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Criminal Appeal No. 389 of 1957, decided on 20th December 1957, from the order of Farooq Ahmad, Sessions Judge, Jhelum, dated the 22nd April 1957.
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Evidence‑Conjectures and suspicions cannot take the place of legal testimony.
In a criminal trial the lives and liberties of accused cannot be imperilled upon mere conjectures and upon suspicions engendered in the mind of the trial judge. The decision of a judicial tribunal must rest upon legal proof based on legal testimony.
S. 162‑Zimnis of a case different from one under trial‑Not barred by S. 162.
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Prosecution to try to secure conviction by legitimate means and not at any cost‑All relevant material irrespective of whether it helped the accused or went against hi m to be placed before Court.
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Presumption is against perjury in all civilised systems of jurisprudence.
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Falsus in uno falsus in omnibus‑Application ‑Eye‑witnesses falsely implicating one of the accused whose alibi was beyond doubt‑Whether their testimony in respect of other accused should not be accepted as true‑Principle.
In a murder case, one of several accused was proved to be falsely implicated by the eye‑witnesses on proof of the plea of alibi put forward by him. The question was whether testimony of the eye‑witnesses should not be accepted as true in respect of the other accused also.
Held, following Ghulam Muhammad and others v. Crown P L D 1951 Lah. 66 that in deciding the cases of other accused, one should look for other pieces of evidence corroborating the testimony of eye‑witnesses. If there was such corroborative evidence, the rest of the accused would be convicted, otherwise acquitted.
In the present case, the other evidence was a dying declaration which itself suffered from the same defect as the testimony of eye‑witnesses inasmuch as the dying declaration also had mentioned as one of his assailants the accused who had succeeded in proving his alibi.
The rest of the accused, therefore, were also acquitted.
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Entirely out of question to accept a portion and reject the rest.
Mahmood Ali for Appellants.
Mian Mushtaq Ahmad. A. A. G., for Respondent.
Dates of hearing: 5th, 16th and 10th December 1957.
Rang Ali, son of Hetam Khan, Chaudhari Khan, Muhammad Khan, son of Mahla, Sarsa Khan, son of Hetam Khan, appellants and Muhammad Khan, son of Khan Beg, Muhammad Aslam, son of Muhammad Khan, Muhammad Ahsan, son of Sultan Ahmad, Alam Sher, son of Fateh Sher, Fateh Khan and Muhammad Khan, sons of Sher Muhammad and Alam Khan, son of Hetam, were challaned by the police under sections 302/149, 365/149 and 148, P. P. C. Fateh Khan and Muhammad Khan, sons of Sher Muhammad, and Alam Khan were discharged by the commit ting Magistrate and the remaining eight accused were committed to the Court of Session to stand their trial under the aforesaid sections. The learned Sessions judge acquitted Muhammad Khan, son of Khan Beg, Muhammad Aslam, son of Muhammad Khan, Muhammad Ahsan and Alam Sher and convicted the remaining four accused under sections 302/149, 365/149 and 148, P. P. C. Rang Ali accused was sentenced to death while the other three accused were sentenced to transportation for life under sections 302/149, P. P. C., and all the four accused were sentenced to five years' rigorous imprisonment under section 365/149, P. P, C., and to one year rigorous imprisonment, each under section 148, P. P. C. The convicts have appealed and the record is also before us under section 374 of the Code of Criminal Procedure. Gul Muhammad, father of the deceased, has also filed a revision petition for the enhancement of sentences awarded to Chaudhari Khan, Sarsa Khan and Muhammad Khan accused and a notice was issued to these accused to show cause as to why their sentences should not be enhanced. This judgment will dispose of the appeal and the reference for confirmation of the death sentence imposed upon Rang Ali, as well as the revision petition.
2. Briefly, the case for the prosecution is that in January 1956, Fateh Khan, son of Gul Muhammad (P. W. 28), abducted Mst. Siftan, a cousin of Sarsa Khan, Fateh Khan and Alam Khan accused and took her to Karachi. All the accused, except Muhammad Ahsan and Alain Sher, are related to Sarsa Khan, Fateh Khan and Alain Khan accused. About a month before the occurrence, Fateh Khan and Alain Khan accused who were employed as Foot Constables in Montgomery came to the village and asked Gul Muhammad (P. W. 28) to have Mst. Siftan restored to them. He told them that in case she was with his son he will try and have her restored to them. Fateh Khan and Alain Khan were not satisfied with the reply of Gul Muhammad and threatened him that they would take revenge if Mst. Siftan was not restored to them.
3. On the night between 29th and 30th of March 1956, at about khuftanwela, Shah Muhammad deceased was lying on a cot in his room and his wife, Mst. Chuhran Bibi (P. W. 32), his sister, Mst. Sardar Bano (P. W. 31), his daughter, Mst. Reshaman Bibi (P. W. 33) and his another sister, Mst. Anaran, were sitting in the room when the appellants, along with the remaining accused mentioned above and Muhammad Hussain, son of Rang All (absconder) came there and the four appellants and Muhammad Hussain absconder entered the room. Rang Ali and his son, Muhammad Hussain, were armed with guns while the remain ing three appellants were armed with hatchets. The other accused stood in the courtyard and all of them were armed with dangs. Chaudhry Khan, Sarsa Khan and Muhammad Khan appellants caught hold of Ma, Anaran, aged about 22 years, and dragged her out of the room, upon which Shah Muhammad got up and went out into the courtyard to rescue his sister and when he tried to intervene, Muhammad Hussain fired his gun and the bullet struck the deceased on his right shoulder and then Rang Ali fired his gun and the bullet struck him in his abdomen. He fell down. On hearing the sound of the gunfire, Sher Muhammad (P. W. 30), and Gul Muhammad (P. W. 28), who were present in the house of the former at some distance from the house of Shar Muhammad, came running and saw Muhammad Khan, son of Khan Beg and Muhammad Aslam, son of Muhammad Khan accused, standing near the courtyard armed with dangs. and when they entered the courtyard they found Rang Ali appellant and Muhammad Hussain absconder armed with guns and Chaudhry Khan, Sarsa Khan and Muhammad Khan appellants armed with kulharis standing in the courtyard. Shah Muhammad was lying injured and the appellants were dragging Mst. Anaran. They also saw three other persons standing at some distance but they could not identify them as they had muffled their faces. On seeing Gul Muhammad and Sher Muhammad approaching, Rang Ali and Muhammad Hussain fired at them, but they took shelter behind a wall of the House. In the meantime, Mst. Anaran Bibi was dragged away towards village Dharuknan by Chaudhry Khan, Sarsa Khan and Muhammad Khan appellants. On account of fear, the witnesses did not attempt to rescue her. The accused then went away. Shah Muhammad was then placed on a charpoy and his wound was bandaged. He was at that time in possession of his senses and on enquiry by Gul Muhammad he told him that Muhammad Hussain absconder had fired at his right upper arm and Rang Ali accused had fired at his abdomen and that the accused had taken away his sister, Mst. Anaran Bibi.
4. Muhammad Khan, son of Habib, was then sent to the village abadi of Wasnal which is at a distance of about one and a half miles from the dhok of Shah Muhammad. Many people came from the village including Subedar Mian Khan (P.W. 25). who also enquired from Shah Muhammad and he repeated the same story as he had given to Gul Muhammad. Gul Muhammad then left for Police Post Buchhal Kalan. He was accompanied by Mian Khan Lambardar. Other relatives of Gul Muhammad carried Sbah Muhammad to Kallar Kahar Dispensary. Gul Muhammad reached Buchhal Kalan Police Post at 5 a.m., where he made the report Exh. P. D., which was recorded by Assistant Sub‑Inspector Muhammad Walayat Khan (P. W. 35). The Assistant Sub‑Inspector, after recording the report, went to Kallar Kahar and reached there at 9 a.m., Shah Muhammad was still alive and in the absence of the doctor, who had gone to Jhelum, Gul Muhammad Dispenser (P.W. 12) certified that Shah Muhammad was in a fit condition to make a statement. The Assistant Sub‑Inspector then recorded his dying declaration (Exh. P. B.) in the presence of Ch. Taj Muhammad, Malik Mehar Khan, Gul Muhammad Dispenser and others. It was read over to Shah Muhammad, who admitted it to be correct and thumb‑marked it. Ten minutes later, Shah Muhammad died. The. Assistant Sub‑Inspector then prepared his injury statement and inquest report and forwarded the dead body to the mortuary at Chakwal for post‑mortem examination. The Assistant Sub‑Inspector then went to the place of occurrence and collected some bloodstained earth from the courtyard of the house of Shah Muhammad and made it into a sealed parcel. He also took into possession the charpoy (Exh. P. 1), the tulai (Exh. P. 2) and the strings of the charpoy (Exh. P. 3). These articles were stained with blood. He also found two rifle empty cartridges and a piece of bullet. Gul Muhammad P. W. produced before the Assistant Sub‑Inspector dopatta (Exh. P. 4) and two rifle cartridges (Exhs. P. 5 and P. 6) which he took into possession vice memo. Exh. P. H. Gul‑Muhammad had found these articles lying towards the south of the house of Shah Muhammad deceased.
5. On the 30th March 1956, at 2‑30 p.m. Dr. Muhammad Amin Butt (P. W, 1) performed the post‑mortem examination on the dead body of Shah Muhammad and found the following injuries:‑
(1) A lacerated wound of entrance on the right side of the abdomen, the inner end of the wound was 4" below the umbilicus. 2 " x 1 ", loop of the intestine was coming out of the wound.
(2) A lacerated wound of exit on the right side of the abdomen, 2" above the injury No. 1 and 3" out to the umbilicus, 5 " x 3 ", part of the mesentery and loop of the intestines were coming out of it.
(3) A lacerated wound of entrance on the outer side in the middle of the right arm, ' x 1/3", directed downwards and inwards.
(4) A lacerated wound of exit at the inner side lower third of the right arm, 2 " x 1 ".
(5) An abrasion on the anterior aspect in the middle of the right leg vertical in direction, 5 " x ".
(6) An abrasion on the anterior aspect in the middle of the left leg, 3"x 1/3".
In the opinion of the doctor, death was due to injury No. 1 as a result of shock and haemorrhage. This injury was due to gunshot and was sufficient in the ordinary course of nature to cause death. In cross‑examination, the doctor stated that Shah Muhammad must have died in about four hours' time after the receipt of the injuries and definitely not beyond four hours. In re‑examination, however, he admitted that there was a possibility that the deceased might have died at 9‑40 a.m. on the following day. He was recalled at the trial and he stated that the abdominal injury could have been caused if the deceased was standing on a higher level than his assailant. He also added that although the bullet could have deflected if it had struck against his hip‑bone but he did not find any injury on the hip‑hone. To a Court question he replied that this injury could be caused if. the victim was lying on a cot.
6. During the course of investigation, ‑it was represented to the Assistant Sub‑Inspector that Rang Ali accused had been arrested at Montgomery on the 28th of March 1956, under section 61 of the Excise Act, and was lodged (ii) Montgomery Jail on the night of the occurrence. The Assistant Sub- Inspector investigated this plea, and it transpired that on information supplied by Muhammad Khan (P W. 16) one Rang Ali, son of Hetam, had been arrested on the 28th of March 1956, by Sardar Muhammad Hassan, Excise Inspector (P. W. 17), under section 61 of the Excise Act, and as he was unable to offer bail he was detained in the police lock‑up during the night by A. S. I. Muhammad Latif Shah (P. W. 18) and on the following morning, the impressions of all the ten fingers of the arrested man were taken on the search slip, Exh. P. A. A., and parcha Illahi was sent to Police Station Kallar Kahar. On the 29th of March the arrested man was produced by F. C. Sardar Muhammad (P. W. 19) before Mian Muhammad Siddique, Magistrate 1st Class, Montgomery, (P.' W. 2). As he failed to furnish bail, Rang Ali was sent to the judicial lock‑up Montgomery vide warrant Exh. P. M. where he was admitted into the jail by Mr. Abdul Majid, Assistant Superintendent of Jail (P. W. 15) vide entry No. 4140 dated the 29th of March 1956, in the Admission Register. Exh. P. U., and the thumb‑impression of the prisoner was obtained in this Register at Exh. P. U/2 at page Exh. P. U/1. On the 31st of March 1956, Nur Hasati (P. W. 21) furnished bail which was accepted by Mian Muhammad Siddique, Magistrate (P. W. 2), and he ordered that the said Rang Ali be released from jail. Exhibit P. N/1 is the order of the Magistrate on the security bond, Exh. P. N. This bail bond was sent to jail for getting the thumb‑impression of Rang Ali. On the 2nd of April 1936, that Rang Ali was released from jail by Mr. Abdul Majid (P. W. 15) and at the time of his release he obtained his thumb‑impression in column No. 10 of the Admission Register at Exh. P. U/3 and at Exh. P. N/3 on the bail bond Exh. P. N. Muhammad Walayat Khan, Assistant Sub‑Inspector, took into possession all the relevant documents and examined a number of witnesses in this connection.
7. Most of the accused were arrested on the 2nd of April 1956. Sarsa Khan, who had been absconding, was arrested on the 27th of April 1956. Rang Ali appellant was arrested by Assistant Sub‑Inspector Raja Muhammad Nazir (P. W. 8) on the 29th of April 1956, from Chakwal. Fateh Khan and Alam Khan accused, who were posted as Foot Constables at Montgomery, were arrested on the 21st of May 1956.
8. On the 14th of June 1956, the Assistant Sub‑Inspector, Muhammad Walayat Khan, applied for the identification of Rang Ali accused and Raja Irshad‑ul‑Haq, Magistrate 2nd Class, Montgomery (P. W. 3), conducted an identification parade in the Central Jail, Montgomery, on the 15th of June 1956. Sayyed Latif Shah, Assistant Sub‑Inspector, Sardar Muhammad Hasan Excise Inspector, Sardar Muhammad, Foot Constable, and Lal Din Foot Constable were called turn by turn and asked to identify Rang Ali who had been arrested by them and was detained in the jail. None of them was able to identify Rang Ali appellant.
9. Mst. Anaran Bibi could not be recovered during the investigation and has not been traced so far. No incriminat ing article was recovered from any of the accused. Muhammad Hussain, son of Rang Ali appellant, absconded and has not surrendered so far. After investigation the eleven accused named above were challaned by the police.
10. At the trial, thirty‑five witnesses were examined in support of the prosecution case. The accused denied the commission of the offences and pleaded that they had been falsely implicated on account of previous enmity. Rang Ali accused stated that he was arrested in an excise case on the 28th of March 1956, at Montgomery and remained in the police lock‑up during the night and on the following day under the orders of the Magistrate he was sent to the judicial lock‑up where he remained till the 2nd of April 1956. He produced four witnesses in his defence. The other accused however, did not call any witness in their defence.
11. The prosecution sought to prove its case by the following pieces of evidence:‑
(1) Evidence as regards motive.
(2) Evidence of Gul Muhammad (P. W. 28), Sher Muhammad (P. W. 30), Mst. Sardar Bano (P. W. 31). Mst. Chuhran Bi (P. W. 32) and Mst. Reshman Bibi (P. W. 33), as eye‑witnesses of the occurrence.
(3) Oral dying declaration made before Gul Muhammad, Sher Muhammad and Subedar Mian Khan (P. W. 25) and written dying declaration Exh. P. B recorded by Assistant Sub‑Inspector Muhammad Walayat Khan (P. W. 35).
(4) Evidence that Rang Ali who was arrested under the Excise Act at Montgomery and who was lodged in Mont gomery jail on the night of the occurrence was other than Rang Ali accused.
12. The learned Sessions judge did not rely on the evidence of Gul Muhammad (P. W. 28) and Sher Muhammad (P. W. 29) and held that they had arrived later after the accused had gone away and could not have seen them in the courtyard. He, however, believed the evidence of Mst. Sardaran Bibi, Mst. Chuhran and Mst. Reshman P. Ws., and also accepted the evidence as regards the dying declaration of Shah Muhammad. He summarised his finding as follows:‑
"In short, the evidence of the three eye‑witnesses, Mst. Sardar Bano, Mst. Chuhran and Mst. Reshman Bi, whose presence inside the house at the time of the attack is quite natural, is supported by the dying declaration of the murdered man himself, made before a number of independent witnesses. This evidence clearly shows that Rang Ali and his son Muhammad Husain armed with guns and Sarsa Khan, Muhammad Khan, son of Mahla, and Chaudhry Khan armed with kulharis had entered the house of Shah Muhammad at khuftanwela, had carried away Mst. Anaran Bi and that Muhammad Husain and Rang Ali had injured Shah Muhammad with their gun‑shots which proved fatal."
As regards the plea of alibi, raised by Rang Ali accused, the learned Sessions judge subjected the relevant evidence to a careful scrutiny and summed up his conclusion as follows:‑
"Two cousins, Fateh Khan and Alain Khan, of Rang Ali accused are employed in the Police Department at:
"It appears that in order to create evidence of Rang Ali's alibi, they induced a man to pose as Rang Ali accused and Court arrest. Through the good offices of those cousins of Rang Ali accused his thumb‑impressions instead of those of the man arrested were obtained on the 28th of March 1956, and Rang Ali being, sure of his alibi, slipped away to take part in the occurrence. He returned to Montgomery on the 30th or 31st of March 1956, when his thumb-impression Exh. P. U/3 on the jail register and Exh. P. N/3 on the bail bond Exh. P. N., were obtained. It is for this reason that the Deputy and the Assistant Superintendent Jail, Montgomery, could not take the responsibility of saying that the thumb‑impressions Exhs. P. U/2 and P. U/3 on the Admission Register of the jail were obtained or attested by them.
" In the warrant Exh. P. M. issued by the Court of Mr. Muhammad Siddique Magistrate on 29th March 1956, the place of residence of the accused person, of the excise case has been given as Wasnal, District Jhelum. Still in the bail bond Exh. P. N., which was prepared on the 31st of March 1956, the description of the accused is given as follows:‑
Rang Ali, son of Hetam Khan, caste Awan, resident of Cak No. 8/11‑L, Ghazi Abad, Tehsil and District Mont gomery.'
"The entries are in black ink. After the word sakin (resident of) the word hat (at present) has been written in the blue ink and over it the following writing is made also in blue ink:‑
Resident of Wasnal. P. S. Kallar Kahar, District Jhelum.'
and the additions have not been initialled or signed.
This also shows that the person who put in the bail bond was undecided if to give the description of the man actually arrested for the Excise offence or that of Rang Ali accused for whom he had posed. There is no explanation why Rang Ali accused was shown to be a resident of Chak No. 8/11‑L, Ghazi Abad, which is the description of the man who was arrested for keeping charas in his possession and why were the additions made. The person arrested for keeping charas in his possession at Montgomery on the 28th of March 1956, had been with Sardar Muhammad Constable and Muhammad Latif Shah, A. S. L, on the 28th and 29th of March 1956. Both of them are definite that Rang Ali accused is not that man. At the time of identifica tion parade also they as well as Khan Muhammad (P. W. 16) on whose information he was arrested as also Sardar Muhammad Hussain, Excise Inspector, Montgomery, who arrested him, stated definitely that the man who had been arrested for keeping charas in his possession was not among the persons joined in the identification parade. And Rang Ali accused was among them.
" Keeping all the evidence in view, I am of the opinion that Rang Ali accused was not in jail at Montgomery at the; time of occurrence."
13. The learned counsel for the appellants has presented a closely reasoned argument in support of his contention that Rang Ali appellant was in fact lodged in Montgomery jail at the time of the occurrence, which took place in Dhok Umral at a distance of more than 250 miles from Montgomery and he had been falsely implicated on account of previous enmity. He has also maintained that if on the evidence on the record it is established that Rang Ali appellant was in jail, then its logical conclusion would be that all the eye‑witnesses have perjured and as such no reliance should be placed on their testimony even in respect of the other accused. He has further contended that the dying declarations also suffer from the same defect, as the evidence of the eye‑witnesses inasmuch as Shah Muhammad had also falsely implicated Rang Ali accused.
14. In view of the points raised on behalf of the appel lants, it becomes necessary to scrutinise carefully the evidence produced at the trial as regards the plea of alibi raised by Rang Ali appellant. Khan Muhammad (P. W. 16) is a shopkeeper of Montgomery who had given information to the Excise Inspector about the presence of Rang Ali at his shop. He stated at the trial that he could not identify that Rang Ali as he had seen him long before. Excise Inspector Sardar Muhammad Hasan (P. W. 17) arrested a person at the shop of Khan Muhammad P. W. under section 61 of the Excise Act, on the 28th of March 1956, who gave his name as Rang Ali and as he could not offer bail, he was arrested by him. When Rang Ali appellant was shown to him at the trial, he stated that he could not say that the man shown to him was the same person whom he had arrested on the 28th of March. At the request of the Public Prosecutor, the witness was allowed to be cross‑examined by him. In cross -examination by the Public Prosecutor the witness admitted that he had correctly stated before the committing Magistrate that Rang Ali accused was not the person whom he had arrested and that he had also told the Magistrate at the identification parade that the person arrested by him was not in the parade. A. S. I., Muhammad Latif Shah (P. W. 18) had detained the arrested person in the police station on the night between 28th and 29th of March, and lie stated at the trial when Rang Ali accused was shown to him that he was not the person whom he had detained in the police lock‑up. In cross‑examination the witness admitted that he had obtained the impressions of all the ten fingers of the arrested man on a search slip and that he had sent the identification certificate of that Rang Ali to police station Kallar Kahar, in which full description of the man arrested had been given, and he had received a reply from that police station. He further admitted that he had entered full description of the man arrested in the zimnis of the excise case and he had also given his full description in the parcha itlahi sent to Police Station Kallar Kahar, and the reply from Police Station Kallar Kahar had been received and filed in the police station. Here it may be pointed out that except for the search slip, the other documents referred to by the witness were not placed on the file. Foot Constable Sardar Muhammad (P. W. 19) had got the search slip of the arrested man prepared and had produced him on the 29th of March before Mr. Muhammad Siddique Magistrate. When Rang Ali accused was shown to him at the trial he stated that he was not the man. In cross‑examination he admitted that after producing the arrested man before the Magistrate, he had taken him to the jail and had handed him over to the jail authorities and that till then he had not been substituted.
15. Head Constable Muhammad Din (P. W. 20) had prepared the search slip Exh. P. A. A., on which the finger impressions of the arrested man were obtained. The search slip was prepared on the 29th of March 1956. It is significant that the Public Prosecutor did not show Rang Ali accused to this witness at the trial and did not ask him if he could identify him. Mr. Abdul Majid, Assistant Superintendent Jail, Montgomery (P. W. 15), is the most important witness in this respect, because it was he who admitted Rang Ali son of Hetam Khan in jail on the 29th of March 1956. An entry to that effect was made in the Admission Register at page Exh. P. U., vide entry No. 4140. In its column No. 6 the thumb‑impression of the prisoner was obtained at Exh. P. U/2. At the time of the release of the prisoner on the 2nd of April 1956, his thumb‑impression was obtained at Exh. P. U/3. In examination‑in‑chief he stated that he could not identify that Rang Ali whose name was entered in the register. In cross‑examination he admitted that the thumb‑impressions of the prisoner at Exh. P. U/2 and Exh. P. U/3 in the Admission Register and at Exh. P. N/3 on the bail bond Exh. P. N., were obtained in his presence by the Warden and he had initialled them in token of their correctness. He further admitted that the description and particulars of Rang Ali accused shown to him in Court tallied with the description and particulars given in the Admission Register at serial entry No. 4140 and added that therefore he could say that he was the man who had been admitted into jail on the 29th of March 1956 and was released on the 2nd of April. (Note.‑-In the paper‑book the date of release has been wrongly given as 30th of March.) The witness also admitted that entries in Columns Nos. 11 to 14 of the Admission Register were made by the Medical Officer of the jail at the time of the admission of the prisoner. All these entries are also initialled by Deputy Superintendent of Jail, Sheikh Muhammad Yusuf (P. W. 14), who stated that he could not identify Rang Ali as his thumb‑impressions were not taken in his presence. The name of the prisoner given in the Admission Register is as follows:‑
"Rang Ali, son of Hetam Khan, of Wasnal, P. S. Kallar Kahar, District Jhelum, Awan Cultivator."
Besides this evidence led by the prosecution, there is the evidence of Muhammad Bashir (D. W. 1) who was the Reader of the Court of Mr. Muhammad Siddique, Magistrate, Montgomery, on the relevant date. He had been examined as a P. W. before the Committing Magistrate, but was given up at the trial He stated that Rang Ali accused was the man who was produced before the Magistrate on the 39th of March and under the orders of the Magistrate had been sent to the judicial lock‑up. The witness admitted that he knew Fateh Khan and Alam Khan accused, but he denied that he had any friendship with them or that he had conspired with them to fabricate evidence as regards the alibi of Rang Ali accused. In addition to this, we have the evidence of Finger Print Expert, Ch. Rahmat Ullah, Sub‑Inspector (C. W.1). of the Finger Print Bureau, Lahore. He compared the thumb -impressions at Exh. P. U/2, Exh. P. U/3 on Exh. P. U/1 and at Exh. P. N/3 on Exh. P. N. with the thumb‑impression of Rang Ali accused which he had obtained in Court on Exh. D. A. and stated that these thumb‑impressions were of one and the same person. One more fact may be narrated in this connection. A. S. I. Muhammad Walayat Khan (P. W. 35) admitted that he had sent the search slip Exh. P. AA and the bail bond Exh. P. N. to the Finger Print Bureau, Lahore, for getting the thumb‑impressions compared and he had obtained the report, but the same was not exhibited in Court. This is all the relevant evidence as regards the plea of Rang Ali's alibi.
16. On the one hand, the prosecution has attempted to prove that Rang Ali accused was not the man who was arrested and detained in Montgomery jail, but, on the other, there is oral as well as documentary evidence which points to the contrary. We have examined this evidence with great care and we are unable to uphold the finding of the learned Sessions judge that some one else had posed as Rang Ali accused and had courted arrest, and after the thumb- impressions of Rang Ali accused had been obtained on the search slip instead of the arrested man, he slipped away and after participating in the crime, returned to Montgomery and manoeuvred to put his thumb‑impressions instead of the prisoner on the Admission Register at Exh. P. U/2 and Exh. P. U/3 and on the bail bond Exh. P. N. In our opinion, there is no foundation whatever for this finding, which is more or less conjectural. The learned Sessions judge appears to have evinced a commendable anxiety to get at the truth, but it was argued before us that being obsessed with the belief of the guilt of the accused, he exhibited unnecessary and unwarranted zeal in convicting Rang Ali accused. We wish to emphasise that in a criminal trial the lives and liberties of accused cannot be imperilled upon mere con jectures and upon suspicions engendered in the mind of the trial Judge. The decision of a judicial tribunal must rest upon legal proof based on legal testimony. In the present case there can be no manner of doubt that it was Rang Ali accused and no one else who was arrested and detained in Montgomery jail and whose thumb‑Impressions were obtained by responsible officials on the search slip Exh. P. AA, on the jail Admission Register at Exhs. P. U/2 and P. U/3 and on the bail bond Exh. P. N. at Exh. P: N/3. It is impossible to believe that these documents could have been forged with the help of Fateh Khan and Alam Khan, cousins of Rang Ali accused. It is not known where these foot. constables were posted in those days. There is nothing to indicate that they had any influence with any of the prosecution witnesses connected with the arrest and detention in jail of Rang Ali. These documents could have been forged only if the officials of the Excise and Jail Departments had conspired to carry out the scheme. It is in evidence that the Jail Doctor had made the entries in columns Nos. 11 to 14 of the Admission Register at the time of the admission of the prisoner into jail. It was therefore ‑necessary that he should have also joined in the conspiracy. Could all these persons join in the conspiracy for no apparent reason to forge documents, and take the risk of being prosecuted and dismissed from service. We are not impressed by the line of reasoning adopted by the learned Sessions Judge in this connection.
17. We are constrained to remark that the following documents which were very important from the accused's point of view were suppressed by the prosecution:‑
(1) The report of the Finger Print Expert in regard to the search slip Exh. P. A. A. was not produced before the Court, although the same was obtained as admitted by Muhammad Walayat Khan (P. W. 35).
(2) The identification certificate, and the parcha itlahi which were prepared by A. S. I. Muhammad Latif Shah (P. W. 18) in which full description of the arrested man was given and which were sent to the police station Kallar Kahar and the reports which were received in this connection from that police station were withheld.
(3) The zimnis of the Excise case in which the full description of the man arrested was given by A. S. I. Muhammad Latif Shah, were also not produced at the trial. These zimnis were of a different case .and in our opinion could have been produced at the murder trial to B show that the man arrested in the Excise case was a different person than Rang Ali accused.
The suppression of these important documents strengthens our belief that the description given in these documents fully tallied with the description of Rang Ali accused. We wish to point out in this connection that although the prosecution can legitimately try to secure the conviction of an accused by legitimate means but it is not its duty to obtain a con viction at any lost. All the relevant material should have been placed before the Court irrespective of the fact whether it helped the accused or went against him. By withholding these documents the prosecution at least succeeded before the learned Sessions judge to obtain, if we may say so, an C unrighteous conviction of Rang Ali accused and it was very likely that this innocent person would have been sent to the gallows. This has certainly not brought any credit to the prosecution. We are sure that if these documents had been placed before the learned Sessions judge, he would have arrived at a different conclusion.
18. We are conscious of the fact that some witnesses including responsible officials have deposed that Rang Ali accused was not the man who had been arrested on the 28th of March and detained in Montgomery jail, but if the relevant documents enumerated above which had been prepared by some of these very officials, had been placed on the file, the witnesses would have certainly hesitated to depose that Rang Ali accused was not the man. Under the circumstances it is impossible to attach any importance to the oral statements of these witnesses, when they would have been contradicted by the documentary evidence. So far as P. Ws. 17, 18 and 19 are concerned, they are also faced with the search slip Exh. P. A. A. which was prepared under their supervision by Head Constable Muhammad Din P. W. 20. Here again an ignoble attempt was made by the prosecution by suppressing the report of the Finger Print Expert, but even the learned Sessions judge had to accept that the finger impressions on Exh. P. A. A. were of Rang Ali, accused. and in view of the circumstances narrated above we have no doubt that they are of Rang Ali accused. Be it said to the credit of Mr. Abdul Majid, Assistant Superintendent Jail, Montgomery (P. W. 15), that although in the beginning he also stumbled and said that he could not identify Rang Ali accused, but when he was confronted with the description of Rang Ali accused in the entry made in the register, he at long last saw the light of the day and stated though perhaps reluctantly that the accused was the man who had been admitted into the jail. We are sure that if the other witnesses had also been confronted with the documents prepared by them, they would have adopted the same line as was adopted by Mr. Abdul Majid. We regret to say that in their zeal to support the case for the prosecution these witnesses went astray from the path of truth and honesty. After carefully weighing the evidence on the record, we have no hesitation in holding that Rang Ali accused was the man who was arrested on 28th of March at Montgomery and he was the man who remained confined in Montgomery jail right from the 29th of March up to 2nd April 1956 and he could not have been present at Dhok Umral at the time of the occurrence.
19. We agree with the learned Sessions judge that it is somewhat difficult to believe that a person owning a square of land in Montgomery district and having two of his cousins employed in the police department was unable to furnish bail, but it may be that he was aware of the plot that some of his relations would abduct Mst. Anaran on the night between 29th and 30th of March and knowing that he being an enemy of the complainant party was the likeliest choice to be impli cated as one of the accused, he purposely courted arrest on the 28th of March at Montgomery and got himself lodged in jail on the 29th of March in order to prove his innocence beyond doubt, in case he was involved. But this is just a guess. We do not know where his cousins were posted on the 28th of March. There is no indication on the file that they were posted in Montgomery proper. At the most it raises a suspicion, but such a suspicion alone is not sufficient to destroy the effect of unimpeachable evidence led in support of the alibi of Rang Ali accused. We think his alibi is so solidly established that it could not be burst even with a sledge‑hammer much less by mere conjectures and surmises.
20. In view of our finding that Rang Ali accused was in Montgomery jail at the time of the occurrence the question arises as to what is the effect of this finding in respect of the other three appellants. The learned counsel for the appel lants has vehemently argued that there is no guarantee that what the witnesses have stated as regards these accused is true. All the eye‑witnesses are near relations of the deceased, and there is conclusive evidence on the record that Rang Ali and Chaudhari Khan accused had appeared as P. Ws. against Gul Muhammad (P. W. 28) and his sons Mian Khan and Sarsa khan in the murder case of Mst. Sultan Bi and also in an arson case and had deposed against them. The learned Sessions judge while dealing with this question remarked in the judgment that the P. Ws. were on inimical terms with the accused and their evidence required careful examination. He rejected the evidence of Gul Muhammad and Sher Muhammad P. Ws. and we agree with him that these witnesses had arrived at the spot sometime after the occurrence. We have carefully gone through the evidence of Mst. Sardar Bano, Mst. Chuhran Bi and Mst. Reshman Bi, and we are convinced that they were present at the time of the occurrence and had seen the culprits. In all civilised systems of jurisprudence there is a presumption against perjury as the law generally presumes against misconduct and dishonesty of all sorts. In spite of the scating criticism levelled against the evidence of these three witnesses by the learned counsel for the appellants, we were inclined to accept their testimony, but all of them have attributed the fatal shot to Rang Ali accused. In view of our finding as regards Rang Ali accused, we have no option but to hold that these witnesses had falsely implicated an innocent person. In these circumstances the task of extracting the truth has been rendered very difficult. Having given the case our most anxious consideration, we confess that we have failed to separate the truth from falsehood. We are aware of the authorities in which the rule has been firmly laid down that it is generally unsafe to apply the doctrine falsus in uno falsus in omnibus to the evidence of witnesses in this country. The identical question which has arisen in the present case came up for decision before a Division Bench of the High Court in Ghulam Muhammad and others v. Crown (P L D 1951 Lah. 66), where the learned Chief Justice of the Lahore High Court, Mr. Justice Muhammad Munir (now Chief Justice of Pakistan) who delivered the judgment of the Bench, while dealing with this question observed as follows:‑
"If there had been no circumstances tending clearly to show that the witnesses saw the murders, it would have been our duty to bold, that because they named Muhammad and Rehmat, they did not see the occurrence and thus to acquit the whole lot. The same would have been the result, if there had been no other evidence against any one of the appellants tending to show that he did take part in the murders. Generally when it is proved that some innocent persons have been dishonestly implicated in a crime, the Court is entitled, and it is safer, to acquit even those who have not been able to prove that they were falsely impli cated. The rule, however, is noc absolute, and its indis criminate application in this Province is as dangerous to the administration of criminal justice as the general application of the contrary rule, that in such cases the only persons against whom the evidence of the witnesses may be rejected are those who succeed in proving their innocence".
His Lordship then dealt with the maxim "falsus in uno falsus in omnibus" and observed as follows:‑
"I have always felt that the question of questions for the judge in such cases, is how to get at the truth with that degree of certainty as is always insisted upon in criminal cases and it seems to me that if you can do that, the result need not be determined by any general rule. It may be that the greater and clearer the falsehood, the more difficult the task of extracting the truth, but that is the real task before a judge, I have never felt any uncertainty about. I cannot, there fore, accept Mr. Salim's contention that since it is proved in this case that the witnesses have involved at least two men, who could not have taken any part in the murders, their evidence against the other accused must for that reason alone be rejected".
In the aforesaid case it was proved that two of the accused who were also named by the eye‑witnesses as culprits were in the police lock‑up at the time of the occurrence. In view of this the learned Chief Justice was pleased to observe as follows:‑
"Now, if the several witnesses really saw the murders, they could not have possibly omitted to mention the names of the actual murderers though it may be that they might have included in the list of accused some other men who did not in fact take part in the crime. 1n these circum stances, the obvious and safer course to follow would be to see whether the deposition of these witnesses when they say that the appellants took part in the murders receives such degree of corroboration as might persuade us safely to hold that a particular person did take part in the crime."
The conviction of only those accused was upheld against whom there was corroboration of the statements of the eye‑witnesses, and the remaining accused were acquitted With all respects we are in entire agreement with the principle laid down in this ruling. Applying the test laid down in the aforesaid ruling, we find that the only other piece of evidence which has been relied upon by the learned Sessions Judge isle the dying declaration of Shah Muhammad. Unfortunately for the prosecution the deceased also named Rang Ali accused as the principal culprit and therefore his dying declaration also suffers from the same defect as the evidence of the other eye‑witnesses. It appears that after the arrival of Gul Muhammad and Sher Muhammad P. Ws., the deceased and the eye‑witnesses decided to name Rang Ali, accused as the principal culprit. It may be that his son Muhammad Hussain, who is still an absconder and whose case is not before us, was one of the culprits and had fired at the deceased and therefore they decided to implicate his father also. But whatever the reason be, the fact remains that even the dying declaration of Shah Muhammad is a tainted piece of evidence and cannot be relied upon. It is entirely out of question to accept a portion of the dying declaration and to reject the, rest. There must be absolute guarantee of the truth of the entire statement before it can be acted upon. A "touched up" dying declaration has no evidentiary value whatsoever. It may be that some of the appellants, if not all of them, had participated in this crime, but on the evidence before us we cannot hold positively that the guilt of any of them has been established. If the falsehood had been only in respect of embroidery to the story, we would not have totally rejected the evidence of the eye‑witnesses, but in the present case the falsehood is so glaring that it has utterly destroyed the confidence in these witnesses. We realise that it was a diabolical crime. One man was shot dead and Mst. Anaran Bi was forcibly carried away. In all probability she is also no more in the world of the living. It is unfortunate that the culprits will go unpunished, in this case, but if the witnesses come to Court with infamy on their lips, they are themselves to blame for the unfortunate result. In the absence of any independent corroboration, we cannot accept the testimony of such witnesses against any of the appellants.
21. For the aforesaid reasons whereas we are happy to accept the appeal of Rang Ali appellant, it is with some reluctance that we are accepting the appeal of the remaining appellants. We, accordingly, set aside the convictions and sentences of all the appellants and acquit them. They shall be set at liberty forthwith if they are not required to be detained in connection with any other case. The revision petition for the enhancement of sentences, automatically fails and is hereby dismissed.
A. H. Petition dismissed.
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