2016 PLP 106 (YLRN)

"Falsus in uno falsus in omnibus"

Maxim has lost its vitality in Pakistan. [Para. 7 of the judgment] Muhammad Raheel alias Shafique v. State PLD 2015 SC 145 ref.

S. 302(b)

Qatl-i-amd

Appreciation of evidence

Medical evidence

Evidentiary value

Undisputed fact of unnatural death would never unveil the guilty, because the medical evidence, would continue with status of corroborative piece of evidence

Medical evidence was meant to test ocular account towards cause of injury/death; to seek corroboration towards nature of injuries and weapon used; to corroborate date and time of injuries or death, as the case could be

Conduct of post mortem was not a function of private person (complainant), but it was the duty and obligation of the Police and hospital (Medical Officer)

Purpose and object of an autopsy, was nothing more than that of knowing the cause of death, or it, at the best could operate as corroboratory evidence. [Para. 9 of the judgment] Ghulam Qadir v. State 2008 SCMR 1221 ref.

S. 302(b)

Qatl-i-amd

Appreciation of evidence

Delay of two and half hours in lodging of FIR, could not be said to be fatal to entirely disbelieve the complainant

Process of sifting the grain from chaff, was done consciously by Investigating Agency and Trial Court

Case of accused, was not identical to that of acquitted co-accused

Accused had been attributed single fire arm injury, resulting into death of son of complainant, while acquitted co-accused were not attributed active role

Evidence of complainant, real mother of deceased, remained unshaken in respect of name, identity and role of accused

Status of her being mother of deceased alone, would fade chances of substitution of innocent in shoes of real culprit

Requirement of law was that even a single witness, if qualified the test of being natural, confidence inspiring and trustworthy, would be sufficient to hold the conviction

Where principle of sifting the grain from chaff was involved, then mere diversity of evidence alone, would not be sufficient to hold one guilty, but strong corroboration would be required

Allegation against accused, was also strengthened by recovery of crime weapon at the pointation of accused

Ocular account to the extent of death of the deceased to have been result of the fire arm inquiry, also stood corroborated with medical evidence

Recovery of pistol and empty also advanced the case of prosecution against accused

Ocular account against accused regarding causing fatal shot injury to the deceased, stood corroborated by medical evidence, recovery and motive

Appeal was dismissed. [Paras. 10, 11, 12, 13, 15, 16 and 17 of the judgment] 1969 PCr.LJ 588; 1991 PCr.LJ 2316; 1994 MLD 969; 1995 SCMR 127; 1996 SCMR 1080; 2007 MLD 1203; Sughra Begum v. Qaiser Pervez 2015 SCMR 1142 and Askar Jan v. Muhammad Daud 2010 SCMR 1604 ref. Khadim Hussain Khooharo, Deputy Prosecutor-General for the State. JUDGMENT SALAHUDDIN PANHWAR, J.

By the dint of this judgment I intend to decide the captioned jail appeal, whereby appellant has assailed the judgment dated 13th June, 2009, thereby appellant was convicted under section 302(b), P.P.C. for committing murder of deceased Javed Hussain and was sentenced to suffer imprisonment for life and to pay fine of Rs.100,000/- to the legal heirs of deceased in terms of section 544-A, Cr.P.C. In case of default he was ordered to undergo imprisonment for 06 months more.

2. Narrating the occurrence and background leading thereto, complainant Mst. Marvi put the matter succinctly by stating that two years before the occurrence her son Javed Hussain had contracted marriage with Mst. Hafsa daughter of Moula Bux Mahar and one female child was born out of said wedlock. After that Moula Bux Mahar approached complainant for giving the hand of her daughter in exchange of his daughter to which complainant had refused. Then a 'Faisla' was held that complainant's son Javed Hussain shall divorce his wife, as such, Mst. Hafsa left the house of her husband and started living in the house of her father. On 14.8.1999 complainant Mst. Marvi, her son Javed Hussain and their relatives Muhammad Mithal and Gul Muhammad were going to their village from Chak Town. At about 2.00 p.m. when they reached near Pir Yousif Ali, where accused persons, namely,

1. Moula Bux,

2. Muhammad Hussain,

3. Abdul Ghaffar,

4. Din Muhammad, and

5. Muhammad Moosa, by caste Mahar resident of Village Dharani, Taluka Lakhi were available. Out of them accused Abdul Ghaffar and Din Muhammad were armed with gun. Accused Moula Bux instigated them to kill Javed Hussain. On which Abdul Ghaffar and Din Muhammad pointed their guns towards complainant party and threatened them to keep away else they will be killed, hence the complainant party remained silent. Where, after accused Muhammad Hassan took out pistol from his fold and fired upon Javed Hussain, which hit him, who, raising cries, fell down. After that, all the accused persons went away. Complainant found a fire shot injury on the back of her son having crossed from his chest, which was bleeding and he was dead. Complainant leaving the witnesses with the dead body went to police station and lodged FIR, alleging therein that on the instigation of accused Moula Bux and at the instance of accused Saifal her son Javed Hussain was murdered.

3. Trial Court framed charge against the appellant and other co-accused persons, to which they pleaded 'not guilty' and claimed trial. To substantiate the charge prosecution examined Dr. Jamil Ahmed, complainant Mst. Marvi, mashir Pehlwan, Inspector Anwar Ali Shaikh, Inspector Fida Hussain and Tapedar Allah Warayo.

4. The statements of accused persons were recorded, in which they pleaded innocence and false implication.

5. At the outset, learned Counsel for the appellant has contended that ocular testimony consists upon the evidence of complainant alone, as all other eye-witnesses have not supported the prosecution case; as per prosecution case the incident occurred at 2.00 p.m. and the FIR was recorded at 4.30 p.m., whereas the postmortem of deceased was conducted 2.30 p.m. i.e. two hours before lodgment of FIR; the mashir disclosed that mother of deceased i.e. the complainant came at the place of wardat with police, which reflects that she was not eye-witness of the occurrence; the mashirs were arranged by the complainant, who are closely related to the complainant, which is not disputed; appellant was arrested on 22.8.1999, whereas recovery of crime weapon was made on 03.9:1999 i.e. after the delay of about 12/13 days and that too was not made from the exclusive possession of the appellant, hence such recovery is of no consequence in the eyes of law; the eye-witnesses did not support the prosecution case in their 164, Cr.P.C. statements; empty allegedly -secured. from the place of occurrence was not sealed in presence of mashirs; the chemical report was not produced at trial and the same was submitted afterwards with a statement, hence the same could not be considered by the learned trial Court while passing the impugned judgment. Lastly, learned Counsel contended that out of six accused persons, five were initially let-off by the police having been declared as innocent, but they were subsequently joined and on the same set of evidence all co-accused were acquitted by the learned trial Court except the appellant, hence under the rule of consistency present appellant is entitled to claim same legal treatment in the eyes of law. In support of such contentions, learned Counsel relied upon 1969 PCr.LJ 588, 1991 PCr.LJ 2316, 1994 MLD 969, 1995 SCMR 127, 1996 SCMR 1080 and 2007 MLD 1203.

6. Conversely, learned D.P.G. supported the impugned judgment and contended that appellant Muhammad Hassan Mahar is nominated in the FIR, specific role of firing at deceased is attributed to him; medical evidence fully supports the ocular version, hence the appeal is without merit and liable to be dismissed. He has relied upon the case of 2002 YLR 2813.

7. At the very outset I would like to respond the plea of falsus in uno, falsus in omnibus. It would suffice to say in peculiar trend and culture, it is now settled principle of law that the said legal principle has lost its vitality in our country and sole ground of acquittal of co-accused is not sufficient to earn the acquittal. Reference can be made to the case of 'Muhammad Raheel @ Shafique v. State' (PLD 2015 SC 145) wherein it is held that: '....and, 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 alsus in uno falsus 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. (Underlining has been supplied for emphasis).

8. While responding to other pleas, raised by the learned counsel for the appellant, I would say that it was/is a charge of murder wherein the factum of death of the deceased to be unnatural has not been denied or disputed by the defence even. A reference to evidence of Medical Officer, who conducted autopsy, would show that he found:

1. One lacerated type of punctured wound of entry present measuring about 16 cm above left iliac crest bone posteriorly wound measuring 0.75.

2. One lacerated type of punctured wound measuring 1 cm in diameter present on chest at xphisternum. (Wound of Exit).

1. Thorax: One 0.75 cm wound present 15 cm. below left angle of scapula.

2. Pleurae damaged.

3. Left lung ruptured.

4. Blood vessels ruptured inferior versa-cava.

5. Posterior intercostal muscle damaged at the side of injury.

6. Fracture of xphisternium and rest organs were normal. and he opined as: ....cause of death was due to rupture of major blood vessels interior vanacava. The injuries were sufficient to cause death in ordinary course of . nature, which were caused by discharge from firearm. The time between hours and the period between the injury and death instant. Thus, the learned trial court judge committed no illegality in answering the point, so framed for this aspect.

9. The next plea of the learned counsel for the appellant is that the post mortem was started two hours before lodgment of the FIR and the FIR was lodged after 2 and half hour of the incident time. I am unable to understand as to what benefit the defence is attempting to draw while referring to conduct of post mortem before two hours of the lodgment of FIR by the complainant, a mother who has seen murder of her son within her own sight. At this juncture, it is material to say that an undisputed fact of unnatural death would never unveil the guilty because the medical evidence continues with status of corroborative piece of evidence meant to: i. test ocular account towards cause of injury/death; ii) to seek corroboration towards nature of injuries and weapon used; iii) test corroborate date and time of injuries or death, as the case may be; A reference to the case of Ghulam Qadir v. State (2008 SCMR 1221) may be made in that regard wherein it is held that: 'So far as medical evidence is concerned, it is settled law that the medical evidence may confirm the ocular evidence with regards receipt of injuries, nature of the injuries, kind of weapons, used in the occurrence but it would not connect the accused with the commission of the offence'. Further, conduct of post mortem is not a function of private person (complainant) but it is the duty and obligation of the Police and hospital (medical officer). Further, the purpose and object of an autopsy, as discussed above, is nothing more than that of knowing the cause of death or it, at the best, could operate as corroboratory evidence.

10. A delay of two and half hours in lodgment of the FIR in my view cannot be said to be fatal to entirely disbelieve the complainant (first informant) particularly when, as already discussed, principle of falsus in uno falsus in omnibus is not applicable here. Such words, widening the net, were not only disbelieved by the investigating agency but also by trial court as not only the as police let off other accused persons who though were joined in trial but were acquitted by learned trial Court. This also means that process of sifting the grain from chaff was done consciously by investigating agency and trial court. Thus, I am not inclined to take a delay of two and half hour as fatal to disbelieve the prosecution case as a whole.

11. At this juncture, I would like to take guidance from the case of Sughra Begum v. Qaiser Pervez (2015 SCMR 1142) wherein it is held as:

23. After the acquittal of Muhammad Ilyass co-accused, to whom same and similar role was attributed like the appellant and because some of the crime empties did not match with the pistol attributed to the appellant but he was given benefit of doubt along with Babu Muhammad Javed, the latter being a moving spirit behind the whole tragedy then how, in the absence of strong corroboratory evidence, the appellant could be convicted on the same qualify of evidence, which was disbelieved qua the co-accused. In this regard this court in the case of Ghulam Sikander v. Mamraz Khan (PLD 1985 SC 11), has laid down a guiding principle to the effect that when case of the convict is not distinguishable from that of the acquitted accused and the evidence is indivisible in nature then in the absence of strong corroboratory evidence, coming from independent source, the same cannot be made or conviction qua the convict. This rule of law has been followed since long without any exception. Now, let's see whether allegation against the appellant/convict is similar to that of other acquitted co-accused and is not distinguishable. It is a matter of record that the case of the present appellant/convict is not identical to that of acquitted co-accused. The present appellant/convict has been attributed the single fire-arm injury, resulting into death of son of complainant, while other acquitted co-accused were not attributed such active role. A blood relation even while widening the net would not motivate to widen the net at cost of real culprit because substitution of real culprit is a rare phenomenon but widening of net, as already discussed, is a developed trend. The evidence of the complainant, a real mother, remained unshaken in respect of name, identity and role of the present appellant/convict. The status of her being mother of deceased alone fades chances of substitution of innocent in shoes of real culprit and since the defence brought nothing on record which could justify that the complainant had such a motive or consideration which could be believed to have taken her to such an extent that within short span of time (two and half hours) she placed an innocent (present appellant) in clothes of real culprit. Therefore, I am of the clear view that the case against the appellant/convict is distinguishable from that of other acquitted co-accused persons.

12. At this point, I would like to attend the plea of the defence regarding non-examination of other witnesses. I am conscious that prosecution did not examine the other eye-witnesses of the incident but such non-examination is based with a written request that these witnesses, being won-over, are not going to speak the truth. Not only this, but this has never been the requirement of law that prosecution must produce all the witnesses to prove a fact but requirement of law is that even a single witness, if qualifying the test of being natural, confidence inspiring and trust-worthy, would be sufficient to hold the conviction. The act of non-examination was under specific plea and was in respect of those witnesses who in their 164, Cr.P.C. statements had supported the complainant's version. These witnesses were never claimed to have gone to unknown place or that their evidence was not likely to be procured therefore, the defence could have called these witnesses in their summons or could have moved to the trial court for examination of their witnesses as court witness even so as to dislodge such reason/plea of the prosecution for non-examination. 'Evidence that differs from but strengthens or confirms what other evidence shows (needing support)' In the instant case, the allegation against the appellant/convict is also strengthened by recovery of crime weapon at the pointation of the appellant/convict. Such recovery is well within meaning of the Article 40 of the Qanun-e-Shahadat Order, 1984 which has been given status of `admissibility' by the law itself. However, a discovery of fact with reference to such Article would require the prosecution to prove (i) information, or statement by an accused under custody with regard to discovery of some fact and (ii) discovery of some fact in result of such information or statement. The case of Askar Jan v. Muhammad Daud (2010 SCMR 1604) is sufficient to shoulder such view.

14. In this regard, a reference to evidence of PW-4 Inspector Fida Hussain Gopang would show that on 03.9.1999 during interrogation accused Muhammad Hassan volunteered to produce the T.T. Pistol which he used during the commission of offence. He thereafter under roznanicha entry No.20 at about 1820 hours carried the accused and subordinate staff by foot and left for the pointed place, when they reached in graveyard of Pir Yousif Ali, the accused Muhammad Hassan left him and mashirs Pehlwan and Nazir, who were taken by him on the way while proceeding to the pointed place and accused from the route of one of the Khabar tree by digging the earth took out a pistol which was already wrapped in polythene bag. On opening pistol was found empty and was of .30 bore and he sealed it. From above, it is clear that such recovery was result of the disclosure of a fact, made by appellant during his custody with the police, therefore, was rightly believed by the learned trial Court as the defence could not succeed in shattering such claim of the prosecution. The Article 40 of the Qanun-e-Shahadat Order, 1984 no where puts any time restriction for such discovery therefore, plea of the defence that such recovery, being effected after confinement of days together was not admissible, carries no weight.

15. Further, the ocular account to extent of death of the deceased to have been result of fire arm injury also stands corroborated with medical evidence.

16. The recovery of pistol and empty also advanced the case of the prosecution against the appellant/convict. Such recovered empty when affirmed to have been used by the pistol, recovered at pointation of the appellant/convict, provides strong corroboration to ocular account against the appellant/convict that with such pistol he caused fatal shot upon deceased. The opinion of the Ballistic Expert is as: 'The microscopic examination of the case has revealed that one .30 bore crime empty now marked as "C" was used from the above mentioned 7.63 mm (.30) bore pistol without No. now butt signed in questioning view of the following major points i.e. striker pin marks, breach face marks ejector marks and chamber marks etc. are similar". "Report of Chemical Examiner, Serologist etc. Any document purporting to be a report, under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government (or of the Chief Chemist of Pakistan Security Printing Corporation, Limited) or any Serologist, finger print expert or fire-arm expert appointed by Government upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may without calling him as a witness, be used as evidence in any inquiry, trial or other proceeding under this Code."

17. There also exists the motive which was pleaded from very beginning of the incident i.e FIR lodged within two and half hours of the incident. This is an undeniable fact that the appellant / convict Muhammad Hassan is son of the acquitted accused Moula Bux, who was pressing for hand of daughter of the complainant (sister of deceased). Thus, it would suffice to say that ocular account against the appellant regarding causing fatal shot injury to the deceased stands corroborated from 'medical evidence', recovery, motive and even on count of existence of fact that a blood related shall not normally attribute fatal injury to an innocent thus, I do not find substance in the appeal of the appellant which is accordingly dismissed. HBT/M-42/Sindh Appeal dismissed.