IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
(CriminalAppeal No.S-120 of 2016)
Appellant : MuhammadIlyas s/o Qalandar Bux Hajano,hrough Mr. Asif Ali Abdul Razzak Soomro, Advocate
The State: Through Mr. Ali Anwar Kandhro,Addl.P.G.
Date of hearing: 02-02-2023
Date of decision: 13-02-2023
JUDGMENT
ZULFIQAR ALI SANGI,J;-The listed criminal appeal impugnsthe judgment dated 08.12.2016, passed by learned Special Judge Anti-Corruption (Provincial), Larkana, in Special Case No.07/2008 (Re.St.Vs.Muhammad IllyasHajano),outcome of FIR bearing Crime No.24/2008, offence U/S.409PPC r/w Section 5(2) Act-II of 1947, registered with Police Station,New Foujdari, Shikarpur,whereby the appellant was convicted for offence punishable U/S.409 PPC r/w Section5(2) Act-II of 1947 and sentenced to suffer R.I for three years with fine of Rs.20,000/- and in default whereof, to suffer R.I for six months more, withbenefit of Section 382-B Cr.PC.
2. Succinctly, the facts of prosecution case are that on 18.02.2008, complainant HC Sharafuddin Memon lodged FIR with P.S New Foujdari, Shikarpur, in which he mentioned that on 17.02.2008, he alongwith his staff PC Imdad Ali, PC Muhammad Nawaz and PC Muhammad Qasim together with Presiding Officer namely Muhammad IllyasHajano and his other staff while obtaining ballot boxes including other material arrived at Polling Station No.75, Primary School Hazar Khan Chandio, at 1800 hours; the material was in custody of Presiding Officer and that the School had two rooms; in one room the Presiding Officer alongwith his polling staff was available and complainant alongwith police constables was on duty with them.Presiding Officer Muhammad Illyaswhile talking on mobile phone was calling someone who distributed the duties. On 18.02.2008, at about 0400 hours night,the complainant went in bathroom and after a while came back and found Presiding Officer Muhammad IllyasHajanoabsent in the room, as such he awakened other staff and saw seals of two bags broken; they came out from the School and saw a person talking with Presiding Officer who had six ballot paper books who on seeing the complainant decamped. On query from the PresidingOfficer he disclosed that he was his brother Muhammad HanifHajano and intended to show greed but the complainant informed the Senior Officers and other staff about the incident, thereafter,Returning Officer and other officers arrived at Polling Station and checked the material and polling material was handed over to other Presiding Officer and polling was started,later-on, the complainant came at Police Station and got registered the FIR that Presiding Officer Muhammad IllyasHajano in collusion with his brother has committed criminal breach of trust by stealing six ballot paper books of Provincial Assembly and National Assembly and he thenproduced the accused in custody together with mashirnama prepared by Returning Officer Mr.Ahmed Saba, for that instant case was registered.
3. On completion of usual investigation, the investigation officer submitted final report under section 173 Cr.PC against the accused before learned trial Court, where the formal charge was framed against both the accused, to which they pleaded not guilty and claimedtrial.
4. In order to establish accusation against the accused, the prosecution examined in all six witnesses i.ePW-01 PST Nasrullah Abro, PW-02Complainant HC Sharafuddin Memon, PW-03SIO/SHO Lal Bux,PW-04 Author of FIR/SHO Asadullah Shaikh, PW-05 Mashir PC Muhammad Qasim, PW-06 Mr. Ahmed Saba, Addl.D&SJ, Shikarpur. All above witnesses produced relevant documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.
5. The accused in their statementsrecorded in terms of Section 342 Cr.PC, denied the allegations leveled against them by pleading theirinnocence.They, however,neither examinedthemselves on oath in disproof of the charge nor led any evidence in their defence.
6. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties acquitted co-accused Muhammad HanifHajano while convicted and sentenced the present appellant/accused vide impugned judgment, as detailed above.
7. Per learneddefence counsel, there is inconsistency in between the evidence of prosecution witnesses which has shattered veracity of their evidence; that none has seen committing theft of the ballot papers; that the FIR has been lodged with considerabledelay; that the complainant and PWsare interested witnesses and their evidence has no credibility, as such the same cannot be relied upon without independent corroboration; that co-accused Muhammad Hanifhas already been acquittedwhile the appellant has been convicted and sentenced by learned trial Court on the basis of same set of evidence, which is against the spirit of natural justice. Concluding his contentions, the learned defence counsel submitted that present appellant/accused hasbeen arraigned in the present case with malice, therefore, the case of prosecution is doubtful and the appellant/accused is entitled to his acquittal in circumstances of the case.
8.Conversely, learned D.P.G for the State submits that the present appellant/accused is nominated in the FIR with active role in commission of the offence; that all the witnesses have fully supported the case of prosecution and no any major contradiction has been noticed in their evidence, that sufficient material is available on record to connect the present appellant/accused with commission of the alleged offence; therefore, learned trial Court finding the appellant/accused guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which does not call for any interference by this Court, hence, the appeal filed by himbeing meritless is liable to be dismissed.
9. Heard arguments of learned counsel for the parties and perused the material made available on record with their able assistance.
10. The prosecution examinedComplainant HC Sharafuddin (PW-02) who while recording FIR has stated that on 17-02-2008 he alongwith PC Imdad Ali, PC Muhammad Nawaz and PC Muhammad Qasim and Muhammad IllyasHajano the presiding officer with his staff after taking ballot papers came at polling station No.75 PrimarySchool Hazar Khan Chandio which was consisting upon two rooms, one was occupied by Muhammad IllyasHajano with his staffand two police officials including him(complainant) and the other room was occupied by the other election staff. During the duty, presiding officer Muhammad Illyas was talking with someone on mobile phone and was also working there. On 18-02-2008, at about 04.00 A.M, he woke up to ease himself and found Muhammad Illyaspresiding officer of said polling station missing then he awakened the other staff and they saw that seals of both the bags of ballot papers and other articles were broken.They came out of School and saw one person was taking with presiding officer who had 06 books of ballot papers who on seeing them escape good, on inquiry presiding officer disclosed that he was his brotherand intended to fulfill their greed but he informed the Senior Officers and other staff about the incident.The complainant while appearing in the witness box tried to support the case of prosecution but his evidence on re-assessment was found to be unreliable and untrustworthy. He had contradicted his own version in respect of his availability in the room where presiding officer and the material of election was available and deposed that in one room presiding officer Muhammad Illyas and his staff was available and in another room he alongwith his staff was available which clearly shows that either he was not present at the relevant time at the polling station or he was a managed witness or he himself is concealing the real facts. In both the circumstances, his evidence is not reliable.The complainant had not deposed a single word at the time of recording his evidence in respect that appellant Muhammad Illyas was talking with someone on mobile phone while he was working in the night of incident which too makes the case as doubtful.In the FIR, complainant stated that while missing the presiding officer he awakened the other staff and informed them about missing and breaking seals of the bags and thereafter all the staff came out of polling station and made search while during his examination-in-chief he gave contradictory version by deposing that he himself went to search the presiding officer and found him outside of the polling station alongwith other person having books of ballot papers and later-on other staff came there to whom he informed about the incident.
11. The another important witness was PW-01 Nasrulah, the Head Master posted at the same school where the incident took place who was also on duty at the relevant time.This witness in his examination-in-chief deposed that he, Naseer Ahmed and Mouladad slept in one room while accused Muhammad IllyasHajano who was presiding officer and other polling staff slept in another room, he has not stated even a single word about presence of complainant in any of the room. However, he deposed that at about 4.00 A.M they woke-up on some noise and found HC Sharafuddin and the presiding officer talking with each other and on inquiry HC informed them that Muhammad Illyas had committed theft of ballot papers and he had intimated the incident to Mr.Ahmed Saba Returning Officer who on arrival prepared the mashirnama. This witness has not stated a single word about the availability of co-accused Muhammad Hanif having ballot papers nor he stated the actual place where he saw the accused and HC (complainant) while taking with each other. He has not disclosed the time that when the returning officer reached there and at what time prepared the mashirnama. His evidence is completely contradictory with the evidence of complainant on each and everyaspect of the case which too makes the entire case as doubtful.
12. Another eye-witness Muhammad Qasim Abro (PW-05) was examined who as per FIR and the evidence of complainant was on the duty with complainant HC Sharafuddin and was also eye-witness of the incident but he in his evidence has not supported the case of complainant in respect of duty with him and also the happening of incident in his presence, as he had not uttered a single word about the incident, however, he deposed that about 04 years back, he was on duty at polling station No.75 with ASI Lal Bux (ASI Lal Bux was not on duty but is investigation officer of the case). It was 11.05 A.M, Lal Muhammad prepared mashirnama of arrest of accused Muhammad Illyasand then they proceeded to Polling Station No.75 where Lal Muhammad also prepared mashirnama. He further added that his statement was not recorded by I.O of the case which reflects that the complainant had himself managed the story which too is not supported by his own witnesses.
13. PW-06 Returning Officer Mr. Ahmed Saba, Additional District & Sessions Judge, Shikarpur, in his evidence deposed that on 18.02.2008, he was assigned the task as Returning officer to conduct the Election for Constituencyof NA-202 and PS-11 & PS-12. He delivered the ballots papers to the presiding officers and on the day of polling, he received information that polling station located at village Hazar Khan Chandio which was poling No.75 of said Constituency and he checked the serial numbers of book of ballot papers to which he had supplied to the presiding officer of said polling station at the time of dispatch of election material and found that serial numbers so mentioned in the mashirnama were missing. He seized all the ballot papers which were supplied by him to the presiding officer and issued book of ballot papers afresh for holding election of the said polling station. He prepared the mashirnama in respect of seized ballot papers. He too is not supporting the case of complainant in respect of the accused that who had committed the theft or misappropriation of the ballot papers nor stated a single word that he was informed by the complainant that appellant had misappropriated the ballot papers and handed over to his brother. Even this witness has not deposed a single word that when he reached at the place of incident and saw the accused in custody.In addition to this, the memo prepared by Returning officer who was an Additional Session Judge, is silent about the date, time and place of its preparation and that of names of mashirs or officials in whose presence it was prepared. Further, the Returning officer has also not disclosed about recording of his statement by the investigation officer as to whether he was examined by the investigation officer or not. He has not produced any evidence that appellant Muhammad Ilyas was appointed as presiding officer at the same polling station nor the same was collected by the investigation officer. No record in respect of handing over the ballot papers or the election material to the appellant was produced by the prosecution.
14. PW-03 SIO/ASI Lal Bux in his evidence deposed that on receipt of papers of this case, he arrested accused Muhammad Illyas under mashirnama and then visited the place of vardat on the pointation of complainant and prepared such memo. He then recorded statement of Returning officer Mr.Ahmed Saba and that polling staff as well as police staff including staff deputed at the polling station. On completion of formalities, he submitted the challan before the Court. During his cross-examination, he admitted that during investigation he placed the name of accused Muhammad Hanif in Column No.2 of the challan and further admitted that only mobile phone was handed over to him and the case property was not handed over to him. He also admitted that co-accused had produced medical certificate in respect of his admission in JPMC hospital Karachi prior to the incident. The investigation officer who was not an eye-witness of the incident nor recovered the material as alleged in the case by the prosecution. The opinion of a Police Officer who had investigated the case as to the guilt or innocence of an accused person is not a relevant fact, and is therefore not admissible, under the Qanun-e-Shahadat Order, 1984; as he is not an "expert" within the meaning of that term as used in Article 59 of the Qanun-e-Shahadat Order, 1984. Even, the Criminal Procedure Code (Cr.P.C) does not authorize him to form such an opinion. To determine guilt or innocence of an accused person alleged to be involved in the commission of an offence is a judicial function that can only be performed by a Court of law. This judicial function cannot be delegated to the Police Officer investigating the case. The Police Officers are empowered under the provisions of Chapter XIV of the Cr.P.C, only to investigate the non-cognizable offence with the order of a Magistrate and the cognizable offence without such order. This power of investigation, in no way, includes the power to determine guilt or innocence of the accused persons. An investigation, as defined in section 4(1)(l) of the Cr.P.C, includes all proceedings under the Cr.P.C for the collection of evidence conducted by a Police Officer or by any other person authorized by a Magistrate. This definition makes it clear that the assignment of a Police Officer conducting an investigation is limited to the collection of evidence, and the evidence when collected has to be placed by him before the competent Court of law. Only the Court has the power and duty to form an opinion about the guilt or innocence of an accused person and to adjudicate accordingly on the basis of evidence produced before it. An opinion formed by the investigating officer as to the non-existence or existence of sufficient evidence or reasonable ground of suspicion to justify the forwarding of an accused person to a Magistrate Under Sections 169 and 170 of the Cr.P.C does not tantamount to opinion as to the guilt or innocence of the accused person. And despite such opinion of the investigating officer, the final determination even as to the existence or non-existence of sufficient ground for further proceeding against the accused person is to be made by the Magistrate Under Sections 173(3) and 204(1) of the Cr.P.C on examining the material available on record, and not on the basis of that opinion of the investigating officer. Since,when the evidence of eye-witnesses of the case is not believed by this Court as discussed above then the evidence of investigation officer itself is not sufficient to maintain conviction, who even otherwise, gave contradictory evidence. Reliance in this regard is placed upon case of Muhammad Idrees and anotherv.The State and others (2021 SCMR-621).
15. It is observed that learned trial Court on the same set of evidence by disbelieving the same recorded acquittal of co-accused Muhammad Hanif and believed the same in respect of present appellant Muhammad Illyas, the brother of acquitted co-accused.Legally, the evidence should be believed or disbelieved as a whole and not in parts unless exceptions so justifies because the Criminal Administration of Justice always insist giving benefit of doubt to accused. In the case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR-344), it was held by the Hon’ble Court that;
“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.
16. It has recently been settled by the Supreme Court in case of Khizar Hayat (PLD 2019 Supreme Court 527), that the Principle falsus-in-uno-falsus in omnibus is applicable in our system designed for dispensation of justice in criminal cases and Courts are required to discharge the whole evidence of a PW if disbelieved in part. It is appropriate to reproduce the relevant paragraph, which reads as follow:-
“4. Falsus in uno, falsus in omnibus is a Latin phrase meaning “false in one thing, false is everything” The rule held that a witness who lied about any material fact must be disbelieved as to all facts because of the reason that the “presumption that the witness will declare the truth ceases as soon as it manifestly appears that he is capable of perjury” and that “Faith in a witness’s testimony cannot be partial or fractional….”2 In its original form, the rule was mandatory and the notion “was that the testimony of one detected in a lie was wholly worthless and must of necessity be rejected.”3 John Henry Wigmore, an American jurist who served as the Dean of Northwestern Law School from 1901 to 1929, traced the rule to the Staurt treason trials of the late 17th century”. In Trial of Hompden (9 Howell’s State Trials 1053, 1101(1684),it was contended while referring to the rule of falsus in uno, falsus in omnibus that “If we can prove that what he hath said of my lord of Essex is false, he is not to be believed against the defendant.” In Trial of Langhom (7 Howell’s State Trials 417, 478 (1679), it was argued that “If I can prove any one points (in answer to that which he hath given evidence) not to be true, then I conceive, my lord, he ought to be set aside. “Similarly, it finds mention in Trial of Coleman (7 Howell’s State Trils I, 71 (1678) that “[I]t would much enervate any man’s testimony”
17. It is well settled by now that if a set of witnesses is disbelieved to the extent of one accused, the same cannot be believed to the extent of remaining accused facing the same crime without there being an independent and strong corroboration of the sanctity of material available on record. Thus, all these series of material infirmities/contradictions brought above in the evidence of prosecution witnesses demolished the veracity of their statements, which are sufficient to render the entire case of the prosecution to be highly doubtful.
18. It is observed that the evidence in respect of the sealing of the remaining ballot papers by the returning officer and the recovery of mobile phone from the appellant allegedly used by him at the time of incident so also the evidence produced by the prosecution through the PWs were not put to the appellant while recording his statement under section 342, Cr.P.C. enabling him to explain the circumstances, therefore the same cannot be used against him as has been held by Honourable Supreme Court of Pakistan in the cases Imtiaz alias Taj v. The State (2018 SCMR 344), Qadan and others v.The State (2017 SCMR 148), Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710) and Muhammad Shah v.The State (2010 SCMR 1009).
19. The Court(s) must never be influenced with severity of the offence while, appreciating evidence for finding guilt or innocence because severity of an offence could only reflect upon quantum of punishment. Therefore, even such like tragic cases, the Courts are always required to follow the legally established position that it is intrinsic worth and probative value of evidence which plays a decisive role in determining the guilt or innocence and not heinousness or severity of offence. Reliance can be placed on the case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274).The rule of benefit of the doubt is essentially a rule of prudence which cannot be ignored while dispensing justice following the law. The conviction must be based on unimpeachable evidence and certainty of guilt and doubt arising in the prosecution case must be resolved in favour of the accused. The said rule is based on the maxim. "It is better that ten guilty persons be acquitted rather than one innocent be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly because of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent"
20. Theover-all discussion arrived at conclusion that the prosecution has failed to prove the guilt against the present appellant beyond any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there should not be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right. In this respect reliance is placed on the case of Muhammad Masha v. The State (2018 SCMR-772),wherein the Hon’ble Supreme Court of Pakistan has held that:-
“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221), Muhammad Akram v.The State (2009 SCMR 230) and Muhammad Zaman v.The State (2014 SCMR 749).
21. For what has been discussed above, I have come to the conclusion that the learned trial Court has not evaluated the evidence in its true perspective and thus arrived at an erroneous conclusion by holding present appellant as guilty of the offence. Thus, the conviction and sentence recorded against the appellant by way of impugned judgment could not be sustained, it is set aside. Consequently, the appellant is acquitted of the charged offence. He is present in Court on bail, his bail bond stands cancelled and surety is discharged. Office is directed to return the surety papers to surety of the appellant after proper verification and identification.
22. The instant criminal appeal is disposed of accordingly.
JUDGE