2015 PLP 1015 (YLR)

SALAHUDDIN PANHWAR, J.

This criminal jail appeal is against the impugned judgment dated 30th June 2011, passed by the learned Sessions Judge, Sukkur, in Sessions Case No. 27/2008 arising out of Crime No.08/2008 of Police Station, SITE, Sukkur registered for an offence under sections 302, 324, 337-H(2), 379, 114, 109, 149, P.P.C., whereby, the appellant was sentenced under section 302, P.P.C. to suffer R.I. for life and to pay a fine of Rs.50,000 to the legal heirs of the deceased and in default, undergo one year more. The appellant was also extended benefit of section 382-B, Cr.P.C.

2. The facts of the prosecution case as set out in FIR are that the complainant Qadir Bux had matrimonial dispute with Abdul Khalique Damiyo, who, used to say that he would fight with Lal Bux. On 18-1-2008 complainant along with his brother Lal Bux left their house for purchasing milk and when they were standing on the road in front of shop of Rizwan Plaza near Board Office, Sukkur accused Abdul Khaliq having .12 bore country made pistol, Wazeer and Abdul Haq, having pistols came there and at the instigation of Abdul Haq accused Abdul Khaliq fired upon Lal Bux, which hit him on left side of chest and he fell down, while accused Wazeer and Abdul Haq caused straight fire shots upon complainant with intention to commit murder but he saved himself by falling down on the ground. In the meanwhile P.Ws. Imdadullah brother of complainant and Naseer Ahmed reached there, whereupon, accused Abdul Khaliq, Wazir and Abdul Haq ran away by making aerial firing and also took away licensed pistol of Lal Bux. It is further mentioned that the accused persons have committed murder due to matrimonial affairs on the abetment of accused Khadim Hussain and Ali Nawaz.

3. After the registration of FIR, the investigation was conducted by SIO Amjad Iqbal, who during investigation, inspected the dead body; prepared mashirnama, danishtnama and secured blood stained clothes in presence of mashirs. He also visited the place of incident, arrested accused Khadim Hussain and recorded 161, Cr.P.C statements of the witnesses, thereafter due to his transfer further investigation was conducted by SIO Shamsuddin Gopang, who, during investigation found accused Khadim Hussain, Abdul Haq and Ali Nawaz innocent and let them off; and after completing investigation, accused persons were sent up for trial.

4. A formal charge was framed against the present accused to which they pleaded not guilty and claimed trial. To substantiate their case, the prosecution examined Dr. Muhammad Yasin at Ex.5, who produced postmortem report at Ex.5-A, P.W.2 complainant Qadir Bux at Ex.6, who produced FIR at Ex.6-A, P.W.3 Imdadullah at Ex.7, P.W.4 Naseer Ahmed at Ex.8, P.W.5 I.O Amjad Ali at Ex.9, who produced memo of dead body at Ex.9-A, danishtnama at Ex.9-B, memo of seizing clothes of the deceased at Ex.9-C, memo of place of incident at Ex.9-D, Memo of arrest at Ex.9-E, P.W.6 SIO Shamsuddin at Ex.10, P.W.7 Hafeezullah Tapedar at Ex.11, who produced map at Ex.11-A, P.W.8 SIP Javed Ali the author of the FIR at Ex.13, P.W.9 Ali Nawaz mashir Ghulam Mustafa at Ex.14, P.W.10 ASI Muhammad Nawaz at Ex.15, who produced memo of recovery of pistol at Ex.15-A. The learned DPP produced on record the reports of Ballistic expert and then closed its side vide statement at Ex.17.

5. The statement of appellant under section 342, Cr.P.C was recorded, in which appellant denied the allegations of prosecution, and in his defence, examined DWs Inspector Ghulam Qasim, Ghulam Hussain and Habibullah, DW inspector Ghulam Qasim conducted re-investigation; according to re-investigation DWs Habibulah, Ghulam Hussain and others disclosed that they were sitting at the Hotel of Ferozuddin Labano, where, suddenly three persons, armed with country made pistols, with open faces, came there and caused murder of Lal Bux Damiyo, thereafter they learnt that accused Abdul Khaliq and Wazir have been arrested in the case.

6. Mr. Abdul Mujeeb Pirzada learned counsel for the appellant has inter alia contended that three accused persons were implicated at the first instance by the complainant in FIR, later on by further statement two more accused Khadim Hussain and Ali Nawaz were implicated, which proves that the complainant has tried to widen a net of false implication; all the witnesses are related inter se therefore they are interested witnesses; moreover they are also chance witnesses as they are not resident of the same vicinity of the incident place; they have also not explained there presence at the crime scene properly; complainant has stated that injured died in the way of Hospital, whereas, postmortem report reflects that injured Lal Bux was brought at Hospital at 11.15 a.m. an died at 11.30 a.m., therefore, postmortem report negates the version of the complainant; in the instant case second investigation was carried out, according to that "case is doubtful but since the challan has been submitted", therefore, same was not recommended in false class; complainant has narrated that he brought injured Lal Bux at Hospital, thereafter, lodged FIR, but postmortem report shows that injured was brought by one Abdul Majeed, who, being material witness was not examined by the prosecution nor cited in the Calendar of challan though, it is the duty of the prosecution to prove the case beyond any shadow of reasonable doubt; even one dent in the prosecution case, is sufficient for acquittal; the appellant has been acquitted in 13(d) case and such Judgment was produced before the Court but this aspect was not given due weight by the trial Court, and on this score alone, the appellant was entitled to be extended the benefit of doubt; admittedly place of incident is surrounded by shops and houses; sketch prepared by Tapedar reflects that houses of Manzoor and Hakim are available near the place of incident but both natural witnesses have not been examined by the prosecution; admittedly the investigating officer has not bothered to conduct the investigation honestly and impartially by recording the evidence of natural witnesses, who were available at the time of incident; according to the complainant, accused persons after committing the murder of deceased Lal Bux, took away his licensed pistol but remaining eye-witnesses are silent on this count, which proves that ocular evidence is not trustworthy; the statements under section 161, Cr.P.C. of two witnesses Imdadullah and Naseer were recorded after the delay of 12 days, for which, no sufficient explanation has been furnished thus such delay is fatal to the prosecution case. He has relied upon 2005 PCr.LJ 830, Rehmat Ali v. The State 2010 SCMR 584, Safdar and 3 others v. The State, 2006 PCr.LJ 1870, 2008 SCMR 707, 2011 SCMR 208, Noor Zaman v. Abdul Latif and another (2012 PCr.LJ 569), Iqbal Shah v. The State (2011 PCr.LJ 1345).

7. On the contrary, Mr. Sardar Ali Shah learned APG appearing for the State has argued that the acquittal in 13(d) case is the result of an independent proceedings hence same will not extend any benefit to the appellant in any manner; prosecution has successfully proved its case because it is quality and not the quantity which matters; and conviction can be maintained on sole witness; P.Ws. have very clearly involved the present appellant during the course of examination and their evidence has remained unshaken; DWs examined by the appellant have supported the prosecution case as they are in same line of the prosecution case regarding the place of incident, manner of incident, number of accused, presence of deceased and moreover they have not given clean chit to the present appellant regarding his involvement and also have not deposed that P.Ws. at the time of incident were not available. He has relied upon The State v. Khan Muhammad alias Khanan and others 2005 PCr.LJ 811, Zakir Hussain v. The State 2008 SCMR 222, Altaf Hussain v. The State 2010 SCMR 1020, Haroon Rasheed and 6 others v. The State 2005 SCMR 1568; and Mobashar v. The State 2009 SCMR 1133.

8. Heard the arguments of the learned counsel for the respective parties and peruse the record.

9. I have carefully scanned the version of occurrence, narrated by complainant Qadir bux, P.W.(s) Imdadullah and Naseer Ahmed at the trial and have not found any departure made by these three witnesses from the narration made in FIR or for the matter of that any inconsistency in their inter se version of the occurrence. They have specified explicit account of the incident accusing appellant for the part, played by him, in the commission of crime. It was rather the defence which strengthened the case of the prosecution, and further, I would like to endorse here that a charge in a criminal matter can well be parted in two parts i.e. (i) happening and manner of incident and (ii) commission whereof by the persons, sent as accused by prosecution.

10. In the instant case in hand all the witnesses of the ocular account are in one voice in respect of:- (i) date and time of incident; (ii) place of incident which finds support from collection of blood from place of incident (iii) number of accused persons to be three; (iv) murder of the deceased with fire arm which also finds corroboration with post mortem report. Recovery/securing of blood from the place of incident prove the venue of occurrence, as held in the case-law, reported in Rahimullah Jan v. Kashif and others (PLD 2008 SC 298). Moreover, the very defence, led by the accused/appellant, confirms such portion of the evidence of these witnesses. In other words it can safely be said that the defence witnesses reiterated the versions of the ocular account of prosecution witnesses to this extent, hence it is quite safe to hold that the prosecution successfully established first part of the charge.

11. Now let's examine what the prosecution has brought on record to prove the other portion of the charge by putting it in a juxta position with that of the defence evidence:-- The prosecution claims in the FIR that on 18-1-2008 at about 1045 three accused persons namely Abdul Khaliq armed with cartridge pistol, accused Abdul Haque empty handed, Wazeer armed with Pistol came at on the road in front of shop of Rizwan Plaza near Board Office, Sukkur. Both the defence witnesses support the evidence of the prosecution witnesses on this point as they admit in their evidence that on relevant date and time three persons came at place of incident, on the road in front of shop of Rizwan Plaza near Board Office, Sukkur

12. Meaning thereby that portion of evidence of the witnesses of prosecution is admitted by the defence itself hence the presence of prosecution witnesses finds support even from the defence witnesses who confirm the same narration what the prosecution witnesses say. The prosecution further claims that on such date and time out of these accused persons, the appellant/convict Abdul Khalique caused murder of deceased by making fire shot with weapon with which he was armed. (i) Complainant Qadir Bux specifically stated that it was the appellant/accused Abdul Khalique who caused fatal fire shot to deceased. (ii) P.W.2 Imdadullah stated that appellant/ accused Abdul Khalique made fire shot to his brother (deceased) (iii) P.W.3 Naseer Ahmed stated that appellant/accused Abdul Khalique made fire shot to his brother (deceased). Defence witnesses stated in this respect as follows: Both witnesses claim to know both complainant and the accused persons. They specifically claim that three persons, with open faces, came and murdered the deceased.

13. Meaning thereby that these defence witnesses, claim to be related with the accused/appellant but did not attempt to give the name or description of the assailants which attitude is quite illogical rather unbelievable one more particularly when the same is coming from relative (s) of person who, within their knowledge, is accused for murder. On the other hand, since the witnesses of ocular account are blood-relatives to deceased and they all have attributed fatal shot (fire arm injury to deceased) to appellant, therefore, it is hard to believe that they would attempt to substitute the culprit with innocent. On this point I find support with the case-law, reported as Zahoor Ahmad v. The State (2007 SCMR 1519).

14. Further, it is a matter of record that the present witnesses of the defence, though claiming to be real eye-witnesses, but remained silent for inordinate period of more than a year i.e. 20-2-2009, when I.O. of re-investigation called them, which investigation was being carried out at the behest of accused party. It is clear and obvious that these witnesses never made any attempt to make any application to any authority nor they ever appeared before any authority to depose such facts which shows that they did not come with full truth.

15. The above comparison of defence evidence and that of prosecution towards ocular account prima facie establish that since witnesses of prosecution are not only believed by the defence itself regarding manner of incident, weapon used in commission of offence, number of assailants, place of incident then attribution of fire arm injury by appellant/accused was rightly believed by the learned trial court judge to extent of the appellant/accused Abdul Khalique.

16. As regard ground, taken by learned counsel for the appellant, that since the complainant involved three accused persons in FIR and then through further statement brought two more persons as accused hence complainant's version cannot be belied on principle of "Falsus in uno falsus in omnibus". It would suffice to say that it is now well settled that doctrine of 'Falsus in uno falsus in omnibus' (false in one thing, false in all) is not applicable in prevalent system of criminal administration of justice and moreso there is no rule having universally applicable that where some accused were/are not found guilty the other accused would ipso facto stand acquitted because the Court has to sift the grain from chaff. The reference, if any, needed can well be given to case-law, reported as Riaz Hussain v. The State (2001 SCMR 177), hence the appellant cannot claim any benefit by uttering that since other accused were not found guilty hence he is also entitled for benefit of doubt and until he either brings his case within same sphere or independently show reasonable dent in prosecution case which could justify his plea of acquittal. I am conscious of the developing trend that people widen the net by naming innocents but it is hard to believe that one would go to name innocents at the costs of his own blood-relation i.e. leaving real culprit. Further, the phrase 'widening the net' itself negates innocence of all involved accused.

17. As regard the plea of witnesses, being related and inter se, I can safely say that the phrase interested or related witnesses is never sufficient to declare the evidence of a witness as doubtful because what is always required to be seen is the veracity and credibility of the witness and not his relationships. Further, the interested witness is one who is partisan inimical towards the accused or has a motive or cause of his own to falsely implicate the accused in the crime and such cause or motive should be shown to be of such gravity that a person, closely related with deceased, could be believed to have gone to such an extent to name innocent (s) while leaving real culprits of deceased. The reference case be made to the case-law reported as Talib Hussain and others v. The State and others (2009 SCMR 825) and Ijaz Ahmad v. The State (2009 SCMR 99).

18. As regards the delay in recording 161, Cr.P.C. statement of witnesses it would suffice to say that since it is always the absolute duty of the Investigation Officer to take efforts in recording the statements of the witnesses of the incident hence if there appears any delay in recording of 161, Cr.P.C. statement it would, in my view, should not be allowed to hold an adverse inference against testimony of the witnesses on this count alone more particularly when names of witnesses are mentioned in promptly lodged FIR and also this does not come on record through cross of I.O. that despite efforts witnesses avoided or were away. Admittedly, no such thing has come on record from the defence and even no such suggestion was put, therefore, this ground also not of such standard to hold the case doubtful where, testimony of witnesses speaks otherwise. Even otherwise, it can safely be added here that any irregularity in the investigation by I.O. is of no help for the accused to claim any benefit. I am guided in this view with case of Qamar uz Zaman and others v. Haji Allah Bux and another reported in 2012 SCMR P 1281.

19. As regard the plea of witnesses, being not resident of the place of occurrence, the perusal of the evidence of the witnesses would show that they claimed going to place of incident on the relevant time and date and since such claim of the witnesses was not specifically challenged by the defence through course of cross-examination, therefore, the defence cannot be legally justified to question presence of those witnesses at such stage. Needless to add here that fact stated in examination-in-chief but not cross-examined by the accused the effect, whereof would be nothing but that such portion was admitted by the accused. I am guided by the case-law, reported as Dr. Javaid Akhtar v. The State (PLD 2007 SC 249).

20. As regard the contradictions pointed out by the learned counsel for the appellant with regard to delivery of dead body of deceased by one Abdul Majeed and not by complainant and death of deceased in hospital while complainant claimed the same during the way to hospital, it would suffice to say that both these contradictions, in no way, improves the case of the appellant/accused as it causes no effect upon the incident nor both these contradictions can be sufficient to hold that complainant was not present at place of occurrence. Mere accompanying of one with dead body would not make him an important witness of incident.

21. The learned counsel for the appellant/accused has put much stress upon acquittal of the accused/appellant from the charge of 13(d) Arms Ordinance. In this respect I would say that recovery of crime weapon is always corroborative piece of evidence which is not of much importance more particularly where the case is otherwise proved, the corroboration from recovery of crime weapon or otherwise become immaterial. Reference on this point can well be given to case-law, reported as Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872). Without prejudice to this, I would say that acquittal or conviction of the accused in case under charge of an offence under section 13(d) Arms Ordinance cannot be used as a shield against conviction in main case because allegation and nature of charge in main case are different from that of case under off-shoot. It is manifest that in instant case, pistol as crime property was produced in court, mushirnama has been exhibited, mushir and investigation officer has categorically deposed against the appellant hence recovery of pistol is sufficiently proved by the prosecution case. Moreover, "it is settled principle of law that while deciding a case, the evidence of another case cannot be taken into consideration but the case should be decided on the evidence brought on the record of that particular case", reference can be made to the cases of The State v. Khan Muhammed alias Khanan , reported in 2005 PCr.LJ 811, Khalid Hussain v. Naveed alias Qalab Ali reported in PLD 2007 Kar. 442, Muhammad Khan v. The State, 2010 YLR 648.

22. As regard the outcome of the second investigation, what I find from perusal of the record is that outcome of the second investigation appears to be to give a clean chit to the nominated accused. The purpose of investigation is always to bring truth on surface by collecting material and not to create complications/or questions as appears from the subsequent investigation report of the case, in hand, where the investigating officer in his report, has not denied the happening of incident but have given clean chit to nominated accused persons without unearthing the names of other culprits as real culprit, if present applicant was ??? innocent according to his report. Further, there is another interesting aspect, reflecting from the second investigation report, that it was entrusted at the request of the accused side in October, 2008; and conclusion, whereof, was submitted by the Investigating Officer with a delay of seven months. How on earth any significance can be attached to a report compiled and submitted after such a long time, especially, when there was every possibility of fabrication of evidence. I am fortified with the case-law on this proposition as in case of Riaz Hussain, honourable Supreme Court reported in 1986 SCMR 1934 has held that:-- "The system of re-investigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favourable reports obtained. This in no way assists the courts in coming to a correct conclusion; it rather creates more complications to the court administering justice. We, therefore, disapprove this system altogether".

23. Accordingly, in view of what has been discussed above, I am of the firm view that the prosecution has proved case beyond reasonable shadow of doubt and appellant/convict has failed to point out any illegality or material mis-reading or non-reading of the evidence by learned trial court judge in recording the judgment, impugned, hence the appeal in hand is hereby dismissed. HBT/A-9/K Appeal dismissed.