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Petitioner: MUHAMMAD ASLAM AND 5 Other VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Ajmal Mian, Amir-ul-Mulk Mengal Title: MUHAMMAD ASLAM AND 5 Other vs THE STATE Case No.: Criminal Appeal No. 30 of 1986 Date of Judgment:1986-12-07 Reported As: PLD 1987 Quetta 77 Result: Appeal accepted
JUDGMENT
JUDGMENT AIMAL M4AN, AcTG. C. J.-This appeal is directed against the judg--ment dated 29th September, 1986 passed by the learned Additional District and Sessions Judge, Usta Muhammad in Sessions Case No. 17 of 1985 convicting the present appellants, who are six in number under section 148, P. P. C. And awarding them two years' R. I. Each and also convicting them under section 302/149, P. P. C. And awarding life imprison--ment to each of them and to pay a fine of Rs. 5,000 each or in default to undergo further six months' R. 1. It is also ordered that in case of recovery of fide, the same should be paid to the; legal heirs of the deceased. The brief facts leading to the filing of the above case are that Ghulam Qadir, brother of the deceased Muhammad Ishaque lodged the F. 1. R. Which was recorded by P. W. 15 S. H. O. Jameel Asghar (Exh. P/B) at 4-15 p. m. At Police Station Usta Muhammad, stating therein that he was resident of village Syed Shah Muhammad Shah, near Khanpur bridge at Sippi Shakh and was a Zamindar by profession. 1t was alleged that on 15th April, 1985, at afternoon (Sehpahar) time, he, his brother Muhammad Ishaque and uncle Ismail were at home when appellant Mohib Ali Unirani, who was a friend of his brother Muhammad Ishaque bad taken him to Usta Muhammad for trip. It was further alleged that on the day of incident i. e. 16th April, 1985 at about 3-30 p. m. Muhammad Ishaque and appellant Mohib Ali Umrani returned from Usta Muhammad. It was also alleged that he, his brother Muhammad Ishaque and appellant Mohib Ali Umrani were exchanging news at the bank of Sippi Shakh, when appellant Jani Dashti, one of the Dashtis residing near them, came and took Muhammad lshaque and appellant Mohib Ali Umrani to his house for offering tea was also alleged that after a little while, on hearing continuous firing, ha and his uncle Muhammad Ismail reached the house of Jani Dashti and saw that appellant Mohib Ali Umrani armed with Klashinkov, and Sukhia Dashti, Shah Dost Dashti, Jani
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Dashti and Aslam armed with guns were running towards north while firing. They saw that the deceased Muhammad lshaque on account of fire-arm injuries at his chest and abdomen had expired in the house of Jani and Aslam. It was further alleged that his brother Muhammad Ishaque was taken by the appellant Mohib Ali Umrani on the pretext of friendship and because of conspiracy with appellants Sukhia, Jani, Shah Dost and Aslam, they had murdered his brother on the plea that Aslam Dashtis wife was "Siahkar" with his brother Muhammad Ishaque. It was al,o stated that Aslam Dashti---s wife being "Siahkar" with one Ganwar Khan Jamali had been in the shelter of Sardar. Yar Muhammad Khan Jamali for the last two months. It was alleged that he, his uncle and other villagers were present at the scene of offence to guard the dead body of his brother. In pursuance of the above F. I. R., the aforesaid S. H. O. Jamil Asghar visited the place of "Vardat" and prepared the following docu--ments:- (i) Inquest report (Exh. P/C). (ii) Mashirnama of recovery of S M G along with 2 Magazines and 12 live bullets of 7.62 bore. (Exh. P/E). (iii) Mashirnama of the inspection of the place of "Vardat". (Exh. P/F). . (iv) Mashirnama in respect of the blood-stained earth secured from the place of "Vardat" (Exh. P/G). (v) Mashirnama of securing four empty cartridges of ' 12 bore and also Parcel No. 2 in respect thereof (Exh. P/H). The dead body was sent by the Police Station Usta Muhammad for post-mortem on the same day, which was received by P. W.. 1 Dr. Mushtaque at 5-15 p. m. He started post-mortem examination at 5-25 p. m. And completed the same at 6-25 p. m. On examination of the dead body, he found the following external injuries:- (1) One bullet wound of entrance on left shoulder near the left axillar about 3/ 4" in diameter. (2) Wound of exit on the right side of the chest in the mid-axillary line about 1" in diameter. (3) Wound of entrance on the left side back of chest 1" in diameter blackening his tve. (4) Multiple wounds of exits on the left side of chest near axillar each 1/4" diameter, (5) Wounds of entrance on the back of left side of abdomen each 1/4" in diameter. (6) Wounds of exists on the right side in front of abdomen each 1/4" in diameter. (7) Lacerated wound in front of abdomen 3" x 2" x ". He also found the following internal injuries:- "Internal damages.-Thorax-wall. Lacerated 2nd and 3rd ribs fracture. Plaurae-Lacerated on both sides. Right lung lacerated, left lung lacerated. Abdomen.-Wall Lacerated-peritoneum lacerated, stomach empty otherwise healthy-small entestine lacerated, large entestinc lacerated apleen lacerated." He opined that the death was resulted due to injuries on the vital organs, which were on right and left lungs, hemorrhage and shock. He further opined that the injuries were ante-mortem in nature and homicidal in character which appeared to have been caused by discharge of fire-arm. He also opined that the time between injury and death was instantaneous whereas between death and post-mortem 6 to 10 hours. He also produced the post-mortem report as Exh. P/A. In his cross- examination, he had deposed that Injuries Nos. 1 and 2 were result of bullets whereas, Injuries Nos. 3 to 7 were result of gunshots, as they were pellet wounds. He had further deposed that Injuries Nos. 3 to 7 could be the result of three gunshots, whereas Injuries Nos. 1 and 2 were the result of one shot. He also stated that there was no blackening and charring on the above Injuries Nos. 5 to 7, therefore, the said injuries might have been caused by fire arm-from beyond 6 feet within two hours prior to death of the deceased.- He also stated that the deceased had not taken any sort of
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food before receiving the above injuries. In his re-examination, he produced five pellets from the dead body of deceased Muhammad Ishaque. It may be observed that in the F. I. R. Only 5 appellants were named as accused and so also in the. Police statements of the witnesses, but during the investigation, the police arrested 6 persons including one Zanghi, who was not named in the F. I. R. And in the police statements. The details of the dates of arrests, dates of recoveries of crime weapons from the appellants with exhibits, names of the Mashirs to the recoveries and the Ballistic expert's report in respect of the aforesaid recoveries are as follows;- S. No. Name ofDate ofDate ofArticlesMemo. ofName. ofBallistic appellant.Arrest.Recovery.Recovered.Recoverywitness ofExpert's recovery.Report. 1. Mohd. Aslam19-4-85No recoveries. 2. Jani22-4-8529-4-85' 12 bore shot gunExh. P/QP.W.-14 P. C.Two *12 bore No. 6089 (Art. 40)page 81Rahmat-empties with 2 live cart-ullah(C3-C4) ridges (Arts. 41-(Page 79)fired from 42) from bushesthis Gun. behind his house. 3. Sukhia2-5-8516-5-85One 7 MM RifleExh. P/MPW-11 H. C. Not connect-- No. B 11312 (Art.Page 67Mohded. 32) and 3 bulletsShahban (Arts. 33-35) from(page 65) heap of palal in his house. 4. Zanghi2-5-853-5-85Kalashinkov No.Exh. P/EPW-6 H. C.Not connect-- 1949-1625 belong-page 37Mobd Ejaz.Ed. ing to deceased(page 33) Mohd Ishaq (Art. 1) with two magazines (Arts. 2-3) and 12 live bullets (Arts. 4-- 15) from a but of straw adjacent to his house. 17-5-85One ' 16 bore shotExh. P/PPW-13 H. C.Not connect- gun (Art. 39) withpage 77Mohd Afzal. Ed. two live cartridges(page '75) (Arts. 43-44) 5. Shah Dost14-5-8525-5-85One *12 bore SBExh. P/NPW-12 H. C.Two '12 bore Shot Gun No.Page 71Nazir Ahmed.Crime empties 15994 (Art. 36)(C1-C 2) were and 2 cartridges(Page 69)fired from (Arts. 37-38) fromthis gun, a cabin in his house. 6.Mohib Ali20-4-8524-4-85One KlashinkovExh. P/JPW-8Three 7*62 No. 66-56-8243616page 55Shadi Khanbore crime (Art. 21) one(relatedempties
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magazine (Art. 22)to deceas-fired from and 5 bulletsed)Klashinkov (Arts. 23-27)(page 53)No. 43616 from beds in hissays this house.Was on next day of death of Ishaq (i. e. 17-4-85) 2. The prosecution has relied upon the ocular evidence of P. W. 2 Ghulam Qadir, P. W. 7 Muhammad Ismail as eye-witnesses, though factually they are not eye-witnesses, as they had not seen the act of killing. The latter is also Mashir to the Mashirnnma of inspection of the place of "Vardat" (Exh. P/F), Mashirnama in respect of blood-stained earth secured from the place of "Vardat" (Exh. P/G), and Mashirnama in respect of four empty cartridges of *12 bore secured from the place of "Vardat" and sealed in Parcel No. 2 (Exh. P/H). The prosecution has also relied upon the testimony of P. W. 4 Abdul Sattar, father of the deceased Muhammad Ishaque and P. W. 5 Qaisar Hayat, uncle of the deceased, as corroborative piece of evidence, but the learned trial Court in Para. 20 of the judgment under appeal discarded their testimony for cogent reasons. Reliance was also placed on the ocular evidence of above P. W. 1 Dr. Mushtaque, P. W. 3 Arz Muhammad, at the relevant time posted as Tehsildar and 2nd Class Magistrate at Usta Muhammad who recorded the alleged retracted confession of appellant Muhammad Aslant, P. W. 6 Muhammad Ejaz, a Police Constable at the relevant time posted at Usta Muhammad Police Station, P. W. 8 Shadi Khan, one of the relatives of the deceased Muhammad Ishaque, P. W. 9 Muhammad Sadiq, Head Constable, P. W. 10 Ghulam Nabi, Police Constable, P. W. 11 Muhammad Shaban, Head Constable, P. W. 12 Nazeer Ahmed, Head Constable, P. W. 13 Muhammad Afzal, P. W. 14 Rehmatullah, Foot Constable, all Mashirs to the recoveries referred to hereinabove in the above chart and of P. W. 15 S. 1. Jamil Asghar, S. H. O. Police Station, Usta Muhammad, who investigated the case and made recoveries of crime weapons and other items. The prosecution also relied upon the Chemical Examiner's report (Exh. P/S) and Ballistic Expert's report (Exh. P/T). In addition to the above evidence, the prosecution had also relied upon the retracted judicial confession of appellant Muhammad Aslam and the motive. The learned trial Court has also discarded the retracted confession on the ground that P. W. 3 Arz Muhammad, Tehsildar and 2nd Class Magistrate at the relevant time, had no power to record the same. However, he has relied upon the motive. The learned trial Court on the basis of the above evidence, excluding the evidence discarded, recorded the above convictions and awarded sentences referred to hereinabove, but acquitted the appellants for the charge under section 404, P. P. C. For misappropriating the Klashinkov allegedly belonging to the deceased Muhammad Ishaque. The appellants being aggrieved by the above judgment have filed the present appeal. 3. In support of the above appeal, Mr. Muhammad Hayat Junejo, Advocate assisted by Mr. Azizullah Memon, Advocate has submitted as follows:- (i) That since the alleged eye-witnesses P. W. 2 Ghulam Qadir and P. W. 7 Muhammad Ismail have admittedly implicated falsely one of the appellants Zanghi, their evidence requires corroboration by in--dependent and reliable piece of evidence; (ii) That the recoveries are liable to be discarded for more than one reason; (iii) That the motive as alleged in the F. 1. R. Hag not been proved; and (iv) That the version given by the prosecution does not fit in, with the proved facts on record.
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On the other hand, Mr. Muhammad Nawaz, learned counsel appearing for the State has submitted as under:- (i) That the statements of the above eye-witnesses P. W. 2 Ghulam Qadir and P. W. 7 Muhammad Ismail are reliable; (ii) That the recoveries cannot be discarded; (iii) That against the appellants Muhammad Aslant and Jani, there is strong corroborative piece of evidence in the form that the deceased was taken by the appellant Jani to his joint house with the co---appellant Muhammad Aslam and that the dead body was found in their house; (iv) That the appellants duly armed with deadly weapons were found running from the place of incident immediately after the above incident bad taken place; and (v) That the motive has been rightly relied upon by the learned trial Court. 4. Adverting to the first submission of Mr. Muhammad Hayat Junejo, learned counsel for the appellants that since the alleged eye-witnesses P. W. 2 Ghulam Qadir and P. W. 7 Muhammad Ismail have admittedly implicated falsely one of the appellants Zanghi, their evidence requires corroboration by independent and reliable piece of evidence, it may be observed that P. W. 2 Ghulam Qadir in his deposition has reiterated what he had stated in the F. 1. R., except that he made certain improve--ments, namely, that he implicated appellant Zanghi and alleged that he was armed with gun, though this fact was not mentioned in the F. I. R. Or in his police statement, as stated by P. W. 15 S. 1. Jameel Asghar. He also referred to the empties, which were not mentioned either in the F. I. R. Or in his police statement, whereas the other alleged eye-witness P. W. 7 Muhammad Ismail has made lot of improvements. Apart from implicating the appellant Zanghi and referring to the empti--s at the site, he also stated that he was also present with the deceased, A appellant Mohib Ali and P. W. 2 Ghulam Qadir, while they were having chat at Sippi Sbakh near Khanpur bridge, though P. W. 2 Ghulam Qadi has not said so. He has also introduced the alleged extra-judicial confes--sion made by the appellant while running away from the site of incident by alleging that they had told him that they had killed the deceased, as he was declared "Siahkar" with the wife of appellant Muhammad Aslam, which was not stated by him in his police statement. There are many other improvements referred to in the statement recorded by the learned trial Court. Besides the above fact, it may also be observed that according to the complainant party, there was motive, namely, that appellant Muhammad Aslam's wife was wrongly declared as "Siahkar" with the deceased Muhammad lshaque, though she was already declared as "Siahkar" with one Ganwar Khan Jamali two months prior to the incident, whereas, according to the ' appellants, the complainant party had motive to falsely implicate them on account of dispute over the lands. In either case, it appears that the parties were not on cordial terms as H per their statements, except that appellant Mohib Ali was a friend of the deceased. In furtherance of his above submission, Mr. Muhammad Hayat Junejo, learned counsel for the appellants has referred to the following cases:- (i) Wazir and others v. The State reported in PLD 1960 (W. P.y Kar. 674 in which, a Division Bench of the erstwhile High Court of West Pakistan at Karachi inter alia, held that in case of admitted enmity, the statements of the eye-witnesses who are inter se related among themselves and also with the deceased should be scrutinised with great care. (ii) Mujahid Hussain v. The State reported in 1985 SCMR 1573. In the above case, the Honourable Supreme Court while accepting the appeal against the judgment of the Lahore High Court in a murder case pointed out that the eye-witness who was related to the complainant party and was hesitant to answer important question, caused serious doubt as to his presence. (iii) Chandoo alias Chand Muhammad v. The State reported in PLD 1985 Kar. 239 in which, a Division Bench of the Sind High Court held that the evidence of interested witnesses requires Corroboration.
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(iv) Sabu and another v. The Sate reported in PLD 1966 (W. P.) Kar. 637. In the above case, two of the several accused were acquitted on the ground that their names were not mentioned in the F. 1. R. It was held that the other co-accused couldn---t be convicted on the evidence of the same witnesses in the absence of other corro--borative evidence. (v) Khurshid Ahmad v. Kabool Ahmad and others reported .In PLD 1964 (W. P.) Kar. 356 in which, it was held by a Division Bench of the erstwhile High Court of West Pakistan at Karachi that since the eye-witnesses were interrelated and inimically disposed towards the accused, their testimony required corroborative evidence of exceptional strong and sufficient by itself to establish guilt of individual accused beyond reasonable doubt. (vi) Ghulam Sikandar and another v. Mamaraz Khan and others reported in PLD 1985 SC 11. In the above case, the Honourable Supreme Court of Pakistan, inter alia, held that the principle ` falsus in uno falsus in omnibus" is not applicable in Pakistan. It was further held that 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 latter view. It was further held that time the testi--mony of a witness found false with regard to 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, is shaken, but if .The testimony of such witness is corroborated by very strong and independent circum--stances regarding other, the reliance might then be placed on the witness for convicting the other accused. (vii) Abdul Hamid and another v: The State reported in 1985 P Cr. L J 1992. In the above case; the maxim "falsus in uno falsus in omnibus" was referred to and it was held by a Division Bench of the Sind High Court that the two natural eye-witnesses having been found by the trial Court had falsely implicated two co-accused, the trial Court was not justified in convicting the other co-accused, unless such evidence was corroborated by independent piece of evidence worth-reliance. Accordingly, the appeal of the accused was allowed and the convictions and sentences were set aside. (viii) Zulfiqar Ahmad v. The State reported in PLD 1986 SC 477 in which, the Honourable Supreme Court granted leave against the conviction of one co-accused upon petition for leave filed by him and against the acquittal of two co-accused upon petition for leave filed by the State and observed that where the testimony of eye--witnesses has been disbelieved with regard to some of the accused, such testimony can be used against remaining accused only when some independent corroboratory evidence is available on record to support their testimony qua those accused. (ix) Iqbal v. The State reported in 1986 SCMR 982. In the above case, the Honourable Supreme Court while allowing an appeal against the conviction dilated upon the maxim `falsus in uno falsus in omnibus" (false in one thing, false in all) and held that the same could not safely be applied to evidence of witnesses where evidence was substantially correct, simply because there were some deliberate falsehood in it. On the other hand, Mr. Muhammad Nawaz, learned counsel for the State has referred to the following cases:- (i) Ghaus Muhammad alias Ghausa and another v. The State reported in 1979 SCMR 579 in which, the Honourable Supreme Court allowed the appeal of the convict by holding that sufferance of gunshot by deceased is not sufficient to fix identity of assailants and that the testimony of witnesses be subjected to same measure rod of scrutiny as applied to cases of blood feud of decades line. (ii) Allah Baksh v. Shammi and others reported in PLD 1980 SC 225. In the above case, the Honourable Supreme Court allowed the appeal against the acquittal and ordered retrial and held that even in murder case, the conviction can be based on testimony of a single witness, if the Court
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is satisfied that the testimony was reliable. It was also held that emphasis should be laid on the quality of evidence and not on its quantity. (iii) Wali Muhammad and others v. The State reported in PLD 1982 SC 55. In the above case, the Honourable Supreme Court upheld the conviction of the two accused and allowed the appeal of the third co-accused. It was held that the principle of "falsus in uno falsus 1n omnibus" having long been abandoned, the Court can scrutinise the statements of the eye-witnesses, even if there was some discrepancy as to the number of injuries deposed by the witnesses and the medical evidence. 5. From the above-cited cases, inter alia, the following principles are deducible:- (i) That the consensus of view of the superior Courts obtaining in Pakistan seems to be that the maxim "falsus in uno falsus in omnibus" is not applicable in Pakistan, but the Court is to sift grain from the chaff ; (ii) That in case it is found that an eye-witness though natural has, falsely implicated one or more accused persons, his testimony cannot safely be relied upon in the absence of some reliable independent corroborative piece of evidence; (iii) That in case enmity between the complainant party and the accused party is proved or admitted and the eye-witnesses are related to the deceased, their testimony can not safely be the foundation for recording conviction in the absence of independent corroborative piece of evidence; (iv) That in case there is material contradiction on a material point between the testimony of a natural eye-witness and the medical evidence, which cast doubt as to his presence at the time of the incident, it will be unsafe to record conviction on the basis of his testimony in the absence of reliable independent corroborative piece of evidence, and (v) That the conviction in a murder case can be recorded solely on the testimony of a single witness provided the Court found him trustworthy. 6. This leads us to the question, whether there is any independent reliable corroborative piece of evidence in order to reinforce the testimony of the above P. W. 2 Ghulam Qadir and P. W. 7 Muhammad Ismail. The learned trial Court has relied upon the motive and the recoveries. In our view, the motive coming from the months of the same witnesses cannot be relied upon. In this behalf; reference may be made to the case of Nawaz All and another v. The State (1981 SCMR132), wherein at page 136 the Honourable Supreme Court has made the following observation:- "However, the learned Advocate-General drew our attention to the fact that the learned Judges were also of the view that the ocular evidence was "fully corroborated by the motive " with respect, we are unable to agree with these observa--tions, of the learned Judges, which are contrary to the evidence on the record. It is true that the eye-witnesses gave evidence of motive, but as the question was of the corroboration of their evidence, their own statements about the motive for the crime could not furnish corroboration of their evidence about the identity of the assailants." Additionally, it may also be observed that from the evidence on record, the alleged motive seems to be of doubtful character, inasmuch as, according to the prosecution witnesses, the appellant Muhammad Aslam's wife was declared "Siahkar" with one Ganwar Khan Jamali prior to the incident and for the last two months she was under the protection of Yar Muhammad Khan Jamali and was living in his house. D It is highly improbable that the appellant Muhammad Aslam could have spared the above Ganwar Khan Jamali and his wife. It is also vague as to when the deceased Muhammad Ishaque was declared as "Siahkar" It may also be pointed out that motive is a double- edged weapon, which also provides reason for the complainant party to falsely rope in innocent persons belonging to the accused party. In our view, the motive in the instant case cannot furnish the] corroboration of the nature which is required particularly in view of the E fact that 6 persons are involved arid not the appellant
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Muhammad Aslant, alone. 7. Further question, which requires consideration is as to whether the recoveries of the crime weapons and empties relied upon by the learned trial Court for recording convictions, was rightly relied upon for the purpose of corroborating the testimony of the above two witnesses, namely, P. W. 2 Ghulam Qadir and P. W. 7 Muhammad Ismail. In this regard, it may be pertinent to point out that as per record, there was no recovery made from the appellant Muhammad Aslam and, therefore, there is no corroborative piece of evidence in the form of recovery against him, whereas, as per Ballistic expert's report, the empties did not math with the rifle recovered from the appellant Sukhia and Klashinkov recovered from the appellant Zanghi. In the absence of any matching of the empties with the recovered weapons, simpliciter recovery of weapons would not provide the requisite corroboration of the nature F required to reinforce the above ocular evidence. Additionally, mm rifle was not mentioned in the F. I. R., which was allegedly recovered from the appellant Sukhia, whereas, we have already held that…
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