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Petitioner: Muhammad Anwar and another VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Raja Shahid Mehmood Abbasi, Sadiq Mahmud Khurram Title: Muhammad Anwar and another vs The State and another Case No.: Criminal Appeal No. 1010 and Murder Reference No. 87 of 2017 Date of Judgment:2020-10-26 Reported As: 2021 YLR 1346 Result: Order accordingly
JUDGMENT
JUDGMENT SADIQ MAHMUD KHURRAM, J.--- Muhammad Anwar son of Muhammad Maalik and Muhammad Waqas son of Choudary Khan (convicts) were tried along with their co-accused namely Peeran Ditta and Tasawar Mahmood (both since acquitted) by the learned Additional Sessions Judge, Sohawa District Jhelum in the cross version case lodged on the report of Tazeem AKhtar (PW-15) in respect of offences under sections 302, 337-F(i), 337-F(ii), 337- A(i) and 34, P.P.C. for committing the Qatl-i-Amd of Muhammad Baloch son of Peeran Ditta (deceased) {relating to FIR No. 144 of 2011 dated 9.10.201 1 registered at Police Station Domeli, District Jhelum in respect of offences under sections 302 and 34, P.P.C.}. The learned trial court vide judgment dated 31.10.2017 convicted Muhammad Anwar son of Muhammad Maalik and Muhammad Waqas son of Choudary Khan (convicts) and sentenced them as infra: 1) Muhammad Anwar son Muhammad Maalik: i). Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Arnd of Muhammad Baloch son of Peeran Ditta (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C, to the legal heirs of the deceased in case of default thereof, the convict was further directed to undergo simple imprisonment for six months. The convict was ordered to be hanged by his neck till dead. ii). Simple Imprisonment for six months under section 337-F(i), P.P.C. and directe d to pay Daman of Rs.10,000/- to Tazeem Akhtar (PW -15) 2) Muhammad W aqas son Choudary Khan: i). Imprisonment for life under section 302(b), P.P.C. as Tazir for commiting Qatl-i-Amd of Muhammad Baloch son of Peeran Ditta (deceased) and directed to pay Rs.100.000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased in case of default thereof, the convict was further directed to undergo simple imprisonment for six months.
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ii). Simple Imprisonment for six months under section 337-A(i), P.P.C. and directed to pay Daman of Rs.20,000/- to Tazeem Akhtar (PW-15) Muhammad Anwar son of Muhammad Maalik and Muhammad Waqas son of Choudary Khan (convicts) were extended the benefit provided .,under section 382-B of the Code of Criminal Procedure, 1898. "Peeran Ditta and Tasawar Mahmood, the co-accused of the convicts were acquitted by the learned trial court. 2. Feeling aggrieved, Muhammad Anwar son of Muhammad Maalik, (convict) and Muhammad Waqas son of Choudary Khan (convict) lodged Criminal Appeal No.1010 of 2017 against their conviction and sentences. The learned trial court submitted Murder Refe rence No.87 of 2017 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Anwar son of Muhammad Maalik. We intend to dispose of the Criminal Appeal No. 1010 of 2017 and Murder Refere nce No.87 of 2017 through this single judgment. 3. Precisely , the necessary facts of the prosecution case, as divulged in the statement of Tazeem Akhtar widow of Muhammad Baloch (PW -15) are as under:- "Stated that on 09/10/201 1 about 01:30 p.m. 1 was present in my house along with my husband Muhammad Baloch. We heard the noise of strike on our roof then we went to roof of our house. We saw that the accused Peeran Ditta alias Allah Ditta, Tasawar Hussain, Muhammad Anwar and Muhamma d Waqas were fixing iron bores (saryas) in our wall. My husband Muhammad Baloch asked them do not fix the saryas as it may demolish the house which is 50 years old. The accus ed persons insisted on fixing the saryas and my husband Muhammad Baloch asked them although he is issueless and disable person but would not allow them to take possession of the house. The accused asked Muhammad Baloch that if he has eager of death then he should be ready for it. These words were uttered at roof of our house.. The accused started to beat Muhamma d Baloch. Accused Anwar gave blow of spade which hit on the head of Muhammad Baloch. Accused Tasawar gave blow of danda on the head of Muhammad Baloch. Accused, Waqas gave blow of danda which hit on the head of Muhammad Baloch. Accused Peeran Ditta alias Allah Ditta gave blow of wood log (phata) on the head of the Muhammad Baloch and Muhammad Baloch fell down. 1 raised hue and cry to save Muhammad Baloch but no one appeared there. The accused said that whoever would come to escape Muhammad Baloch he would also be murdered. The accused continue beating with their weapons to the Muhammad ' Baloch and I laid on him to save him. All accused persons also beaten me with their respective weapons when I was laying on Muhammad Baloch. Accused Peeran Ditta gave blow of danda which hit on my shoulder . Accused Tasawar gave blow of danda which hit on my right ribs. Accused Anwar gave blow of spade which hit on my right hand wrist. Accused Waqas gave blow of danda which hit on my nose. I was in conscious condition and was laying at some distance at the roof from my Injured husband, Police of Police Station Domeli arrived at the roof of the house from where I and my husband Muhammad Baloch were shifted to RHC Domeli, Muhammad Baloch was in serious condition and MO of RHC Dom eli referred him to PIMS Islamabad, Medical officer advised for my X-ray and reference to DHQ hospital Jhelum. Police did not take me to DHQ hospital Jhelum. On 10/10/201 1 Muhammad Baloch was expired in PIMS Islamabad. After that 1.0. of the case Khalid Hussain recorded my statement Ex. PB and I affixed my thumb impression as Ex. PB/1. The police arrested me and I was not allowed to participate funeral prayer of my husband. 1 also recorded supplementary statement under section 161, Cr.P.C. to 1.0. Khalid Hussain in respect of clearance of name of accused Tasawar son in law of Muhammad Rafique. The accused are real culprits who have murdered my husband Muhammad Baloch and injured me brutally and they may be awarded maximum punishment in accordance with law ." 4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellants namely Muhammad Anwar son of Muhammad Maalik and Muhammad Waqas son of Choudary Khan (convicts) along with their co-accused namely Peeran Ditta and Tasawar Mahmood (both since acquitted) were sent to face trial. The learned trial court framed the charge against the accused on 07.12.2016, to which the appellants and their co-accused pleaded not guilty and claimed trial. 5. The prosecution/complainant in order to prove its case got recorded statemen ts of fifteen witnesses. Tazeem Akhtar widow of Muhammad Baloch (PW-15) gave evidence regarding the ocular account. Umar Gulzar 454/HC
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(PW-1) stated that on 10.10.201 1 Khalid Hussain S.I. (PW-9) collected the blood from the place of occurrence and took into possession the same through recovery memo (Exh. PA). Ehsan Mehmood A.S.I. (PW-2) stated that on 18.10.201 1 he received two sealed parce ls from Allah Ditta 474/C which on the same day he handed over to Javed Iqbal 934/C (PW-3) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore. Javed Iqbal 934/C (PW-3) stated that on 27.10.201 1 Ehsan Mehmood A.S.I. (PW-2) handed over two sealed parcels to Javed Iqbal 934/C (PW-3) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore. Khalid Ahmad 416/C (PW-6) stated that on 4.10.2015 Muhammad Anwar (appellan t) led to the recovery of piece of wood (P-1) whereas on 07.10.2016 Muhammad Waqas appellant led to the recovery of a Danda (P-2). Ali Waqas 219/C (PW-7) stated that on 10.10.201 1 he escorted the dead body of the deceased to the hospital for its post mortem examination and received the last worn clothes of the deceased from the Medical Officer. Bashir Ahmad Awan, draftsman (PW-12) prepared three copies of the site plan of the place of occurrence (Exh. PU, PV and PW). Muhammad Jalil-ur-Rehman (PW-13) identified the dead body of the deceased. Muhammad Ashraf S.I. (PW-10) investigated the case from 06.07.2015 till 12.07.2015 and detailed the facts of his investigation in his statement before the learned trial court. Afzal Mehdi, S.I. (PW-14) investigated the case from 21.09.2015 till 07.10.2015 arrested Muhammad Anwar (appellant) on 23.09.2015 and detailed the facts of his investigation in his statement before the learned trial court. Basharat Ahmad, S.I. (PW-11) investigated the case from 05.07.2016 till 07.10.2016, arrested Muhammad Waqas (appellant) on 04.10.2016 and detailed the facts of his investigation in his statement before the learned trial court. Khalid Hussain S.I. (PW-9) investigated the case from 9.10.201 1 till 26.11.201 1 and detailed the facts of his investigation in his statement before the learned trial court. 6. The prosecution got Dr. Muhammad Shabbir Awan (PW-5) examined who on 09.10.201 1 was posted as Medical Officer at RHC Domeli and on the same day examined Tazeem Akhtar wife of Muhammad Baloch (PW-15). Dr. Muhammad Shabbir Awan (PW-5), on examining Tazeem Akhtar wife of Muhamm ad Baloch (PW-15) observed as under: "Injuries 1. Abrasion 2x2 cm on palm of right hand. Blood clotted around margins with swelling of the right hand. 2. Tender left Anterolateral side of the chest. 3. Swelling and bleeding from the nose. ........................................................................ Kind of weapon blunt" Dr. Muhammad Shabbir Awan (PW-5) on 09.10.201 1 also examined Muhammad Baloch son of Peeran Ditta (then injured later deceased). Dr. Muhammad Shabbir Awan (PW-5), on examining Muhammad Baloch son of Peeran Ditta (then injured later deceased), observed as under: "Injuries 1. On the left occipital bone, laceration 6 cm x 0.5 cm, bone exposed and bone fractured seen. Blood clotted around wound margins; Blacking and Swelling of both Right and Left Eye due to head injury , Bleeding from the nose due to head injury . 2. Laceration 4 cm x 0.5 cm, bone exposed and blood clotted around wound margins on the top of occipital bone. 3.1 cm below left ear on the neck I abrasion 1 cm x 1 cm. 4. On the extensor surface of left hand, abrasion 2 cm x 1 cm. 5. Abrasion 0.5 cm x 0.5 cm along with swelling over left 2nd metacarpophalangeal joint. 6. Abrasion 1 cm x 1 cm over extensor surface of right hand. ...................................................................... Kind of weapon blunt". The prosecution also got Dr. Syed Ikhlaq Hussain Shah (PW-4) examined who on 10.10.201 1 was posted as Medical Officer at THQ hospital Sohawa and on the same day conducted the post mortem examination of the body of Muhammad Baloch son of Peeran Ditta (deceased). Dr. Syed Ikhlaq Hussain Shah (PW-4), on examining the body of Muhammad. Baloch son of Peeran Ditta (deceased) observed as under: "EXAMINA TION OF NECK
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An abrasion of 1 cm x 1 cm on the left side of neck, 1 cm below the left ear . INJURIES. 1. A stitched wound measuring 6 cm on left side of occipital bone above 10 cm from left ear . 2 A stitched wound .4 cm on the top of occipital bone. 3 Blackening and swelling of right eye Blackening and swelling of left eye. An abrasion of 1 cm x 1 cm on the left side of neck was present and was 1 cm below the left ear . An abrasion of 2 cm x 1 cm on the external surface of left hand. An abrasion of 0.5 cm x 0.5 cm along with swelling over left 2nd matacorpophalangeal joint. Dark red in colour . 8. An abrasion 1 cm x 1 cm over external surface of right hand. Dark red in colour . 9. Clotted blood in the nostrils. OPINION. After performing external and internal postmortem of deceased , I am of the opinion that cause of death is injuries Nos.1 and 2. Both injuries were ante-mortem in nature caused by heavy blunt weapon probably . However the final opinion was to the given after receipt of reports of chemical and histopathology examination." 7. On 22.09.2017, the learned ADPP , gave up PWs Allah Ditta 474/C, Shahzad Ali 1108/C, Amjad Ali 623/C and Saddam Hussain 892/C as being unneces sary . On 23.10.2017 the learned ADPP closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency , Lahore, (Exh. PY) and the report of S.F. Investigation, Jhelum (Exh.PZ). 8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Anwar son of Muhammad Maalik and Muhammad Waqas son of Choudary Khan under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, the appellants replied that they were innocent and had been falsely involved in the case due to enmty . The appellants further stated that they had not committed the occurrence. The appellants namely Muhammad Anwa r son of Muhammad Maalik and Muhammad Waqas son of Choudary Khan opted not to get themselves examined under section 340(2), Cr.P.C. and did not adduce any evidence in their defence. 9. On the conclusion of the trial, the learned Additional Sessions Judge, Sohawa convicted and sentenced the appellants as referred to above. 10. The contention of the learned counsel for the appellants precisely is that whole case is fabricated and false. The learned counsel for the appellants submitted that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsel for the appellants further contended that the statement of Tazeem Akhtar (PW-15) was not worthy of any reliance. The learned counsel for the appellants also argued that the proceedings of the recoveries made were full of procedural defects, of no legal worth and value and result of bogus actions. The learned counsel for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of doubt. 11. On the other hand, the learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a resul t of injuries suffered at the hands of the appellants during the occurrence. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statement of Tazeem Akhtar (PW-15). The learned Deputy Prosecutor General further argued that the recoveries from the appellants also corroborated the ocular account. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly , he prayed for the rejection of appeal. 12. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General and with their assistance, perused the record and evidence documented during the trial, judiciously . 13. The whole prosecution case revolves around the statement of Tazeem Akhta r widow of Muhammad Baloch (PW-15), the sole eye-witness of the occurrence produced by the prosecution before the learned trial court.
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Muhammad Baloch (deceased) was the husband of Tazeem Akhtar widow of Muhammad Baloch (PW-15). We have already mentioned that along with the appellants their co-accused namely Peeran Ditta son of Abuzar and Tasawar Mahmood son of Safdar Hussain (both since acquitted) were tried. The learned trial court .acquitted the above mentioned co-accused of the charge. We have queried the learned Deputy Prosecutor General regarding the filing or otherwise of an appeal against the acquittal of the said co-accused, who has stated that the acquittal of Peeran Ditta son of Abuzar and Tasawar Mahmood son of Safdar Hussain (both since acquitted) had attained finality as neither the State nor the comp lainant or any other aggrieved person had filed any appeal against the acquittal of Peeran Ditta son of Abuzar and Tasawar Mahmood son of Safdar Hussain (both since acquitted), the co-accused of the appellants. The question for determination before this Court now is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellants , can be believed against the appellants. The proposition of law in Criminal Administration of Justice, that a common set of witnesses can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is now a settled proposition. The august Supreme Court of Pakistan has recently held that partial truth cannot be allowed and perjury is a serious crime. This view stems from the notion that once a witness is found to have lied about a material aspect of a case, it cannot then be safely assumed that the said witness will declare the truth about any other aspect of the case. We have noted that the view shou ld be that "the testimony of one detected in a lie was wholly worthless and must of necessity be rejected". If a witness is not coming out with the whole truth then his evidence is liable to be discarded as a whole meaning there by that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus. The august Supreme Court of Pakistan in Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013 reported as PLD 2019 Supreme Court 527 has enunciated the following binding principles:- "The Pakistan Penal Code, 1860 (P. P.C.) contains many offences dealing with perjury and giving false testimony . The very fact that there is a whole chapter , numbered XI, dedicated to such offences amply testifies to the fact that matters relating to giving of testimony w-tee taken very seriously by those who drafted the P.P.C. and their continued retention in the P.P.C. ever since reflects the will of the legislature, which is the chosen representative body of the people of Pakistan throu gh which they exercise their authority within the limits prescribed by Almighty Allah. The following sections, listed under Chapter XI titled "Of False Evidence And Offences Against Public Justice" highlight the fact that giving false testimony has been treated to be a very serious matter entailing some serious punishments . .................................................... Holding that the rule falsus in uno, falsus in omnibus is inapplicable in this country practically encourages commission of perjury which is a serious offence in this country . A court of law cannot permit something which the law expressly forbids. ............................................................................ ............................................................................ 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 has suffered a lot as a consequence of the 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 light of the discussion made above, we declare that the rule falsus in uno, falsus 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 for committing perjury ."
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Guided by the said judgment of the august Supreme Court of Pakistan, we have examined the prosecution evidence. We have scrutinized the state ment of Tazeem Akhtar widow of Muhammad Baloch (PW-15), the sole eye-witness of the occurrence. Tazeem Akhtar widow of Muhammad Baloch (PW-15) in her statement before the learned trial court, stated as under: "Accused Tasawar gave blow of danda on the head of Muhammad Baloch. Accused Wagas gave blow of danda which hit on the head of Muhammad Baloch. Accused Peeran Ditta alias Allah Ditta gave blow of wood log (phata) on the head of the Muhammad Baloch and Muhammad Baloch fell down. The accused continue beating with their weapons to the Muhammad Baloch and I laid on him to save him. All accused persons also beaten me with their respective weapons when I was laying on Muhammad Baloch. Accused Peeran Ditta gave blow of danda which hit on my shoulder . Accused Tasawar gave blow of danda which hit on my right ribs. The perusal of the above-mentioned portion of the statement of Tazeem Akhtar widow of Muhammad Baloch (PW- 15) clearly reveals that according to the said eye-witness it was the appellants and their co-accused namely Peeran Ditta son of Abuzar and Tasawar Mahmood son of Safdar Hussain (both since acquitted) who all gave beatings to Muhammad Baloch (deceased) and no distinction was drawn by the said eye-witness with regard to the role of the appellants and their co-accused namely Peeran Ditta son of Abuzar and Tasawar Mahmood son of Safdar Hussain (both since acquitted) during the occurrence while making her statement before the learned trial court . We are unable to find any independent corroboration of the prosecution case against the appellants and we are unable to distinguish the case of the appellants from the case of acquitted co-accused namely Peeran Ditta son of Abuzar and Tasawar Mahmood son of Safdar Hussain (both since acquitted) as the prosecution evidence with regard to the appellants namely Muhamm ad Anwar and Muhammad Waqas and with regard to their co-accused namely Peeran Ditta son of Abuzar and Tasawar Mahmood son of Safdar Hussain (both since acquitted), is similar . Tazeem Akhtar widow of Muhammad Baloch (PW-15) was adjudged to have deposed falsely against Peeran Ditta son of Abuzar and Tasawar Mahmood son of Safdar Hussain (both since acquitted). We find no reason to believe her statement with regard to the appellants in absence of any reason to do so. This lying on part of the witness with regard to Peeran Ditta son of Abuzar and Tasawar Mahmood son of Safdar Hussain (both since acquitted) has vitiated our trust in her. We are thus satisfied that the evidence of Tazeem Akhtar widow of Muhammad Baloch (PW-15) has no worth and is to be rejected outright. 14. Leatned Deputy Prosecutor General has laid great stress on the fact that Tazeem Akhtar widow of Muhammad Baloch (PW-15) was injured in the occurrence hence she having the stamp of injuries on her body , is to be relied upon. According to Tazeem Akhtar widow of Muhammad Baloch (PW-15) she was given beating by as many as four accused with their respective weapons hitting on various parts of her body , however , Dr. Muhammad Shabbir Awan (PW-5), on examining Tazeem Akhtar wife of Muhammad Baloch (PW-15) observed an abrasion of the dimension of 2x2 cm on the palm of her right hand and swelling and bleeding from the nose. According to Dr. Muhammad Shabbir Awan (PW-5), the said injuries on the person of Tazeem Akhtar wife of Muhammad Baloch (PW-15) were caused by a blunt weapon. Furthermore, Dr. Muhammad Shabbir Awan (PW-5) stated that the injuries observed on the person of Tavern AKhtar wife of Muhammad Baloch (PW-15) were kept under observation, however till date the kind of the said injuries was not declared. Dr. Muhammad Shabbir Awan (PW-5) further stated that he did not admit Tazeem Akhtar (PW-15) in hospital and had also not mentioned the colour of injury observed on her body . In absence of such observation the age of the injury could not be determined. The receiving of a single abrasion on the palm of a right hand and bleeding from the nose as observed by Dr. Muhammad Shabbir Awan (PW-5) on the body of Tazeem Akhtar wife of Muhammad Baloch (PW-15) runs contrary to the statement made by Tazeem Akhtar (PW-15) before the learned trial court wherein she had stated that she was given beating by as many as four persohs hitting her shoulder , ribs, wrist and nose. Furthermo re, Tazeem Akhtar (PW-15) had stated before the learned trial court that the injury on her shoulder was given by Peeran Ditta (since acquitted) and the injury upon her ribs was given by Tasawar Mahmood (since acquitted). As mentioned above, the acquittal of both Peeran Ditta and Tasawar Mehmo od, the co-accused of the…
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