2012 Y L R 510 [Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
BAGAN KHAN and another ---Appellants
Versus
THE STATE and another ---Respondents
Criminal Appeal No.(S) 74 and Murder Reference No.(S) 12 of 2009, decided on 22nd September, 2011.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 147, 148 & 149---Qatl -e-amd and attempt to commit qatl- e-amd---
Appreciation of evidence ---Benefit of doubt ---All the alleged eye -witnesses being related inter s e
as well as to the deceased, their evidence was required to be scrutinized with care and caution while seeking independent corroboration---Mere relationship of witnesses with the deceased though by itself, was not sufficient to discard their evidence, but as a precaution the court had to
look for independent corroboration--- F.I.R. did not figure the name of one of the prosecution
witnesses ---Statements of other two witnesses under S.161, Cr.P.C. had been recorded after
unexplained delay of about 17 years ---Evidence of said witnesses was neither straightforward,
nor confidence inspiring; they had made dishonest improvements in order to strengthen the case of prosecution---No reliance could be placed on evidence of such witnesses ---In order to
maintain a co nviction on a capital charge, evidence must come from independent and
unimpeachable source, rather than tainted and inimical witnesses without any independent corroboration---Neither the complainant had been produced and examined nor the Investigating Officer had come forward to record his statement before the Trial Court ---Evidence furnished by
the alleged eye- witnesses, remained uncorroborated, as neither any recovery had been effected
from the possession of accused nor the medical evidence had been brought on record to corroborate the ocular account ---Case was of fabricated evidence on the charge of murder, in
which the witnesses had made a mala fide attempt to involve an innocent person---Recovery of crime weapon having not been effected from the possess ion of accused, no report of the Ballistic
Expert was available, which could corroborate the ocular account ---Neither the autopsy of the
deceased person was conducted nor the medical certificates had been brought on record to corroborate the ocular account ---On the same set of evidence, co -accused had been acquitted of
the charge, while the accused had been convicted, despite the fact that accused could not be convicted on that evidence, which had already been rejected qua the co -accused ---Case of
accused w as at better footing qua co- accused who had been acquitted of the charge --
Prosecution having failed to prove its case against accused beyond reasonable doubt, while extending benefit of doubt, accused was acquitted of the charge and was released, in circum -
stances.
1993 SCMR 550 rel
(b) Maxim ---
----"Falsus in uno falsus in omnibus" ---Applicability ---Principle of the maxim had no universal
applicability ---Court while sifting grain from the chaff, was empowered to convict an accused on
the basis of e vidence already disbelieved qua co -accused, but same was subject to independent
corroboration.
Barrister Adnan Kasi for Appellant (in Criminal Appeal No.(s) 74 of 2009).
Abdullah Kurd, Addl: P.G. for the State (in Criminal Appeal No.(s) 74 of 2009).
Abdullah Kurd, Addl: P.G. for the State (in Murder Reference No.(s) 12 of 2009).
Barrister Adnan Kasi for Appellant (in Murder Reference No.(s) 12 of 2009).
Date of hearing: 18th August, 2011. JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---The Additional Sessions Judge, Jhal Magsi at
Gandhawa, vide judgment dated 20- 8-2009 has convicted and sentenced appellant Pandhi alias
Bagan as under:
(i) under section 302(b) read with section 149 of the P.P.C. to death as ta'zir for causing the
death of deceased Mumtaz with direction to pay compensation of Rs.100,000 to the legal heirs of
the deceased, in default whereof to further undergo R.I. for six (6) months. (ii) under section 302(b) read with section 149 of the P.P.C. to death as ta'zir for causing the
death of deceased Sikandar with direction to pay compensation of Rs.100,000 to the legal heirs of the deceased, in default whereof to further undergo R.I. for six (6) months. (iii) under section 324 read with section 149 of the P.P.C., for at tempting to commit murder
of Mst. Sukhan, to suffer five (5) years' R.I., with direction to pay compensation of Rs.30,000 to the legal heirs of the injured.
(iv) under section 324 read with section 149 of the P.P.C., for attempting to commit murder
of M st. Khanzadi, to suffer five (5) years' R.I., with direction to pay compensation of Rs.30,000
to the legal heirs of the injured. (v) under section 147 of the P.P.C. to suffer six (6) months' R.I. and fine of Rs.1000, in
default whereof to further undergo' S.I. for one (1) month (vi) under section 148 of the P.P.C. to suffer one (1) years' R.I. and fine of Rs.2,000, in
default whereof to further undergo' S.I. for three (3) months.
The appellant preferred Criminal Appeal No.(S)74 of 2009 for his acquitt al, while the Additional
Sessions Judge has sent Murder Reference No.(S)12 of 2009 for confirmation of the sentence of death or otherwise. Since common question of law and facts is involved, therefore, both the
matters are being disposed of by means of thi s common judgment.
2. Briefly stated, the facts of the case are that on 21 -10-1993 at about 12- 00 noon, a case
vide Crime No.44 of 1993, under section 302 of the P.P.C. was registered at Levies Station, Jhal Magsi on the report of complainant Ghulam Qadi r son of Lal Bakhsh. It was alleged by the
complainant that on above date, at about 10- 00 a.m., he was present in his house at Goth
Kathore, when firing started onto the Goth from all sides. On that, he came out of the house and saw accused persons Bhora, Ali Sher, Pandhi, Gul Sher, Muhammad Waris, Jalal, Mir Hassan, Phull, Ali Murad, Gul Hassan, Bagan, Mirza and others, who made firing upon the Goth and committed the murder of shepherds Sikandar, Mumtaz and caused injuries to Mst. Sukhan and Mst. Khanzadi.
3. The record shows that, after registration of the F.I.R. Exh.P/4- A, Naib Tehsildar, Jhal
Magsi , conducted the investigation of the case, who visited and inspected the site, seized the
dead bodies of the deceased, sent the injured persons to Jhal Magsi for treatment, prepared site sketch, collected empties, released the dead bodies of the deceased t o their heirs without
conducting postmortem examination on their request. He recorded the statements of P.Ws., however, the accused persons could not be arrested. Subsequently, on merger of the levies into police, the Tehsildar Jhal Magsi handed over the papers of the investigation to Hidayatullah Kalachi, S.I./S.H.O., Police Station, Gandhawa, who started investigation, recorded the
statements of P.Ws. and on 20- 7-2008, arrested accused Bagan alias Shaman and after
completion of the investigation, submitte d incomplete challan Exh.P/4- C against him in the
court. On 1- 3-2009, the investigation of the case was entrusted to P.W.5 Muhammad Ali, A.S.- I.
He carried the investigation from arrested accused Jalal, who during course of the investigation, made disclosu re in respect of commission of the offence and after completion of the
investigation, he placed the papers before S.H.O. Abdul Sattar Magsi, who prepared supplementary challan Exh.P/5- A. He arrested the accused Pandhi alias Bagan, who during
course of the investigation, produced sufficient material, on the basis whereof, he was discharged under section 169 of the Cr.P.C. and his name was placed at Column No.2 of the incomplete challan Exh.P/5- B.
4. On the stated allegation, charge was framed and read over to the appellant, to which he
pleaded not guilty and claimed trial. The prosecution, in order to substantiate the accusation, produced five witnesses. P.W.1 Ali Asghar, P.W.3 Mst. Hooran and P.W.3 Rawat Khan alleged to have witnessed the occurrence. P.W.4 Hidayatullah Kalachi, S.- I./S.H.O. and P.W.5
Muhammad Ali, A.S.- I., are the Investigating Officers of the case.
5. After close of prosecution evidence, the appellant was examined under section 342
Cr.P.C., wherein he denied the prosecution accusation a nd claimed to be innocent. He did not opt
to record his statement on oath, nor produced any witness in his defence. The trial Court, after close of parties' evidence, vide impugned judgment, convicted and sentenced the appellants, as
mentioned hereinabove, hence this appeal and murder reference.
6. We have heard learned counsel for the appellant as well as learned Additional
Prosecutor -General and have also gone through the record with their valuable assistance. It has
been submitted by learned counsel f or the appellant that prosecution had failed to prove its case
against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a
resultant acquittal of the appellant. On the contrary, learned Additional Prosecutor -General has
maintained that prosecution had succeeded in proving the guilt of the appellant to the hilt and,
therefore, present appeal deserves dismissal.
7. The connection of appellant Bagan Khan son of Sachey Dina with the crime in question
is sought to be establi shed by the evidence of P.W.1 Ali Asghar, P.W.2 Mst. Hooran and P.W.3
Rawat Khan. All the alleged eye- witnesses are related inter se as well as to the deceased persons
viz Sikandar Ali and Mumtaz, as such, their evidence is required to be scrutinized with care and caution while seeking independent corroboration. We are conscious of the fact that mere relationship of the witnesses with the deceased, by itself, is not sufficient to discard their evidence, but, as a precaution, the Courts have to look for inde pendent corroboration. Admittedly
the F.I.R. Exh.P/4- A does not figure the name of P.W.1 Ali Asghar, whereas the statements of
P.Ws. Mst. Hooran and Rawat Khan under section 161 of the Cr.P.C. have been recorded after unexplained delay of about 17 years. T heir evidence is neither straightforward, nor confidence -
inspiring. It may be noted that they have made dishonest improvements in order to strengthen the case of the prosecution, as such, no reliance can be placed on their evidence. In this regard, the Hon'ble Supreme Court, while dealing with the proposition, in a case reported in 1993 SCMR
550, has observed as under: --
"(f) Statements of witnesses in the Court in which improvements are made to strengthen the
prosecution case are not worth of reliance.
(g) ---S.161---Statements recorded by police after delay and without explanation are to be
ruled out of consideration."
On a careful scanning of their statements, we are of the considered view that the conviction awarded to the appellant can hardly be s ustained under the law. In order to maintain a conviction
on a capital charge, evidence must come from independent and unimpeachable source, rather than tainted and inimical witnesses without any independent corroboration. It would be relevant to mention here that neither the complainant, namely, Ghulam Qadir has been produced and examined in order to substantiate the accusation, nor the Investigating Officer has come forward to record his statement before the trial court. The evidence, furnished by the all eged eye-
witnesses, remained uncorroborated, as neither any recovery has been effected from the possession of the appellant, nor the medical evidence has been brought on record to corroborate the ocular account. Even otherwise, the ocular account furnished by the alleged eye -witnesses
does not appeal to reasons and a prudent mind, as according to the site plan Exh.P/4- B, the firing
was, allegedly, made from a rainy channel situated at a distance of 25 paces from the Goth and according to the version of P.Ws ., they were present inside their houses, as such, there was no
occasion with them to identify eleven (11) accused persons at the time of heavy firing. The evidence, collected by Investigating Officer Muhammad Ali, A.S.- I., during the course of
investigation, would show and suggests us to believe that the name of the present appellant is
Bagan Khan son of Sachey Dina, whereas the prosecution witnesses have made an attempt to involve the appellant by inserting alias of Bagan Khan alias Pandhi son of Sachay D ina alias
Saleh, which shows that it is a textbook example of a case of fabricated evidence on the charge of murder, in which the witnesses have made a mala fide attempt to involve an innocent person
in the commission of the offence on the charge of murder by inserting alias with his name as well
as his father's name. As already observed, the appellant though arrested, but the recovery of
crime weapon was not effected from his possession, therefore, naturally, there is no report of the Ballistic Expert, which could corroborate the ocular account. Similarly, neither the autopsy of the deceased persons was conducted, nor the medical certificates have been brought on record to corroborate the ocular account. 8. It would also be relevant to mention here that during the course of investigation, due to
lack of sufficient evidence, the appellant was discharged under section 169 of the Cr.P.C. The documentary evidence produced by the appellant before the trial court reflects that neither he nor his father has alias of Pandhi or Saleh respectively with their names.
9. We are afraid that on the same set of evidence, co -accused Bagan alias Shaman and Jalal
son Muhammad Siddique have been acquitted of the charge, while on the basis of same evidence, the appellant has been convicted, in spite of the fact that the appellant could not be
convicted on that evidence, which has already been rejected qua co -accused. Needless to
mention here that the case of the present appellant was at better footing qua co- accused, who
have been acquitted of the charge. We are not unmindful of the fact that the principle of "falsus
in uno falsus in omnibus" has no universal applicability and the Court, while sifting grain from the chaff, is empowered to convict an accused on the basis of evidence already disbelieved qua
co-accused, but that is subject to independent corroboration. While in the instant case, as already
been observed, the appellant has been convicted on the basis of same set of evidence without any independent corroboration, res ulting miscarriage of justice.
10. For the discussion made hereinabove, we have arrived at a confident conclusion that the
prosecution, indeed, has miserably failed to prove its case against the appellant beyond reasonable doubt, as such, while extending benefit of doubt to the appellant, the appeal is
allowed and he is acquitted of the charge. He be released forthwith if not required in any other case. Murder Reference is answered in negative.
These are the reasons of our short order dated 18- 8-2011 announced in the open Court.
H.B.T./136/Q Appeal allowed.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,
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