Irfan Ali vs The State

ORDER

DOST MUHAMMAD KHAN, J. --- With the leave of the Court dated 18.06.2009, appellant Irfan Ali, has questioned the legality and propriety of the judgment dated 22.12.2008 of the learned Division Bench of the Lahore High Court, Multan Bench, Multan, whereby his appeal filed against death sentence awarded to him by the learned Trial Court vide judgment dated 26.05.2002 was maintained; murder reference was answered in the affirmative, while appeal of the co-accused namely Muhammad Khan against life imprisonment was allowed and he was acquitted of the charge by extending him benefit of doubt. It is deemed appropriate to mention here, that four co- accused charged for the murder of Liaqat Ali (deceased) were acquitted by the learned Trial Court.

Arguments of the learned ASC for the appellant and that of learned Additional Prosecutor General, Punjab heard; record and the impugned judgment carefully perused.

2. Precisely, the facts leading to the present tragedy are, that Muhammad Hussain, complainant proclaimed that he was accompanying the deceased to bring chaff from the fields however, in way, near the land of Muhammad Sadiq, they were intercepted by Muhammad Khan (acquitted accused) armed with 30-bore pistol and Irfan Ali (appellant), also possessed of the same bore pistol.

Abdul Rasheed, the other acquitted accused raised 'Lalkara' that Liaqat Ali would not be spared that day as he had thrown out Mst. Imtiaz Mai out of home, also giving her ruthless beating.

Muhammad Khan (acquitted accused) fired repeatedly with 30-bore pistol at the deceased, as a result he was hit on his right chest, top of skull, left side of chest and on left thigh and fell down to the ground. Lying in that state after receiving fatal injuries at the hands of Muhammad Khan acquitted accused, the present appellant also fired three consecutive shots at him with 30-bore pistol, which hit the deceased at his left, chest, right thigh and left thigh. The victim died on the spot.

On the reports of fire shots, son of the complainant, Riaz Ali (PW-7) alongwith Muhammad Akram (not produced) attracted to the spot, who also witnessed the crime. Motive was the one discussed above.

3. In the concluding part of the FIR, appellant Irfan and acquitted accused Muhammad Khan.

Ramzan and Abdul Rasheed were charged for conspiring with the two other culprit for committing murder of Liaqat Ali.

4. The report was lodged through a written complaint (Ex.PE) at 8:35 p.m., while the occurrence had taken place at 5:00 p.m. on the same day i.e. 8.05.2001, leaving behind the dead-body on the crime scene. On the following day, when the dead-body was subjected to autopsy, the medico-legal officer, Dr. Muhammad Samad (PW-1), besides fire-arm injuries also found six incised wounds of different dimensions caused by sharp-edged weapon like dagger.

5. Being confronted with a hostile post-mortem report, through foul play supplementary statement of the complainant was recorded, also attributing the appellant of inflicting dagger blows on the deceased when he was lying in a dying condition. This statement was disowned at the trial by the complainant however, to adjust the ocular account and to bring it in line with the medico-legal evidence, the added version was introduced in the statement of Riaz Ali (PW-7), who had'recorded statement u/s. 161, Cr.P.C.

6. The autopsy report available at pages 89-90 unequivocally suggests that the internal organs of the chest cavity and other vital organs were damaged with the stab wounds inflicted through dagger and no damage is shown having been caused by the bullets.

7. Both, the acquitted accused and the appellant, were arrested within few days. At the pointation of both the accused, 30 bore pistols were recovered separately however, the one recovered at the instance of the appellant was secured from the house of his brother-in-law.

8. The crime empties of .30 bore pistols, five in numbers, recovered from point 3 and point 4 shown in the site plan (Ex.PD), attributed to the appellant and the acquitted accused Muhammad Khan, were sent to the Arms Expert (FSL) for comparison and report.

The Arms Expert, after examination found that none of these empties was fired from one or the other 30-bore pistol, recovered at the instance of both the accused. This is the entire case of the prosecution and the gist of incriminating evidence against the accused.

9. It is the case of the complainant that after the deceased died on the spot, he stayed there for 1% hour and then went for report but in the way he met a police officer known to him, to whom he narrated the incident who accompanied him to the spot, where his statement was taken. This admission, made by the complainant is sufficient to create reasonable doubts that investigation in the case was conducted in a dishonest manner. The traditional police chicanery pressed into service.

10. Four acquitted co-accused were, implicated without any shred of evidence for hatching conspiracy with the, appellant and Muhammad_ Khan to commit the murder and it was for want of proof that they were, acquitted by the Trial Court thus, it appears that noose was thrown much wider, implicating falsely innocent persons.

11. The most striking feature of the case is that in the F.I.R. complete photographic narration of the entire tragedy has been given so much so, Muhammad- Khan acquitted accused and the appellant were attributed causing specific injuries with the fire shots of 30-bore at, the deceased.

With such degree of accuracy each, and every detail of the incident was given however, it was not due to mental disorientation that the dagger blows inflicted on the deceased found during the autopsy on the dead-body, could not be noticed by the complainant. This doubt of reasorvable nature and substance would strongly suggest that the complainant and the other eye-witnesses were not present at the spot, otherwise, lodging the'report after more than 3 hours and spending 1% hour at the spot with the dead-body, no room was left for this glaring omission. This omission is very fatal to the prosecution case and it is established that crime was an unwitnessed one.

12. To infuse artificial life into the case of the prosecution, visibly dishonest attempts were made as a dagger was also shown having been recovered, however, the recovery memo. (Ex-PL) would show that full description of the dagger has been given but blood stains on it were omitted therefore, when blood was not found on it, how the Chemical Examiner could give an opinion about the presence of human blood on it. This would show that same was planted against the appellant with arranged human blood and when no grouping of the blood was made with the blood-stained clothes of the deceased to create a nexus between the two, the same is of no help to the prosecution.

13. More vividly and squarely set up, the prosecution case is that it was Muhammad Khan, acquitted accused, who initiated the aggression on the deceased and fired four consecutive shots with 30 bore pistol, hitting the deceased on both sides of chest (front) and thighs. These shots proved fatal, or to say, dangerous to life because after sustaining these injuries the deceased collapsed and fell down to the ground. The role attributed to the present appellant is that he caused injury to the deceased when he was lying on the ground in a dying condition. Despite of this clear charge, the learned Judges of the High Court gave a clearance chit to Muhammad Khan, exonerating him from the charge of committing the murder of the deceased or not holding him equal and more effective partner in the crime then selecting the appellant on misconceived notion for conviction and awarding him sentence is neither understandable nor it was warranted in law.

14. Whenever witnesses are found to have falsely deposed with regard to the involvement of one co-accused then, ordinarily, they cannot be relied upon qua the other co-accused unless their testimony is sufficiently corroborated through strong corroboratory evidence, coming from unimpeachable source, is a deeply entrenched and cardinal principle of justice. We do not find a single iota of corroboratory evidence to substantiate the tainted evidence of the same set of witnesses with regard to the involvement of the appellant in the crime, hence recording conviction of the appellant on the same evidence was absolutely unjustified.

The ocular testimony, discussed above, provided by the so-called eye-witnesses remained uncorroborated qua the appellant rather the one relied upon by the prosecution and the learned Judges in the High Court is contradicting them with regard to the nature of injuries and cause of death, the same therefore, adversely reflects on the truthfulness of the said witnesses besides, their presence on the crime spot at the fateful time has become absolutely doubtful.

15. In the case of Ghulam Sikandar v. Mamaraz Khan (PLD 1985 SC 11) it was held that:-- "When witnesses are disbelieved qua the acquitted co-accused to whom same and similar role was attributed then they shall not be relied upon with regard to the other co-accused unless they are strongly corroborated by evidence coming from independent source."

Similarly, in the case of Munawar Ali v. The State (PLD 1993 SC 251) it was held that:-- "When the eye-witness compromises his integrity and makes a false statement by way of addition or improvement in his deposition and on that account one or the more accused in that case are acquitted, then in such situation great care and caution is to be exercised in dealing with the evidence of such witness for the purpose of its evaluation in respect of conviction of the other accused and is to be accepted only when it is supported by independent corroboratory evidence."

16. We are constrained to observe that the learned Judges of the Lahore High Court failed to take notice of the Arms Expert's report, discussed earlier vis-a-vis both i.e. the convict-appellant and the co-accused Muhammad Khan because they have fallen in error in holding the contrary view against the established facts on record.

17. In view of the prosecution version the role of the acquitted accused Muhammad Khan in the crime was more serious and grave in nature but the learned Judges acquitted him on a flimsy ground. Keeping in view the prosecution version, there was a common intention amongst both the accused to commit the crime but this aspect of the case in view of Section 34, PPC, was conveniently ignored.

18. To award a capital punishment in a murder crime, it is imperative for the prosecution to lead unimpeachable evidence of a first degree, which ordinarily must get strong corroboration from other independent evidence if the witnesses are interested or inimical towards the accused. In a criminal trial no presumption can be drawn against the accused person as it is a cardinal principle of justice that no one should be construed into a crime without legal roof/evidence, sufficient to be acted upon. No care and caution was observed in the present case in light of this principle. No evidence of believable nature was led with regard to the motive in the case to lend support to the prosecution version.

19. True that Falsus In Uno Falsus In Omnibus principle has not been acted upon by the Courts in this country and it has been held time and again that evidence of a witness is divisible, however, pre-condition is that evidence of the same set of witnesses may be rejected against some of the accused and it can be relied upon with regard to the other set of the accused, provided it is getting strong independent corroboration from unimpeachable source while recording conviction on a capital charge. It shall be kept in mind that medical evidence based on the opinion of medico- legal officer is mere opinion of expert and is confirmatory in nature and not corroboratory except those observations of the medico-legal officers based on physical examination which serves as a corroboratory piece of evidence. In the present case, the medical evidence is entirely inconsistent with the ocular account therefore, it has denuded the ocular account of its credibility.

20. For what has been discussed above, this appeal is allowed in light of our short order of today, reproduced below:--- "We have heard the arguments of the learned ASC for the appellant as well as the learned Additional Prosecutor General on behalf of the State. For the reasons to follow separately, this appeal is allowed. The conviction & sentence awarded to the appellant are Set aside and he is ordered to be released forthwith if not required in any other criminal case."