ALLAH DITTA vs THE STATE

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.--In this petition leave has been sought against judgment dated 28-2-2001, passed by Lahore High Court, Lahore, whereby while accepting Murder Reference No,19 of 1995, death sentence awarded to petitioner has been confirmed and Criminal Appeal No,665 of 1994 filed by him to challenge his conviction/sentence was dismissed.

2. Succinctly stating facts of the case are that P.W. Muhammad Sadiq (complainant) lodged at 3- 15 a.m. In respect of an incident which took place at 2-00 a.m. In the night intervening between 4th/5th July, 1991, stating that at the time on incident he and his brother Muhammad Sabir deceased alongwith his another brother Asghar Ali and one Muhammad Rafique were sleeping in the open place where they have tethered their animals. A burning lantern had also been hanged with a branch of Keekar tree for the safeguard of animals. Muhammad Sabir deceased awoke up on hearing noise of feet of animals. He started checking the animals. In the meantime, one person came from the side of Gaza. Said person was identified by Muhammad Sabir in the light of lantern as Allah Ditta. He thereafter called complainant, Asghar Ali and Muhammad Rafique to wake up.

After awakening complainant Muhammad Sadiq, Asghar Ali and Muhammad Rafique also identified the person in the light of lantern and torch. He was Allah Ditta, having a gun in his hand.

Muhammad Sabir (deceased) told Allah Ditta that he had identified him and why he had come there. On hearing, Allah Ditta fired a shot which hit Muhammad Sabir at the thumb of his hand and at the abdomen. After sustaining fire-arm injuries Sabir fell down on the ground then Allah Ditta gave butt blows to Sabir. The complainant alongwith his companions raised hue and cry but Allah Ditta alongwith his companion fled away from the spot. Thereafter, the complainant, Asghar Ali and Muhammad Rafique took Sabir on a cot to Adda Dhuttay where Jan Muhammad, Khushi Muhammad, Muhammad Ismail and other inhabitants of the Mauza came. In presence of all these persons deceased Muhammad Sabir stated that he was injured by Allah Ditta, who was accompanied by three persons, who could be identified if brought before him. Sabir was taken to hospital where he succumbed to his injuries.

3. It may be noted that when after registration of the case P.W.13 Ahmed Ali, S.-I./S.H.O. Visited the place of incident, P.W. Muhammad Sadiq (complainant) produced before him his supplementary statement on the same day wherein he named Mushtaq Ahmed, Noor Muhammad and Muhammad Shafique to be the associates of principal accused Allah Ditta.

4. The Investigating Agency conducted investigation of the case, arrested the accused persons and sent up them to answer the charge.

5. Learned trial Court (Additional Sessions Judge, Chunian) after completion of proceedings found them guilty vide judgment dated 19-12-1994 and sentenced them as follows:--

(1) Petitioner Allah Ditta. To death under section 302(b), P .P.C. As well as under section 457, P .P.C. To 10 years' R.I.

(2) Mushtaq Ahmed, Noor Muhammad and Muhammad Shafiq. Under section 457, P .P.C. 2 years' R . I. In appeal filed by convicts learned High Court maintained the sentences awarded to Allah Ditta.

However, remaining co-accused were exonerated of the charge by extending them benefit of doubt. As such instant petition has been filed.

6. Learned counsel for petitioner contended that ocular testimony furnished by P.Ws. Muhammad Sadiq, Asghar Ali and Muhammad Rafique has been disbelieved by the High Court against co- accused whereas their version to the extent of petitioner has been accepted without seeking independent corroboration. He admitted that in this country the principle of falsus in uno falsus in omnibus is not applicable but for the sake of safe administration of justice superior Courts have always impressed for seeking corroboration to the evidence of eye-witnesses, whose version has been believed qua the accused who have been acquitted by extending them benefit of doubt. He admitted that there is no corroboration because the fire-arm expert has not stated that the .12 bore gun recovered from possession of petitioner was used for the commission of the murder. As far as medical evidence is concerned it is also in conflict with the ocular testimony of the witnesses.

He also took exception against impugned judgment by arguing that learned Division Bench of the Lahore High Court found itself convinced from the dying declaration made by deceased Muhammad Sabir before P.W. Jan Muhammad and Shaukat. The fact is that both these persons did not disclose before the Investigating Agency that any type of dying declaration was made. He, therefore, contended that under the circumstances, the petitioner is also entitled to the benefit of doubt.

7. We have heard learned counsel at length and have gone through the evidence available on record carefully. It is to be observed that in the instant case F.I.R. Was lodged with promptitude by complainant Muhammad Sadiq A in which he has only nominated petitioner Allah Ditta to be the accused who fired upon Muhammad Sabir. It is to be noted that names of remaining witnesses namely Muhammad Rafique and Asghar Ali were also mentioned therein. It is equally important to observe that F.I.R. Finds mention about co-accused but their names were not disclosed therein and they were shown to be the companion of Allah Ditta. It is known principle of law that the proposition enshrined in maxim falsus in uno falsus in omnibus is not applicable and testimony of a witness is acceptable against one set of accused though the same has been rejected against the another set of accused facing same trial. However, for safe administration of justice condition has been imposed that which evidence is going to be believed must get corroboration on material particulars meaning that to base conviction principle of sifting chaff out of grain has to be followed. Reference in this behalf may be made to the case of Sarfraz alias Sappi and 2 others v.

The State (2000 SCM R 1758). According to learned counsel he has no cavil with the proposition but as the medical evidence is in conflict with the ocular testimony of three witnesses, therefore, in absence of any corroboration their evidence is not acceptable. He further explained that as per the evidence of P.W. Dr. Shahid Saleem, who conducted autopsy there was blackening around the wound of left thumb which means that fire was made from very close range whereas according to sight plan the distance between the place where the victim Muhammad Sabir deceased was present and the place wherefrom accused was allegedly firing is 28 feet, therefore, medical evidence cannot be used for corroboration purposes. Similarly according to him dying declaration allegedly made by deceased Muhammad Sabir in presence of P.W. Jan Muhammad and Shaukat cannot be used for the purpose of corroboration because it seems that to strengthen the case of prosecution these two persons were introduced subsequently to prove so-called dying declaration.

In our opinion there is no need to dilate upon both these aspects of the case. As it has been disclosed hereinabove that for safe administration of justice the ocular testimony which has been discarded against one set of accused can be believed against other set of accused if such evidence finds corroboration on material points. Furnishing of independent corroboration does not mean that it must come from other source. Consistent statements of the eye-witnesses who have furnished ocular testimony can also be considered corroboratory evidence if their statements do not lack unanimity in their substantial evidence i,e, the portion in which they have narrated the happening of the actual incident and the intrinsic value of their evidence remained consistent with each other then their evidence can be considered to be corroborative piece of evidence. In the instant case the evidence indicates that all the three witnesses namely Muhammad Sadiq and others have furnished trustworthy, confidence-inspiring and consistent evidence so far as the act of firing by Allah Ditta upon deceased Muhammad Sabir is concerned. To this extent there is no variation in their statements. By giving such evidence they remained consistent and they could not be shaken in the cross-examination. It is also to be noted that admittedly prosecution witnesses Muhammad Sadiq and two others have no enmity of whatsoever nature against Allah Ditta and they have also no reason to falsely involve him in the commission of murder of their brother Muhammad Sabir. In addition to it, it is also not possible for them that they would allow real culprit to go scot-free and falsely involve another person for the commission of the offence. Even otherwise it is well-settled by now that substitution of real culprit is a rare phenomena in our system of criminal justice.

8. On having gone through the material available on record we are of the opinion that petitioner has rightly been saddled with the responsibility of murder of Muhammad Sabir, therefore, the impugned judgment warrants no interference by this Court.

Thus for the above reasons we see no substance in the instant petition which is dismissed and .