UMER DRAZ Versus State

ISHTIAQ IBRAHIM, J.--- The appellant, Umar Daraz along with co-accused Asghar, Munir, Akbar, Anwar, Barkhurdar and Gulzar, was tried by the learned Sessions Judge, Chiniot ("Trial Court") in case FIR No. 473 dated 27.08.2010, registered under Sections 302, 109, 148, and 149 of the Pakistan Penal Code, 1860 ("P.P.C.") at Police Station Bhowana, District Chiniot for committing the murder of Ghulam Yasin deceased. Upon conclusion of the trial vide judgment dated 11.12.2013, all the co-accused were acquitted of the charge whereas the appellant was convicted under Section 302(b), P.P.C. and sentenced to death. He was further directed to pay Rs.200,000/- as compensation to the legal heirs of the deceased in terms of Section 544-A of the Code of Criminal Procedure, 1898 ("Code") , and in default thereof, to undergo six months' simple imprisonment. In addition, the appellant was also convicted under Section 452, P.P.C. and sentenced to seven years' rigorous mprisonment along with a fine of Rs.50,000/-, and in default of payment of fine, to further undergo four months' simple imprisonment.

2. The petitioner-convict challenged his conviction and sentence before the Lahore High Court, Lahore ("High Court") . The learned High Court while deciding the appeal, set-aside the conviction and sentence awarded to the petitioner under Section 452, P.P.C. However, his conviction under Section 302(b), P.P.C. was maintained. The sentence of death was modified to imprisonment for life. Consequently, the Murder Reference forwarded by the Trial Court under Section 374, Cr.P.C. was answered in the negative vide judgment dated 14.03.2017 ("impugned judgment") .

3. Feeling aggrieved by the impugned judgment passed the High Court, the petitioner-convict filed Jail Petition No. 279 of 2017 before this Court. Leave to appeal was granted through the following order dated 21.01.2021.

"Learned counsel for the petitioner contends that six co-accused, namely, Asghar, Munir, Akbar, Anwar, Barkhurdar and Gulzar were indicted along with petitioner to face trial; that on conclusion of trial, learned trial Court acquitted all of them except petitioner and sentenced him to death; that the learned High Court while dismissing criminal appeal of petitioner converted his sentence of death into imprisonment for life; that the role of one of the acquitted co-accused, namely, Asghar was similar to that of the petitioner as allegation against Asghar was also of causing a hatchet blow on the head of deceased Ghulam Yasin; that though appeal against acquittal of co-accused was filed by the complainant before the learned High Court, but the same was dismissed as having not been pressed and no further petition has been filed against that acquittal; that there is no distinguishing feature between the case of acquitted co-accused Asghar and that of petitioner inasmuch as motive has not been believed by the learned High Court in Para 16 of the impugned judgment, whereas recovery of hatchet on the pointation of the petitioner has been declared to be inconsequential by the learned Appellate Court in para 17 of the impugned judgment.

The contentions raised need consideration. Therefore, leave to appeal is granted in the instant jail petition to reappraise entire evidence available on record for safe administration of justice."

4. The prosecution's case, as set forth in the First Information Report ("FIR") , is that on 27.08.2010, the complainant Muhammad Bakhsh (PW.6) was present in his house along with Ghulam Yasin deceased and Muhammad Yousaf when at about 4:30 p.m., the appellant-convict Umar Daraz, armed with a hatchet, accompanied by co-accused Asghar, armed with an axe, Akbar, Anwar and Munir, all armed with sticks ( sotas ) and Barkhurdar, armed with a hatchet (all acquitted), forcibly entered the house of the complainant. Appellant-convict Umar Daraz, raised a lalkara declaring that Ghulam Yasin deceased should be taught a lesson for having lodged a criminal case against them. All the accused apprehended the deceased, dragged him out of the house and issued threats that anyone who dared to intervene would be killed. Thereafter, the appellant-convict inflicted an axe on the head of the deceased and then by co-accused Asghar which landed on the right-side head of the deceased. At the time of the attack, the deceased was caught hold by acquitted co-accused Munir, Akbar and Anwar while co-accused Barkhurdar continued raising lalkara . Upon hearing the hue and cry, several people from the locality attracted to the crime spot, whereupon the accused fled. Ghulam Yasin was shifted in an injured condition to Civil Hospital, Bhowana, where he succumbed to the injuries. The motive attributed to the occurrence was that the deceased had previously lodged FIR No. 472/2010 under Sections 354 and 452 P.P.C. at Police Station Bhowana against the petitioner-convict Umar Daraz and co-accused Asghar etc. It was alleged in the FIR that due to this prior enmity and on the instigation and abetment of co-accused Gulzar, the present incident was committed. Upon receiving information of the occurrence, the police reached the hospital, where the complainant narrated the incident to Muzaffar Ali, SI, through a written application (Exh. PB).

5. On arrest of all the accused including the appellant-convict, challan was submitted against them before the Trial Court. After facing regular trial, all the accused except the appellant was convicted and sentenced by the trial Court under sections 302(b) and 452 P.P.C. The High Court, however, setting aside the conviction of the appellant under section 452, P.P.C., maintained his conviction under section 302(b), P.P.C., however, altered his sentence from death to imprisonment for life.

6. We have heard the arguments of learned counsel for the parties and the learned Additional Prosecutor General, Punjab, appearing on behalf of the State and perused the record, evidence and the impugned judgment with their able assistance.

7. We have noted that the complainant Muhammad Bakhsh (PW.6) nominated six accused in the FIR, including the appellant-convict, assigning them specific and distinct roles in the alleged occurrence. The appellant-convict Umar Daraz and co-accused Asghar were attributed the role of inflicting hatchet and axe blows, respectively, on the head of the Ghulam Yasin deceased. Co-accused Munir, Akbar and Anwar were assigned the role of catching hold of the deceased while co-accused Barkhurdar was alleged to have raised lalkaras . Co-accused Gulzar was charged for abetment of the crime. It is an admitted position that all the co-accused including Asghar, whose role was identical to that of the appellant, were acquitted by the learned Trial Court. Accused Asghar was specifically assigned the role of giving axe blow on right-side head of the deceased. Dr. Muhammad Rahmatullah (PW.2), who conducted autopsy on the dead body of the deceased, noticed an incised wound of 11 cm 2.5 cm on right side head and right front hair margin of the deceased. According to him the under lying skull bone of the deceased was fractured due to said injury and brain matter was coming. The upper eye lid of right eye of the deceased was blackened due to accumulation of blood due to the said injury. It is to be noted that appellant was assigned hatchet blow on the top of head of the deceased. As per postmortem report an incised wound of 10.3 cm 2 cm was noticed by the doctor on top of head of the deceased, as a result, the under lying skull bone was fractured. According to opinion of the medical officer (PW.2), both the above referred injuries individually and collectively were sufficient the cause of death of the deceased. What we meant to say is that the injury attributed to acquitted co-accused Asghar was bigger in size than the injury assigned to the appellant, but co-accused Asghar was acquitted by the Trial Court. Though, the complainant did file an appeal against the acquittal of co-accused including accused Asghar before the High Court, but the same was dismissed as withdrawn and in this way the findings of acquittal have attained finality. It is a matter of record that the learned Courts below, on the very same set of evidence furnished by complainant Muhammad Bakhsh (PW.6) and Muhammad Saleem (PW.7), the alleged eye-witnesses, which was disbelieved in respect of the acquitted co-accused, particularly, co-accused Asghar proceeded to convict the appellant without referring to the evidence so as to distinguish the role of the appellant from that of co-accused Asghar. The conviction of the appellant was primarily based on the testimony of the above named alleged eye-witnesses along with the supporting medical evidence. The recovery of the hatchet at the instance of the appellant was found to be devoid of evidentiary value, as the same was not stained with any blood. Similarly, the alleged motive, based on a previously registered FIR by the deceased, was also disbelieved by the Courts below.

8. A critical evaluation of the evidence on record further reveals significant inconsistencies and omissions which cast serious doubt on the veracity of the prosecution's case. The complainant, Muhammad Bakhsh (PW.6), is the real father of the deceased. However, in his initial version recorded in the FIR, the complainant did not mention the presence of Muhammad Saleem (PW.7), Mst. Naseem Bibi and Mst. Jannat Bibi at the spot at the time of occurrence. Later, the above-named persons were not only introduced as eye-witnesses of the occurrence but also alleged to have sustained injuries in the occurrence. More importantly, both the above-named female witnesses of the family of the complainant were abandoned by the prosecution without furnishing any cogent or justifiable reason. The occurrence took place on 27.08.2010, but astonishingly, Muhammad Saleem (PW.7) was medically examined on 14.09.2010, after two weeks of the occurrence by Dr. Muhammad Rehmat Ullah (PW.5), who opined that the injury sustained by PW Muhammad Saleem was caused with a blunt weapon and within a range of 01 to 3 weeks. No explanation was offered by PW Muhammad Saleem for this unexplained delay in seeking medical examination. Similarly, the complainant also failed to explain why he omitted the names of the above alleged eye-witnesses in his FIR if they were genuinely present and sustained injuries during the incident. The non-production of the two female PWs, who are close family members of the complainant party and the unexplained silence about their alleged injuries, in our view, amounts to withholding of the best available evidence. In such circumstances, an adverse inference, in terms of Article 129(g) of the Qanun-e-Shahadat Order, 1984, is to be drawn against the prosecution. Reference in this regard is made to the judgments of this Court in Lal Khan v. The State (2006 SCMR 1846), Riaz Ahmed v. The State (2010 SCMR 846), Abdul Qadeer v. The State (2024 SCMR 1146), and Riasat Ali v. The State (2024 SCMR 1224) , wherein it has been consistently held that withholding of material witnesses without justification creates serious doubt in the prosecution's version and invites adverse inference.

9. Apart from above, the conduct of the complainant himself raises serious doubts about his presence at the spot. He is the real father of the deceased and alleges that six armed accused entered his house, forcibly dragged his son outside, and inflicted fatal injuries to him. But throughout the occurrence, the complainant made no effort to intervene, confront the assailants or rescue his son. He did not sustain any injury, nor there is any evidence of struggle or resistance on his part. It is contrary to natural human conduct and beyond ordinary human experience that a father would silently watch the brutal murder of his son without making any attempt to protect him. A father's instinctive reaction would have been to intervene, even at the risk of his own life. His passivity and inaction, in the face of such a grave assault on his son, are wholly unnatural and inconsistent with human behaviour. This renders the presence of the complainant at the spot highly doubtful.

10. The learned Courts below have endeavoured to apply the principle of " sifting the grain from the chaff " in recording the conviction of the appellant; however, the true spirit and legal contours of this principle appear to have been overlooked. The evidence led by the prosecution is not only fraught with material contradictions and inherent doubts but is also indivisible in nature. No credible or cogent reason has been advanced by the prosecution and none is discernible from the record to differentiate the role of the appellant from that of co-accused, particularly, accused Asghar, whose role in the occurrence was identical and, in whose favour, the same evidence was disbelieved. The conviction of the appellant, on the same set of tainted evidence, thus lacks consistency and legal justification. We are mindful of the fact that the principle of " falsus in uno, falsus in omnibus " is no longer to be applied in a rigid or mechanical manner and that the doctrine of " sifting the grain from the chaff " continues to serve as a valuable tool in the judicial appraisal of evidence. In Sher Afzal v. The State (Criminal Appeals Nos. 229 and 230 of 2021, decided on 25.02.2025) , this Court reiterated that " falsus in uno, falsus in omnibus " does not render the principle of " sifting the grain from the chaff " redundant. However, it was categorically held that such sifting must be carried out judiciously, with utmost care and caution, and only in circumstances where the truthful part of the evidence is clearly distinguishable, independently corroborated, and found to be reliable beyond reasonable doubt. The said principle, however, cannot be invoked in a manner that allows the prosecution to derive undue advantage from its own shortcomings or lapses or the Court to make such efforts for the prosecution. It is not an invitation for the prosecution to indiscriminately rope in multiple accused persons, in the hope that the court might salvage a conviction against a few. Such a practice is not only contrary to settled principles of criminal justice, but also burdens the judicial process and undermines the fairness of trial. The principle of sifting cannot be employed as a judicial tool to compensate for weak investigations, defective prosecution, or lack of independent corroboration. Most importantly, the Court is not obliged to labour for the prosecution, nor is it the Court's duty to step into the shoes of the investigating agency to supply missing links or salvage a failing case. The burden of proving the guilt of an accused beyond reasonable doubt lies squarely on the prosecution, and it must discharge this burden on its own strength. Courts must remain neutral arbiters and not assume the role of investigative bodies. The application of the principle of sifting must, therefore, be sparing, context-specific, and guided by the overarching objective of securing justice without compromising the rights of the accused. Where the prosecution evidence, being the same and inseparable in nature, has already been disbelieved in respect of one or more co-accused having identical roles, the same evidentiary standard must apply mutatis mutandis to the appellant, unless independent and reliable corroboration is available, which in the present case, is conspicuously lacking.

11. For what has been discussed above, we are firm in our view to hold that the prosecution has miserably failed to prove its case against the appellant. The prosecution evidence is pregnant with doubts benefit of which is to be extended to the appellant. Accordingly, this appeal is allowed. Conviction and sentence of the appellant recorded under section 302(b), P.P.C. through the impugned judgment are hereby set aside. He is acquitted of the charge levelled against him. He shall be released forthwith if not confined in any other case.

Criminal Petition No.669-L/2017:

On acquittal of the convict, the instant petition for enhancement of sentence of the convict has become infructuous, therefore, the same is dismissed as such.

JK/U-6/SC Appeal allowed.