2020 M L D 1857
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
MUHAMMAD JAMSHED KHAN---Appellant
versus
ALAMGEER and another ---Respondents
Criminal Acquittal Appeal No.389 of 2019, decided on 29th June, 2020.
(a) Penal Code (XLV of 1860) -
----Ss. 302, 447, 109 & 34---Qatl -i-amd, criminal trespass, abetment, common intention -
Appreciation of evidence ---Appeal against acquittal ---Accused was charged that he and co-
accused committed murder of brother of the complainant by firing--- Record showed that the
complainant was not an eye -witness of the occurrence---Prosecution produced two eye -
witnesses who stated in their statements that the accused and co -accused made firing upon
deceased, who succumbed to the injuries ---Role attributed to the accused and co -accused was
the same--- Co-accused, who allegedly had caused injuries to the deceased, had been
acquitted and there was no piece of evidence available against the accused, therefore, on the
basis of same set of evidence the accused could also be acquitted of the charge---If two
accused persons were alleged to have committed murder of the deceased and one of them had been acquitted of the charge on the basis of same evidence, then said evidence could not be believed to the extent of other accus ed for the reason that principle of "falsus in uno falsus in
omnibus" would be applicable for deciding the case ---Eye -witnesses, when were not believed
to the extent of co- accused while applying the principle of "falsus in uno falsus in omnibus"
the other accused could not be held guilty in the case ---No doubt there was abscondance on
the part of accused, yet abscondance by itself was not sufficient proof of guilt of accused, it ought to be corroborated by other supporting evidence, which element was missing in the present case---Circumstances established that the Trial Court arrived at the conclusion which was based on proper appreciation of the facts and law, thus did not need interference by the High Court ---Appeal against acquittal was dismissed, in circ umstances. Mst. Sughra Begum
and another v. Qaiser Pervez and others 2015 SCMR 1142; Shahbaz v. The State 2016 SCMR 1763; Zafar v. The State and others 2018 SCMR 326; Haroon Shafique v. The State and others 2018 SCMR 2118; Altaf Hussain v. The State 2019 S CMR 274; PLD 2019 SC
527 and Haji Palio Khan v. Sher Baz 2009 SCMR 803 rel.
(b) Appeal against acquittal ---
----Double presumption of innocence ---Interference---Scope ---Acquittal carried with it
double presumption of innocence ---Acquittal could be reversed only when found blatantly
perverse, resting upon fringes of impossibility and resulting into miscarriage of justice ---
Acquittal could not be set aside merely on the possibility of a contra view.
Rizwan Ali Somro for Appellant.
Date of hearing: 24th Jun e, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---This criminal appeal was filed to question the
validity of judgment dated 13th September 2019 ("impugned judgment") passed by
Additional Sessions Judge, Barkhan at Rakhni (trial court) in Sessions Case No.81/2019,
whereby the respondent No. 1 namely Alamgir son of Lal Muhammad was acquitted of the charge.
2. Relevant facts for disposal of the instant appeal are that on 15th March, 2012 the FIR
No. 04 of 2012 was lodged on the complaint of Muhammad Jamshaid Khan at Levies Thana Rarkhan under Section 302, 447, 109 and 34 P.P.C. with the allegation that on 15th March, 2012 at about 3:00 am his brother Javed and nephew Sikandar were present on their land, while the accused persons Din Muhammad and Alamgeer were sitting and hidden into adjacent Mosque and they made firing through a Kalashnikov on his brother Javed and killed him but nephew Sikandar was saved luckily and the accused persons took away his licensed Pistol of 22 bore. It is further alleged in the report that Lal Muhammad and his son Sher
Muhammad were also involved in the conspiracy and instigation. The background of the case was that Lal Muhammad and his sons Sher Muhammad police inspector Kohlu Din Muhammad and Alamgeer had illegally occupied the state land adjacent to Levies Station
and residence of Jamedar and they further encroached upon his land by ploughing tractor and his brother was reported the matter to Jamedar Levies on 8th March. Hence, the crime report.
After completion of usual investigation cha llan of the case was submitted before the
trial court. The charge was framed against the accused to which he pleaded not guilty and claimed trial. After full dressed trial the accused was acquitted of the charge by the trial court. Hence, the instant appeal.
3. Arguments advanced from both the sides have been heard. We have also minutely
gone through the record available on file with the able assistance of learned counsel for the appellants.
4. A verity of reasons weighed with the learned trial judge to acquit the accused from
the charge, which include; the co -accused were acquitted of the charge on the same set of
evidence by this Court, nothing was recovered from possession of the respondent as well as the case against the respondent is of no evidence. None of the reasons cited by the trial judge has been found by us as artificial or unrealistic. Even otherwise on independent analysis, genesis of prosecution case does not appear to be free from doubt.
5. Record transpires that the co -accused Lal Muhammad an d Sher Muhammad were
acquitted of the charge by learned Sessions Judge on 10th April 2018 and co- accused Din
Muhammad was acquitted by this court vide order dated 30th November 2018. The
complainant is not an eye -witnesses of the occurrence. The prosecutio n produced two eye -
witnesses PW -1 Nazir and PW -4 Sikandar Ali who stated in their statements that the
accused/respondent No.1 and co- accused Din Muhammad made firing upon deceased, who
received injuries and succumbed to the injuries. The role attributed to the accused/respondent
No.1 and co- accused Din Muhammad who was acquitted by this court are the same. The
acquitted co -accused Din Muhammad, who allegedly caused injuries to the deceased has
been acquitted and there is no piece of evidence available again st the respondent, therefore
on the basis of same set of evidence the accused/respondent No.1 can also be acquitted of the charge. Guidance in this regard has been taken from the case titled as Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142), case of "Shahbaz v. The State" (2016 SCMR 1763) and case of "Zafar v. The State and others" (2018 SCMR 326). In this regard, reliance can also be placed upon the case of "Haroon Shafique v. The State and others" (2018 SCMR 2118), relevant por tion whereof is reproduced as under:
"Almost all the co -accused of the appellant, attributed effective roles, had been
acquitted by the High Court and, thus, the appellant could not have been convicted and sentenced without independent corroboration."
Guidance, in this respect, has also been sought from the case of "Altaf Hussain v. The
State" (2019 SCMR 274), r elevant portion whereof is also reproduced as under:
"7. There is another aspect of the case. As stated earlier besides the appellant three other persons were also indicted in this case three of whom namely Nisar Ahmed, Muhammad Aslam and Mst. Amiran were acquitted by the learned trial court. PSLA
No. 67 of 2013 filed by the complainant against their acquittal was dismissed by the
learned appellate court which was not assailed any further either by the complainant or the state and as such their acquittal a ttained finality. It is well settled by now that if
a set of witnesses is disbelieved to the extent of some accused the same cannot be believed to the extent of remaining accused facing the same trial without there being any independent and strong corrobor ation. Upon scrutiny of the material available on
record we have not been able to find any corroboration to maintain conviction and sentence of the appellant on a capital charge."
6. It is also important to mention here that when the two accused persons we re alleged to
have committed murder of the deceased and one of them i.e. Din Muhammad has been acquitted of the charge on the basis of same evidence, then said evidence cannot be believed to the extent of respondent No.1 for the reason that the law has now been well settled that
"falsus in uno falsus in omnibus" will be applicable for deciding a criminal case. In this regard dictum has been laid down by the Hon'ble Supreme Court on the subject in the reported judgment titled as (PLD 2019 SC 527), relevant paragraph No.21 whereof is reproduced here under:
"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 j ustice 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 per missible 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 of falsus in uno, falsus in omnibus shall henceforth be an int egral 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 deliberated f alsehood on a material aspect shall, without any latitude, invariably
be proceeded against for committing perjury."
7. When the said eye -witnesses are not believed to the extent of co- accused namely Din
Muhammad while applying the principle of "falsus in u no, falsus in omnibus" the present
respondent No.1 cannot be held guilty in the case.
8. No doubt there is abscondance on the part of appellant, yet it is almost settled
principle of law that abscondance by itself is not sufficient proof of guilt of an acc used it
ought to be corroborated by other supporting evidence, which element is missing in the
present case. In this respect plea reliance can be placed on 2009 SCMR 803 "Haji Palio Khan v. Sher Biaz and others" wherein it has been held:
"Abscondance of a ccused is a supporting evidence of his guilt and it may be
consistent with the guilt or innocence of accused, which is to be decided keeping in view the overall facts of the case."
In the case in hand too, where the direct or ocular version is not of such caliber to be
relied upon mere abscondance of the appellant alone would be of no worth. It is to be noted here that in this part of the country the people do abscond not because they have committed
an offence but due to fear of the police coupled with lac k of awareness from law of the land.
9. Further more, it is by now well settled that acquittal carries with it double
presumption of innocence; it is reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into misc arriage of justice. It cannot be set aside merely
on the possibility of a contra view.
10. In our humble view, the trial court has considered all the material present on record
properly and arrived to the conclusion which is based on proper appreciation of the facts and
law, thus does no need interference by this court.
The appellant has failed to point out any defect in the impugned judgment, therefore,
the appeal being devoid of merit is accordingly dismissed in limine.
JK/101/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.