524) some part of the onus had shifted to the appellant to explain the circumstances in which the deceased had died an unnatural death in his house, on the fateful day which part of the onus had not been discharged by the appellant. I have attended to this aspect of the case with care and have found that when every other piece of evidence relied upon by the prosecution has been found to be utterly unreliable then the appellant could not be convicted for the alleged murder simply on the basis of a supposition. The principle enunciated in the above mentioned cases of Saeed Ahmed v. The State (2015 SCMR 710) and Arshad Mehmood v. The State (2005 SCMR 1524) was explained further in the cases reported as Nasrullah alias Nasro v. The State (2017 SCMR 724) and Asad Khan v. The State (PLD 2017 SC 681), wherein it was clarified that the shifting of some part of the onus to the accused may not be relevant in a case where the entire case of the prosecution itself is not reliable and where the prosecution fails to produce any believable evidence. It is trite that in all such cases the initial onus of proof always lies upon the prosecution and if the prosecution fails to adduce reliable evidence in support of its own case then the accused person cannot be convicted merely on the basis of lack of discharge of some part of the onus on him. Reliance is placed on the case of Wajahat v. Gul Daras & others (2019 SCMR 1451). Relevant portion is reproduced as under:-
“Appellant’s belated plea of the suicide even if rejected outrightly by itself would not absolve the prosecution to drive home the charge, on its own strength and same goes for appellant’s absconsion; people avoid to face process of law or their adversaries for a variety of reasons, not necessarily inclusive of their guilt; Appellant’s reticence to satisfactorily as to what befell upon his better half under the same roof, though somewhat intriguing, however, cannot be equated to qualify as evidentiary certainty, essentially required in order to saddle him with formidable corporal consequences; his failure would not give rise to an adverse presumption within the contemplation of Article 121 of the Qanun-e-Shahadat Order, 1984 and thus it would be grievously unsafe to maintain the conviction, without potential risk of error as well as diametrical departure from adversarial nature of criminal trial.”
10. During investigation blood-stained hatchet was recovered from appellant Qadir Bux on his pointation and it was sent to the Chemical Examiner for analysis and report. Positive report was received and it was produced before the trial Court. It has come on record that PC Abdul Latif had taken the hatchet to the Chemical Examiner. He has not been examined to prove the safe custody of the hatchet at the Malkhana of the police station and its safe transmission to the Chemical Examiner. As such the prosecution failed to establish the recovery of the hatchet at trial, as held in the case of Kamal Din v. The State (2018 SCMR 577). Relevant portion is reproduced hereunder:-
“Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial Court through production of any witness concerned with such custody and transmission.”
11. Co-accused Ali Hyder has been acquitted by the trial Court, though he was armed with hatchet at the time of incident. Trial Court has failed to assign cogent reasons for convicting the appellant on same set of evidence. It is settled law if a witness is found lying in respect of a particular matter regarding the same incident, his/her rest of the statement regarding the same incident shall not be believed, as our criminal jurisprudence rests on the principle ‘falsus in uno falsus in omnibus’. Reliance is placed upon a case reported as Notice to Police Constable Khizar Hayat son of Hadait Ullah on account of his false statement: In the matter of, (PLD 2019 SC-527). Relevant portion is reproduced as under:-
“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 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 matter aspect shall, without any latitude, invariably be proceeded against for committing perjury. (Emphasis supplied)”
12. For the purpose of conviction and sentence in a case of capital punishment the evidence must come through unimpeachable source and trial Court has to see intrinsic value of such evidence with strong corroboration, which is lacking in the present case.
13. It is settled law that it is not necessary that while giving the benefit of doubt to an accused it was not necessary that there should be many circumstances creating doubt in the prosecution case. If there is single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled for benefit of such doubt, not as a matter of grace and concession, but as a matter of right. In this regard, reliance is placed on the case reported as Muhammad Mansha v. The State (2018 SCMR 772).
14. For what has been discussed above, a conclusion is irresistible and inescapable that prosecution had failed to prove it’s case against the appellant beyond reasonable doubt. Trial Court failed to appreciate the evidence according to the settled principle of law. This appeal was, therefore, allowed by short order passed on 19.09.2022, whereby conviction and sentence of the appellant were set aside and he was acquitted of the charge by extending the benefit of doubt.
15. Above are the detailed reasons of short order dated 19.09.2022.
JUDGE
Qazi Tahir PA/*