2000 PLP 152 (YLR)

(5) Taj Muhammad and another v. The State 1998 PCr. LJ 1834. (6) Fazal Elahi v. The State 1975 PCr.LJ

310. Mr. Ali Azher Tunio, Assistant A.‑G. supported the impugned judgment and stated that F.I.R., is promptly lodged within 30 minutes wherein the names of appellants are nominated with specific parts. Ocular evidence is consistent to medical evidence. The prosecution is supported by strong ocular evidence of injured witnesses. The material aspects of the case have not been denied by the appellants by putting such type of suggestions to the witnesses. He further argued that the minor contradictions are pointed out by the defence counsel which cannot be given much importance, as they were examined in Court after the lapse of seven years. He next argued that, the eye witnesses were injured and their presence at the scene cannot be doubted. The perusal of F.I.R. indicates that names of two appellants namely Muhammad Ismail and Gullan alias Gul Muhammad do not figure therein. The part assigned to both these appellants is that they caused Lathi blows to injured Juman. The evidence of complainant Rahib reveals that four appellants assaulted them in the Hotel, Qurban gave knife blows to his son Meer and Hakim gave blow to complainant with the handle of knife on his jaw which resulted in loss of his two teeth. The complainant further deposed that Juman received Lathi blows at the hands of Gullan. So far the deposition of complainant against appellant Hakim and Qurban is concerned he has fully implicated them and his evidence is in line with the contents of the F.I.R., with specific parts assigned to them. The defence has cross -examined the complainant at length but nothing could be achieved. However, he stated that Gullan caused injury to his son Juman and in this way he contradicted contents of F.I.R., wherein he said that remaining two accused, without naming them, caused Lathi blows to Juman. The next important witness is P.W. Juman Exh.15 who received injuries. He has stated before the Court that Gullan and Ismail started giving him Lathi blows. The fact remains that Juman had sustained only one injury with hard blunt substance which can only be attributed to either Gullan or Ismail. The two appellants cannot be responsible for a single injury and in this respect he has contradicted version of complainant Rahib, who attributed this single injury to Gullan. The prosecution had examined Liaquat Ali, the hotel owner. He has corroborated the version of prosecution so far the injuries on the person of deceased by appellant Qurban are concerned. He further stated that he found the teeth of complainant broken. He has said nothing about appellant Gullan and Muhammad Ismail. P.W. Allah Wadhayo has been examined as Exh.17. He has supported the prosecution case in support of the injuries caused by Qurban to deceased. Hakim caused blow to complainant Rahib‑‑He has further stated that appellant Ismail and Guloo inflicted Lathi blows to P.W. Juman. He has also attributed one injury, to two accused. The other piece of evidence appearing against the accused is recovery of knife from Hakim and Lathi from accused Ismail. The expert report regarding recovery of knife from accused Hakim Ali is of no use for the prosecution because the same is in negative and the alleged knife was sent to expert on 9‑3‑1988. Although the same was recovered on 30‑11‑1986. In view of the reasons stated 'above the recovery of Lathi and knife is of no help to prosecution. The next piece of evidence involving the accused/appellant is that of motive. The said motive is the dispute in early hours of the day of the incident between them over the children affair. The complainant has deposed the said fact before trial Court, and the defence has not denied the same even by way of such suggestion to him. So far medical evidence is concerned that supports the ocular evidence in respect of infliction of the injuries by appellant Qurban and Hakim to deceased Meer and complainant Rahib. P. W. Juman sustained single injury which is attributed to two appellants Gullan and Muhammad Ismail and is contradicted by other ocular evidence. In view of the above discussion it is evident that Qurban and Hakim are responsible for causing the murder of Meer Muhammad and injuries to complainant Rahib. Injured Juman and Rahib have fully supported the case of prosecution on this aspect of the case. Their evidence cannot be disbelieved because of their relationship with the deceased. They may be relative of the deceased but they had no animosity with accused party, so that the real culprits could be substituted for them. The perusal of the statement under section 342 of Hakim reveals that he was involved due to the enmity with Ghulam Shabir Bozdar who is business partner of accused Qurban. Considering to this version of accused Hakim the said Ghulam Shabir could have been directly involved, why he is left behind and instead him, Hakim Ali is involved. The case of appellant Muhammad Ismail and Gullan is distinguishable from the appellant Hakim and Qurban. Qurban and Hakim are guilty of the offence under section 302 read with section 34, P.P.C., as they both have caused injuries to deceased ash well as to complainant Rahib respectively and the same is proved by independent and reliable ocular evidence. So far case of appellant Hakim is concerned, he came alongwith main accused armed with knife and caused injury to complainant with handle of knife, his common intention and object is obvious and section 34, P.P.C., would, therefore, fully apply in his case. Case of Gullan and Muhammad Ismail is on different footing as they both are attributed single blow on the person of P.W. Juman and the benefit of doubt can be extended to them. Their names do not transpire in F.I.R., the Court while dealing with criminal cases can sift the grain from chaff and acquit some of the accused as abundant caution by giving the benefit of doubt, without, in any way, impairing the veracity of the witnesses, qua the other accused whose involvement in the occurrence is free from doubt and the part attributed is established from direct as well as circumstantial evidence. The view finds support from the pronouncement in a case of Abdul Aziz and another v. The State (1993 SCMR 544) as under: ‑‑‑ "It is by now well‑settled that the Criminal Courts can sift the grain from the chaff and acquit some of the accused as a matter of abundant caution by giving them the benefit of doubt without, in any way, impairing the veracity of the witnesses qua the other accused whose involvement in the occurrence is free from doubt and the part attributed to them is established from the direct as well as circumstantial evidence. In the instant case too, both the Courts below have acquitted the co‑accused of the appellants by extending them the benefit of doubt but this cannot come to the rescue of the appellants in any way as the charge against them has been consistently and satisfactorily established." Keeping in view, the facts and circumstances discussed above, I extend benefit of doubt to appellants Gullan and Muhammad Ismail as an abundant caution. Appellant Hakim, Muhammad Ismail and Qurban are real brothers and appellant Gullan is brother‑in‑law of Qurban. The case of Qurban and Hakim is supported by injured witnesses namely complainant Rahib and Juman and they are worthy of credence. Their testimony get support from Medical evidence, motive and attending circumstances. The record is minutely examined by me and the two appellants can be safely convicted on the basis of same evidence on which conviction of co‑appellants is being set aside on the basis of benefit of doubt. The reference can also be made to a case of Muhammad Ahmed v. The State and others 1997 SCMR 89, wherein their lordships have pronounced as under:‑‑‑ "That being so, the credibility of the eye‑witnesses could not be said to have been taken as a result of the acquittal of the said co‑accused. Needless to point out that the maxim falsus in uno falsus in omnibus has no universal application and not un-often the grain has to be sifted from the chaff. Refer Khairu and another v. The State (1981 SCMR 1176). The learned Judges were, therefore, perfectly justified in relying upon the ocular testimony furnished by the two eye‑witnesses finding it worthy of credence and also "sufficiently corroborated by the evidence of motive, the medical evidence and the attending circumstances" for upholding the conviction of the appellant. We may point out at this stage that we have minutely examined the cases cited by the learned counsel for the appellant in support of his contention that the appellant could not safely be convicted on the basis of the same evidence on which the conviction of 'his co‑accused could not be sustained, in the absence of independent corroboration and find that they proceed on their own distinguishable facts and are of no help to him." The reference can also be made to a case of Sardar Khan v. The State 1998 SCMR 1823 wherein it is held:‑‑‑ "The maxim 'falsus in uno falsus in omnibus' has not been accepted by the superior Courts in Pakistan as having universal application. Therefore, it does not, necessarily, follow that where the Court does not accept the evidence of a witness against some of the accused in a case, the Court cannot accept his evidence against the other accused. The Court often sifts the grain from the chaff while accepting the evidence of a witness against some of the accused in a case and at the same time not relying on his version against other accused in the case (see Muhammad Ahmad v. State 1997 SCMR 89 and Khairu v. State 1981 SCMR 1176)." The case‑law cited by learned counsel for the appellants has no relevance with the facts and circumstances of the case in hand. Due to the aforesaid reasons the appeal of Hakim and Qurban Ali against conviction is hereby dismissed and their conviction is maintained. The appeal of Muhammad Ismail and Gullan alias Gul Muhammad is allowed, their sentence is set aside and they may be released forthwith, if not required, in any other case. N.H.Q./H‑105/K Order accordingly.