ZAKIRULLAH and anothers vs THE STATE and 4 others
This criminal appeal challenges the conviction and sentence of the appellants recorded by the trial court under sections 302, 324, 148, and 149 of the Pakistan Penal Code. The prosecution case arose from an incident involving indiscriminate firing resulting in a murder and injuries. The core legal question was whether the conviction could be sustained when the eyewitnesses and the complainant made an outright departure from their initial police report regarding the specific roles of the accused, thereby compromising their integrity and credibility. The Peshawar High Court held that where ocular witnesses perjure themselves by shifting stances between the FIR and their statements in court, their testimony becomes unreliable and cannot form the basis of a capital conviction, even in the presence of corroborative weapon recoveries. The court laid down the principle that major contradictions and departures from the initial version by material witnesses render the prosecution evidence unsafe for maintaining a conviction.
- Can a conviction for murder be sustained when eyewitnesses make an outright departure in court from their initial version in the FIR?
- Does the principle of falsus in uno falsus in omnibus apply to criminal trials in Pakistan?
- Can weapon recovery alone form the basis of a conviction in the absence of reliable ocular testimony?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
' EJAZ AFZAL KHAN, J.---The version as disclosed in the F.I.R. Is that on the day of occurrence Noshad Ali, complainant, Shamraz Khan, deceased and Aziz Khan, injured P.W. Were sitting on a bench lying on the side of Bannu Kohat Road, that a Datsun Pickup came and stopped near them, that Zakirullah Nazirullah, appellants herein, Piao Khan, Rahim Khan and Murad Khan, acquitted co- accused, duly armed with their respective weaspons alighted there from and started indiscriminate firing which resulted in the death of the deceased then alive and injuries to Aziz Khan, P.W. And a passerby while the complainant escaped unhurt. The motive for the occurrence was previous blood feud. The incident was reported which culminated in the registration of a case against the appellants and their acquitted co-accused under sections 302/324/148/149, P.P.C. Vide F.I.R. No.79 dated 29-10-2003, Police Station, Domel.
2. On completion of investigation and arrest of the appellants, they were forwarded to the Court of the learned Additional Sessions Judge-V, Bannu for trial who on its conclusion sentenced appellant Zakirullah to undergo imprisonment for life under section 302(b) of the P.P.C. And to pay Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to undergo R.I. For one year, 5 years', R.I. Under section 324/34, P.P.C. And R.I. For one year under section 148, P.P.C. And sentenced appellant Nazirullah to R.I. For 10 years under section 302(c), P.P.C. And to pay Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to undergo R.I. For one year, 5 years' R.I. Under section 324, P.P.C. And one year's R.I. Under section 148 of the P.P.C. Vide judgment dated 22-2-2005, hence this appeal and criminal revision for enhancement of sentence which are disposed of by this single judgment.
3. It was argued by the learned counsel for the appellants that in the F.I.R. As many as 5 persons were charged for having fired effective shots at the deceased, the injured P.W. And a passerby but in the statements recorded in the Court an outright departure was made by assigning the role of firing effective shots only to the appellants, therefore, no reliance could be placed on the testimony of such witness while recording conviction in a case involving capital punishment. He next submitted that statement of the injured P.W. Too is not worthy of reliance when he also perjured himself by modifying the original version as set forth in his police statement.
4: As against that the learned counsel appearing on behalf of the State assisted by the learned counsel for the complainant, argued that though the charge was exaggerated in the F.I.R. But it will not militate against the veracity of the P. Ws. When they have charged only those in their statements recorded in the Court, who were actually responsible for enacting this tragedy therefore, interference with the impugned judgment on this score would be uncalled for, particularly when the principle of falsus in uno falsus in omni bus does not hold the field ever since the advent of 1970.
5. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
6. A perusal of the F.I.R. Would reveal that the complainant charged as many as five persons for having made indiscriminate firing resulting in the death of the deceased, and injuries to the P.W.
And a passerby. But he made an outright departure therefrom in his statement recorded in the Court by charging only the appellants for causing the death of the deceased and injuries to the P.W. And a passerby. The worst of it is that he owned the F.I.R. By affirming its contents to be correct while being examined-in-chief in the trial Court. The testimony of the injured P.W. Also stands on the same plank and pedestal who too made an outright departure from the original story by modifying it and dwindling the number of the assailants in his statement recorded in the Court.
7. Where the P.W.s furnishing the ocular account perjured themselves and compromised their integrity by making an outright departure from the original version, no reliance much less implicit can be placed on their testimony notwithstanding the alleged recovery of .222 bore assault rifle from the possession of the appellants, firstly because it can, at its best, be used as corroborative and not evidence of the charge and secondly because it appears to have been made in the circumstances which do not appeal to a prudent mind. Therefore, it will not be safe to maintain the conviction of the appellants on this quality of evidence in spite of its quantity.
8. For the reasons discussed above, this appeal is allowed, the conviction and sentence recorded by the learned trial Court are set aside and the appellants are acquitted of the charge. They be set free forthwith if not required in any other case.