' MUNAWAR AHMED MIRZA, J.---1. Occurrence had taken place on 20th January, 1982 at 1-00 p.m .
In the house of complainant situated in Saleera Mohallah, Shandadkot at a distance of half kilometre eastern side of Police Station, Shandadkot. It is the case of prosecution that respondents
(i) Ghulam Rasul, (ii) Gul alias Gul Muhammad, (iii) Aziz alias Abdul Aziz and (iv) Hakim Ali alongwith convict Shaman and one Ali Gohar (who died during trial) armed with knives/Churas arrived at the house of complainant for avenging previous hostility on account of shelter provided to Mst. Bashiran. In persuance of said attack, complainant Allah Bakhsh suffered knife injuries two persons namely Shah Muhammad and Muhammad Amin sons of complainant instantaneously died on receiving wounds by sharp weapons. Soon after the incident, complainant Allah Bakhsh lodged F.I.R. With Police Station, Shandadkot. The convict Shaman was apprehended alongwith dagger on the spot whereas respondents and Ali Gohar (expired during the trial) managed to escape. Record reveals that respondents Ghulam Rasul and Gul Muhammad were arrested on 23rd January, 1982 whereas respondents Aziz and Hakim Ali were apprehended towards 21st May, 1993. After completion of investigation, concerned police submitted that challan before learned Additional Sessions Judge-II, Larkana.
2. At the commencement of proceedings, trial Court read out the charge to convict Shaman, deceased Ali Gohar and four respondents for jointly and with their common intention causing murder of Shah Muhammad and Muhammad Amin besides inflicting injuries to complainant. All the accused refuted the accusations. Prosecution then adduced ten witnesses and documents for establishing involvement of respondents and their companions for committing above-referred offences. Respondents and others in their respective statements denied the allegations levelled against them claiming innocence and false implication. Learned Additional Sessions Judge-II, Larkana on the appraisement of evidence found respondents and Shaman responsible for the murder of deceased Shah Muhammad and Muhammad Amin besides injuries to complainant and on conviction awarded them following sentences vide judgment, dated 19th July, 1992. Sixth accused namely Ali Gohar had expired during trial:--- S.No, Name of the accused Offence Punishment I.(i)Ghulam Rasul (ii)Gul alias Gul Muhammad 302, P .P.C.
(iii)Aziz alias Abdul Aziz (iv)Hakim Ali. Shaman II.-do- 148, P .P.C Rigorous imprisonment for one year each.
III.(i) Shaman.
(ii) Gul alias Gul Muhammad307, P .P.C. Rigorous imprisonment for one year Benefit of section 382-B, Cr .P.C. W as also allowed to them.
3. Feeling aggrieved from above conviction, and sentence the respondents had preferred Criminal Appeal No,207 of 1992 before High Court of SindhKarachi whereas convict Shaman challenged his conviction through Appeal No,203 of 1992. Both these matters were amalgamated and eventually decided by High Court of Sindh vide judgment, dated 17th January, 1994.
' It may be seen that Appeal No,207 of 1992 filed by respondents was allowed by setting aside their conviction and sentence, acquitted them of the charge whereas conviction and sentence of respondent Shaman was maintained. Complainant Allah Bux felt aggrieved from the acquittal of respondents and filed Petition for Leave to Appeal 14-K of 1994 (now registered as Criminal Appeal No,340 of 1994) before this Court, whereas Shaman filed Jail Petition No,53 of 1994 (now registered as Criminal Appeal No,343 of 1994) challenging his conviction. Since both these matters arose from same judgment, they were taken up together. Eventually, this Court on 29th August, 1994 granted leave to consider whether High Court has followed the principles and guidelines laid down for evaluation of evidence, under law. Operative portion is reproduced below:-- "Leave is granted in both the petitions to reappraise the evidence in order to find out, whether the High Court has followed the principles and guidelines laid down for evaluation of evidence according to law. Issue bailable warrants in the sum of Rs,20,000 with one surety each against first four respondents named in Cr.P.14-K of 1994, to be executed by the trial Court."
4. Mr. Noor-ud-Din Sarki, Advocate Supreme Court attacking propriety of impugned judgment relating to acquittal of respondents strenuously urged that learned High Court has not only misread the evidence but also greatly misexercised its jurisdiction by placing undue reliance on the deposition of P.W.10 (Muhammad Juman) who during cross-examination had unjustifiably given obliging statement for benefiting accused respondents. It was argued that eyewitnesses namely complainant Allah Bux (P.W.1), Muhammad Saleh (P.W.2), Din Muhammad (P.W.3) were natural witnesses being residents of the house where incident occurred. Besides, Ghulam Abbas P.W.5 a next neighbour who immediately arrived at the scene on hearing cries and was appraised by the complainant about details of incident. According to him, witnesses have fully corroborated each other and by implicating respondents for the commission of heinous offence of causing murder of Shah Muhammad and Muhammad Amin. It was further contended that multiple injuries appearing on the person of deceased and complainant, clearly suggests participation of more persons which otherwise has been effectively supported through ocular version.
5. Mr. Akhlaq Ahmed Siddiqui, learned Advocate-on-Record appearing for private respondents emphatically opposing the appeal argued that prosecution evidence was properly appreciated and assessed by Sindh High Court and conclusions concerning acquittal are based on sound and cogent reasons, therefore, by examining the principle enunciated in Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11, interference by this Court is not warranted. Learned counsel pointed out that several discrepancies and contradictions existed in the prosecution evidence which are sufficient for creating substantial doubt with regard to involvement of respondents for the commission of offences alleged against them.
6. Mr. Iqbal Raad, learned Additional Advocate-General supported the stand of complainant/appellant Allah Bakhsh and canvassed that preponderant evidence was available on record whereby guilty of respondents and their active participation in the commission of offence stood established. It was stressed that learned High Court has unjustiably drawn arbitrary inferences and conclusions contravening the established norms of justice in evaluation of evidence in criminal matters. According to learned counsel, background of incident and strong motive resulting in the sad incident was conspicuously reflected from material on record whereby direct involvement of respondents stood proved.
7. We have carefully perused the entire material on record in the light of above arguments. We feel that for determining extent of actual involvement and fixing responsibility of each accused towards commission of offences upkeeping with established norms of justice and evaluation of evidence, scope of appeal against it would be appropriate to give brief resume of ocular version and connected circumstances besides reference to testimony of P.W.10 Muhammad Juman.
8. It may be seen; that P.W.1 complainant Allah Bakhsh had deposed that deceased Shah Muhammad and his brother Muhammad Azim normally were employed in Textile Mills, Shandadkot and used to return late at night from their job. On the fateful night (20th January, 1982), aforementioned sons of complainant arrived at about 12-00 and took their meals. They were still chatting when six assailants armed with knives/Churas out of whom they identified (i) Ghulam Rasul, his father (ii) Gul alias Gul Muhammad; (iii) Aziz alias Abdul Aziz; (iv). Hakim All and (v) Ali Gohar (expired) during trial) entered the house. It is the case of prosecution that said culprits inflicted grievous injuries to the appellant Allah Bakhsh, deceased Shah Muhammad and deceased Muhammad Amin. However, abovenamed five accused managed to escape from the scene while sixth person was apprehended, who later disclosed his name to be Shaman. Complainant further deposed that accused persons had attacked and killed Shah Muhammad and Muhammad Amin because they provided shelter to Mst. Bashiran the divorced wife of Hakim Ali whom they declared 'Kari' (having illicit/immoral relations with some person).
' P.W.2 Muhammad Saleh maternal grandson of complainant and P.W.3 Din Muhammad third brother of deceased who are admittedly inmates of the house have fully corroborated the testimony of complainant Allah Bakhsh. P.W.5 Ghulam Abbas who is unquestionably resident of adjoining houses mentioned about awakening after hearing cries and immediately rushing to complainant's house where deceased Muhammad Amin and Shah Muhammad were lying in pool of blood. He also deposed about injuries caused to complainant and his narration of complete incident to him. Looking to cross-examination, it may be seen that testimony of these witnesses have not been shaken as regards material aspects.
' Dr. Ali Jan P.W.6 produced post-mortem reports of the deceased as Exhs.17-B and 17-C, medical certificate of Allah Bakhsh Exh.17-A and Medical Certificate of accused Shaman as Exh.17-D. Details of injuries caused to the person on the basis of post-mortem reports and medical certificates are mentioned below for ready reference:-- I. Allah Bux son of Abdul Latif iff injumd:
(1) Stab wound 3-1/2 x 1/2 c.Ms. x chest cavity deep on left side chest below nipple.
(2) Incised wound 1 x 1/2 c.Ms. x bone deep front of right middle finger. Nature of injuries: (1)
Grievous. (2) Simple.
II. Deceased Muhammad Amin son of Allah Bakhsh
(1) Incised wound 4 x 2 cans. x muscles deep on right side of neck, cutting the rt.Common carotid artery.
(2) Incised wound 3 x 1/2 c.Ms. x skin deep front of nose.
(3) Incised wound 4 x 1 c.Ms. x scalp deep on forehead.
(4) Incised wound 2 x 1/2 c.Ms. Skin deep back of left index finger.
(5) Incised wound 1 x 1/2 c.Ms. Skin deep on back of left hand.
(6) Incised wound 3 x 1/2 c.Ms. x chest cavity deep on back of left chest in the middle. III. Deceased Shah Muhammad son of Allah Bakhsh
(1) Incised wound 4 x 1 c.Ms. And chest cavity deept on left ches 3 c.m. Outside the nipple.
(2) Incised wound 8 x 4 c.Ms. x muscles deep on left walla.
(3). Incised wound 1/1-2 x 1-2 c.Ms. x muscles deep above upper lip left side. IV. Shaman son of Buxal
(1) Incised wound 4 x 1/2 c.Ms. Muscles deep on lat. Side of right thigh.
(2) Incised wound 2-1/2 x skin deept in lat. Side of left chest.
(3) Lacerated wound 4 x deep on top of head.
(4) Bruise on (paper torn) fore-arm.
' Nature of injuries: Simple.
9. On thorough scrutiny and minute analysis of entire evidence, it is apparent that deposition of complainant Allah Bakhsh, Saleh Muhammad P.W.2, Din Muhammad P.W.3, are quite consistent and corroborative with each other and could not be shattered despite extensive cross- examination. All these witnesses were quite natural and normally expected to be present at the relevant time. They have unequivocally implicated respondents for causing murder of both the deceased. Their ocular version is fully supported by medical evidence which establishes that deceased Shah Muhammad and Muhammad Amin were murdered on account of multiple injuries inflicted on their person by sharp weapons. The nature of injuries and accumulative effect of attending circumstances discloses that more than one person were responsible for attacking the complainant party. The testimony of complainant Allah Bakhsh and above-referred two witnesses is independently supported by P.W. Ghulam Abbas who is close door neighbour having absolutely no relationship with either side. He has narrated complete details about the incidence which were communicated to him immediately on his arrival at the scene. Learned Additional Sessions Judge- II, Larkana on exhaustive discussion and considering impact of ocular version coupled with circumstantial evidence supported by medical reports and documents had found all the respondents guilty for the offences alleged against them. However, conviction of respondents has been set aside by High Court.
10. Now scruitinizing the conflicting judgments of two Courts below in the light Of substantial material on record, it is necessary to re-evaluate the evidence. We are, however, conscious about social circumstances presently existing whereby superior Courts repeatedly ruled that principle of 'Falsus in uno and falsus in omnibus', cannot be made applicable for administering criminal justice in the Courts. Therefore, it has become imperative to sift "chaff from grain" so that essential portions of depositions which have greater probability and reliability in the peculiar circumstances could be believed or acted upon. For authority, reference can be had to observations made in (i)
The State v. Mushtaq Ahmad PLD 1973 SC 418 and (ii) Piran Dina v. State PLD 1976 SC 300.
11. Thus, in order to ascertain, as far possible maximum truth from the testimony of prosecution witnesses thorough comparison of their respective statements is required. Evidently, complainant who is father of deceased and other two eye-witnesses made categoric allegations against the respondents for actively participating in causing murder of his two sons namely deceased Shah Muhammad and Muhammad Amin. The complainant had received injuries by sharp weapon which suggests his presence and genuine possibility of seeing the culprits from close range.
Despite gruelling and extensive cross-examination, the testimony of complainant has not been shaken. Other eye-witnesses i.e, Saleh Muhammad P.W.2 and P.W.3 Din Muhammad are inmates of house. They have fully corroborated the accusations about actual involvement of respondents for causing knife injuries to aforementioned two deceased and withstood lengthy cross-examination.
Similarly P.W.5 Ghulam Abbas a next door neighbour who arrived at the scene immediately on hearing the cries has mentioned details of incident which were conveyed to him by complainant. It may be seen that complainant in his deposition has confirmed communication of information to said witness. Truthfulness and impartiality of this witness is apparent from the fact that without any exaggeration he gave only those events which were brought to his knowledge. Testimony of this witness also could not be impeached during lengthy cross-examination.
12. Now looking to medical evidence and multiple injuries caused to deceased and complainant which are reflected from post-mortem reports and medical certificate; indicate that larger number of persons had launched the attack. When medical evidence is judged in juxtaposition with ocular version, same appears to coincide and supplement each other. Thus, re-assessing the entire record it is quite apparent that strong natural and convincing evidence produced by the prosecution which directly implicates respondents with the commission of offence, has been unjustifiably ignored on irrelated factors preeminently based on unwarranted inferences and conjectures, thereby causing grave miscarriage of justice.
13. Next we may see that accused Ali Gohar was arrested within few days from incident to face the trial. He was real brother of respondents Hakim Ali and first cousin of Aziz alias Aziz Ahmad. The plea of ignorance about pendency of proceedings raised by respondents Hakim Ali and Abdul Aziz is far from believable. It is common place situation, that in the village set-up where normally members of family reside in close vicinity, rather within same compound, every incident is promptly circulated amongst all concerned. Abrupt absence of said two accused, subsequent to incident apart from arising strong suspicions has not been duly explained. It is, however, pertinent to notice that prosecution witnesses have mentioned about presence of all the respondents and their participation for committing the offence. In this background, on proper reappraisal, actual responsibility of the culprits needs to be elicited from evidence on record.
14. Looking to the accusations against respondents (i) Hakim Ali, (ii) Aziz and (iii) Ghulam Rasul, it is obvious that they were identified in electric light. Complainant had received injuries, therefore, his presence could not be disputed. His reliability is duly established from available material.
Apparently, an attempt was made to create doubt about veracity of complainant and other eye witnesses through P.W.10 Muhammad Juman. It is pertinent to note that P.W. Muhammad Juman is merely 'Mashir' regarding recovery of crime weapons at the instance of accused Ghulam Rasul; Gul alias Gul Muhammad and Ali Gohar who were arrested on or about 23rd January, 1982. There is only mention concerning visit of P.W. Muhammad Juman at place of incident but he was essentially not connected with investigation. Strangely enough while mentioning about recovery which otherwise has not been believed, this witness made gratuitous concessions by giving obliging statement primarily to create some doubt towards certain aspects of prosecution case.
Tenor of his expressions showed anxiety to help-out the defence. All witnesses connected with incident and who visited the scene of offence have expressly repelled and controverted non- existence of electricity in complainant's house. It is most surprising that learned Judges of the High Court while passing impugned judgment have based their findings on conjectures, surmises and on the basis of alleged delay in preparing 'Mashirnama'. The conclusions thus drawn by the Appellate Court in granting benefit of doubt to respondents are glaringly erroneous and fallacious.
15. Enquiry from learned counsel for complainant/appellant revealed that Gul alias Gul Muhammad was an old person aged about 70 years at the time of incident. Record is completely silent about any association or commonality of interest of respondent Gul Muhammad or his son Ghulam Rasul with alleged motive for attacking complainant side. Thus keeping in view old age of respondent Gul Muhammad, the assertions of his escaping despite chase by complainant party appears to be improbable and shrouded with doubt. We are commonly noticing growing tendency and general modus operandi of the prosecution agency and aggrieved party to give exaggerated version to magnify the incident and invariably making an attempt of involving from the opposite side few other persons like elders of family who according to them may weild influence. The evidence on record requires to be analysed, sifted and evaluated with great care and caution giving due weight to the probabilities of the case resolving real doubts in favour of the accused, uninfluenced from insignificant and trivial details. The material on record analysed in the light of abovenoted principles does show that benefit of doubt needs to be extended to Gul Muhammad and Ghulam Rasul respondents only as they had no direct motive to join the others in the attack launched against the complainant party. Hakim Ali, and Aziz had direct motive and also absconded after the incident whereas Gul Muhammad and Ghulam Rasul respondents remained present in their house and did not abscond. The case of these two respondents is distinguishable from the case of other three respondents. Most important question requiring determination would revolve around extent of responsibility against either respondent on the basis of available evidence. Since High Court has directed acquittal of respondents, therefore, greater caution is required for determining extent of involvement of each accused/respondents with exactitude; so that findings which are based on surmises and conjectures and display gross miscarriage of justice could be rectified through critical analysis of entire record.
16. It may be seen that the testimony of prosecution witnesses is consistent, confidence inspiring on material particulars and also stands corroborated from the medical evidence which shows that injuries caused on the three persons were not the work of only one accused, rather these were caused by more culprits. Learned Judges of the High Court gave undue importance and unnecessary weight to the testimony of Muhammad Juman P.W. An oblique suggestion concerning non-existence of electricity in the house of complainant, floated by this witness has been effectively rejected by other prosecution witnesses whenever questioned by the defence. We are of considered view that obliging testimony of P.W. Muhammad Juman lacks credibility and reliability. Learned Judges of High Court of Sindh have surprisingly ignored and discarded material evidence and doubted the genuineness of accusations merely on the basis of deliberate concessions in the statement of said unconnected witness. We strongly feel that learned Appellate Court while allowing benefit of doubt has banked upon flimsy and unrelated evidence thereby contravening the established norms of appraising the evidence. There is no doubt that principle and scope of appeal against acquittal has been elaborately discussed by this Court in Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11). However, it is quite apparent that in exceptional circumstances showing overwhelming proof against any of the acquitted accused, disclosing glaring misreading and indicating grave miscarriage of justice or showing perfunctory, wholly artificial or shocking conclusions which no reasonable person would perceive; the judgment can be legitimately interfered with. Eye-witnesses have implicated the respondents by assigning specific role. Their identification on account of attack from close range while inflicting knife injuries under the electricity light in the peculiar circumstances was quite possible.
17. Presently on proper scrutiny it is obvious that respondents Hakim Ali and Abdul Aziz had certainly direct motive and their active involvement for causing murder of deceased Shah Muhammad and Muhammad Amin has been substantially established through ocular account. The number and nature of injuries described in the medical evidence amply support the stand concerning participation of more than one culprit. Responsibility of said respondents namely Hakim Ali and Abdul Aziz is further supplemented from their abscondence as despite clear knowledge about incident, they have failed to effectively explain their long absence. However, considering absence of motive and other circumstantial evidence besides improbability about participation of respondent Gul alias Gul Muhammad son of Mehmood (respondent No,2), Ghulam Rasul his son (respondent No,1) and applying rule of abundant precaution, we feel inclined to uphold benefit of doubt granted in their favour by the High Court of Sindh and confirm acquittal of these two respondents.
18. Lastly adverting to case of appellant Shaman, it may be seen that he was apprehended on the spot alongwith blood-stained crime weapon. All the prosecution witnesses expressly corroborated each other about actual participation of appellant Shaman for attacking complainant party with common intention to cause death of Shah Muhammad and Muhammad Amin besides injuries to complainant. The testimony of eye-witnesses with regard to implication of appellant Shaman is confidence inspiring. Both the forums below keeping on the basis of preponderant ocular evidence coupled with red-handed apprehension and recovery of blood-stained crime weapon from his possession supported with medical reports including injuries received on his person coupled with strong circumstantial evidence have rightly found him guilty for offences alleged against him.
There is hardly any infirmity, glaring impropriety or legal defect in the appraisement of evidence so far it relates to convict appellant Shaman. Thus, conviction and sentence recorded against him by the Courts below having sound and cogent reasons does not warrant interference.
19. For the foregoing reasons, we are inclined to reject Criminal Appeal No,343-K of 1994 filed by Shaman son of Buxial. However, Criminal Appeal No,340-K of 1994 filed by complainant Allah Bakhsh against respondents is partly accepted. Conclusions in the impugned judgment pertaining to Gul alias Gul Muhammad son of Mehmood to obviate even remote possibility of doubt are upheld by allowing him benefit of doubt. Whereas impugned judgment as regards respondents (i)
Aziz alias Abdul Aziz son of Bangui; (ii) Hakim Ali son of Ghulam Haider is set aside and said accused persons having been found guilty for the offence under section 302/34, P.P.C. Are hereby convicted and each of them is sentenced to undergo rigorous imprisonment for life. Trial Court shall issue warrants in pursuance of this judgment against (i) Aziz alias Abdul Aziz son of Bangui (respondent No,3) and (ii) Hakim Ali son of Haider (respondent No,4) for undergoing remaining period of imprisonment. It may be mentioned that respondents now convicted shall be entitled to facility provided under section 382-B Cr.P.C. Both these appeals are disposed of in the above terms.