' MANZOOR HUSSAIN SIAL, J.---By this judgment we propose to dispose of the above-noted three appeals which arise out of common judgment dated 14-5-1991 of the Lahore High Court whereby Criminal Appeals Nos.473/88 and 658/88 directed against judgment dated 21-4-1988 of the Presiding Officer, Punjab Special Court for Speedy Trial No, IX, Gujranwala, were dismissed.
2. Irshad Ahmad s/o Khushi Muhammad and Mahfooz Ahmad s/o Muhammad Abdullah, appellants herein, along with Mehfooz and Kiffayat Ullah sons of Muhammad Aslam, were tried by the Presiding Officer, Punjab Special Court for Speedy Trial No, IX, Gujranwala, for the murder of one Muhammad Anwar and for making murderous assault on Mst. Bashiran Bibi, the complainant.
Irshad Ahmad appellant was convicted under section 302/34, P.P.C. And sentenced to death. He was also convicted under section 307/34, P.P.C. And under section 349, P.P.C. And sentenced separately to ten years' R.I. For each offence. In addition to these penalties he was also directed to pay fine. Mehfooz son of Abdullah, appellant, was convicted under section 302/34, P.P.C. And sentenced to imprisonment for life plus fine. He was convicted under section 307/34, P.P.C. As also under section 449/34, P.P.C. And sentenced to suffer R.I. For ten years and fine, for each offence. The learned trial Judge found that Mahfooz Ahmad s/o Aslam was attributed only proverbial Lalkara whereas Kifayatullah allegedly caused ineffective firing, extended benefit of doubt in their favour and acquitted them.
3. The convicts challenged the order of their convictions and sentences imposed upon them in appeal before the Lahore High Court, whereas the State and Mst. Bashiran Bibi the complainant also assailed the order of acquittal in respect of Mehfooz and Kifayatullah sons of Muhammad Aslam before the same Court and the same were dismissed by the Lahore High Court vide impugned judgment referred to above.
4. As per prosecution version on 13-10-1987 at 1-30 p.m. The occurrence took place in the house of Muhammad Anwar situated in village Sukh Nehr, Police Station Head Bambanawala, District Sialkot.
The F.I.R. Was lodged by Mst. Bashiran Bibi widow of Muhammad Anwar deceased on the same day at 6-30 a.m. At the Police Station located at a distance of four miles from the place of occurrence.
' The motive for the commission of the offence was that three years before the occurrence four persons namely Muhammad Sharif uncle, Muhammad Rafiq, Ghulam Rasool, first cousins of Muhammad Anwar deceased and one Khan Muhammad, their guest, were murdered by the appellants. Muhammad Anwar deceased being complainant in that case was prosecuting the case against them.
' On the fateful night, Muhammad Anwar deceased, Mst. Bashiran Bibi, his wife, Matloob Ahmad, his son, Mst. Bashiran Bibi, his sister, were sleeping in the house. Mst. Bashiran Bibi was preparing Hucca for her husband. It was moonlit night. Kiffayat Ullah (acquitted accused) armed with gun scaled over the compound wall of the house and entered the courtyard. At that time, Muhammad Anwar deceased was putting water in the Hucca from a nearly water-pump when Kiffayat Ullah fired shot. Incidentally it missed the target. Muhammad Anwar caught hold of Kiffayat Ullah. With the help of his wife, Kiffayat Ullah was being pushed into the room whereupon he raised alarm.
Mehfooz son of Muhammad Aslam, Irshad Ahmad armed with gun, Mehfooz Ahmad son of Muhammad Abdullah armed with dagger entered the courtyard by scaling over the wall. Mehfooz Ahmad, appellant, gave dagger blow to Mst. Bashiran Bibi, the complainant, which landed on her right hypochondrium. Irshad Ahmad fired a shot which hit Muhammad Anwar on his head and he fell down. The appellants and the other acquitted accused then made good their escape. The occurrence was witnessed besides Mst. Bashiran (P.W.8), the complainant, by Matloob Ahmad (P.W.9) and Mst. Bashiran Bibi, the sister of deceased (not produced). Muhammad Anwar succumbed to the injuries at the spot.
5. On the same day viz. 13-10-1987 Mst. Bashiran Bibi was medically examined by Lady Doctor Zahida Younas who found following injury on her person:-- "An incised wound muscle deep 3 x 1/2 c.m. Transverse in shape on outer side of right hypochondrium."
' The injury was described simple and caused by sharp-edged weapon.
' On the same day, Dr. Sajjad Nabi Sian (P.W.2) conducted the postmortem on the dead body of Muhammad Anwar and found following injuries on his-person:--
(1) Fue-arm lacerated wound with blackening, brain deep. 2 cm in diameter, with inverted margins, 8 cm above the left ear, on the left parietal bone of skull, underlined bone was fractured. It was a wound of entry.
(2) A lacerated wound 18 x 16 cm with inverted margins, brain deep on the right side on top of head.
Right margin of the wound was 4 cm. Above from the right ear. Underlined parietal temporal and occipital bone were fractured into pieces. Two metallic pieces were recovered from the brain matter, clotted blood was present in the cranial cavity. It was a wound of exit of injury No,1. Brain matter was coming out from the wound.
(3) Lacerated wound 4 x 1 cm skin deep. Verticle in direction in the lateral part of left hand. Heart was containing blood in both chambers.
' He opined that Muhammad Anwar died due to Injury No,1 which was sufficient to cause death in the ordinary course of nature.
' Muhammad Asghar S.H.O. Visited the place of occurrence. He collected 10 empty cartridges from the spot vide Exh. PG.
6. On 5-11-1987 Irshad Ahmad and Mehfooz Ahmad, appellants, were arrested and led to the recovery of the weapons of offence. Carried by them. Three empties collected from the place of occurrence matched with the gun carried by Irshad Ahmad.
7. At the trial, prosecution produced Mst. Bashiran Bibi (P.W.8), widow of the deceased, Matloob (P.W.9) his son to furnish ocular account of the occurrence. They deposed that the appellants trespassed into their house carrying deadly weapons. Muhammad Anwar deceased was shot dead by gun, fired by Irshad Ahmad appellant. Mst. Bashiran Bibi was injured by Mehfooz Ahmad appellant with dagger. Both of these witnesses proved the motive. Mst. Bashiran Bibi also testified the recovery of incriminating articles mentioned above.
8. Learned counsel for the appellants contended that the ocular account furnished by the eye- witnesses, who are related to the deceased and inimical towards the appellants, should not have been relied upon without independent corroboration on capital charge. The empty cartridges collected from the spot on 13-10-1987 were dispatched to the Forensic Science Laboratory on 7-11- 1987. It is contended that there is no explanation as to why the empty catridges could not have been sent to the Forensic Science Laboratory immediately after recovery thereof. The report of the expert that 3 empty cartridges matched with the gun P.8 recovered at the instance of Irshad Ahmad appellant, therefore, could not provide adequate corroboration. It was further contended that with the acquittal of the co-accused and the credibility of the eye-witnesses stood shaken. It was lastly argued that the occurrence had taken place at the dead of night and it was difficult for the eye-witnesses to identify the assailants. The conviction of the appellants on capital charge could not, therefore, be based on uncorroborated testimony of the interested witnesses.
9. The prosecution case mainly rests on the ocular evidence furnished by Mst. Bashiran Bibi widow of the deceased and Matloob Ahmad son of the deceased. The learned trial Judge as also the learned Judges in the High Court found their testimony substantially true and convicted the appellants. The question, which needs serious consideration in this case, is whether implicit reliance can be placed on the testimony of the interested witnesses to support the conviction of the appellants. Ordinarily, in such like situation the Court has to look for independent corroboration of the evidence on record. In the instant case, the investigating officer did not mention the crime empties recovered from the place of the occurrence in the inquest report and delayed the despatch thereof to the Forensic Science Laboratory. The matching of the empties with the gun
(PS) recovered at the instance of Irshad Ahmad has, therefore, little evidentiary value to provide the required standard of corroboration to the ocular evidence. It is, therefore, essential to scrutinise the ocular evidence with more care. The examination of the statement of Mst. Bashiran Bibi, widow of the deceased, shows that she made truthful statement. She being an inmate of the house was a natural witness. She had faithfully deposed whatever was witnessed by her. She previously knew the appellants being co-villagers. It was a moonlit night. She was hit from a close distance. It was, therefore, not difficult for her to identify the assailants. Her presence on the spot was established beyond doubt due to the stamp of injury on her person. It is difficult to believe that she made a false statement, to let off the real culprits and to substitute innocent persons in their place.
Undoubtedly, the substitution is a phenomenon of rare occurrence, because even the interested witnesses would not normally allow the real murderers of their relation to escape by involving innocent persons. In these circumstances, the evidence of Mst. Bashiran Bibi cannot be discarded merely because she was the widow of the deceased and inimical towards the appellants.
Furthermore, she was subjected to lengthy cross-examination with little beneficial result to the appellants. She lodged F.I.R. Without any loss of time and described the role played by the assailants in the commission of the crime.
' Matloob Ahmad (P.W.9), another eye-witness of the occurrence, is son of the deceased; his presence at night in his house cannot be doubted. He was also a natural witness. His testimony re- affirmed the deposition made by his mother on all material points. We are, therefore, unable to find any fault with the appraisal of the evidence as carried out by the learned trial Judge as well as the learned Judges in the High Court. The mere fact that the eyewitnesses were related with the deceased and were inimical towards the appellants would not be sufficient to reject their evidence, particularly when they had no motive to falsely implicate the appellants for the real culprits.
The acquittal of Mehfooz Ahmad and Kafayatullah sons of Muhammad Aslam does not detract the credibility of the ocular version provided by these witnesses. Mehfooz Ahmad accused was acquitted because only proverbial Lalkara was attributed to him, whereas Kifayatullah accused was acquitted as he was ascribed ineffective firing only. Even otherwise the maxim "falsus in uno falsus in omnibus" has all along been discarded by the superior Courts of this country. In order to reach the truth "the grain has to be sifted from the chaff" in each case in the light of its own particular facts. The medical evidence, so far as the nature of the injuries suffered by the deceased is concerned, also provided corroboration to the ocular evidence furnished by the natural witnesses. Furthermore, the appellants had strong motive to do away with the deceased as admittedly the appellants and the acquitted accused were charged for the previous murder on the basis of the F.I.R. Lodged by Muhammad Anwar deceased. He was prosecuting the case against them and the appellants committed the crime to eliminate him once for all.
10. In these circumstances, the guilt of Irshad Ahmad and Mehfooz Ahmad appellants is established beyond any doubt. They acted in distardly manner; therefore, they deserved no leniency in the matter of sentence. I would, therefore, maintain their convictions and sentences awarded to them by the learned trial Court and affirmed in appeal by the Lahore High court.
11. On re-appraisal of the evidence, I find no merit either, in the appeal filed by Mst. Bashiran Bibi, the complainant, against the acquitted accused. In the result, all the three appeals mentioned above merit dismissal and I order accordingly.
(Sd.)
Manroor Hussain Sial, J ' SAAD SAOOD JAN, J.--I have added a separate short note.
' ZIA MAHMOOD MIRZA, J.---I have added a separate short note.
' SAAD SAOOD JAN, J.---I agree with my learned brother that these appeals should be dismissed.
The conviction of Irshad Ahmad and Mehfooz son of Muhammad Abdullah is based upon the evidence of natural witnesses who, it is extremely unlikely, would make false substitution, particularly when they were in a position to recognize the real culprits. As regards the acquittal of Kafayatullah and Mehfooz Ahmad son of Aslam by the Courts below it was clearly based on considerations of abundant caution and not intended to be an adverse reflection on the quality of ocular testimony.
2. As regards the extension of the maxim falsus in uno falsus in omnibus to the appreciation of evidence I am not sure if it stands totally discharged. There can be no doubt that a witness who deliberately speaks a lie or withholds truth on a material fact which should be known to him seriously compromises his credibility and it would be unsafe to rely upon his testimony alone to convict an accused person. However, there is always a possibility that on certain other facts in issue he may have spoken the truth; but before a part of his statement can be acted upon there must be some indication in the ambient circumstances or in the other evidence on record which lends assurance that he could not have lied with regard to that part. But for such assurance his whole statement has to be treated as suspect and not worthy of credit.
(Sd.)
Saad Saood Jan, J.
ZIA MAHMOOD MIRZA, have had the benefit of going through the judgment of my brother Manzoor Hussain Sial, J. And separate short note added by my brother Saad Saood Jan, J. I quite agree that all the appeals be dismissed. No doubt, the two eye-witnesses, Mst. Bashiran P.W.8 and Matloob P.W.9 on whose testimony, conviction of appellants Irshad Ahmed and Mehfooz son of Muhammad Abdullah is based, were the wife and the son of the deceased and they were also inimically disposed towards the accused, but it has been ruled by this Court in a number of cases that mere relationship of an eye-witness with the deceased or his enmity with the accused is not a valid basis for rejecting his testimony. In such cases, the rule laid down is that the testimony of an interested/inimical witness should be subjected to closer scrutiny and its corroboration be also sought before it is accepted. In the present case, both the trial Court and the learned Judges of the High Court have properly scrutinized the evidence of these two eye-witnesses and found it reliable.
It has been observed that the occurrence having taken place at the dead of the night in the house of the deceased, his wife and his son being the inmates of the house, were the natural witnesses of the occurrence. Not only that, Mst. Bashiran, the wife of the deceased also received a dagger blow at the hands of Mehfooz appellant. Her presence and her claim of having seen the occurrence are, therefore, not open to any doubt. It is in evidence that it was a moonlit night and the accused were the co-villagers of the P.Ws. And thus known to them. In the circumstances, the witnesses could have no difficulty in identifying the assailants. It has also been observed by the trial Court and rightly so that it is not believable that the witnesses would substitute innocent persons for the real culprits. It has also been noted that the testimony of these two eye-witnesses finds corroboration from the motive stated by the prosecution and the medical evidence.
2. As regards the principle embodied in the maxim "falsus in uno falsus in omnibus" or to put it somewhat differently the rule that the integrity/credibility of a witness is indivisible, it has almost invariably been held by the superior Courts of this country that it has no universal application and the grain has to be sifted from the chaff in each case. Late Chief Justice Muhammad Munir in the case of Ghulam Muhammad v. Crown PLD 1951 Lah. 66 did not accept the contention that since the witnesses had involved at least two men who could not have taken any part in the murders, their evidence against the other accused must for that reason alone be rejected. It was observed that "the question of questions for the Judge in such cases is how to get at the truth with that degree of certainty as is always insisted upon in criminal cases and it seems that if you can do that, the result need not be determined by any general rule." Reference may also pertinently be made to Tawaib Khan and another v. The State PLD 1970 SC 13 wherein it was observed that 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 moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal application. 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 the light of its own particular circumstances". Again in Bakka v. The State 1977 SCM R 150 this Court observed that "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 endeavoured to separate the grain from the chaff'. Similar view was taken by this Court in Khairu and another v. The State 1981 SCM R 1136 wherein it was held that the rule "falsus in uno falsus in omnibus" "is not applicable for discarding the evidence of the witnesses as a whole and hence so much of the evidence which is credible can be accepted.' This view was reiterated in Ziaullah v. The State 1993 SCM R 155 holding that the rule "falsus in uno falsus in omnibus" is no longer applicable and not unoften the Court has to sift the grain from the chaff. Reference may usefully be made to Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 where this Court while examining the afore noted principle observed that a rule has since been developed in Pakistan that where a witness is found to have 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 a witness is corroborated by very strong and independent circumstances regarding the other, reliance might then be placed on the. Witness for convicting the other accused. It may, however, be observed that this rule is not strictly applicable to the present case as the Courts below have acquitted the two co-accused giving them benefit of doubt as a measure of abundant caution and in the interest of safe administration of criminal justice as one of them was attributed only a proverbial Lalkara while the other was alleged to have fired ineffectively. In the circumstances, I am of the view that the evidence of the two eye-witnesses in the instant case could not be said to have been tainted because of the acquittal of the co-accused. Be that as it may, the ocular testimony as noted above, was amply corroborated by a very strong motive and the medical evidence.
…and 35 more citing cases