2014 PLP 899 (YLR)

ABDUL RASOOL MEMON, J.

We propose, to dispose of above two Criminal Appeals Nos. 296 of 2011 and 297 of 2011, Revision Applications Nos.124 and 125 of 2011 and Criminal Acquittal Appeal No.295 of 2011, by a consolidated Judgment, being all arising out of Judgments dated 31-5-2011 passed by 1st Additional Sessions Judge Karachi in one and same Crime No.72/2006 of Police Station Pirabad under section 302, 34, P.P.C.

2. The trial Court found guilty accused Mawaz Khan for an offence under section 302 P.P.C. and on one count of murder of deceased Farooq, convicted and awarded him life imprisonment and on other count of murder of deceased Riaz under common intention awarded him RI for 10 years under section 302, P.P.C., accused Naseeban was sentenced to 07 years' RI. Accused Imran was awarded sentence under section 302 RI for 10 years on account of murder of deceased Riaz and also sentenced 7 years' RI on other count of murder of deceased Farooq. All the above sentences were ordered to run consecutively. However, benefit of section 382-B, Cr.P.C. was extended to all the above named appellants/accused. All the three convicts have filed Criminal Appeals against their conviction and sentences as mentioned above. Accused Mst. Gul Khatoon, Mst. Noori and Mst. Hameeda were acquitted. Complainant has filed Criminal Revision Applications for enhancement of the conviction of all convicts and Criminal Acquittal Appeal against acquitted accused.

3. According to the F.I.R. Abdul Ghafoor (P.W. 1) on 28-5-2006, alleged that at 5.15 p.m. accused Ghulam Abbas (since dead) his brothers Mawaz Khan and Imran Khan came at the house of complainant, out of them accused Mawaz Khan caused fire arm injury to deceased Farooq, who fell down on the ground, in the meanwhile sister of accused namely Naseeban came and caused hatchet blow on the head of deceased Farooq, resultantly he died on spot, while Abbas (since dead) made firing upon deceased Riaz which hit him on right side of his chest, accused Imran and Hameeda Khatoon caused him hatchet injuries on his forehead. Both, deceased Farooq and injured Riaz were carried away to Abbasi Shaheed Hospital. The incident was witnessed by complainant his mother Kuki, P.Ws Gul Hassan and Feroz Khan. Complainant registered F.I.R. against the accused. The motive of the incident was shown that at 4.00 p.m., about 45 minutes prior to this incident accused Mawaz Khan, his brothers and sisters namely Ghulam Abbas, Imran, Naseeban Khatoon and Hameeda Khatoon had raised objection on the work of a Mason on roof top of the home of complainant and Gul Khatoon had caused head injury with Danda' to Kukki Khatoon, mother of complainant and when complainant and his mother after getting dressed her injury returned to their house, this unfortunate, incident took place. Injured Riaz was shifted to JPMC Karachi where after 10 days he succumbed to the injuries. On completion of investigation case was challaned and ultimately made over to the trial Court.

4. Appellants (1), Mawaz Khan (2), Imran Khan, (3) Naseeban Khatoon (hereinafter be referred as appellants) and accused Gul Khatoon, Mst. Noori and Hameeda (hereinafter be referred as acquitted accused) pleaded not guilty to the charge and claimed their trial. In support of the case prosecution examined in all (11) witnesses.

5. Appellants and acquitted accused disputed the case of prosecution. They did not examine themselves on oath except appellant Mawaz, who examined himself on oath. However, they led no defence.

6. Mr. Muhammad Faisal Sial, learned counsel for the appellants and acquitted accused has contended that the prosecution case is based on interested witnesses whose evidence cannot be accepted without independent corroboration, which is also in conflict with medical evidence in respect of injuries attributed to appellants Mst. Naseeba, Imran and acquitted accused; that the accused Abbas (since dead) had made application for pleading guilty before the Judicial Magistrate taking responsibility of commission of offence upon him but his such plea was not recorded by the Judicial Magistrate being influenced by the complainant party. It is further contended that the recovery of the weapon shown to have been made from the possession of accused, is highly doubtful and FSL report is managed one. He has contended that prosecution has failed to discharge burden beyond any reasonable shadow of doubt. Lastly he has prayed for setting aside the conviction of appellants and maintaining acquittal order. In support of his contentions he has relied on the cases of FAIZ AHMAD and another v. SHAFIQ-UR-REHMAN and another (2013 SCMR 583), AZHAR IQBAL v. THE STATE (2013 SCMR 383), LAL BUX v. DHANI BUX and 3 others (2013 PCr.LJ 345), SHAH NAWAZ v. THE STATE (2013 YLR 1193), RIAZ HUSSAIN v. THE STATE (2013 PCr.LJ 1428), UMAR DRAZ v. THE STATE (2013 PCr.LJ 755), MIAN KHAN v. THE STATE (2013 PCr.LJ 182), NADEEM v. THE STATE (2010 PCr.LJ 1681) and MUHAMMAD IMRAN v. THE STATE (2006 PCr.LJ 954).

7. Mr. Suleman Badshah, learned counsel for the complainant has contended that the evidence of prosecution witnesses is consistant on every aspect of the case and have implicated all the accused who had actively participated after preplanned manner and each member of the said assembly has shared their common intention and object, therefore, each of them is equally liable to be punished. He has further contended that relationship between the deceased and the P.Ws. itself is no ground to discard and discredit their testimony unless they are shown to be partisan and interested witnesses and their presence at spot is quite natural. According to him mere relationship of witnesses with deceased would not make them untrustworthy by any stretch of imagination. He has contended that both deceased were quite young and there was no mitigating circumstances warranting lesser punishment. He has prayed for enhancement of the sentences of the appellants and converting acquittal of acquitted accused in conviction of capital punishment. In support of his contention he has placed reliance in the case of ABDUR RAUF v. THE STATE (2004 SCMR 522), MUHAMMAD MANSHA v. THE STATE (2010 MLD 1446), ABDUL REHMAN v THE STATE (PLD 1975 Supreme Court 275), GHAUS BUX v. THE STATE (PLD 2004 Karachi 201), KHADIM HUSSAIN v. THE STATE (PLD 2010 Supreme Court 669), SHOUKAT ALI v. THE STATE (PLD 2007 Supreme Court 93), MST. DUR NAZ and another v. YOUSUF and another (2005 SCMR 1906), SALEEMUDDIN and others v. THE STATE (2011 SCMR 171), BASHIR and 3 others v. THE STATE (PLD 1991 Supreme Court 1145), AHMED SULTAN and another v. THE STATE (2007 SCMR 1424), MOAZAM SHAH v. MOHSAN SHAH and another (PLD 2001 Supreme Court 458) and COMMISSIONER, SINDH EMPLOYEES SOCIAL SECURITIES INSTITUTION and another v. Messrs E.M. OIL MILLS AND INDUSTRIES LTD. S.I.T.E. KARACHI and 2 others (2002 SCMR 39).

8. Learned D.P.G. has adopted the arguments of learned counsel for the complainant.

9. We have given our patient hearing to the arguments advanced by the parties' counsel and have gone through the relevant record and citations relied upon. The question that deceased Farooq and Raiz died an unnatural death need not detain us long as besides the evidence of (P.W.1) Complainant Abdul Ghafoor, (P.W. 2) Feroz Khan and (P.W.3) Mst. Kukki Khatoon, which will be discussed at appropriate stage, there is evidence of Dr. Muhammad Saleem (P.W.5), who had examined the dead body of deceased Farooq and also injured Riaz when was in injured condition and produced Medical Certificates of both the deceased at Exh. 10/A and 10/B. In addition to that there is also evidence of Dr. Kastor, who produced death certificate of deceased Riaz and his ward record. As per evidence of this witness deceased Riaz died due to Cardio Respiratory arrest and Haemo-Pneumothrax. Medical evidence and inquest reports of both the deceased reflect that they had sustained fire arm and hard blunt substance injuries. The defence side has not seriously questioned the unnatural death of both the deceased. The trial Court in view of case-law reported in 1998 SCMR 1778 has rightly held that non-production of postmortem report would not be fatal 'to prosecution, particularly in the circumstances when unnatural death of the deceased is not disputed.

10. Prosecution has examined (P.W.1) Feroz Khan, (P.W.2) and Mst. Mst. Kukki (P.W. 4) as an eye-witnesses of the alleged incident. Admittedly, all the witnesses are closely related to deceased. Complainant Abdul Ghafoor (P.W. 1) is real brother of both the deceased and Mst. Kukki is.real mother of them while P.W. Feroz Khan is brother in law of complainant. In the case of Sardar Khan v. State (1998 SCMR 1823) Hon'ble apex Court has laid down the following broad principles for appreciation the evidence while deciding the cases involving capital punishment:-- "

7. Before considering the above contentions on merits, it would be appropriate to state here first, some of the broad legal principles enunciated by this Court which should be kept in mind while deciding a case involving capital punishment. One such principle is that, if an interested witness claiming to be an eye-witness charges a person with the commission of an offence, the first thing which the Court has to determine is, whether he saw the occurrence and was in a position to identify the accused and secondly, whether he should be believed for convicting the offender without corroboration. If the interested witness has charged only one person with the commission of offence or has charged more than one person and the number of persons charged by him appear to be reasonable from the circumstances of the case, then in the absence of anything in the evidence which rendered it unsafe to rely on his evidence, his evidence is to be accepted without corroboration as substitution is a thing of rare occurrence and cannot be assumed readily and he who asserts substitution must lay foundation for it. But if the Court finds that the interested witness has exaggerated the number of accused, the Court will insist for corroboration of his testimony from some additional circumstances in the case (See Niaz v. State PLD 1960 SC 387). The next question arises, in what manner the corroboration to the testimony of the interested witness is to be sought by the Courts before relying on it for conviction. The corroboration to the testimony of an interested witness need not always be from an independent witness supporting the story put forward by the interested witness. Corroboration may be sought from any circumstance in the case which would satisfy the mind of the Court that the witness has spoken the truth. What would be these circumstances, is not possible to lay down with precision as these would vary from case to case according to the facts and circumstances of each case. Corroboration in the case of an interested witness need not be of the same probative force as in the case of an accomplice (see Nazir v. State PLD 1962 SC 269).

8. An interested witness in a criminal case is one, who has motive to involve the accused falsely in the case. Therefore, mere friendly relation or relationship of the witness with the deceased or complainant party is no ground to discard his evidence describing him as an interested witness (see Iqbal alias Bhala v. State 1994 SCMR 1).

9. 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 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 case and at the same time not relying on his version against other accused in the case (see Muhammad Ahmed v. State 1997 SCMR 89 and Khairu v. State 1981 SCMR 1176).

11. Keeping in view the above principles, we now proceed to examine the evidence of the alleged eye-witnesses; though case of appellant Imran being minor was proceeded separately but evidence furnished by the prosecution is almost same in both the cases. Complainant Abdul Ghafoor (P.W.1) has deposed that on the fateful day dispute arose on working of mason on the roof of his home, when appellants and acquitted accused along with their brother Abbas (since dead) came to him for restraining the work of mason and Mst. Gul Khatoon caused Danda blows on the head of Mst. Kukki mother of complainant and both the deceased. According to complainant after getting medical treatment of his mother, when he and his mother came back at his home, when Mst. Gul Khatoon was already available there she called her sons and daughters, namely Mawaz Khan, Imran, Abbas, Mst. Naseeban, Mst. Hameeda, Mst. Noorie, out of them Abbas Khan and Mawaz Khan were armed with T.T. Pistols, while Imran and lady accused with hatchets. Complainant has further deposed that when he and his brothers Farooq and Riaz were shifting their mother inside the home, accused Mawaz Khan made straight fire with his pistol upon Farooq which hit him on his chest while accused Naseeban caused him hatchet blow with sharp side on his head, and accused Abbas caused fire arm injury on the chest of Riaz and Imran, Naseeban and Mst. Noori caused him hatchet injuries with sharp side on his head. Besides, neighbourers of both parties, P.W. Feroz Khan also witnessed the incident. Farooq died on the spot. Both deceased Farooq and injured Riaz were shifted to Abbasi hospital. Later on Riaz was brought in JPMC but he could not survive and succumbed to injuries. Despite a lengthy cross by defence side the evidence of complainant could not be shaken and shattered to the extent of causing fire arm injuries by accused Mawaz Khan to deceased Farooq and Abbas to deceased Riaz. 12. (P.W.2) Feroz Khan, who claims to be present on spot at the time of alleged incident and documentary evidence viz. memo of inspection of dead bodies and inquest reports prepared in his presence and (P.W. 4) Mst. Kukki, have supported the evidence of complainant. During the cross-examination of these star witnesses, the defence side has tried to establish that complainant party had entered the house of accused persons and attacked upon them but it was come on record that the case F.I.R. No.298/2007 registered at Police Station Pirabad under section 452, 337-A(i) P.P.C. by accused party against complainant side was disposed of in 'A' class, thus defence could not substantiate their assertion on the contrary this defence plea indicates and establishes that occurrence had taken place as alleged by the prosecution.

13. The medical evidence of P.Ws Dr. Muhammad Saleem and Dr. Kastor, even in absence of postmortem of both deceased, have supported the ocular testimony regarding sustaining fire arm injuries by both the deceased on their chest. I.O. of the case S.I. Khalid Hussain, who recorded statement of complainant under section 154 Cr.P.C. initially examined the dead bodies and Inspector Sadullah Bangash, who inspected the place of incident and recovered empty bullets from wardat, which as per report of FSL matched with the pistol recovered from the possession of accused Mawaz Khan, besides, recorded the statement of witnesses and arrested the accused, have fully supported the prosecution case.

14. The evidence of court witness Sheeba Shah, who produced jail record of lady accused for checking identification marks (P.W4) mashir Zahid before whom accused were arrested (P.W. 6) Akbar mashir of inspection of wardat and S.H.O. Mukhtiar Ali partly investigated the case recovered crime weapons and produced Expert reports is of formal nature.

15. Learned counsel for the appellants/accused have challenged the ocular evidence on two grounds that complainant and eye-witness Mst. Kuki being brother and mother of the deceased, are highly interested as such their evidence could not be accepted without corroboration from some unimpeachable and independent piece of evidence in the case and the P.W. Feroz Khan is chance witness, therefore, his presence at the spot appears to be highly doubtful.

16. We have already referred hereinabove the broad principles for appreciation of evidence of an interested witness in criminal case, through (P.W.1) and (P.W. 3) were subject to searching and lengthy cross-examination but nothing substantial could be brought on record to establish if they had falsely implicated accused Mawaz, who was direct attributed of causing fire arm injury to deceased Farooq resulted in his death. So far evidence of P.W. Feroz khan is concerned, this witness had explained his presence at the place of incident that on the day of alleged incident he had been invited by the complainant for Niaz of Giarveen Shareef even otherwise the incident had taken place at the gate of house of complainant in a colony, which is a public thorough street. In such a case even a passerby may give evidence who happened to be present at the time of incident and his evidence could not be discarded being a chance witness or related to complainant.

17. Learned appellants' counsel has next contended that acquittal of accused Gul Khatoon Mst. Noor and Mst. Hameeda in case by the trial Court created serious doubt as to the involvement of present appellants and accused Abbas (since dead) had taken responsibility of commission of this crime on his shoulder before J.M. but due to influence the complainant party his confessional statement was not recorded. We are not convinced with this submission. The evidence of Magistrate Ali Ahmed Jan (P.W.7) shows that he recorded 164 Cr.P.C. statement of P.Ws Feroz Khan and Gul Hassan and an application was moved to him by accused Abbas through his advocate for recording confessional statement which was refused by him on the ground being directly moved before the court and whatever was describing therein was not found amounting to confession since it was not found voluntarily but appeared to be motivated as such, this aspect of the case is not helpful to the defence. So far acquittal of accused named above is concerned, we have already pointed out that maxim "Falsus in uno falsus in omnibus" has not been accepted by the Apex court as having universal application. The learned trial Court while acquitting aforementioned-accused in the case did not disbelieve the ocular testimony but following the rule of caution that no innocent person is punished, gave them benefit of doubt, as medical evidence did not support the sustaining of injuries by deceased allegedly attributed to acquitted accused, therefore, acquittal of accused Gul Khatoon, Mst. Noori and Mst. Hameeda in no way affected the prosecution case. So far accused Mawaz Khan is concerned against whom prosecution had succeeded in proving the charge of Qatl-i-Amd of deceased Farooq beyond shadow of reasonable doubt. With regard to deceased Riaz fatal fire arm injury caused to him is attributed to Abbas Khan who is dead and is no more alive thus need no further comments.

18. Now we advert to the case of appellants Imran, Mst. Naseeban and acquitted accused, it is unfortunate in our society that in murder cases, the relatives of deceased usually get all the family members of principal accused involved in the case to put pressure upon them. Admittedly, all the accused shown in this case are sons and daughters of acquitted accused Mst. Gul Khatoon and both parties are residing in front of each other. Learned trial Court has convicted accused Naseeban and Imran on the charge of common intention. As per F.I.R. appellant Mst. Naseeban is alleged to have caused hatchet blow on the head of deceased Farooq and appellant Imran and acquitted accused Mst. Hameeda caused hatchet injuries to deceased Riaz but this version given in F.I.R. is exaggerated by complainant himself in his evidence. Complainant had deposed that accused Imran, Mst. Naseeban and Mst. Noori had caused hatchet injuries with sharp side to deceased Riaz and Mst. Naseeban to deceased Farooq. Surprisingly, the medical report does not coincide with above versions of complainant, which did not show if any of the deceased had sustained injury with sharp cutting weapon but both deceased besides fire-arm injury had injuries of hard blunt substance which might have been caused with butt of the pistols, as such, the medical evidence is in clear contradiction with ocular evidence to the extent of role assigned to the appellants Imran and Mst. Naseeban and acquitted accused. We therefore, find prosecution case not strong enough against them and prosecution failed to prove its case beyond shadow of reasonable doubt against them.

19. It is settled law that each and every case is to be decided on its own peculiar facts and circumstances as law laid down by honourable Supreme Court in Muhammad Saleem's case 1994 SCMR 2213 and Mushtaq Ahmed's case PLD 1973 SC 418 is held as follows:-- "Everything said in a judgment and particularly in a criminal case must be understood with great particularity as having been said with reference to the "facts of that particular case".

20. We have gone through the citations referred by the parties' counsel. There is no cavil with the propositions laid down therein, but with profound respect those are not helpful to them in the context they have relied upon.

21. The result of above discussion is that the evidence of eye-witnesses is of quality but does not prove the participation of appellant Imran, Mst. Naseeban, acquitted accused namely Mst. Hameeda, Mst. Noori and Mst. Gul Khatoon in the commission of offence. In view of our observations, given in supra para, in such a situation we consider it proper to acquit appellant Imran and Mst. Naseeban as an abundant caution for safe administration of justice which can be done without prejudice to the prosecution evidence of same witnesses in respect of appellant Nawaz Khan. It is settled principle of law that when one accused is acquitted as abundant caution, co-accused cannot claim benefit thereof for the reason that evidence against him came through same source. In this regard we are supported by case law reported as 1988 SCMR 1521. In the circumstances discussed above, since prosecution has failed to prove its case against appellants Imran and Mst. Naseeban, therefore, convictions awarded to them are set-aside. Consequently, Criminal Appeal No. 297 of 2011 is allowed and Criminal Appeal No.296 of 2011 is partly allowed to the extent of appellant Mst. Naseeban consequent upon it, Criminal Revision Application No. 124 of 2011 filed for enhancement of convictions is partly dismissed to the extent of Mst. Naseeban, while Criminal Revision Application No.125 of 2011 and Criminal Appeal No.295 of 2011 against acquitted accused are dismissed.

22. So far case of appellant Mawaz Khan is concerned, as stated hereinabove that prosecution has successfully established only the charge of murder of deceased Farooq against him. In a murder case if the prosecution proves the case beyond reasonable doubts and also establishes the charge of murder, the normal penalty is death. If the normal penalty of death is not awarded the court has to make out a case and give reason for reduction of sentence on basis of mitigating circumstance. Reliance is placed on case of Sardar Khan (supra). In the present case appellant Mawaz Khan took part in the commission of crime and made direct firing on deceased Farooq which resulted in his death, as such, no case for lesser sentence is made out and the learned trial Court has awarded him lesser punishment simply on the ground of dispute over petty matter but in fact this ground alone was sufficient to award normal penalty of death as appellant Mawaz Khan who on a very petty matter snatched a life of a young man of 30 years in front of his mother, thus in no way this accused deserves any concession. Consequently, while allowing Criminal Revision Application No.124 of 2011 to the extent of appellant Mawaz Khan the sentence of appellant Mawaz Khan is enhanced from life imprisonment to death sentence under section 302(b), P.P.C. on account of murder of deceased Farooq. He be hanged by neck till he is dead. However, the conviction and sentence awarded to him on account of common intention in causing murder of deceased Riaz are set aside as he had played no role in causing death of deceased Riaz. With above observations and modifications, Criminal Appeal filed by appellant Mawaz is partly dismissed and partly allowed.

23. Appellants Mawaz Khan and Imran Khan are produced in custody. Appellant Mawaz Khan is remanded back to Central Prison, Karachi along with warrant of conviction for execution of sentence (copy of this judgment be supplied to appellant Mawaz Khan free of cost). Appellant Imran Khan be released forthwith if is not required in any other case by Superintendent Central Prison while appellant Naseeban and acquitted accused Mst. Gul Khatoon, Mst. Noori and Mst. Hameeda are present on bail, their bail bond stands cancelled, surety is discharged. MH/N-1/Sindh Order accordingly.