KHALIFO ALIAS MUHAMMAD SIDDIQUE Versus STATE

1. SYED HAIDER ALI PIRZADA, J: ‑‑ These Criminal Appeals Nos. 119/90 and 120/90 and Confirmation Case No.7 of 1990 are from the judgment of learned IInd Additional Sessions Judge, Jacobabad whereby he, on 29‑5‑1990, while acquitting co‑accused Mst. Bakhtawar, convicted Khalifo alias Muhammad Siddique and Shamsuddin appellants under sections 302, P.P.C., 307, P.P.C. and section 353, P.P.C. Appellant Khalifo alias Muhammad Siddique has been sentenced to death and a fine of Rs.20,000 or in default of payment of .fine to suffer R.I. for six months under section 302, P.P.C.; R.I. for five years and a fine of Rs.5,000 or in default of payment of fine, to suffer 'further R.I. for six months under section 307, P.P.C. and R.I. for three years under section 353, P.P.C. Appellant Shamsuddin has been sentenced to rigorous imprisonment for life and to pay a fine of Rs.20,000 or in default of payment of fine, further R.I. for six months under section 302, P.P.C. R.I. for one year and fine of Rs.2,000 or in default of payment of fine, further R.I. for six months under section 307, P.P.C. and R.I. for one year under section 353, P.P.C. All the sentences of both the appellants were ordered to run consecutively. Out of the amount of fine of Rs.20,000 awarded to each appellant, 50% amount was ordered to be paid to the heirs of deceased to the terms of equal amount.

2. The prosecution case, in nutshell, is that on 16‑5‑1986 police party consisting of the complainant P.W. Shafqat Hussain Police Constable, P.C. Mir Muhammad, P.C. Muhammad Bachal headed by H.C. Abdul Haleem set out from police station Thul at 5‑00 p.m. for patrolling. While patrolling along the road leading to Unar when at about 6‑00 p.m. they reached near Dera of Pir Essan Shah they saw a car of cream colour coming from Unar side. H.C. Abdul Haleem asked them to take position and himself stood on the Katcha road with intention to. .stop the car and check it. Complainant and P.C. Muhammad Bachal took position on the northern side of the Katcha road whereas Mir Muhammad took position on the southern side of the road. H.C. Abdul Haleem indicated the driver of the car to stop the car and he stopped. They saw that four persons were sitting in the car. One driver and the other on front seat with the driver, one lady and another man were sitting on the rear seat of the car. The man on the front seat was armed with Klashnikov. The other man sitting on the rear seat was also armed with Klashnikov whereas the lady sitting on the rear seat was armed with a gun. The man sitting on the front seat fired burst from his Klashnikov at H.C. Abdul Haleem which hit him and he fell down. Then they also started firing. Klashnikov bullets hit P.C. Muhammad Bachal who also fell down. P.C. Mir Muhammad received gunshot injuries and fell down. In the meantime people from neighbouring village came rushing and firing. The man sitting in the front and the lady succeeded in running away in the jungle. The man sitting on the back seat of the car received bullet injuries and fell down and died. The driver also received injuries and he was caught at the spot. The faces of culprits lady and the man sitting on the front seat were open. The Klashnikov of the deceased culprit was also taken away by the culprits who ran away. Then they saw H.C. Abdul Haleem and one culprit lying dead. The driver disclosed his name to be Shamsuddin. He disclosed that the culprit lying dead was famous dacoit Sevo son of Jangi. He also disclosed name of absconding accused Khalifo Galo alias Chandio. He also disclosed the name of woman as Mst. Bakhtawar w/o Qadoo by caste Jafferi. Thereafter the complainant made the persons of village sit near the dead bodies of accused Sevo Bugti and H.C. Abdul Haleem and on car at the spot: One private Datsun came there and he managed to remove the injured P.C. Muhammad Bachal, Mir Muhammad and driver of the car in the Datsun to the police station. He stated that above‑named accused persons, due to stopping of car and enquiry started firing. Khalifo fired bursts of Klashnikov and caused the death of H.C. Haleem, and Sevo and Khalifo both fired bursts of Klashnikov at P.C. Mir Muhammad and P.C. Muhammad Bachal when they were discharging their duties and injured them with Klashnikov bursts. He lodged F.I.R. which was recorded by S.H.O. Deedar Hussain Manghi. S.H.O. Deedar Hussain Manghi went to the place of occurrence. He found two dead bodies, one of them of H.C. Abdul Haleem and the other of Sevo Bugti lying at the place of Wardat. He secured blood‑stained earth and sealed at the spot. There were 13 empty shells and one empty cartridge lying on the Wardat. He secured the same and also sealed them in separate parcels. There was Suzuki car also standing on the Wardat and its glasses of doors, windscreen and backside broken. There were also bags, one of rexine and the other of cloth, lying in the dicky of car. One bag containing loaded magazines of Klashnikov and the other containing veil of black colour and clothes. There was also a small leather bag containing chain of bullets but it was without bullets. He secured the car and bags with magazines and other property. Deceased Sevo Bughti had leather belt containing 85 China bullets., The Mashirnama of Wardat was produced as Exh.16. Then he prepared inquest report (Exh.12) of H.C. Abdul Haleem. He also prepared inquest report (Exh.17) of deceased Sevo. He prepared Mashirnama of injuries (Exh.19) on the person of P.C. Muhammad Bachal and PC Mir Muhammad and injured driver Shamsuddin. He arrested Shamsuddin vide Mashirnama of arrest in presence of H.C. Karimdad and H.C. Allah Dino. He .also prepared Mashirnama of dead body of P.C. Muhammad Bachal (Exh.21). He sent dead body of Abdul Haleem for post‑mortem examination to hospital. The appellants and acquitted accused Mst. Bakhtawar were sent up for Irial. Formal charge was framed against them on 10‑2‑1988 which was read over to the appellants who did not plead guilty and claimed to be tried. Consequently the prosecution tendered the evidence before the Court and in support of its case examined the following witnesses.

(1) P.W.1 (Exh.7) Dr. Muhammad Alam who examined injured persons P.C. Mir Muhammad and issued certificate Exh.8 and P.C. Muhammad Bachal and issued certificate Exh.7 and performed post mortem on the dead body of H.C. Abdul Haleem and produced post mortem notes as Exh.10 and also performed post‑mortem on the dead body of Muhammad Bachal and produced post‑mortem notes as Exh.11 and also examined injured Shamsuddin. He produced certificate as Exh.28.

(2) P.W.2, Exh.13 Nasrullah who is the Tapedar of the area and who prepared sketch of the place of occurrence. He produced sketch of Wardat as Exh.14.

(3) P.W.3, Exh.15, Allah Dino who is the eye‑witness.

(4) P.W.4 (Exh.23) Abdul Rehman who was Assistant Mukhtiarkar and T.C. M. at Thul who arranged identification test of accused Khalifo alias Muhammad Siddique. He produced Mashirnama of identification as Exh.24.

(5) P.W.5 (Exh.25) Shafqat Hussain who is complainant and eye‑witness He produced F.I.R. as Exh.26.

(6) P.W.6 (Exh.29) Dr. Asadullah who performed post‑mortem on the dead body of Sevo s/o Changi Bugti. He produced post‑mortem report as Exh.30.

(7) P.W.7 (Exh.31) Muhammad Hashim who was S.H.O., P.S. Tangwan who arrested Mst. Bakhtawar. He produced Mashirnama of arrest as Exh.32.

(8) P.W.8 (Exh.33) Israr Ahmed who was L.P.C. at Thul who arrested Khalifo alias Muhammad Siddique. He produced Mashirnama of arrest as Exh.34.

(9) P.W.9 (Exh.36) P.C. Mir Muhammad who is an eye‑witness.

(10) P.W. 10 A.S.I. Ghulam Haider who took injured Muhammad Bachal to hospital, Thul.

(11) P.W. 11 S.H.O. Thul police station who was incharge of the case. He produced chemical report as Exh.39.

3. Statement of appellant Shamsuddin was recorded under section 342, Cr.P.C. on 11‑12‑1989 which is on record as Exh.42 who stated that he used to ply taxi‑car and on the day of incident from village Karimabad one person hired his car upto there but in the way he was killed in an encounter with police. He denied the allegation that he was armed with guns and Klashnikov. He denied that he started firing at police party. He stated that he is innocent. The appellant Sharnsuddin also offered himself to be examined on oath for disproving the prosecution allegations and desired to examine Gul Hassan son of Misri as his defence witness.

4. The statement of appellant Khalifo alias Muhammad Siddique was also recorded under section 342, Cr.P.C. on 11‑12‑1989 which is on record as Exh.43. This appellant denied the prosecution allegations and submitted that he is innocent and was involved at the instance of S.H.O. Ghulam Rasool Sangi who was inimical to him and has set up all witnesses against him. He also submitted that his name is Muhammad Siddique and he has no second name of Khalifo. He is Chandio by caste and was never called as Golo Chandio. He is resident of village Dargahi Jakhrani, Thul and he has never lived in village Sher Ali Brohi. Appellant also offered himself to be examined on oath for disproving the prosecution allegations.

5. The learned trial Judge, while assessing the evidence on record and relying on ocular evidence; convicted the appellants as aforesaid. The present appeals are directed against the said judgment.

6. We have heard Mr. Azizullah K. Shaikh, learned counsel appearing for the appellants and Mr. Shaukat Zubedi, representing the State. We have been taken through the evidence on record by the learned counsel appearing for the appellants who has contended that the evidence on record is not sufficient to sustain the convictions as according to him, the ocular evidence was interested, unnatural and not reliable. Since so many persons had collected, yet none has been cited as witness or examined by the prosecution.

7. Mr. Shaukat Zubedi appearing for the State has also not supported the conviction. He has submitted that case of Shamsuddin was different from,‑. Muhammad Siddique. According to him, Shamsuddin was treated as prosecution witness and statement of Shamsuddin on oath has gone unchallenged. He submitted that arrest of Muhammad Siddique was illegal as, he was on bail.

8. We have gone through the evidence on the record. Our impression at the very, outset is that both the eye‑witnesses namely P.W. 5 P.C. Shafqat Hussain and P.W.9 P.C. Mir Muhammad had not seen the persons who were sitting in the car, their testimony stands falsified by other circumstances apparent from the record. In the very first instance, we cannot be oblivious of the fact that the first informant or complainant had named one Mst. Bakhtawar armed with gun as one of the passengers sitting on the rear seat with deceased Sevo. It is pertinent to mention that the learned trial Judge acquitted her. The record shows that P.W. Shafqat Hussain and P.C. Muhammad Bachal took` positions on the northern side of the Katcha road whereas P.W.9 Mir Muhammad took position on the southern side of the road.

9. H.C. Abdul Haleem indicated the driver of the car to stop and he stopped. He stated that the man the front Par of the car fired with Klashnikov which hit him (Abdul Haleem) on his chest and he fell down. Then; he P.C. Mir Muhammad and P.C. Muhammad Bachal started firing on car. Then the persons sitting on the back seat with Klashnikov and person sitting on front seat with Klashnikov fired bursts and woman also fired from her gun.

10. The presence of injuries on the person of P.W.9 Police Constable Mir Muhammad leaves no room for doubt to hold that the incident did take place, The presence of injuries on the person of this witness is, however, not sufficient by itself to prove that whatever 'he has testified is nothing but truth. Complainant Shafqat Hussain has testified the same facts which we have reproduced in the narrative part of this judgment and we need not repeat the same. He has been supported by P.W.9 Mir Muhammad. The evidence of these witnesses show that the police party consisting of the complainant P.W_ Shafqat Hussain, P.C. Mir Muhammad, P.C. Muhammad Bachal headed by H.C. Abdul Haleem set out from the police station Thul for patrolling and while patrolling along the road leading to Unar when at about 6‑00 p.m. they reached near Dera of Pir Eissan Shah, they saw a car of cream colour coating from Unar side. He (Abdul Haleein) asked them to take position and himself stood on the Katcha road with intention to step the car and check it. They saw two persons sitting in the car. The man on the front seat fired burst from his Klashnikov at H.C. Abdul Haleem which hit him and he fell down. Then they all started firing. Klashnikov bullets hit P.C. Muhammad Bachal who also fell down. P.C. Mir Muhammad received gunshot injuries and fell down. The evidence of these witnesses show that three persons in the police party sustained injuries. Out of three, Abdul Haleem and Muhammad Bachal died. One of the eye‑witnesses sustained injuries. This factor alone is not sufficient but the attending circumstances of this case are indicative that the prosecution has exaggerated the number of accused persons.

11. Again the learned IInd Additional Sessions Judge who had the occasion to see the demeanour of these witnesses did not believe them in respect of accused Mst. Bakhtawar who was given benefit of doubt and acquitted from the charge. If a witness has given false evidence on one part of the case or in respect of particular accused and he has been disbelieved to that extent, his evidence should not be believed on other points too. No doubt, the maxim falsus in uno, falsus in omnibus does not apply to conditions prevalent in this country. The salutary principles, therefore, on which the Court should work, is that in all such cases the evidence should be sifted carefully, grain separated from the chart and only that portion accepted which is found to be true and corroborated by independent evidence of a convincing character. We are fortified in our view by a judgment of Division Bench of this Court reported as Abdul Hamid and another v. The State (1985 PCr.L1 1992). The' case of Ghulam Sikandar and another v. Hamraz Khan and others reported in PLD 1985 SC 11, is also relevant on this point.

12. The statement of Mir Muhammad read in conjunction with the statement of complainant Shafqat has convinced us that they had not seen the car, because first they were in lying position, secondly there were sand dunes by the side of the Katcha road where they had taken positions. It is not possible to believe that both witnesses were in a position to see the persons who were sitting in the car. The prosecution has not taken us into confidence and, therefore, we are constrained to deduce that it was improbable on the part of the complainant and the eye‑witness to have seen how many persons were sitting in the car. Therefore, we are satisfied that the eye‑witnesses had not seen how many persons were sitting in the taxi.

13. Mr. Azizullah contended that there was absolutely no evidence on record to connect the appellants with the commission of the crime. His further submission was that Shamsuddin was driving a taxi and he was unarmed. There was no connection between the deceased Sevo and him. ‑This statement has gone unchallenged. D.W.1 has fully supported him. He also contended that Khalifo alias Muhammad Siddique was falsely implicated by the Investigation Officer. On this basis, the learned counsel submitted that the appellants may be acquitted for lack of evidence against them. Mr. Zubedi did not oppose the prayer of the learned counsel for the appellant.

14. In our view, the prosecution has miserably failed to bring home the guilt of the appellants. The evidence of these two eye‑witnesses does not inspire confidence and is not corroborated by any other unimpeachable source. The crime weapons were not recovered from them. Even the learned trial Court did not believe these two eye‑witnesses with regard to Mst. Bakhtawar.

15. It appears that appellant Muhammad Siddique was implicated falsely. It has come on record that Shamsuddin was driving the taxi which was hired by Sevo who was sitting on the front seat. It further appears that besides Sevo and taxi driver Shamsuddin, there were no other passengers in the taxi.

16. The upshot of the above discussion is that the prosecution has failed t prove any case against the appellants. Accordingly, we proceed to set aside the conviction and sentences of the appellants and acquit them by giving them the benefit of doubt.

17. These are the detailed reasons in support of our short order, dated 5‑12‑1990 whereby the appellants were acquitted and were set at liberty forthwith.

18. N.H.Q./K‑287/K Appeals accepted.