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Petitioner: MOHAMMAD PALI VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar Title: MOHAMMAD PALI vs The STATE Case No.: Criminal Appeal No,S-34 of 2005 Date of Judgment:2015-02-12 Reported As: 2016 YLR 1986 Result: Appeal accepted
JUDGMENT
JUDGMENT SALAHUDDIN PANHWAR.--- Through this appeal, appellant has assailed judgment dated 03rd March 2005 passed by learned 1st Additional Sessions Judge, Nawabshah in S.C. No,49 of 1998 "Re Ghulam Akber v. Muhammad and others" whereby the trial Court while acquitting other co- accused persons, convicted the appellant under section 302(b), P.P.C. And sentenced, him to suffer R.I for life imprisonment and to pay a fine of Rs,10,000/- including compensation of Rs,100,000/- (one lac) to be paid to the legal heirs of the deceased Nasrullah. In default of payment of the fine, the convict was ordered to suffer three months more and in case of failure to pay compensation to suffer six months more. The convict, however, was awarded benefit of Section 382-B, Cr.P.C. 2. To make the back ground a little brighter, it is pertinent to mention here that the complainant Ghulam Akber had lodged an FIR of the incident on 02.01.1997 @ 2230 hours, being Crime No,01 of 1997 with Police Station Doulatpur under sections 302, 324 (Q&D), 148, 149, 114, P.P.C., which was investigated and charge sheet was submitted but some of the nominated accused persons were let-off during course of the investigation. Such case was numbered as Sessions Case No 50 of 1997 "Re-S/ v. Muhammad and others". 3. However, the complainant, being dissatisfied with result of investigation (charge sheet), conducted in relation to the FIR of complainant being Crime No,01 of 1997 with Police Station Doulatpur under sections 302, 324 (Q&D), 148, 149, 114, P.P.C., had filed the direct complainant (Sessions Case No,49 of 1998). The brief facts of the complainant's case are that on 02.01.1997 complainant Ghulam Akber Palli lodged FIR at Police Station Daulatpur alleging therein that "Nasrullah is his nephew, who was serving in police department and had come to village. On the night of incident, complainant was present at his house when at about 9.30 P.M. He heard fire-arm
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report towards house of Nasrullah and so also cries of Nasrullah, whereupon complainant and his cousin Kandero, Khamiso and Attaullah rushed towards the house of Nasrullah where they saw Muhammad Rafique Palli, Muhammad and Haji Hussain Palli with guns, Mithal having pistol in his hand and Khuda Bux. Out of them, Khuda Bux instigated others not to spare Nasrullah, being their Karo and saying so, accused Muhammad Palli fired at Nasrullah which hit him and he fell down on the ground. The other accused also fired at the witnesses but did not hit to anybody. Thereafter, they found Nasrullah had fire-arm injury below right nipple; blood was oozing and had died. Since Mst. Rani, was siser-in-law (BHABHI) of accused Muhammad and accused persons had suspicion that deceased Nasrullah had illicit relation with Mst. Rani therefore, above accused persons in furtherance of their common object, formed unlawful assembly while accused Muhammad, at the instigation of accused Khuda Bux, committed murder of Nasrullah by making straight fire. Accused persons also made straight fires upon complainant and witnesses with intention to kill but none received any injury. 4. It was further claimed by the complainant in his complaint that after lodgment of FIR, investigating officer SIP Din Muhammad (who was also arrayed as accused No,6 in the complaint) attempted to spoil the case of the complainant, thus, complainant made telegrams; Accused persons namely Khuda Bux, Haji Hassan and Mithal were let-off during investigation and accused Muhammad, Muhammad Rafique. And Allah jurio were sent up to face trial, therefore, the complainant filed the direct complaint. 5. The record further speaks that after preliminary enquiry, the complaint case was brought to regular file and process was issued against the accused persons namely Muhammad, Muhammad Rafique, Khuda Bux, Haji Hussain and Muhammad Mithal under sections 302, 324, 148, 149 and 114, P.P.C. Vide order dated 05.03.1998. However, the SIP Din Muhammad arrayed as accused No,6 in such complaint (I.0. Of the case Crime No,01/1997) was discharged of the allegations. 6. Having supplied the copies to the accused persons, the charge was framed against all accused persons, including the appellant / convict to which they pleaded not guilty and claimed their trial. Such plea (s) were recorded, accordingly at Ex.3 to 7 respectively. 7. The record shows that after framing of the charge in the complaint case, the advocate for complainant made a statement dated 12.11.1998 whereby relying upon the same evidence in the complaint case which had already been recorded in the connected State case. 8. The record further shows that in order to prove the case the complainant Ghulam Akber was examined at Ex.10, who produced photo copy of FIR and telegram made to Honourable Chief Justice, High Court of Sindh, Karachi at Ex./10/A and 10/B respectively. Thereafter, PW-2 Attaullah was examined at Ex.11, PW-3 Khamiso at Ex.12 who produced his statement recorded in P.E at Ex.12/ A; PW-4 Dr. Sain Bux was then examined at Ex.13 who produced photo stat copy of Post-mortem report at Ex.13-A, his statement recorded during P.E at Ex.13-B. Thereafter, the complainant's side was closed by advocate for complainant vide statement dated 10.7.2004. 9. The statements of accused person (s), including the appellant / convict, were recorded wherein they denied the allegations and claimed innocence; None of them came forward to examine himself on Oath, however, defence witnesses namely Abdul Qadeer and Haji Gul were examined and side was closed. 10. At this stage, it is quite relevant to refer the trial proceeding of the State case, lodged by the complainant of the complaint case in respect of same offence as learned trial court judge while passing judgment in complaint case stated that State case i.e, S. C . No .50/1997 was amalgamated. A reference to trial proceedings of the State case is as follows:-- "Charge framed against three accused persons namely Muhammad, Muhammad Rafique and Allah Jurio which was not pleaded guilty and such pleas were recorded respectively.
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' In order to prove State case the prosecution examined PW-1 Naveed Hussain, Civil Judge and JM, at Ex.8 who produced 164 Cr.P.C. Statements at Ex. 9 to 12; PW-2 Dr. Sain Bux at Ex.13 who produced post mortem report at Ex.14; PW-3 Amanullah, Tapedar at Ex.17 who produced the sketches at Ex.17-A to 17-C; PW-4 Complainant Ghulam Akber at Ex.18 who produced the FIR at Ex.18-A; PW-5 Kandero at Ex.19; PW-6 Attaullah at. Ex.20; PW-7 Wali Dino at Ex.22 who produced mashirnama of Wardat, inquest report of deceased, mashirnama of securing of torch, mashirnama of arrest of accused Mithal, Muhammad and Khuda Bux, mashirnama of arrest of accused Muhammad Rafique, mashirnama of recovery of DBBL gun from possession of accused Muhammad, mashirnama of securing of license at Ex.22-A to 22-G respectively; PW-8 SIP Din Muhammad who produced mashirnama of arrest of accused Allah Jurio and chemical report at Ex.23-A and 23-B; PW-9 ASI Huzoor Bux. Thereafter, prosecution side was closed by DDA vide statement dated 29.7.2004. ' After completing of prosecution side, the statement of the accused persons (in State case), including appellant, were recorded under section 342, Cr. P. C. Who denied allegations. Appellant Muhammad pleaded that he lodged FIR against Murytaza, uncle of complainant vide Crime No,13/96 at Police Station Doulatpur which he produced (Photo copy of true copy) and also produced copy 'of FIR No,14/1996 and order dated 31.5.2000. However, none of the accused came forward to examine himself on Oath nor led any evidence in their defence. 11. At the end, the learned trial Court Judge acquitted all other co-accused persons while convicting the appellant in terms, as stated above, considering the evidence which was never brought on record of the complaint case but was produced in State Case while mentioning that cases were amalgamated. 12. Learned counsel, appearing for the appellant, has argued that case against appellant was falsely lodged by twisting the facts because of the admitted annoyance/ motive; same set of evidence was disbelieved for co-accused persons while acquitting them but was believed for convicting the appellant; it was a case of accident but was turned into instant FIR; hence the appellant/convict is entitled for acquittal; trial Court committed illegality while bypassing legal procedure provided for the trial of complaint and State case. 13. Learned APG while refuting the contentions raised by rival side, argued that judgment of the learned trial court is well reasoned and in accordance with law. 14. I have carefully gone through the entire evidence and considered the submissions made at the bar before me in light of the same. 15. Before going into the merits of the case in hand, it would be significant to first address the manner in which the learned trial Court Judge has dealt with State case and complaint case,. Lodged/initiated in respect of one and same offence. It is surfaced that the learned trial Judge had considered the evidence for convicting the appellant, which was not brought on record in this case (complaint case) which again shows ignorance of the said learned trial Judge of the legal position to deal with a situation where there are two cases for same offence i.e, State case and complaint case. Let me add that there can be no denial to the legally established position that it is not the 'lodgment of FIR' or 'filing of a direct complaint' which means taking of cognizance by the Court but both are meant to bring the law into motion only for purpose of determination whether there is sufficient material to try any, person for an allegation (offence) or otherwise. It is not the outcome of the Preliminary Enquiry (Chapter-XVI of the Code) nor that of investigation (Chapter-XIV of the Code) on which the guilt is determined by the Court of law but it is the 'trial' and only 'trial' which, per procedure, ensures proper and fair opportunity to the person (accused) facing the charge to disprove the allegation by cross-examination and producing witnesses or document (s) in support of his plea or disproof of allegation/ charge. The opinion of the investigating officer or that of the court in result of procedure, provided by Chapter XVI of the Code, shall not necessarily require to be
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stamped by the 'competent court' trying the case but 'acquittal' or 'conviction' shall require an entirely independent procedure, provided by the Code, normally known as 'trial' except where acquittal is in exercise of jurisdiction created by Section 265-K or section 249-A, Cr.P.C. I can safely conclude that for the benefit and guidance of all concerned, that determination of guilt or innocence of the accused persons is thE exclusive domain of only the Courts of law established for the purpose. (2010 SCM R 660 Muhammad Ahmed v. State). 16. While continuing with the issue in question and to make things a little clear, it would be conducive to refer the Section 190 of the Code which reads as:-- 190. Cognizance of offence by Magistrates.---(1) All Magistrates of the first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court, may take cognizance of any offence; (a) upon receiving complaint of facts which constitutes such offence; (Chapter - XVI of the Code) (b) upon a report in writing, of such facts made by any police officer; (Chapter - XIV of the Code) (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed which he may try or send to the Court of Session for trial; ' From reading of the above provision, it should no more be confusing that for purpose of 'trial' it is immaterial whether the cognizance of offence was taken upon a 'police report' or a 'complaint'. The status of 'material' collected during course of investigation or during course of 'Preliminary Enquiry' is one and same hence one can competently choose any of the above available remedies which are of equal status, value and substance for purpose of 'trial'. 17. Since the law does not restricts one to choose alternative of 'direct complaint' if he claims to be dissatisfied with attitude of the police (investigating authority, known as 1.0.) then there arises certain legal question (s) such as:-- Whether to continue with investigation in FIR of the complainant or drop it when complainant has chosen alternative remedy?" ' As, the opening Section 154 of the Chapter-XIV of the Code, usually known as FIR, stood defined as "bring the law into motion' for this Chapter hence the motion of the law cannot be dependent upon wish and will of one (complainant/informant) but needs to be left to complete its cycle. This first information can be verified when `investigation' into an information of cognizable offence (FIR) is done and result thereof is submitted before the competent court of law either for agreeing for disposal thereof under "A to C' classes or taking cognizance, which, the concerned Magistrate will deal with judicial mind. ' From above, it becomes quite clear that even if the complainant (informant) is no more interested in sticking with outcome of investigation, conducted on his own FIR, yet the FIR continues holding field imploring for its legal disposal which could either be : i) disposal of FIR under any of classes, known as "B or C'. Worth to make it clear that a report under "A' class never amounts termination or final determination of crinic / offence but it starts breathing once the 'unknown accused' becomes 'known'; ii) acquittal or conviction of accused. 18. Moreover, if the court takes cognizance of the offence on police report, for which the court is, no doubt, competent, despite the complainant party has filed a direct complaint in respect of same offence. This, now, gives rise to a question that as to how the trial of two separate case (s) is to be conducted when both are about offence (s), arising from one and same incident? Before diving deep, germane to mention here that the filing of the direct complaint for the same offence in existence of pending investigation or trial of State case (FIR or outcome thereof) is itself
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indicative that the complainant party was not satisfied with same so they thought it proper to resort to alternative equal remedy which, even, can give due to the accused for the offence, complained against him/them. 19. The law, no where, permits trial of one person twice or at two places for same offence but it (law) prohibits such practice. The legal position is clear and evident from the provision of Section 403 of the Code. The Article 13 (a) of the Constitution of Islamic Republic of Pakistan ensures guarantee against such practice. The Article being relevant, is reproduced hereunder:-- ' 'Prevention of double punishment and self incrimination' 13. No person-- (a) shall be prosecuted or punished for the same offence more than once; or ' The above Article restricts even 'prosecution' of one more than once for same offence. The word 'prosecute' is derived from the Latin word and signifies not only 'to follow' but to follow intensively' without intermission, thus, to follow or pursue with .a view to reach, execute or accomplish. (PLD 1978 SC 121) It could also be termed as 'judicial determination of the guilt or innocence of the accused' (2003 PCr.LJ 56). Thus, prosecution of accused at two places, even before one and same court, for same offence is not legally permissible (2001 YLR 1448). If so, what would be the fate of the State case (cognizance whereon stood taken) on taking cognizance on a complaint case which (State case), otherwise, would require a legal disposal. 20. Let's examine the solution (s) in this peculiar situation, which can well be illustrated as follows:-- i) It would not be proper to compel the complainant party to join the trial of the case (State case) with which the complainant party themselves, no more, sticking rather seeking conviction to accused through 'complaint case'. ii) The complainant party can competently seek production or examination of any document or witnesses even from list of the State case; so does the accused party can. iii) Examination of a witness should be once so does the cross-examination (if not allowed by court). This could not be so, if trial is continued in complaint case and state case; iv) All the material evidence (s) should be brought into notice of the accused during his examination under Section 342 of the Code which could not legally happen if one offence is tried at two places; v) A conviction can well sustain, if direct evidence is established as per requirement of law even if corroborative pieces of evidence are left which complainant party can choose if does not stick with material as corroborative pieces of evidence during investigation (State case) which the complainant party is, undisputedly, not sticking. This opportunity, however, would not be available with prosecution (State case) as one cannot be expected to support what (FIR or 161, Cr.P.C. Statement etc.) he himself has left as not his own or spoiled/ tampered. Vi) If one is allowed to face trial in both State Case and complaint case, it would amount to violation of Article 13(a) of the Constitution which a 'court is expected not to be guilty thereof; The discussions, so far made above, has brought me to the conclusion, that there could be no other proper and safe procedure but to stay the proceedings of the State Case and to proceed with the complaint case. The result in the complaint case would also be a result "determination" of the State case. While parting they discussion on this point, let me add that 'amalgamation per Black's Law Dictionary (sixth edition), means:-- "Union of different races, or diverse elements, societies, unions, associations, or corporations, so as to form a homogenous whole or new body, interfusion, intermarriage, consolidation, merger, coalescence; as, e amalgamation of stock' ' The above definition, no where, is defined or recognized by the Criminal Procedure Code nor would legally make evidence, recorded in a separate case, admissible in other case. The evidence in one case, even it under name of same offence, cannot be legally used for determination of question of
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guilt or innocence in another case (things should be done in the manner prescribed by the law or not otherwise). 21. Now, I shall revert to the merits of the case. In the instant case though the advocate for the complainant had moved an application dated 12.11.1998 whereby relying upon the same evidence in the complaint case which had already been recorded in the connected state case but it was not allowed. However, the diary of the complaint case dated 11.9.2001, being material regarding this request, is reproduced hereunder:-- ' "Case called. Complainant present. Advocate for complainant present. Accused are present on bail. Order passed on application for amalgate (amalgamate) of case that application is dismissed accordingly, and proceeding of State case is stayed till recording evidence in this case: Put off to . . 06. 10.2001, for evidence Complainant is directed to bring his evidence on the date of hearing. Accused are directed to attend" ' Per above order, the proceedings of the State case should have been stayed but the, record speaks otherwise. In the complaint case, the complainant party examined three witnesses to prove ocular account and medical officer only although these all four witnesses were already examined in State case. Thus, the learned trial Court Judge was supposed to have considered these evidence (s) for disposal of the instant case (complaint case) but under the garb of word 'amalgamations', considered material from state case which resulted into acquittal of all other co-accused of complaint case and conviction to present appellant. Such manner on part of the learned trial court judge was entirely illegal and alien to the procedure provided by the Criminal Procedure Code. However, the matter pertains to year 1997 and the appellant has been in continuous confinement since years together, therefore, it would not be proper to remand the case for de novo trial rather it would be in the safe administration of justice to examine the legality of conviction of appellant. 22. At this juncture, worth to add here that to believe or disbelieve a witness, all depends upon intrinsic value of the statement made by him. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he is making true statement. A person, who is reported otherwise to be very honest, above board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement. (2011 SCM R 208 'Re-Abid Ali and 2 others v. State). 'There can be no denial to well settled principle of law that one, who remains changing his stance or attempting to improve his statement, looses his credibility hence cannot be termed to be a. `truthful witness'. 23. In the instant case, the complainant party i.e, witnesses of ocular account were examined four times i.e, during course of investigation, during course of Preliminary Enquiry, during course of trial of State case and lastly during course of trial of complaint case. The perusal of such statements would make it quite clear that the complainant party not only remained changing their stance (s) in respect of witnessing incident but also in respect of 'motive' for the murder of deceased Nasrullah. To make this specific, a reproduction of relevant portion with reference to witness, being relevant, is made as follows:-- Complainant Ghulam Akber. ' Per his FIR claimed the motive to be suspicion by accused Muhammad regarding illicit relation of deceased Nasrullah with Mst. Rani, sister-in-law (BHABHI) of accused /convict Muhammad; ' In his statement under section 200, Cr.P.C., his examination during trial of State case and complaint case, the complainant alleged no 'motive' at all as is evident from relevant portion of his evidence (s) i.e: Cross-examination in State case.
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' "It is fact that we had got no enmity with accused Rafique, Muhammad, Muhammad Mithal, Haji Hussain and Khuda Bux as well as accused Allah Jurio as well as with deceased Nasrullah' (claims the incident to be without motive) ' 'It is not correct that the deceased Nasrullah has got illicit relation with Mst. Rani, the wife of brother of accused Muhammad, nor I have stated such in my FIR as well as 161 Cr.P,C. (denied the motive, alleged in the FIR).. PW Attaullah (one of the claimed eye-witnesses) ' In his examination under section 202, Cr.P.C. Regarding 'motive' stated that: ' "The accused had attacked upon Nasrullah on account of their dispute on land" ' During his cross-examination in State case, regarding 'motive' stated that: ' "There was no previous enmity between accused and complainant party" ' During his cross-examination in complaint case, regarding 'motive' stated that: ' "It is correct that in S.C. I have mentioned that between the accused and complainant party no enmity existed' PW Khamiso (one of the claimed eye-witnesses) ' In his examination under section 202, Cr.P.C. Regarding 'motive' stated that:-- ' "The accused Muhammad, Muhammad Rafique, Muhammad Mithal, Haji Hussain and Khuda Bux had killed Nasrullah due to their dispute over the land' ' During his cross-examination in complaint case, regarding 'motive' stated that: ' "Voluntarily says the accused have committed murder of the deceased by blaming him as Karo' From above, it becomes quite clear that complainant party first alleged that motive as 'illicit relation/Karo' then substituted it with 'dispute over land' and lastly claimed the incident to be without any 'motive'. 24. Be as it may, let's examine the stance(s) of witnesses of ocular account with regard to manner of witnessing the incident. Complainant Ghulam Akber. ' Per his FIR claimed to be alone in his house and reached to place of incident on fire-report and cries where found all accused persons and also claimed to have seen accused Muhammad making fire with his gun at deceased Nasrullah; ' In his statement under section 200, Cr.P.C. Stuck with above claim; Examination in State case. ' "I was available in my house, I heard fire arm report towards the house of Nasrullah as well as cries of Nasrullah as murder ' Thereafter, our witnesses Kandero, Khamiso, Attaullah, Muhammad Uris Walid. Dino arrived at the place of…
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