2022 P Cr (PLP)

SALAHUDDIN PANHWAR, J.

Through instant appeal appellant has challenged the impugned judgment dated 08.09.2018, passed by learned Anti-Terrorism Court Mirpurkhas Division @ Mirpurkhas in Special Case No.05 of 2017 arising out of Crime No.10/2017 registered under sections 324, 386, 387, 114, 337-F(iii), 337-H(2), P.P.C. and sections 6/7, Anti-Terrorism Act, 1997, at Police Station Jhudo, whereby appellant was convicted under section 337-F(iii), P.P.C. and sentenced to three years and to pay Daman of Rs.50,000/- to victim/injured P.W Sulleman as well he was convicted for offence under section 6(2)(b), Anti-Terrorism Act, 1997, and sentenced under section 7(c) of the said act to R.I for Ten years with fine of Rs.50000/- (rupees fifty thousand). However, benefit of section 382-B, Cr.P.C. was extended to him.

2. Precisely, relevant facts of the prosecution case are that complainant Ghulam Rasool lodged his FIR at Police Station Jhudo on 08.01.2017 stating therein that his brother Muhammad Sulleman is Starter at A.C Coach Adda Jhudo Town where A.C Coaches ply from Jhudo to Badin and Karachi. On 08.01.2017 A.C Coach No.JC-0298 departed from Adda for Badin to Karachi. He and his brother Muhammad Sulleman were sitting in front of Adda when at 11:00 a.m. each namely Mumtaz Ali Khoso armed with Kalashnikov, Sajjad alias Mitho, Hammad Tabbasum and Jeevan armed with Pistols came there and asked them to pay Bhatta and if Bhatta is not paid they will not let them to ply A.C Coaches and they will kill them. In the meanwhile Muhammad Ayoub and Bachayo reached there, they will not give them Bhatt. On such reply accused Mumtaz Khoso instigated other accused to kill them, on which all accused persons made straight firing from their weapons on them with intention to kill. The fire shot made by accused Sajjad alias Mitho hit on left leg of his brother Muhammad Sulleman who fell down on the ground. Thereafter all the accused persons went away by making indiscriminate firing and creating fear, terror, harassment and insecurity in the general public, then complainant took his brother Muhammad Sulleman to Government hospital Jhudo; after leaving him in the hospital he went to Police Station Jhudo and lodged the FIR.

3. During investigation LO Inspector Nand Lal arrested accused Sajjad alias Mitho on 09.01.2017 at about 1500 hours from Jamaro Mori Link road Bhalo Bhatti village and secured unlicensed .30 bore Pistol along with magazine containing five live bullets and registered FIR No.11/2017 at Police Station Jhudo under section 23(1)(a) of Sindh Arms Act, 2013.

4. After usual investigation police submitted challan showing accused Sajjad alias Mitho in custody while accused Mumtaz Ali, Hammad Tabbasum and Jeevan as absconders under section 512, Cr.P.C. and also submitted another challan against accused Sajjad alias Mitho in respect of Crime No.11/2017 under section 23(1)(a) of Sindh Arms Act, 2013. Subsequently absconder accused Mumtaz Ali, Hammad Tabbasum and Jeevan appeared before the trial court and joined trial. On 06.02.2017 learned ADPP for the State submitted application under section 21-M of Anti-Terrorism Act, 1997 for amalgamation of Special Case No.6/2017 under section 23(1)(a) of Sindh Arms Act, 2013 registered against accused Sajjad alias Mitho with main Special Case No.05/2017 under sections 324, 386, 387, 114, 337-F(iii), 337-H(2), 34, P.P.C. and 6/7, Anti-Terrorism Act, 1997 being offshoot of main case. By consent application was allowed.

5. In order to prove its case, the prosecution has examined P.W-1 complainant Ghulam Rasool at Exh.17, he produced F.I.R. as Exh.17/A, P.W-2 Muhammad Sunman at Exh.18, he produced his 164, Cr.P.0 statement as Exh.18/A and his blood stained sky blue colour Shalwar as Article "A", P.W.3 Muhammad Ayoub at Exh.19, he produced his 164, Cr.P.C. Statement as Exh.19/A, P.W-4 Bachavo at Exh.20, he produced his

164. Cr.P.C. at Ex_20 A. P.W-5 mashir Javed Iqbal at Exh.21, he produced mashirnama, of injury of injured Sulleman, mashirnama of place of wardat and mashirnama of securing of blood stained Shalwar of injured Sulleman as Ex.21/A to C respectively, P.W-6 Doctor Atta Hussain Shah at Exh.22, he produced police letter dated 08.01.2017, Provisional MLC and Final MLC of injured Sulleman as Exhs.22/A to C respectively, P.W-7 mashir ASI Imdad Illahi at Ex.23, he produced mashirnama of arrest and recovery of accused Sajjad alias Mitho as Ex.23/A, P.W-8 Mr. Nawaz Khan Khaskheli learned Civil Judge and Judicial Magistrate Digri at Exh.25, and P.W-9 Investigating Officer Inspector Nandlal at Exh.26, he produced Entries Nos.5 and 6 dated 08.01.2017, his letter addressed to Mukhtiarkar dated 09.01.2017, Entries Nos. 6 and 9 dated 09.01.2017, Carbon copy of FIR No.11/2017 of P.S Jhudo, his letter dated 10.01.2017 addressed to Forensic Science Laboratory, Hyderabad and its report, Sketch of wardat dated 20.01.2017 at Exhs.26/A to 26/I respectively and attested Photostat copies of FIRs (criminal record of accused persons namely Mumtaz Ali, Sajjad alias Mitho and Jeevan as Exh.26/I-1 to

8. Thereafter, learned APG for the State closed the side of prosecution evidence vide statement Exh.27.

6. Statements of all accused persons namely Sajjad alias Mitho, Mumtaz Ali, Hammad Tabbasum and Jeevan under section 342, Cr.P.C. were recorded at Exhs.28 to 31 in which they have denied all the allegations leveled against them by the prosecution. Accused persons stated that all the witnesses are inimical and interested. Accused Sajjad alias Mitho in his statement under section 342, Cr.P.C. has produced cutting of five newspapers dated 09.01.2017 at Exhs.5/A-1 to 5 and certified copy of the affidavit of the complainant Ghulam Rasool filed by him in Bail A. No.D-27 of 2017 of accused Sajjad alias Mitho as Exh.28/B. He has also examined himself on oath under section 340(2), Cr.P.C. and produced certified copy of affidavit of complainant Ghulam Rasool and injured PW Sulleman filed by them in Bail A. Nos.D-27 and 28 of 2017 of accused Sajjad alias Mitho as Exhs.32/B and 32/B,??????????????? he has also examined his defence witness Abdul Rauf Nagori at Exh.37. Accused Mumtaz Ali in his statement under section 342, Cr.P.C. has produced certified of copy of judgment dated 31.05.2017 passed in Crime No.14/2017 P.S Jhudo by the learned Civil Judge and Judicial Magistrate No.11. Digri as Exh.29/A, photostat copy of Order dated 04.01.2017 passed by the Election Commission of Pakistan Islamabad as Exh.29/B, Certified copy of C.P. No.S-647 of 2017 and photostat copy of C.P. No.S-933 of 2017 as Exhs.29/C and D, USB containing recording of his rally as Exh.29/E and photostat copies of newspaper cuttings as Exh.29/E-1 to 26 respectively. Accused Mumtaz Ali has also examined himself on oath under section 340(2), Cr.P.C. at Exh.33, during which he produced suspension order of his brother Muhammad Ali Khoso as Exh.33/A and suspension order of his brother Zulfiqar Ali as Exh.33/B, he also examined his defence witnesses namely Muhammad Shafique and Muhammad Zikria at Exhs.34 and 35 respectively. Thereafter learned defence Counsel of accused persons closed the side of defence evidence vide statements at Exhs.36 and 38.

7. Learned trial Judge framed following points for determination: i. Whether on 08.01.2017 at 11 a.m. all the accused persons in furtherance of their common intention duly armed with Kalashnikov and Pistols came at A.C Coach Adda Jhudo Town and asked complainant Ghulam Rasool and PW Sulleman to pay Bhatta and if Bhatta is not paid they will not let them to ply A.C Coaches and will kill and on their refusal, at the instigation of accused Mumtaz Ali all accused persons (including accused Mumtaz Ali) made straight firing upon complainant Ghulam Rasool and PW Sulleman with intention to kill. The fire short made by accused Sajjad alias Mitho hit on left leg of PW Sulleman thereafter all accused persons made indiscriminate firing created terror, fear, harassment and insecurity amongst the people of the area? ii. Whether on 09.01.2017 at about 1500 hours a police party headed by 1.0 Inspector Nand Lal during investigation of main case Crime No.10/2017 P.S Jhudo arrested accused Sajjad alias Mitho from Jamrao Mori link road Bhaloo Bhatti village and secured unlicensed 30 bore TT Pistol No.1745 alongwith magazine containing 5 live bullets from the fold of his Shalwar? iii. What should the judgment be?

8. Learned trial Judge while answering the points as framed acquitted all accused persons except present appellant Sajjad alias Mithu. During pendency of instant appeal, injured P.W Sulleman appeared, filed affidavit on 10.07.2019 contending therein that he has pardoned present appellant due to intervention of nekmards of locality in the name of Almighty ALLAH and he has no objection if appeal is allowed.

9. Counsel for appellant contends that with regard to terrorism the allegations were same against all accused persons that they caused fire shots by creating fear, terror and harassment; however, injured P.W Sulleman received only one injury on his leg. According to counsel, charge of terrorism is not proved against other accused persons hence conviction under terrorism to the appellant is completely against the settled norms of criminal administration of justice.

10. Suffice it to say that learned trial Judge after full-dressed trial acquitted accused Mumtaz Ali, Hammad Tabasum and Jeevan against whom allegations were that they along with present appellant reached at Bus Adda (station) being armed with deadly weapons and due to nonpayment of extortion money attempted to kill the witnesses. Accused Mumtaz Khoso instigated other accused to kill them. All accused persons caused straight firing. Prima facie, the allegations against all the accused persons, including the present appellant, were one and same least to extent of demand of Bhatta (extortion) and creating terrorism. If so, we are unable to understand that how such general allegations can be believed to have been disbelieved for one and believed for other particularly when set of evidences was one and same. Such approach of the learned trial court judge legally cannot be stamped as the same is in complete negation to well established principles of Safe Criminal Administration of Justice. Let us add that even pronouncement of landmark judgment by honourable Apex Court on principle of falsus in uno falsus in omnibus, the Safe Criminal Administration of Justice, for such like situation, had always insisted maintaining balance in two known maxims i.e falsus in uno falsus in omnibus and sifting grain from chaff, as detailed by honourable Apex Court, in cases of:- Imtiaz alias Taj v. State 2018 SCMR 344 3. ... The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witnesses receive independent corroboration qua the other accused person and a reference.... 5. ..... It had been held by this Court in the case of Shabbir Ahmed v. The State (2011 SCMR 1142) that the benefit of acquittal of an appellant can be extended to a non-appealing co-convict if the circumstances of the case so warrant. We have found that the prosecution had utterly filed to prove its case against lmtiaz son of Muhammad Ramzan co-convict as well and, thus, he too is entitled to be acquitted of the charge. As a consequence of this conclusion reached by us it is ordered that Imtiaz son of Muhammad Ramzan co-convict's conviction and sentence recorded and upheld by the courts below are also set aside and he too is acquitted of the charge by extending benefit of doubt to him. ... Munir Ahmed v. State 2019 SCMR 79 4. .... The question which requires consideration by this Court is as to whether the evidence which has been disbelieved to the extent of three co-accused of the appellant who have been acquitted by the learned courts below can be believed to the extent of the appellant? By now it is well settled that principle of falsus in uno falsus in omnibus is not applicable in our system designed for grain from the chaff in order to reach at a just conclusion. If some independent and strong corroboration is available the set of witnesses which has been disbelieved to the extent of acquitted co-accused of the appellant can believed to the extent of the appellant... However, after pronouncement of judgment by honourable Apex Court in Criminal Miscellaneous Application No.200 of 2019 in Criminal Appeal No.238-L of 2013 things have materially changed because the principle of falsus in unofalsus in omnibus has been declared as integral part of Criminal Administration of Justice and all the Court(s), including High Courts, have been directed to give due effect thereto. The operative part of the judgment reads as:-

21. We may observe in the end that a judicial system which permits deliberate falsehood is doomed to fail and a society which tolerates it is destined to self-destruct. Truth is the foundation of justice and justice is the core and bedrock of a civilized society and, thus, any compromise on truth amounts to a compromise on a society's future as a just, fair and civilized society. Our judicial system suffered a lot as a consequence of above mentioned permissible deviation from the truth and it is about time that such a colossal wrong may be rectified in all earnestness. Therefore, in the light of discussion made above, we declare that the rule falsus in unofalsus in omnibus shall, henceforth, be an integral part of our jurisprudence in criminal cases and the same shall be given effect to, followed and applied by all the courts in the country in its letter and spirit. It is also directed that a witness found by a court to have resorted to a deliberate falsehood on a material aspect shall, without any latitude, invariably be proceeded against the committing perjury. Thus, if the principle of falsus in uno falsus in omnibus is given due effect, as directed by honourable Apex Court, there remains no need to go into an) further details of the case but to set-aside the conviction and sentence, so recorded for offence under sections 6(2)(b) and 7(c) of the Act as well for offence under P.P.C. because the effect of such benefit cannot be confined to offence(s) but shall reflect upon case/charge. Even otherwise, it is a matter of record that injured P.W Sulleman himself voluntarily appeared before this court with the plea that he has pardoned present appellant. Accordingly appeal was allowed by short order dated 10.07.2019, impugned judgment was set aside and appellant was acquitted of the charge. The reason are hereof. JK/S-132/Sindh Appeal allowed.