P L D 1985 Quetta 228 (PLP)

By this judgment I intend to dispose of Criminal Appeal No. 8 of 1985 filed by Sulleman son of Doola, Bugti, by caste resident' of Deh Baro Tehsil Jhatnat now confined in Central Jail Mach and the Application No. 23 of 1985 filed by the Advocate-General on behalf of the state for enhancement of sentence. Muhammad Sulleman and his brother Daim alias Muhammad Daud were tried -and charged under section 302/34, P. P. C. for causing the death of one Ghulam Hyder son of Ghulatn Muhammad Kadrani. One Sodha son of Zarak, the complainant lodged an F. I. R. in Police Station Jhatpat District Nasirabad on 17-5-1983 at 7 a. m. and said therein that he was living in his house in Deh Baro Tehsil Jhatpat alongwith his wife, Mst. Hawa and three daughters and a minor son aged 3 years. On the last night all the persons were asleep on charpais which were placed side by side. At about 1.00 a. m. his wife shouted "KHOON KHOON" on this he woke up and with the torch-light saw Muhammad Daud who had a hatchet and near him was his brother Sulleman and a 3rd person at some distance. His father-in-law was writhening and was struggling for life on the bed. On seeing this he also shouted "KHOON KHOON" and ran towards Muhammad Daud and Sulleman whom he recognized as they are the sons of Doola with whom he had a litigation in connection with some land dispute for the 2/3 years but they ran away from the place of incident. We could not see if the third person had a rifle or shot gun with him. The chase could not be taken further on account of fear of fire-arm. He found a hatchet wound near the right temporal region on the deceased who survived for 1 I hours but did not speak. It was further stated in the F.I.R. that one Muhammad Akbar Kandari and Muhammad Ali Pechwani also reached the place. His daughters also woke up The accused in fact wanted to kill him but on account of mistake (ALA-) and darkness killed his father-in-law. On the receipt of the F I. R. The S. H. O. Police Station, Jhatpat, Raja Bashir Ahmed proceeded to the place of occurrence accompanied by the Complainant and A. S. I. Haleem Shah, H. C. Sher Muhammad, Foot Constables Gul Muhammad, Abdul Rashid, Phalwan and Muhammad Razzak, took over the dead body and prepared the inquest report and the dead body was despatched for post-mortem examination to Civil Hospital Jhatpat. He secured the blood-stained earth through recovery memo. and the side plan was also prepared, Empty cartridges, 12 bore were also found in the vicinity of the place of incident. Both the accused persons were put to trial and were charged with offences punishable under section 342/34, P. P. C. but they denied the charge. The challan produced by the police contained the name of 13 witnesses but at the trial only nine witnesses were examined. The witnesses Ghulam Rasool, Muhammad Baqa, Hakim Ali Head Constable and Ghulam Bari were dropped. Before the trial Court the prosecution case was that accused Muhammad Daud had caused the injury with hatchet and appellant had given blow with, the Danda and for that relied on the testimony of P. W. 2 Mst. Hawa the wife of the complainant but the learned Additional Sessions Judge, Jhatpat came to the conclusion that involvement of Muhammad Daud was not free from doubt and as such he acquitted him but convicted the appellant Sulleman not under section 302, P. P. C. but under section 304, P. P. C. because according to him the deceased was killed on account of mistake without any premeditation and sentenced him to ten years' R. 1. but allowed him the benefit of provisions contained in section 382-B, Cr. C.P. The appellant has appealed against his conviction and on behalf of the State an application has been filed, for enhancement of the sentence. The evidence against the appellant is comprised of ocular evidence of the eye-witnesses (P. W. 1, P. W. 2 and P. W. 3), recovery of danda. and the medical evidence and the report of the chemical analyser. The learned counsel appearing for the appellant has contended that the-ocular evidence consists of tainted version of interested persons and there is and independent witnesses and elaborating. his submission has demonstrated that the complainant (P. W. 1) himself is not an eye-witness and as deposed what he has heard from his wife (P. W. 2) Mst. Hawa, P. W. 3 is the daughter of P. W. 1 and has not supported that P. W. 1 (sic) and has drawn my attention to her statement recorded in the trial Court. There she has said that "on the night of incident I was sleeping in my house and woke up on hearing gunshot reports. I did not see myself any of the assailants. My mother, Mst. Hawa has disclosed the names of the present accused. Again my mother said to me that hatchet injury to my maternal-grandfather deceased Ghulam Hyder had been caused by sons of Dilla Khan." P. W. 1 Soda son of Zarak, the complainant, also did not see the deceased being attacked. P W. 4 Muhammad Akbar had reached the place of incident on hearing the gunshot and it was P. W. 1 Sodha who had informed him that he has identified the accused Daud and Sulleman in torchlight. Mst. Hawa does not mention any torch in the hand of P. W. 1, thus the complainant does not receive any corroboration on this B aspect of the case. Admittedly-it was dark night, the culprits were running and P. W. 1 could have a momentary glimpe of their backs and therefore it cannot be said that Soda was able to identify the culprits with certainty. No reliance can be placed on his evidence. The identification of the accused in the light of torch has not been considered as sufficient evidence. The following judgments of the High Courts may be referred - (ii) Muhammad Nasim Agha and others v. The State 1978 P Cr. L J 579, and (iii) Hamzo and another v. State 1983 P Cr. L J

893. Mst. Hawa claims to have seen the accused Daim inflicting hatchet blow to her father (deceased). The appellant Sulleman is not even alleged to have caused any. blow with Lathi to deceased. She stands contradicted by the Medical evidence. The P. W. 5 Dr. Saifur Rehman in his statement has said that on examination of the dead body and on post-mortem a lacerated wound 2" x ' was found on left temporal region and internal examination revealed fracture of left temporal parietal bone and extra-dural haematoma on left side and the weapon used was. "Hard and blunt." The learned trial Court has therefore ignored the statement of Mst. Hawa regarding the involvement of accused Daud and has acquitted him but relied on the evidence of Mst. Hawa for the conviction of the appellant thus treated the credibility of P. W. 2 as divisible. With respect to the learned Additional Sessions Judge, this approach of his is opposed to the. Islamic Jurisprudence in that when a witness has been found false with regard to the implication of one accused about whose participation he has deposed on oath the credibility of such witnesses regarding involvement of the other accused in the same occurrence would be irretrievable shaken. The superior Courts have constantly held that where a witness is interested and also chemical and is thus likely to falsely implicate one or the other accused it is essential to seek independent corroboration I can do no better in this behalf than to quote the observations of Mr. Justice Muhammad Afzal Zullah, Actg. C. J. in Ghulam Sikandar's case PLD1985SC

11. The law on this point has been summed up by his Lordship in these words : "It is often said that the principle falsus in uno falsus in omnibus" is not applicable in Pakistan. The same principle has been described in some cases, slightly differently namely that the testimony of an eye-witness should not be treated .as indivisible although there is no consensus with regard to the later view. A contrary view has also been held. Expressed in a more direct manner a similar rule in the administration of criminal justice which is half-mark of Islamic jurisprudence, that when a witness has been found false with regard to the implication of one accused about whose participation he had deposed on oath the credibility of such witness regarding involvement of the other accused in the same occurrence would be irretrievably shaken. However, as a matter of convenience a rule has been developed in Pakistan since the famous case of Ghulam Muhammad v. Crown P L D 1951 Lab. 66 propounded by late Chief Justice Muhammad Munir that were it is found that a witness has falsely implicated one accused person ordinarily he would not be relied on with regard to the other accused in the same occurrence. But if the testimony of such a witness is corroborated by very strong and independent circumstances regarding other the reliance might then be placed on the witness for convicting the other accused. For further and practical application of this rule the following cases can be instructive ; (particularly if the principle of indivisibility of credibility laid down in the Privy Council case Muhammad Faiz Bakhsh v. The Queen PLD 1959PC24, is to be ignored : Tawaib Khan and another v. The State P L D 1970 S C

13. The State v. Mushtaq Ahmad P L D 1973 S C 418 and Muhammad Shafi and others v. The State 1974 S C M R 289, Khairu and another v. The State 1981 S C M R 1136, Bakka v. The State 1977 S C M R 150 and Ahmad etc. v. The State 1982 S C M R 1049, Aminullah v. The State P L D 1982 S C 429, and Muhammad Nawaz v. The State 1984 S C M R

190. It is to be emphasised that the rule of "separating the grain from the chaff" has been demonstrated in many cases by appl3 ing the sure test whether the same tainted ocular evidence has received corroboration from independent and equally strong inculpatory evidence/ circumstance (sic) accused. The aforediscussed main rule shall suffer serious change if and when it is examined in the light of. the Islamic Principles. But for the time being even if the rule generally followed by the superior Courts is applied to this case it would be very essential to seek strong and independent corroboration against each one of the accused on account of various reasons discussed in the High Court judgment as also in this judgment. No such corroboration is forthcoming against Khan Beg and Maqbul Illahi. Therefore maintaining their acquittal on this ground alone would be amply justified. The same would be the result if the entire case is examined on the basis of another highly valued principle constantly followed by the Courts in Pakistan, namely that where a witness is interested and also chemical and is thus likely to falsely implicate one or the other accused, it is essential to seek independent corroboration." I am, therefore, unable to accept the reasoning of the learned Additional Sessions Judge. The statement of P. W. 2 Mst. Hawa affords material for serious challenge to the credibility and reliability of this witness on matters vital to the case. The honesty of Mst. Hawa being the wife of a man who has been involved in the litigation with the accused's father is open to question. Enmity is a weapon which cuts both ways. If the enmity between the accused and the complainant can be looked upon as motive for crime, it can provide an equal justification for the false implication of the accused. Motive being another name of enmity its existence disqualifies the ocular i testimony from being accepted without independent corroboration. The mere presence on the scene of occurrence cannot furnish corroboration to her testimoney if she is not found reliable in respect of the other accused. The motive in the background enmity cannot be treated as corroborative of the interested ocular testimony. There is an additional reason for discarding the evidence of P. W. 2 Mst. Hawa. Her statement was recorded 11 days after, though she claim that she was present when police arrived at the place after. recording the F. I. R. in the Police Station. Had it been so there was no reason why her statement was not recorded on the spot on that very day. No explanation has been offered by the police in this behalf. The trend of cross. examination in the trial Court suggests that she was not present there an this suggestion in the circumstances and the unexplained delay reason b police tends to establish that .suggestion. Be that as it may one thing can safely be said that Mst. Hawa has not stated the whole truth but had belied on many material particulars. As a rule of caution, therefore her evidence has to be ruled out of account. There can be no dispute about the death of deceased Ghulam Hyder but the main question for determination is whether the prosecution has bee successful in establishing beyond doubt that the appellant is responsible for it. Having discussed the ocular evidence produced against the appellant there remains to be considered the recovery of Danda at the instance of the appellant and the report of the Chemical analyser. The significant aspect of the case is that Danda when recovered was not blood-stained and the witnesses to this fact are no other persons than the police people who have witnessed the recovery and are Mashirs. This fact has been further corroborated by the Investigating Officer himself. The Danda , was sent to the chemical analyser after more than 7 months of its recovery. The Danda when recovered contained no bloodstains on it. It is not possible how it became bloodstained when examined by the chemical examiner. No explanation has at all been offered by the Investigating Officer. The report is belied by the prosecution witnesses produced in the case. The report of the chemical analyser cannot in these circumstances be of any weight and has to be ruled out of consideration. The entire version of the prosecution as discussed above is not free from doubt and the evidence is not of sufficient intrinsic quality to sustain the prosecution case. In view of what is stated above I am of the considered opinion that the prosecution has failed to prove the case against the appellant beyond all reasonable doubt. Accordingly I accept the appeal set aside his conviction and sentence recorded against the appellant and acquit him of the charge as a consequence the application No. 23 of 1985 for enhancement of sentence stands rejected. Sulleman son of Doola shall be released if not required in any other case. The above are the reasons for my short order recorded on 6-7-1985. Appeal accepted.