' ASSADULLAH KHAN CHAMKANI, J.---This appeal calls in question the legality and propriety of judgment dated 15-12-2008, rendered by learned Additional Sessions Judge-I, Lakki Marwat, whereby he acquitted respondents-accused Liaq ur Rehman and Yousaf Khan in case F.I.R. No, 06 dated 18-5-2003, registered under sections 302/324/34, P.P.C. At Police Station Naurang, District Lakki Marwat.
2. On 18-5-2003 Salim Khan A.S.-I. (P.W.2), on receipt of information regarding shifting of injured to Civil Hospital Naurang, he along with police officials rushed there where at 1630 hours, Niazbullah complainant reported him in injured condition, that on the fateful day he alongwith his brother Nabi Ullah and cousin Syed Amin was present near nursery of Shehzada, opposite to Nauringe Sugar Mills in connection with irrigation of their land while Liaq ur Rehman, duly armed with Kalashnikov and Yousaf Khan duly armed with double barrel 12 bore shotgun, lmran and Irfan both armed with Kalashnikovs, their co-villagers were also present there for irrigating their land. At 1600 hours, on dispute of irrigation water, an altercation took place between them and in the meantime, accused opened fire at them with their respective weapons, with the intention to commit their Qatl-e-Amd, resultantly, his brother Nabiullah was hit and died on the spot, while he, his cousin Syed Amin and one Sanaullah, sustained firearms injuries. After the occurrence, the accused decamped from the spot. In addition to complainant, the occurrence is stated to have witnessed by his cousin Syed Amin. Motive behind the occurrence was altercation on dispute of irrigation water. Report of the complainant-injured was reduced into writing in the shape of murasila Exh.P.W.2/1, on the basis of which F.I.R Exh.PA was registered.
3. Salim Khan A.S.-I. (P.W.2), prepared the injury sheets of injured P.Ws. And injury sheet and inquest report of deceased Nabiullah. He referred the injured for medical examination to the doctor and the dead body of deceased for postmortem examination.
4. Dr. Muhammad Arif examined injured complainant Niazbullah and injured P.W. Syed Amin vide MLC reports Exh.P.W.1/1 and Exh.P.W.1/2. He also conducted autopsy on the dead body of deceased Nabiullah Khan and found the following injuries on his person:--
(1) One entry wound 2 x 2 cm in 6th intercostals space on the back of right side of chest. No charring marks. Corresponding cuts in the clothes observed.
(2) One exit wound on 10th intercostals aspect of right side of chest, size 4x4 cm. Corresponding cut marks observed on clothes.
(3) One entry wound 1 x 1 cm on the left interial axilary fold, no charring marks, corresponding cut present.
(4) One exit wound 2 x 2 on the sternum at the level of 3rd inter costal space rib.
(5) An entry wound 1 x 1 cm on the upper end of left upper arm with corresponding exit wound on the medial aspect of left upper arm, size 2x 2 cm, the same projectile had made another entry wound on the posterior axillary fold, size 2 x 2 cm, which has made another exit wound 4 x 4" on the anterior aspect of right chest just above the right nipple. No charring marks, corresponding cut marks present.
(6) One entry wound on the lateral aspect of right elbow joint with corresponding exit wound in the right joint with corresponding exit wound in the right cubital fossa, size of entry wound 2 x 2 cm, exit wound 4x 4. No charring marks, corresponding cut present.
(7) One entry wound on the left posterior auricular area with corresponding exit wound in the right orbit, shuttering the orbit completely. Size of entry wound is lx 1 cm. Exit wound 4 x 4"/
(8) One entry wound 2 x 2 cm on the anterior lateral aspect of right thigh with corresponding exit wound on the anterior middle aspect of right thigh, size 5 x 5 cm. No charring marks, corresponding cut present.
(9) Four graze wound on varying size on the anterior aspect of right leg. No charring marks corresponding cut marks present. Probable time between injury and death has been given by the medical officer as 2-5 minutes, while between death and postmortem as about 02 hours.
According to opinion of the doctor the death of the deceased was caused due to injuries to his brain, heart, lungs, due to firearm injuries.
5. Initially, accused Irfanullah and Imranullah were arrested and on completion of investigation, both of them being juvenile, challan under the Juvenile Justice System Ordinance, was submitted against them before the learned Judge juvenile Court Lakki Marwat, where they were tried and ultimately acquitted vide judgment dated 9-3-2007. We deem it necessary to mention here that the complainant has also filed separate Cr.A. No,22-8/2007, titled, "Niazbullah v. Imran Ullah and others" against their acquittal which is also fixed today.
6. The present respondents/accused by then were absconding. On their arrest and completion of investigation, supplementary challan was submitted against them before the trial Court/Additional Sessions Judge-I, Lakki Marwat where both the respondents/accused Liaq ur Rehman and Yousaf Khan were charge sheeted to which they pleaded not guilty and claimed trial. In order to bring home the guilt of respondents/accused, prosecution examined twelve witnesses. After close of the prosecution evidence, statements of the accused/respondents were recorded under section 342, Cr.P.C. Wherein they denied the prosecution allegations and professed their innocence. They, however, declined to be examined on oath under section 340(2), Cr,P.C. As their own witnesses or to produce evidence in defence. One Zaitullah,, the father of injured Sanaullah has been examined as CW.1 on the written request of defence. On conclusion of trial, the learned trial Court, after hearing both the sides, acquitted the respondents/ accused, hence, this appeal.
7. Learned counsel for the appellant/ complainant argued that both the respondents/accused are directly charged with specific role of effective firing in a broad daylight occurrence; that the occurrence has been reported with promptitude; that the accused being co-villagers of the complainant were well known to him and before the incident there was an altercation between the parties, therefore, the question of mistaken identity, deliberation and consultation does not arise; that the eye-witnesses who have the stamps of injuries on their persons have fully established their presence and commission of the offence by the respondents/accused through cogent and confidence inspiring evidence and the prosecution has failed to create any dent in their testimony; that the ocular account is fully corroborated by circumstantial evidence in the shape of recovery of bloodstained earth from the places of deceased and injured, recovery of crime empties from the places of the accused/respondents coupled with medical evidence; that motive has been proved.
He argued that all these material pieces of evidence has been over sighted by the learned trial Court, as a consequence whereof, reached to a wrong conclusion by acquitting the respondents/accused, hence, the impugned judgment is liable to be reversed.
8. Learned Addl. A.G. Adopted the arguments of the learned counsel for the complainant/appellant.
9. Conversely, learned counsel for the respondents/accused argued that the statements of the alleged eye-witnesses are full of contradictions and discrepancies on material particulars of the occurrence; that no instruments used for the purpose of irrigation has been recovered from the spot by the I.O. That motive has not been established; that the case has been registered after conducting preliminary investigation; that prosecution case is pregnant of doubts and the learned trial Court has rightly extended the benefit of doubts to the respondents/accused by acquitting them. He sought dismissal of the appeal.
10. We have given our anxious consideration to the respective arguments of the learned counsel for the parties and perused the record with their valuable assistance.
11. The ocular account of the incident has been furnished by Niazbullah injured complainant who has been examined as P.W.9. Similarly, the other eye-witness who also sustained firearms injuries on his person is Syed Amin and he has been examined as P.W.10. The injured complainant in his examination-in-chief reiterated the same story as set forth by him in his initial report. Injured Syed Amin (P.W.10) fully supported the statement of injured complainant on each and every material aspect of the occurrence. Both the witnesses have been subjected to lengthy and searching cross- examination by the defence but no material contradiction could be brought in their testimony which may be beneficial for the defence. However, both the eye-witnesses have given general role of firing to all the four accused without attributing the fatal shot to any one of them but the role of effective firing shot has been clarified by Zaitullah Khan, who has been examined as CW.1. This person is an independent witness not related to any of the parties. In his cross-examination he admitted his statement recorded in the trial of juvenile co-accused Irfanullah and Imranullah on 27-1-2007, to be correct and that it has been correctly recorded that his son injured Sanaullah sustained injuries at the hands respondents/accused. The eye-witnesses though related to deceased yet not having any reason to implicate the respondents/accused falsely. Both are bearing the stamps of injuries received in course of the same incident. The incident has taken place in broad daylight and the eye-witnesses had full opportunity of observing the whole incident.
12. It is pertinent to mention here that juvenile co-accused Irfanullah and Imranullah have been tried earlier than the accused/respondents and ultimately acquitted. As manifest from the initial report one Sanaullah the son of Zaitullah has also sustained firearm injuries in the occurrence. As stated earlier that eyewitnesses have not attributed the fatal shots to any of the four accused, however, the effective firing of the accused/respondents have been clarified by Zaitullah Khan, who had been examined as C.W.2 in the earlier trial of juvenile co-accused wherein he in his examination-in-chief stated that he heard report of fire shots, raised his head and saw Liaq ur Rehman and Yousaf Khan firing with their respective weapons, with which his son Sanaullah Khan also sustained injuries. This version of CW Zaitullah finds support and corroboration from circumstantial evidence in the shape of recovery of crime empties and medical evidence. Site plan, no doubt is not a substantive piece of evidence, but being the first reflection of the spot indicate or point out by the eye-witnesses furnishes a panoramic view of the occurrence to scrutinize the evidence, tendered at the trial by the prosecution witnesses. Perusal of the site plan reveals that 14 empties of 7:62 bore, two card boards of .12 bore shotgun, one bullet along with cover of 7.62 bore and one pellet of .12 bore have been recovered and taken into possession by the I.O. During spot inspection vide recovery memo Exh.P.W.1/1 and Exh.P.W.1/3. Perusal of report of the complainant depicts that respondent-accused Liaq ur Rehman has been shown armed with Kalashnikove and accused Yousaf Khan with double barrel shotgun, and have used their respective weapons in the commission of offence. Thus, in light of statement of the eye-witnesses and Zaitullah CW coupled with recovery of crime empties of 7.62 bore and that of .12 bore, the participation of the accused/respondents in the occurrence has been proved up to the hilt. The factum of commission of the offence by respondents/accused only, further got support from the medical evidence furnished by Dr. Muhammad Arif (P.W.1), who examined the injured P.Ws. And conducted autopsy on the dead body of the deceased. The dimensions of entry wounds found on the person of the deceased is either 2 x 2 c.m or 1 x 1 cm and exit wounds with 4 x 4 cm and 2 x 2". In cross-examination the medical officer deposed that it is incorrect that a bullet cannot cause an injury of 4 x 4". He further deposed that he cannot rebut the suggestion that injury No,1 on the person of Syed Amin is caused with the bunch of pellets fired from .12 bore shot gun. He stated that injury No,1 size 1 x 1 cm on the person of injured Niazbullah can be caused by a pellet. He admitted it correct that sizes of the injuries caused by Kalashnikov, pistol and pellet, are different. The dimension of the injuries on the person of the deceased and injured coupled with the statement of medical officer, clearly prove that the deceased sustained injuries as a result of two types of weapons i,e, the result of 7.62 bore and 12 bore. Similar, is the position of injuries on the person of injured P.Ws.
14(sic) So the testimony of the eye-10 witness can on the principles of sifting the grain from the chaff, can be used against the respondents/accused, on the basis whereof conviction can be recorded. It is settled by the Hon'ble superior Court that by now the principle of falsus in uno falsus in omnibus, has been done away with. Rather the Courts while appreciating evidence, apply the principle of sifting the grain from the chaff. This principle has been laid down by the apex Court in case titled, "Tawaib Khan and another v. The State" (PLD 1970 Supreme Court 13) in the following words:-- "The maxim 'falsus in uno falsus in omnibus" has all along been discarded by the Courts in this country. Similarly, the rule that the integrity of a witness is indivisible, despite its normal virtue has not been endorsed by the superior Courts of this country without reservation and cannot be accepted as one of universal applications. In the last analysis, as stated in some of the eminent judicial decisions, "the grain has to be sifted from the chaff" in each case, in light of its own particular circumstances."
This principle has been reiterated by the apex Court in case titled, "Bakka v. The State" (1977 SCM R 150), as follow:-- "The principle falsus in uno falsus in omnibus has long since ceased to be applied by the Courts in this country, and they have always endeavored to separate the grain from the chaff".
Again the same principle has been observed by the Hon'ble Supreme Court in plethora of cases, some of which are referred as titled, "Muhammad Haleem and G. Safdar Shah. JJ Khairu and another v. The State (1981 SCM R 1136), "Ghulam Sikandar and another v. Mamaraz Khan and others"
(PLD 1985 Supreme Court 11), "Irshad Ahmad v. The State" (PLD 1996 Supreme Court 138), "Sarfaraz alias Sappi and 2 others v. The State" (2000 SCM R 1758) and "Ziaullah v. The State" (1993 SCM R 155).
15. From the bare reading of the judgments (supra), what can be gathered is that if the Cowls found that a witness has falsely implicated one accused person ordinarily he would not be relied upon with regard to the other accused in the same occurrence, but if the testimony of such witness is corroborated by very strong and independent circumstances regarding the other, then reliance can be,placed on the same witness for convicting the other accused.
16. In the instant case, the ocular account of the prosecution witnesses get strong corroboration from the circumstantial evidence as discussed earlier i,e, recovery of crime empties of 7.62 bore and that of .12 bore, and both these weapons have been attributed to the respondents/accused.
Similarly, the medical evidence in the shape of medico legal report of the injured and autopsy of the deceased strongly prove the participation and guilt of the respondents/accused.
17. Besides, both the respondents/ accused soon after the occurrence went into hiding and remained fugitive from law for considerable period for which they have not furnished any explanation, much less plausible one, thus abscondence being a relevant fact which can be used as a corroborative piece of evidence, can be read along with substantive piece of evidence. Thus, "abscondence of the respondents/accused is another circumstance which prove the guilty conscious of the respondent/accused.
18. No doubt, as per the dictum of the Hon'ble superior Courts, Court sitting in appeal against acquittal must be slow in reversing the judgment of acquittal as scope of appeal against acquittal is considerably narrow and limited but the findings of acquittal can be disturbed if these are found arbitrary fanciful and capricious on the face of it or is the result of bare misreading or non-reading of any material evidence or H there has been complete misreading of evidence leading to miscarriage of justice. Reliance placed on case titled, "The State through Advocate-General N.
W.F.P. Peshawar v. Hamayoun and thers" (2007 SCM R 1417). In the instant case, the learned trial Court has totally over looked the material evidence ocular as well as circumstantial, which proves the complicity and guilt of the respondents/accused and based its findings on conjectures and surmises unsupported by the evidence, therefore, the impugned judgment being the result of misreading and non-reading of evidence leading to miscarriage of justice, is liable to be set aside.
19. In light of the above discussion, the prosecution has successfully proved the guilt of respondents/accused Liaq ur Rehman and Yousaf Khan up to the hilt through cogent and confidence inspiring evidence that they have committed the murder of deceased Nabiullah, attempted at the lives of injured P. Ws. And caused them firearm injuries. Now the question would be as to what would be the quantum of sentence to meet the ends of justice. Admittedly, no previous motive has been alleged by the prosecution. The occurrence took place on irrigation water in the spur of moment without any pre-plan, therefore, we do not deem it appropriate to award the maximum sentence of death to the respondents/accused rather life imprisonment would be the appropriate punishment to meet the ends of justice to the extent of murder of deceased Nabi Ullah and compensation of Rs,1,00,000 to be paid by each of the respondents/accused to LRs of the deceased within the meaning of section 544-A, Cr.P.C.
Recoverable as arrears of land revenue. Consequently accused/respondents Liaq-ur-Rehman and Yousaf Khan are convicted under section 302(b)/34, P.P.C., and sentenced to imprisonment for life each and to pay Rs,1,00,000 as compensation within the meaning of section 544-A, Cr.P.C. To the legal heirs of the deceased Nabiullah which shall be recoverable as arrears of land revenue and in default thereof to undergo one year S.I. Each further. They are further convicted under section 324/34, P.P.C., and sentenced to ten years each with fine Rs,50000 or in default thereof to undergo six months S.I., each, further. They are further convicted under section 337-A(i), P.P.C. And sentenced to two years' R.I. With payment of Daman amounting to Rs,10,000 each to the complainant Niazbullah and Syed Amin and in case of non-payment of Daman, the convict shall be kept in jail and be dealt with in the manner, as sentenced to simple imprisonment unless, payment of Daman, in case F.I.R No, 106 dated 18-5-2003 under sections 302/324/34, P.P.C., of Police Station Serai Naurang. All the sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. Be extended to the respondents/convicts.
20. These are the detailed reasons of our short order of even date, which is reproduced as under:-- "For the reasons to be recorded later on, the instant Criminal Appeal No, 30-B of 2009, titled "Niazbullah and others v. Liaqur Rehman and others" is accepted, the impugned judgment of the trial Court dated 15-12-2008, is set aside, and consequently accused/ respondents Liaq-ur- Rehman and Yousaf Khan are convicted under section 302(b)/34, P.P.C., and sentenced to imprisonment for life each and to pay Rs,1,00,000 as compensation within the meaning of section 544-A, Cr.P.C. to the legal heirs of the deceased Nabiullah which shall be recoverable as arrears of land revenue and in default thereof to undergo one year S.I. Each further. They are further convicted under section 324/34, P.P. C . , and sentenced to ten years RI, each with fine Rs,50000 or in default thereof to undergo six months' S.I., each, further. They are further convicted under section 337-A(i), P.P.C. And sentenced to two years' R.I. With payment of Daman amounting to Rs,10,000 each to the complainant Niazbullah and Syed Amin and in case of non-payment of Daman, the convict shall be kept in jail and be dealt with in the manner, as sentenced to simple imprisonment unless, payment of Daman, in case F.I.R No, 106 dated 18-5-2003 under sections 302/ 324/34, P.P.C., of Police. Station Serai Naurang. All the sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. Be extended to the respondents/ convicts. Accused/Convicts are on bail, their bail bonds stand cancelled and their sureties are absolved from the liabilities of bail bonds. The accused/convicts are taken into custody and sent to Central Prison for serving their sentences.