P L D 2003 Quetta 109 (PLP)

(7) Fire‑arm wound of entrance 1 x 1 c.m. in size rounded in shape with tattooing on back lumber sacral area just left to midline with inverted margins. (8) Fire‑arm wound of exit on front of abdomen with averted margins irregular in shape 5 c.m. below and lateral to umbilicus." P.W.7 Qutabuddin, S.H.O. is the 1st Investigating Officer of case, who recorded Fard‑e‑Biyan of P.W.1 and conducted the initial investigation, as mentioned hereinabove. P. W.8 Pir Muhammad, Inspector is the Second Investigating Officer of case. The prosecution thereafter closed its side and accused persons were examined under section 342, Cr.P.C. They also recorded their statements on oath as provided under section 340(2), Cr.P.C. In defence accused Azad examined D.Ws. Ghous Bakhsh and Ghulam Muhammad Lashari, accused Muhammad Ashraf examined D. Ws. Abdul Qadir, Rehinatullah and accused Nek Muhammad examined D.Ws. Abdul Aziz and Abdul Hafiz Usmani.

6. During pendency of the trial, an application was moved before the Special Judge, STA, for transfer of case to regular Court. After hearing the parties vide order dated 27‑8‑1999, learned Special Judge, held that case did not fall under the jurisdiction of Special Judge, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. Thus the case was transferred before the Additional Sessions Judge, Sibi, who vide impugned judgment dated 20‑1‑2001, convicted appellants Muhammad Ayub and Nek Muhammad under section 302(b), P.P.C. and sentenced them to suffer R.I. for life imprisonment and acquitted accused Azad Khan and Muhammad Ashraf of the charge. Accused Raja, Amanullah, Sanaullah and Abdul Khalique were also acquitted, as the complainant had exonerated them from the commission of offence. To the extent of absconders Inayatullah and Muhammad Siddique, the file was kept in dornment.

7. Accused Muhammad Ayub and Nek Muhammad have filed Criminal Appeal No. \ (S) 6/2001, challenging their conviction, whereas the complainant has filed Criminal Acquittal Appeal No,(S)23/2001, calling in question the acquittal of accused Azad Khan and Muhammad Ashraf. The complainant has also filed Criminal Revision Petition No.(S)07 of 2001, wherein it has been prayed that life imprisonment awarded to Muhammad Ayub and Naik Muhammad be converted into death sentence. We intend to dispose of all the matters jointly, vide this common judgment. .

8. Mr. Muhammad Aslam Chishti, learned counsel appeared for appellants and acquitted accused‑respondents. Mr. Muhammad Sadiq Ghuman, appeared for complainant and Mr. Abdul Rahim Mengal, learned A.A.‑G., represented the State.

9. Mr. Muhammad Aslam Chishti, learned counsel contended that, learned trial Court has misread and misappreciated the evidence on record and has come to a conclusion, contrary to evidence on record. He further stated that witnesses produced were interested witnesses and their evidence do not find corroboration from any other independent evidence. The defence evidence has not been appreciated in its true perspective. The parties were on inimical terms, thus false implication of 'appellants and acquitted accused persons cannot be ruled out.

10. Mr. Muhammad Sadiq Ghuman, learned counsel, contended that F.I.R. was lodged soon after the incident and there is no possibility of false implication of accused persons. The presence of witnesses has been admitted and further accused Azad Khan and Muhammad Ashraf have been erroneously acquitted by the trial Court, thus they are liable to be convicted.

11. Learned A.A.‑G., however, opposed the appeal as well as Criminal Revision Petition.

12. We have heard the learned counsel for parties and with their assistance have minutely gone through the record of case.

13. The defence took the plea of alibi before the trial Court. It was further the case of accused persons that due to previous deep‑rooted enmity, they have been falsely implicated in the instant case.

14. Accused‑respondent Azad Khan, pleaded that on the day of incident, he was in Khuzdar and soon after receiving information about the incident, at about 9‑00 a.m. in the morning, appeared before the D.S.P., Khuzdar and in his defence he also produced D.W.1 Ghous Bakhsh, Assistant Chief, P&D Department and D.W.5 Ghulam Nabi Lashari, DSP/SDPO, Khuzdar. Both the witnesses stated that on 10‑12‑1998, accused Azad Khan was in Khuzdar and they also produced application and Certificate Marks D/2 and D/3.

15. Accused. Muhammad Ashraf pleaded that on the day of incident, he was present in Dera Bugti as he is employed in B&R Department. In his defence he produced D.W.2 Abdul Qadir and D.W.3 Rehmatullah, both employees of B&R Department, who stated that on the day of incident, accused was present in Dera Bugti and they also produced Certificate Mark D/4 issued by D.W.2 Abdul Qadir.

16. Appellant Muhammad Ayub pleaded that on the day of incident, he was at home, whereas appellant Nek Muhammad took the stand that he at the relevant time was at Gandawa. As far as acquitted accused Sanaullah, Amanullah, Abdul Khalique and Raja are concerned, they were in judicial custody and even they were arrested in the instant case from District Jail, Sibi, by the Investigating Officer and it has not been disputed that on the day of incident, they were not in custody and besides the complainant has also exonerated them. It may further be mentioned here that, the only allegation against them was that it was at their behest and instigation the main accused committed the murder, but nothing incriminating in this behalf, was produced before the trial Court.

17. The trial Court however, did not accept the plea of alibi as pleaded by all the accused persons. As far as accused Azad Khan and Muhammad Ashraf are concerned, they were acquitted on the ground that no overt act was attributed to them and their presence was only shown at the place of incident, unarmed.

18. Coming to the contention of Mr. Aslam Chishti, learned counsel, it may be pointed out that prosecution case hinges upon' the statements of P.W.2 and P.W.3 Abdul Ghaffar and Sikandar, who as per prosecution version are the eye witnesses of the incident. P.W.2 Abdul Ghaffar deposed that while he was going alongwith P.W.1 Muhammad Nawaz (not produced) on a motorcycle, when they reached near Jirga Hall, they saw Azad Khan and Muhammad Ashraf (acquitted accused) standing near the motorcycle while Inayatullah, Muhammad Siddique (absconders), Muhammad Ayub and Nek Muhammad were firing with pistols at the deceased, who fell down and died instantaneously and thereafter they decamped from the place of incident and soon thereafter, the police reached the place of incident, gas the police station is at a distance of two, furlongs from the place of incident. The statement of this witness was recorded soon after the incident by the Investigating Officer and his second statement was recorded on 9‑1‑1999 by the Crimes Branch Police. In his first statement under section 161, Cr.P.C. he had only stated that accused Nek Muhammad, Muhammad Siddique and Inayatullah fired upon the deceased and whereas Muhammad Ayub (appellant) was introduced later on, in the subsequent statement, recorded by the Crime Branch Police. He had also not stated in his first statement that accused Azad Khan and Muhammad Ashraf, were standing near their motorcycles. However, he admitted in his subsequent statement that he had stated that both of them were standing near their motorcycles and further in his first statement he had not stated that while they reached at Jirga Hall, Inayatullah, Muhammad Siddique, Muhammad Ayub and Nek Muhammad were firing with pistol at the deceased. It was rather stated that when they reached near Jirga Hall, the accused persons started firing. However, the presence of this witness is established at the place of incident despite a lengthy cross‑examination. The defence could not discredit his testimony regarding his presence.

19. P.W.3 Sikandar Hayat in his cross‑examination deposed that accused persons fired about 18 to 20 shots. He had not given any account of the injuries received by the deceased. Besides in his statement, he had exaggerated the incident, in his cross‑examination he further stated that when the accused persons came to the place of incident, Muhammad Siddique and Inayatullah gave "Lalkara" to the deceased and thereafter all of them started firing at the deceased. As far as "Lalkara" is concerned, P.W.2 Abdul Ghaffar is silent about the same. It has come on record that the place of incident is a main thoroughfare and at the time of incident, there were many other people, but the witnesses who have been produced are related to the deceased and were also inimical to the accused persons.

20. It has been established by the defence that previous enmity existed between the parties, thus the statements of said P.Ws., specifically that of P.W.2 Abdul Ghaffar is to be scrutinized minutely and further it has come on record that the above P.Ws. were also related to the deceased. The same need not be discussed as it has been admitted by the P.Ws. and even by the complainant, that they are close relatives.

21. Thus in view of different versions set up by the prosecution and the defence plea, it would be appropriate to place the prosecution version with the defence plea, to come to a just decision.

22. As noted above, the learned trial Court has discarded the defence plea of alibi, raised by appellant. Accused Azad Khan and Muhammad Ashraf were acquitted as no rule of firing as ascribed to them. At this juncture, it would be, relevant to discuss the defence plea.

23. Accused Azad Khan stated in his statement on oath, that on the day of incident, he was present at Khuzdar and was informed on telephone about the murder of Noor Hassan. Since enmity was going on between them and complainant party, being an employee of Local Government Department, therefore, he informed his Director and also went to Police Station Khuzdar where he informed the D.S.P., Ghulam Muhammad Lashari, by submitting an application, regarding the incident. In support of his plea i.e also produced Certificate (Mark D/2) issued by the Director, Local Government Department and further to substantiate his plea, he got examined D.W.1 Ghous Bakhsh, Director and D.W.5 Ghulam Muhammad, DSP. Both the witnesses appeared on his behalf and stated that on the day of incident accused Azad was present in Khuzdar and further that Certificate was issued by D.W.1. On scrutiny of the statements of D.W.1 Ghous Bakhsh and D.W.5 Ghulam Muhammad, their statements appear to be confidence inspiring. The distance between Sibi and Khuzdar is about 300 miles and it has come on record that accused Azad Khan was produced by S.H.O., Khuzdar before the Investigating Officer at Sibi on 12‑12‑1998. It has also come on record that he was employed in Local Government Department and was present on duty on the day of incident. which has been confirmed by D.W.1 Ghous Bakhsh in his statement. Inasmuch as the presence of accused has been supported by D.W.5 Ghulam Muhammad who has no reason to give false evidence, only to save the accused in a murder case. P.W.2 Abdul Ghaffar stated that when he reached at the place of incident, he saw Azad Khan and Muhammad Ashraf standing near the motorcycle and he has not attributed any overt act of firming to them. Moreover, nothing has come on record; whether they were armed or otherwise? Thus on considering the statement of P.W.2 and defendant witnesses D.W.1 and D.W.5, it appears that respondent Azad Khan was not present at the place of incident and he was at Khuzdar.

24. It may be pointed out that since a long standing deep rooted enmity existed between the parties. Thus taking judicial notice of the fact regarding the growing tendency in the country of spreading net wider by involving as many persons from the accused side as possible. Though the trial Court has acquitted accused Azad Khan for a different reason, but in our considered opinion, the learned trial Court has not appreciated the plea of alibi taken by the accused Azad Khan in its true perspective. Thus in out humble opinion the plea of alibi taken by the accused Azad Khan stood proved. Thus on this score as well, he was entitled for acquittal.

25. Coming to the next contention of Mr. Aslam Chishti, learned counsel, regarding plea of alibi taken by the respondent Muhammad Ashraf. He stated in his statement on oath that he is employed in B&R Department and was present at Dera Bugti, on the day of incident. In support of his plea he produced Certificate (Mark D/4) and examined D.W.2 Abdul Qadir. Executive Engineer. B&R Department, who deposed that he issued the Certificate and further stated that on the day of incident he was not posted at Dera Bugti and the Certificate was issued on the statement of Clerk Rehmatullah and Saino Khan. Accused also examined D.W.3 Rehmatullah, who stated that accused Muhammad Ashraf was present at Dera Bugti at the time of incident. The statements of both the defence witnesses do not appear to be confidence‑inspiring. Firstly the statement of D.W.2 Abdul Qadir is of no help to accused for the reason that, said witness was not posted on Dera Bugti at the relevant day, besides the statement of D.W.3 Rehmatullah also does not appear to be confidence‑inspiring, as the same has been given at the instance of accused. Now coming to the statement of P.W.2 Abdul Ghaffar, he stated that at the time of incident, respondent Muhammad Ashraf was standing near the place of incident, but no overt act has been assigned to him. and it was stated that he was empty‑handed. It is very improbable for an accused to associate himself for commission of murder coming empty handed. Besides, the prosecution witness has not assigned any specific role B of tiring on the deceased. Thus in view of the above discussion, the learned trial Court has rightly acquitted accused Azad Khan and Muhammad Ashraf, I therefore, the acquittal appeal warrants no interference.

26. Adverting to the contention of Mr. Aslam Chishti, learned counsel, that the trial Court has not appreciated the evidence to the extent of convict appellants. It may be pointed out that principle of falsus in uno falsus in omnibus, is not applicable in Pakistan and in cases, where net is spread wider to rope as many male members as possible, in such circumstances the Court has to sift the grain from chaff. It is now well settled that on appraisal of evidence in a case where statement of a witness is not believed against one C accused, the evidence of such witness cannot be automatically discarded qua other accused. The statement of such person can be used qua other accused, if it inspires confidence and finds corroboration or rings true. Thus on the touchstone of aforesaid principle, the case of other accused is to be adjudged. Reference may be made to the following case‑laws:‑‑ (1) (1999 SCMR 1418) Mir Hassan and another v. The State and others, wherein the Hon'ble Supreme Court of Pakistan has observed as follows:‑‑ 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 case and at the same time not relying on his version against other accused in the case (see Muhammad Ahmed v. State 1997 (?) 89 (sic) and Khairu v. State 198,1 SCMR 1176)." (2) (PLD 2000 SC 643) Shera Masih v. The State, wherein the Hon'ble Supreme Court of Pakistan has trade the following observations:‑‑ "'This is settled principle that in a case in which the witnesses are found false against one accused, the evidence of such witnesses being of doubtful character would not be acceptable qua the remaining accused without the independent corroboration and thus if the evidence of a witness is discarded to the extent of one accused, the same should not be automatically excluded from consideration qua other accused as the same can still be used against the remaining accused if it is found supported by any other evidence of independent character. We are therefore, of the opinion that principle of falsus in uno falsus in omnibus cannot be accepted as mandatory rule and given preference over the principle of sifting the grain from the chaff, as a by doing so he true spirit of criminal administration of justice shall be defeated."

27. As far as the statement of P.W.2 Abdul Ghaffar and P.W.3 Sikandar Hayat are concerned, both have contradicted each other, P.W.2 Abdul Ghaffar stated that when they reached Jirga Hall, they saw accused Azad Khan and Muhammad Ashraf standing near the motorcycle whereas accused Inayatullah, Muhammad Ayub and Nek Muhammad were firing at the deceased. P.W.3 Sikandar did not support P.W,2 Abdul Ghaffar to such extent, as he stated that accused persons reached on the motorcycles which were driven by accused Azad Khan and Muhammad Ashraf and the other accused persons, who were also sitting on the motorcycles came and started tiring, but he does not state; that P.W.2 Abdul Ghaffar was present? Similarly P.W.2 Abdul Ghaffar also does not state about the presence of P.W.3 Sikandar and admittedly P.W. Muhammad Nawaz was dropped for reasons best known to the prosecution. As we have already mentioned above that P.W. Sikandar who informed the complainant has exaggerated the incident, which makes his statement doubtful, thus we are left with the statement of P.W.2 Abdul Ghaffar, regarding appellant Muhammad Ayub and Nek Muhammad.

28. It may be mentioned here that the presence of P.W.2 Abdul Ghaffar at the place of incident is established. In his first statement under section 161, Cr.P.C. statement he has only nominated the appellant Muhammad Ayub. It may be observed that his first statement under section 161, Cr.P.C. statement was recorded soon after the incident by the Investigating Officer who reached at the place of incident immediately after firing. Whereas in the said statement he attributed the role of firing to appellant Nek Muhammad and absconders Inayatullah and Muhammad Siddique. Appellant Nek Muhammad in his defence pleaded that at the time of incident he was at Gandawah and in his defence he examined D.W.4 Abdul Aziz and D.W.6 Abdul Hafiz Usmani. After proper scrutiny of the statements of both the said defence witnesses, the presence of appellant Nek Muhammad at Gandawah appears to be doubtful. As in the case of accused Azad Khan, he appeared before the D.S.P. and his concerned Officer and obtained a Certificate and also surrendered before the police authorities. In the case of appellant Nek Muhammad no such Certificate was issued by Abdul Hafiz Usmani, Assistant Commissioner, who admittedly belonged to Sibi and even about the incident he has not mentioned it in his diary and further his statement does not appear to be inspiring to a prudent mind. Inasmuch as the statement of D.W.4 Abdul Aziz, does not ring true. It appears that the defence evidence gave evidence to save him from conviction. Further no details about the presence of appellant Nek Muhammad at Gandawah were given, which further makes his defence doubtful. The statement of P.W. Abdul Ghaffar inspires confidence as against the appellant Nek Muhammad. Thus after proper scrutiny of the statement of P.W. Abdul Ghaffar and the plea taken by Nek Muhammad regarding his presence at Gandawah, it appears that he has approached the Assistant Commissioner, who was not his superior Officer and without issuing any Certificate, only deposed before the trial Court that he was present at Gandawah, his defence plea does not appear to be convincing, thus it has been rightly ruled out of consideration:

29. The statement of P.W.2 Abdul Ghaffar, as against Muhammad Ayub, appears to be doubtful. He was not nominated in the first statement section 161, Cr.P.C. His name was introduced for the first his second statement recorded under section 161, Cr.P.C. by the Crimes Branch Police, Quetta. The presence of Muhammad Ayub seems to be doubtful. P.W.2 could not give any satisfactory reply, as to why he was not nominated in his first statement. It has come on record that Muhammad Ayub is an elder person of the accused family (father of the other appellant Nek Muhammad). Normally in such‑like case, an elderly person of the family does not associate himself to take active role in killing as alleged in the case in hand.

30. As we have observed hereinabove in the case in hand, the prosecution has spread the net wider to involve as many male members as possible. In this case it also appears that Muhammad Ayub has been implicated to ensure that all the male members of the co‑accused persons are involved and arrested. Thus by applying the formula of sifting the chaff from grain, we are not persuaded to accept the statements of P.W.2 Abdul Ghaffar as against appellant Muhammad Ayub for the reasons discussed above.

31. It may be pointed out that conviction can be based on the solitary statement of a witness, provided same inspires confidence and satisfies the conscience of the Court. The trial Court has rightly believed the statement or P.W.2 Abdul Ghaffar and as observed hereinabove, statement of P.W.2 to the extent of appellant Nek Muhammad, appears to be true and also satisfies the conscience of the Court. Thus we have no reasons to discard the same and it is held that prosecution has proved its case against appellant. Nek Muhammad, beyond any shadow of doubt.

32. For the foregoing reasons, Criminal Acquittal Appeal No.(S)24/2001 and Criminal Revision No.(S)07/2001, are dismissed and Criminal Appeal No.(S)6/2001, is dismissed to the extent of appellant Nek Muhammad and is accepted to the extent of appellant Muhammad Ayub and he is acquitted of the charge. He be set at liberty, if not‑wanted in any other case. N.H.Q./162/Q Order accordingly.