IN THE HIGH COURT OF SINDH, AT KARACHI

Criminal Appeal No. 214 of 2019

Appellants: Muhammad Rahim, Ramzan and Adam through Mr. Shabbir Ahmed Kumbhar advocate

The State: Through Mr. Khadim Hussain, Additional Prosecutor General Sindh

Date of hearing: 18.10.2022

Date of judgment: 18.10.2022

J U D G M E N T

IRSHAD ALI SHAH, J- It is the case of the prosecution that the appellants together with rest of the culprits after having formed an unlawfully and in prosecution of their common object, committed murder of Muhammad Hassan by causing him fire shot and hatchet injuries, for that they were booked and reported upon. On conclusion of trial, co-accused Khamiso, Muhammad and Ghulam Qadir alias Koro were acquitted, while appellants were convicted under Section 302(b) r/w section 34 PPC and sentenced to undergo rigorous imprisonment for life and to pay compensation of Rs.200,000/- each to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 06 months with benefit of section 382(b) Cr.P.C by learned Ist Additional Sessions Judge, Thatta, vide judgment dated 07.03.2019, which is impugned by the appellants before this Court by way of instant appeal.

2. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party only to satisfy its dispute with them over fish pond; the FIR of the incident was lodged with delay of about 01 day, the complainant and his witnesses were related inter-se and on the basis of same evidence co-accused Khamiso, Muhammad and Ghulam Qadir alias Koro have been acquitted. By contending so, he sought for acquittal of the appellants by extending them benefit of doubt.

3. None has come forward to advance arguments on behalf of the complainant. However, learned Addl. PG for the state by supporting the impugned judgment has sought for dismissal of instant appeal by contending that the case of acquitted accused is distinguishable to that of the appellants.

4. Heard arguments and perused the record.

5. It was stated by complainant Muhammad Juman that on the day of incident, when he and the deceased were busy in their work at the fish pond, while P.W Ishaq was grazing his cattle in nearby jungle, there came the appellants and the acquitted accused and then at the instance of Khamiso, appellants Ramzan and Muhammad Rahim caused fire shot injuries to the deceased with their gun and pistol while appellants Adam and Khamiso caused hatchet injuries to the deceased on various parts of his body, who by sustaining those injuries fell down and died and accused then went away. His evidence takes support from the evidence of P.W Ishaq with simple variation that accused Rahim caused fire shot injury to the deceased with his revolver. It appears to be bonafide mistake on his part. As per P.W Usman, he came at the place of incident on hearing of fire shot reports and cries. Prima facie, he came at the place of incident, when it was virtually over; he therefore could not be treated to be an eye witness to the incident. However, he has supported the factum of incident. If for the sake of arguments, the evidence of P.W Usman is kept out of consideration, even then the evidence of the complainant and P.W Ishaq is prima facie enough to connect the appellants with the commission of the incident. It has come on record that the houses of the Palaries were found situated near to the place of incident and perhaps in that context it is contended by learned counsel for the appellants that no independent person has been cited as witness to the incident. The independent persons are found reluctant to involve them in the enmities of others, therefore, their non-association is not enough to discredit evidence of the complainant and his witness; so far involvement of the appellants in commission of incident is concerned. Admittedly, the FIR of the incident is lodged with delay of 01 day, but such delay was natural in case like the present one and same even otherwise, has been explained plausibly by the complainant in the FIR itself. On arrest from the appellants as per I.O/SIP Shoukat Ali were secured the shot gun, country made pistol and hatchet, which they allegedly used in commission of incident. The shot gun and the pistol on forensic examination were found to be similar with the empty cartridges secured from the place of incident. In that situation, the appellants could not be absolved of such recovery only for the reason that P.W/mashir Muhammad Yousuf on asking was fair enough to admit that his signatures on mashirnamas do differ. By admitting so, he voluntarily stated that he signs differently. No doubt co-accused Khamiso, Muhammad and Ghulam Qadir alias Koro have been acquitted by learned trial Court, but there could be made not denial to the fact that their case was quite distinguishable to that of the appellants. The appellants as said above have been attributed specific roles of committing death of the deceased by causing him fire shot and hatchet injuries and against them the prosecution has been able to prove its case beyond shadow of reasonable doubt.

6. In the case of Iftikhar Hussain v. State (2004 SCMR 1185), it has been observed by 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)…..”

7. In case of Muhammad Raheel @ Shafique v. State (PLD 2015 SC 145), it has been 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”.

8. In view of the facts and reasons discussed above, it is concluded that no case for interference with the impugned judgment is made out by this Court, by way of instant appeal, consequently, it is dismissed.

JUDGE