Shakoor Khan Vs The State etc

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J. Cr.A. No.1528-P/2023

Shakoor Khan son of Mohabat Khan, r/o Arando Khwar Mera Jalozai Pabbi, District Nowshera.

Appellant (s)

VERSUS

The State etc

Respondent (s)

For Appellant (s) '- Mr. Muhammad Waqar. Advocate For State '- Mr. Numan ul Haq Kakakhel. AAG. For Complainant '- I\rIlS Abid Arshad & Saifullah Khalil. Advocates.

Date of hearing: 12.11.2024

JUDGMENT

ISIITIAO IBRAHIM, CJ.-Tried by leamed Additional Sessions Judge-II, Tehsil Pabbi ("Trial Court"), in case FIR No.l80 dated 12.03.20212, registered under section 302PPC, at Police Station Pabbi, District Nowshera, Shakoor Ktran, the appellant, having been found guilty of commifiing Qalt-e-Amd of Juma Khan, Mst. Parveen having 08/09 months' female baby in her womb and Mst. Shamim, the deceased respectively, has been convicted under section 3020) PPC and sentenced to undergo rigorous imprisonment for life on four counts as Ta'azir and to pay rupees ten lac as compensation to legal heirs of each deceased in terms of section 544-A Cr.P.C. and in default of payment thereof to further undergo one-year simple imprisonment vide judgment dated 23.10.2023

("impugned judgment"). Benefit of Section 382-8 Cr.P.C. has v been extended to the appellant.

2.Through the instant Jail Criminal Appeal, the appellant- convict, has questioned his conviction and sentence.

3.The prosecution's case as unfolded in First Information Report ("FIR") Exh.PW.l5/l is that on 12.03.2012 at 1230 hours, complainant Bakht Said (PW.l2), in company of dead bodies of his brother, namely, Juma Khan, sister-in-law (Bhabi), namely, Mst. Panreen and sister, namely, Mst. Shamim, the deceased respectively, reported to Karim Dad Khan Inspector (PW.7), in Civil Hospital Pabbi, to the effect that on 12.03.2012 he was present in his house when received information that Shakoor Khan (appellant) has done the above named deceased to death with firearm in the house of Sher Ali, situated in village Arando Mera Jalozai Nowshera; that he rushed to the house of Sher Ali where he noticed the dead bodies of the deceased which he shifted to civil hospital Pabbi with the help of co-villagers and reported the incident. He disclosed a dispute over womenfolk as a motive behind the occurrence; that the incident was witnessed by Mst. Maryum and Mst. Rubi (daughters of Mst. Shamim deceased). He charged the appellant for intentional murder of the deceased.

Report of the complainant was recorded in the shape of Murasila Exh.PWl by Karim Dad Khan Inspector (PW.7), who also prepared injury sheets Exh.PW.7/l to Exh.PW.7/3 and inquest report Exh.PW.714toE><h.PW.7/6 of the three deceased

and referred their dead bodies to the Medical Officers for postmortem examination and sent the Murasila Exh.PWl to Police Station Pabbi on the basis of which FIR Exh.Pw.lsll was registered against the appellant.

4.On 12.03.2012 at about 1330 hours, Dr. Sadeeq Ullatr (PW.9) conducted postmortem examination on the dead body of Juma Khan deceased and found the following on his person vide post mortem report Exh.PM:-

External Appearance: Stout young man, wearing white colour shalwar Qam eez.

Iniuries:

i. crush injuries of the skull occipital region. Brain maffer blown out.

ii. Gutter wound of the abdomen in the umbilical region about 4 cm.

Opinion: According to his opinion the deceased died due to injury to his vital organ (brain).

He opined probable time between injury and death as: Instantaneous and between death and postmortem as I to4hours.

On 12.03.2012 at 03.30 PM, Dr. Bushra Afreen Malik (pw.l6), conducted autopsy on the dead body of Mst. Parveen deceased and found the following on her person vide postmortem report Exh.PW.16/1:-

External Examination: Soft body wearing red colour clothes and pink colour chaddar, stained with blood.

Iniuries:

i. Firearm entry wound on left breast size % inch x Yz inch.

ii. Firearm exit wound on back side of left chest size lxl inch.

iii. Firearm entry wound on epigastrium, size Yz x \., Yz inch.

iv. Firearm arrn exit wound on back right side of chest, size lxl inch.

v. Firearm wound near right breast lateral side, size 5 cm in length.

vi. Uterus open, dead female body about Sl9 months found.

vii. Firearm entry wound on left temporal region of scalp, size lxl inch.

viii. Firearm exit wound on right temporal region of scalp, size 3 x 3 inches.

Opinion: According to her opinion the deceased died due to firearm injury to her heart, brain and both lungs leading to sudden death. Probable time between iniurv and death: Instantaneous.

Probable time between death and Postmortem: within 5 hours.

On the same day, she also conducted postmortem examination on the dead body of Mst. Shamim deceased at 04.30 PM and found the following vide postmortem report Exh.P'W. 1614 External Examination: Soft body wearing light green colour clothes with bloodstained.

i. Firearm entry wound on left side of occipital region of scalp, size % x ll.2 inch. ii. A fireann exit wound on right temporal region of scalp, size 5x5 inches. Brain tissue is partially out.

iii. A firearm entry wound on anterior lower left l.g, size Yz x Yz inch.

iv. A firearn exit wound on posterior side of left lower l.g, size 2x2 inches.

v. A firearm entry wound on lateral side of left leg below left knee joint, size Yz x Yz inch.

vi. Firearm exit wound on medial side of upper leg above the left knee joint, size 2 x 2 inches.

vii. A firearm entry wound on right thigh * anteriorly, size ll2x Yz inch.

viii. A firearm exit wound on posterior side of right upper leg thigh, size 2x2 inches.

Opinion: According to her opinion the deceased died due to firearm injury to her vital organs i.e. brain and blood vessels leading to shock and death. Probable time iniurv and death: within few minutes.

Probable time between death and postmortem: within 6 hours.

5.Hanat Ali Khan Inspector (PW. l3), conducted investigation in the case, who after registration of the FIR, proceeded to the spot and prepared site plan Exh.PB on the pointation of eyewitnesses, namely, Mst. Maryum and Mst.

Rubi. During spot inspection, he secured blood stained earttr from the places of the three deceased Exh.P.l to Exh.P.3 vide recovery memo Exh.PW.g/l. Vide recovery memo Exh.PW.9/2 he took into possession 3 empties of 7.62 bore Exh.P.4 and,07 spent bullets Exh.P.s from the spot. Vide recovery memo Exh.PW.13/1 he took into possession the last worn bloodstained garments of the three deceased and sent the same along with the blood secured from the spot to the FSL vide application Exh.PW.13/3, result whereof is Exh.PK and Exh.PIVl. As the appellant was avoiding his lawful arrest, therefore, he initiated proceedings under sections 204 and 87 Cr.P.C. against him, sent the empties and spent bullets to the FSL report whereof is Exh.PW2, recorded statements of the PWs under section 161 Cr.P.C. and after completion of

investigation, handed over case file to the SHO who submitted challan under section 512 Cr.P.C . against the appellant.

6.On arrest of the appellant and completion of necessary investigation, supplementary challan was submitted against him before the learned trial Court, where the appellant was summoned and formally charge sheeted under section 302 PPC to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined as many as sixteen witnesses including alleged eyewitness Mst. Maryum whereas Mst. Rubi was abandoned. On closure of the prosecution's evidence statement of the appellant was recorded under section 342 Cr.P.C., wherein he denied the prosecution's allegation and professed his innocence. He, however, neither wished to be examined on oath under section 340(2) Cr.P.C. nor opted to produce evidence in defence. On conclusion of trial, the learned trial Court, after hearing both the sides, convicted and sentenced the appellant as mentioned in the initial paragraph of the judgment, hence, this appeal.

7.We have heard the exhaustive arguments of learned counsel for the parties advanced at the bar and perused the record and evidence with their valuable assistance.

8.The unfortunate and heartbreaking incident of murder of four persons, namely, Juma Khan deceased (brother), Mst. Parveen having an 8/9 months' female baby in her womb (sister-inJaw/Bhabi and Mst. Shamim (sister) of complainant Baktrt Said, has taken place on 12.03.2012 at 1030 hours, inside

the house of his brother-in-ladtris sister's husband, namely v Sher Ali, situated in village Arando Mera Jalozai Pabbi which has been reported by the complainant in civil hospital Pabbi to Karim Dad Khan Inspector (PW.7). Complainant is not an eyewitness of the occurrence as is manifest from his initial report Exh.PWl wherein he has stated that he on receipt of information about murder of his above named relatives, rushed to the house of Sher Ali and from there shifted the dead bodies of the deceased to civil hospital Pabbi. Though, has directly and singularly charged appellant Shakoor Khan for committing murder of the deceased but neither in the report nor in his statement recorded as (PW.l1) has disclosed the source on the basis of which he came to know that appellant is the perpefrator. Similarly, in his report, the complainant has mentioned that the incident was witnessed by Mst. Maryum and Mst. Rubi (daughters of Mst. Shamim deceased), but he has not furnished any explanation, much less plausible, as to why the incident was not reported by Mst. Maryum or Mst. Rubi and that why none of the above named alleged eyewitnesses accompanied him to the hospital and verified his report. Record depicts that Mst. Rubi has been abandoned by the prosecution, whereas, Mst. Maryum aged32 years has been produced in the witness box as PW.14 but she in her very examination-in-chief stated that she does not want to record statement against her uncle Shakoor Khan, the appellant. In view of her statement, the learned APP for the State requested the learned trial Court

to declare PW Mst. Maryum as hostile witness and the \r/

prosecution may be allowed to cross-examine her. His request was acceded, Mst. Marnrm was declared as hostile witness and consequently, the prosecution was allowed to cross-examine her. In view of the above circumstances, we deem it appropriate to reproduce her entire statement below:-

"P'W.14 Statement of Mst. Maryam aged about 32 years wife of Hameed Ullah d/o Sher Ali, resident of Arando Khwar Mera Jaloz^i presently Tehsil Takht Bhai, District Mardan on oath:-

Deceased Juma Khan *;"my maternal uncle while Mst. Parveen deceased was the wife of Juma Khan. Deceased Shameem was my mother. Complainant Bakht Said is my maternal uncle while accused facing trial Shakoor is my real uncle stamen asainst the accused facins trial. STO by APP, that the witness is willfully and being tutored by her elders not ready to give statement against her real uncle, namely, Shakoor accused facing trial. I request the Court to declare her hostile.

Order: The submission of the APP for the State seems genuine, hence, the witness is declared as hostile witness and the prosecution may cross-examine her.

Cross-examination on behalf of prosecution:- PW Mst. Rubi is my sister. My statement was recorded by the I.O. Statement of Mst. Rubi was recorded by the I.O, in my presence. In that statement, I have stated that on the eventful duy, I came to the house of my mother Mst. Shameem deceased as a guest. I had stated that at the time of occutrence, I along with my sister Rubi and deceased were present at the spot of occurrence. It is correct that I had also stated in my l6l Cr.P.C. statement recorded by the I.O. that at the time of occurrence, accused facing trial came to the house of my mother armed with Kalashnikov and started firing. I had stated in my statement that deceased Juma Khan, Mst. Shameem and Mst. Parveen were murdered by the accused facing trial. Mst. Maria is my sister. It is

incorrect to suggest that my sister Mst. Maria was engaged v with son of the accused facing trial, namely, Roman. It is further incorrect to suggest that due to the said engagement, my uncle (the accused facing trial) was annoyed and committed the offence. Witness volunteered that neither the engagement was done nor the said annoyance was occurred.

I am married in village Takht Bhai, District Mardan. My husband is the sister's son of accused Shakoor. I am married to the close relatives of the accused facing trial. It is incorrect to suggest that I have been forbidden by the accused facing trial not to depose against him.

Cross for accused facinq trial:- Since my marriage. I am residine in villaee Takht Bhai. My statement was recorded by the I.O. in my own villaee. At the time of firing I was outside the room. I have not seen Mst. Rubi at the time of firins. however. all of us includine Rubi were present inside the house. I have two other uncles, namely, Adam Khan and Wahab beside the accused facing trial Shakoor. My other uncles are residing in separate house at suffrcient distance. However, complainant Bakht Said is residing at less distance to the crime house. During the days of occurence, my father was residing in village Bajur for earning bread. It is inconect to suggest that my father was absconding in a case. I do not know Muhammad Said. It is incorrect to suggest that Muhammad Said was my uncle who was murdered by someone. It is incorrect to suggest that my father was residing in Bajur because of the strained relation with my mother. It is incorrect to suggest that I am concealing the fact of enmity of my father where one Muhammad Said was murdered. It is further incorrect to suggest that as the relation between my mother and father were strained and this occurrence was committed by my father. I had not siven anv information resardinq the occurrence either to mv father or to mv maternal uncle Bakht Said. It is incorrect to suggest that had I been present in the crime house at the relevant time, I would have informed my father or complainant Bakht Said regarding the occurence. Mst. Rubi was minor durins the davs of occurrence and was not able to sive anv statement (STO by complainant counsel and learned App that neither the

present PW is medical export nor specific age has been \./ asked). . I had gone to the house of my mother at Esha time. It is incorrect to suggest that the question so put upon me by the other party is the result of tuition by the APP for the State. Suggestion is incorrect. It is incorrect to suggest that I am concealing the facts. Neither I did eo to the Police Station nor went to anv PP for lodins the report. It is incorrect to suggest that had I been present at the spot of occurrence, I would have mad e a report either in the Police Station or PP concerned. I also did not accompanv the deceased to the hospital. It is incorrect to suggest that had I been present in the crime house, I would have accompanied the deceased to the hospital or to the Police Station. My statement was recorded on the same day of occurrence. I have not shown the time of occurence to the police in my statement. It is incorrect to suggest that had I been present at the spot, I would have certainly show the time of occurence to the Police in my statement. It is incorrect to suggest that I have been made PW in the instant case by the police under the compelling circumstances. Bakht said is the real brother of my mother. It is incorrect to suggest that PW Bakht Said has compelled me for giving a statement of his choice at a belated stage when I came to the house at Esha time (Remaining cross reserved, as learned counsel for the accused requested to keep it continue as the court time is over as well as he has to proceed to Karachi in connection of domestic engagement and he has to leave for airport).

RO&AC

Dated 07.12.2022

xx...Remaining cross: It is incorrect to suggest that I was not present on the spot as admitted by me in my statement. It is further incorrect to suggest that this occurrence has not taken place in the mode and manner as is told to me by the police to become witness in the instant case. It is further incorrect to suggest that in fact, the firing was made by my father, however, to save the skin of my father, complainant has charged the accused facing trial in the instant case, who is not the eyewitness of the occurrence. It is incorrect to

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is not the eyewitness of the occurrence. It is incorrect to suggest that had there been any eyewitness, the process of information/source of information would have been given to the police properly. It is incorrect to suggest that the chain of information to the complainant is broke and has not been linked with the statement of complainant (Whole suggestion are incorrect)".

RO &AC

Dated 17 .05.2023.

9.Before appreciating the testimony of Mst. Maryum, the points for consideration are that; (1) who is a "hostile witness", @ Whether hostile witness can be confronted with his statement recorded under section 161 Cr.P.C by the police during investigation for the purpose of contradicting the witress by the prosecution and (3) What the evidentiary value of the testimony of a hostile witness.

The word "hostile" does not figure anywhere in any Article of the Qanun-e-Shahadat Order, 1984 (..QSO,'), however, but it has been introduced in the judiciat precedent while interpreting Article 150 QSO by the superior courts. This Article can be invoked to establish that the witness is guilty of prevarication or that he was inconsistent in his statement or tried to suppress the truth or that he bore animosity towards the party who called him. In absence of any such acts on the part of a witness, pat'Ly is not entitled to cross-examine his witness to impeach his credit. In determining who can be considered as hostile witness, it is ttre court to decide keeping in view demeanor and credibility of the witness. The Court can also rule that a witness is unfavorable and not hostile wifiress. This

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means that just because the witness is providing unfavorable evidence, it does not mean he is doing so in an effort to be vindictive. A hostile witness may also be defined as one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the Court. In the instant case, PW Mst. Maryum after being declared hostile by the learned trial Court without raising any objection by the defence, the prosecution was allowed to cross-examine her. A look over cross-examination conducted on her by the prosecution would reveal that she has been confronted with her statement recorded under section 161 Cr.P.C. in the following manner:- Cross-examination on behalf of prosecution:- PW Mst. Rubi is my sister. My statement was recorded by the I.O. under section 161 Cr.P.C. Statement of Mst. Rubi was recorded by the I.O, in my presence. In that statement, I have stated that on the eventful day, I came to the house of my mother Mst. Shameem deceased as a guest. I had stated that at the time of occurrence, I along with my sister Rubi and deceased were present at the spot of occutrence. It is correct that I had also stated in my 16l Cr.P.C. statement recorded by the I.O. that at the time of occulrence, accused facing trial came to the house of my mother armed with Kalashnikov and started firing. I had stated in my statement that deceased Juma Khan, Mst. Shameem and Mst. Parveen were murdered by the accused facing trial. Mst. Maria is my sister. It is incorrect to suggest that my sister Mst. Maria was engaged with son of the accused facing trial, namely, Roman. It is further incorrect to suggest that due to the said engagement, ffiy uncle (the accused facing trial) was annoyed and commiued the offence. Witness volunteered that neither the engagement was done nor the said annoyance was occurred. I am married in village Takht Bhai, District Mardan. My husband is the sister's son of accused Shakoor. I am married to the close relatives of the

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v accused facing trial. It is incorrect to suggest that I have been forbidden by the accused facing trial not to depose against him.

10.Before answering the legal point whether a hostile witness can be confronted with his/trer statement, recorded under section 161 Cr.P.C by the police during investigation, for the purpose of confradicting the witness by the prosecution, it is worthwhile to refer to section 162 Cr.P.C. which read as under:- "5.162. Statements to nolice not to be sinqed. use of such statements in evidence:- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced into writing be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise or any part of such statement or record, be used for any purpose, (save as hereinafter provided), at any inquiry or trial in respect of any offence under investigation at the time when such statement was made.

Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act, 1872 when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose of only of explaining any maffer referred to in his cross- examination.

Provided further that, if the Court is of opinion that any part of any such statement is not relevant to the subject matter of the inquiry or trial or that its disclosure to the accused is not essential in the interest of justice and is inexpedient in the public interest, it shall record such opinion (but not the reasons therefore) and shall exclude

v such part from the copy of the statement furnished to the accused.

(2)Nothing in this section shall be deemed to apply to any statement falling within the provisions of section3? clause (1) of the Evidence Act, 1872 or to affect the provisions of section2T of the Act.

11.Perusal of section 162 Cr.P.C. reveals that it clearly provides that when any witness is called for the prosecution in such inquiry or trial shoes statement has been reduced into writing, the Court shall on the request of the accused refer to such writing and direct that the accused be fumished a copy thereof in order that any part of such statement if duly proved may be used to contradict such witness in the manner provided by Article 140 of the Qanun-e-shahadat. It does not provide anywhere that any part of such statement if duly proved could also be used by the prosecution to contradict such witness.

Articles 140 and 151 of the Qanun-e-Shahadat, no doubt permit cross-examination as to previous statement in writing but these being general in nafure cannot be extended to cover a statement recorded under section 161 Cr.P.C. nor can they be taken to override the provisions of section 162 of Cr.P.C. in the absence of a non-obstante clause. In case titled, ttSona Mia and another Vs the State (PLD 1959 Dacca 400). the Dacca High Court while has held that:-

"This is an obviously wrong interpretation of the law, for, Q statement made bv a witness to the police under section 161 Criminal Procedure Code. can never be used bv the prosecution for corroboratins or for explaining anv part of that witnesses evidence in Court. The statement is made available to the defence only for the purpose of

\1 contradicting the witness and testing the veracitv of that v witness and never for anv other purpose."

Similarly, in case titled, "Anis Mondal Vs the State (PLD 1959 Dacca 36). the same High Court has observed as under:- "Under the proviso to section 162 Cr.P.C., as amended by the Amendment Act, XVm of D23, statement made bv anv person to a police officer in the course of investieation under Chapter XIV shall not be used for anv purnose except to contradict a witness at the request of the accused in the manner provided in the first proviso to the section. No statement made bv anv person to the police officer in the course of a case can be admitted in evidence except for the limited purpose mentioned in section 162 and that. too. at the instance of the accused. The prosecution has no right whatsoever to prove the statement of the witness or to use it to contradict its own witnesses or the witnesses produced bv the defence. It is, therefore, clear that the statement made by a witness to the police can be used only by the accused, and that also only to contradict the witness. It cannot be used by the prosecution to corroborate the statement of its own witnesses."

In case titled, "Fazlul Haque Vs the State" (PLD 1959 Dacca 951). the Dacca High Court has reaffirmed the aforesaid view in the following words:- o'My affentiotr, is drawn to the provisions of section 162 of the Code of Criminal Procedure which make such statement recorded in the course of an investigation by a police officer available only for the limited purpose of contradicting a prosecution witness at the request of the accused and of no one else. In the present case. the accused did not seek to contradict this witness bv his 161 statement but it was the prosecution which attempted to do so. This the prosecution could not do in view of the provisions of section L62 and. therefore. the contents of that statement were inadmissible and could not be used for the purnose

v thev have been used in the present case bv the learned v Special Judse. The result of the exclusion of such tu

inadmissible material. therefore. is that the testimonv of this witness cannot be contradicted bv the contents of that statement purposed to have been recorded under a"

In case titled, "Shaukat Ati vs the State" (2005 MLD 1470).

the worthy Lahore High Court while dealing with a similar proposition and after examining a serious ofjudgment has held as under:-

"A bare perusal of section 162 of the Criminal Procedure Code makes it manifest that the intention of the legislature, in framing section 162 in the manner it did, was to protect the accused against the use of the statements of witnesses, made before the police during the investigation, at the trial, presumably on the assumption that the said statements were not made in circumstances inspiring confidence. Both the section and the proviso, intended to serve primarily the same purpose i.e. interest of the accused. The section was conceived in an attempt to find a via media, namely, while it enacts absolute bar against the statement being used for any purpose whatsoever and it enables the accused to rely upon it for limited purpose of contradicting a witness in the manner as provided by Article 140 of the Qanun-e-Shahadat Order by drawing his attention to parts of the statement intended for contradictions. It cannot be used for corroboration of a prosecution or a defence witness or even a court witness, nor can it be used for contradicting a defence or a a court witness by prosecution. Article 140 of Qanun-e-shahadat Order is controlled by section 162 Cr.P.C. and the prohibition contained in section 162 Cr.P.C. cannot be defeated."

In case titled. t'Dwarka Sineh and a (AIR (34) 1947 Patna 10il. the High Court of Patna after

v \-/ carefully examining the words used in the first provision to section 162 of the Cr.P.C. has held as under:- "There is another circumstance which makes me hesitate to accept what is practically the sole evidence of Baiiu, without corroboration. It is this, Baiju states that he told the names of the dacoits he had identified to five villagers, whom he named, who had come up directly after the departure of the dacoits. The prosecution made no attempt to examine four of these. The fifth. Misri Pasi (PW.6) was examined. but he said "Baiiu did not tell me the names of the dacoits identified bv him". He was allowed to be declared hostile and cross-examined bv the Assistant Public Prosecutor. But here again there was a defect in the procedure of the leamed Judge. He allowed it to be put to the witness in cross-examination by the Crown that he had stated before the Sub-Inspector that Baiju had told him that he had identified Dwarka and others. Under section 162 Criminal P.C. the defence is entitled to contradict a witness called for the prosecution by reference to his statement before the police, but the prosecution is not. Section 162 lays down in the most positive manner that. apart from this privilege extended to the accused. the statements to the police shall not be used for anv nurpose at the trial. In my opinion. Dwarka Singh must qet the benefit of the doubt. and must be acquitted."

In case titled. "Shamasullah vs A

Qurtta and 2 others" (PLD 2024 Balochistan 123), the worthy Baluchistan High Court, in its authoritative judgment, after thoroughly dilating upon the provisions of sections 161 and 162 Cr.P.C as well as Articles 140 and 150 of the Qanun-e- Shahadat Order, 1984 and placing reliance on the judgments (supra) has arrive d at the following conclusion:- "In view of the provisions and citation referred hereinabove, it can be gathered with no other view that the prosecution witnesses whose statements have been recorded under

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section 161 Cr.P.C. can be declared as hostile and the v prosecution can be allowed to cross-examine his own witness. but the prosecution Witness cannot be allowed to confront and contradict a witness to his statement recorded under section 161 Cr.P.C. except those prosecution wifnesses. whose statements are substantiallv proved otherwise such as the complainant. whose signatures or thumb impression fisures on the annlication for lodsins an FIR. fard-e-Bavan sisned bv him. recover witness whose signatures appearc on the recoveru memo(s) and police officerc who submit reports ft

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12.In view the above-discussed, deriving guidance from the judgments (supra) and placing reliance thereuporl we are firm in our view to hold that the cross-examination on PW Mst. Maryum, conducted by the prosecution after she was deelared as hostile, is inadmissible as has been confronted therein with her statement recorded under section 161 Cr.P.C.

by the police officer during investigation of the case.

13.The next legal proposition is that what would be the evidentiary value of statement of a hostile witness? In case titled, "State vs Abdul Ghaffar" (1996 SCMR 678), the Hon'ble Supreme Court has held that evidence of a hostile witness has to be considered like the evidence of any other witress, but with a caution for the simple reasion that the witness has spoken in different tones. When a witness speaks in different voices, it would be for the Court to decide in what voice he speaks the truth. In such case, the determining test is corroboration from independent source and conformity with the

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v \./ remaining evidence. Relevant part of the judgment is reproduced below:-

"In the light of the above principles it is settled that the testimony of a hostile witness cannot be altogether left out of consideration. The evidence of a hostile witness has to be considered like the evidence of any other witness, but with a caution for the simple reason that the witness has spoken in different tones. When a witness speaks in different voices, it would be for the Cotrt to decide in what voice he speaks the truth. In such case, the determining test is corroboration from independent source and conformity with the remaining evidence."

The aforesaid view has also been followed by the Baluchistan High Court, in case of Shamosullah's kuord (PLD 2024 Bolochiston I the following words:-

"In the criminol odministrotion of 2' '3 it is now a well settled dictum thot the testimonv of o Drosecution witness declored os hostile cannot be totallv brushed oside in its entiretv unless such prosecution witness intends to prevaricate in order to held the accused, but it is also a trite law that if a prosecution witness, who shows that he is not desirous of telling the truth to the court or his answers to certain questions are directly in conflict with the evidence of the other witnesses, then for such reasons he would be treated as hostile witness and the court may in its discretion allow the prosecutor to cross- examine such witness. In this regard I would like to refer to the judgments of "Muhammad Boota Vs the State (1934 SCMR 560), Dost Muhammad Vs Malik Shah Muhammad (2023 P Cr L J 326);'

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14.At the touchstone of the principle laid down by the Hon'ble Supreme Court in the judgment (supra), even if the testimony of Mst. Maryum is taken into consideration, the same would reveal that though in the cross-examination conducted by the prosecution, she has admitted her statement recorded under section 161 Cr.P.C. wherein she has furnished ocular account of the occurrence, but from her cross-examination conducted by the defence, we have serious doubt in our minds qua her presence at the spot at the time of occurrence, particularly, taking into consideration her unnatural behavior such as not reporting the incident to police, not informing his father after murder of her mother, not accompanying the dead body of her mother to the hospital and not giving any information of the incident to complainant, who is her maternal uncle. She has also admitted that from the date of her mariage she was residing in the house of her husband situated in Takht Bhai District Mardan. The occurrence has taken place inside the house of her father Sher Ali, situated in village Arando Khwar Mera Jalozai Pabbi. Though she has alleged that she had visited the house of her father as a guest, but an iota of evidence has not been brought on record to substantiate her said stance.

No independent percon from the locality/village has been examined by the prosecution to depose at least to the extent that PW Mst. Maryum had visited the house of her parents and was present in the house at the time of occurence. The escape or let off of PW Mst. Maryum by the appellant is also beyond the

v v comprehension of a prudent mind. It does not appeal to a prudent mind that the appellant who was mentally ready to do three deceased away at one and the same time but let off PW Mst. Maryum to stand eyewitness against him. The prosecution has not brought on record the acfual reasons of her resilement from her earlier alleged version recorded under section 16l Cr.P.C., therefore, in view of her testimony a safe inference would be that she has not witnessed the occulrence as alleged by the prosecution. PW Mst. Rubi, sister of Mst. Maryum was unmarried at the time of occurence, therefore, her presence in the house of her parents (crime house) was quite natural but she has been abandoned by the prosecution. In the circumstances an adverse inference would be drawn against the prosecution within the meaning of Anicle 129 (g) of the Qanun-e-Shatradat order, 1984 that had she been produced in the wifiress box she would not have supported the prosecution's case. In this regard, wisdom may be derived from the judgment rendered by the Apex Court in case titled "Lal Khan Vs The State" (o006 SCMR 1810 in it was held that: -

The prosecution is certainly not required to produce a number of witnesses as the quality and not the quantity of the evidence is the rule but non-production of most natural and material witnesses of occulrence, would strongly lead to an inference of prosecutorial misconduct which would not only be considered a source of undue advantage for possession but also an act of suppression of material facts causing prejudice to the

v accused. The act of withholding of most v natural and a material witness of the occurrence would create an impression that the witness if would have been brought into witness-box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid the consequence."

15.On reappraisal of the testimony of PW Mst. Maryum, we are firm in our minds to hold PW Mst. Maryum had not witnessed the occurrence. Had she been present at the spot at the time of occurrence, she would have never opted not to depose against the killer of her mother, her material uncle and maternal Aunt. She was named by complainant Bakht Said in his report as eyewitness but he has not disclosed about the source on the basis of which he learnt that Mst. Maryum was present at the spot at the time of occurrence. Complainant Bak*tt Said in his cross-examination has stated that they were six brothers who all were residing in one and the same house along with their families; that all my brothers are having their wives and children; that all the family members were present in the house on the relevant day and time. He admitted it correct that Mst. Maryum was married in village Takht Bhai Mardan.

When all brothers of complainant were residing in one and the same house and were present at the time of occurrence, then why none of them has reported the occrrrence and why none of them has come forward to fumish ocular account of the occurrence. This aspect also creates serious doubt in the

v \-/ prosecution's case. No other direct evidence has been led by the prosecution.

16.So far as recovery of bloodstained earttr from the places of the three deceased, their last worn bloodstained garments coupled with positive Serologist report Exh.PI?I, recovery of three crime empties of 7 .62 bore and five bullets from the spot and FSL report Exh.PW2 confirm and establish the crime spot to be the same as alleged by the prosecution as well as the unnatural death of the deceased with fire arms but such pieces of circumstantial evidence never tell(s) the name(s) of the culprit(s). Such pieces of corroborative and supporting evidence are always taken in aid of the direct evidence and not in isolation. Besides, no crime weapon has been shown recovered either from direct or indirect possession of the appellant so as to prove that the empties recovered from the spot were fired from the same. Hon'ble Supreme Court of Pakistan while giving its judgment in the case of "Muhammad Afzal alias Abdullah and others vs. The State and others" as (2009 SCMR 639) has held that;

"After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well-seffled that unless direct or substantive evidence is available conviction cannot be

v recorded on the basis of any other type of evidence howsoever, convincing it may be."

Hon'ble Supreme Court in another judgment rendered in the case of 55fmran Ashref & 7 others v/s The State" reDorted as 2001 SCMR 424. has also observed;

"Recovery of incriminating articles is used for the purpose of providing corroboration

to the ocular testimony. Ocular evidence

and recoveries, therefore, are to be considered simultaneously in order to reach for a just conclusion".

In support of same ratio, further reliance may also be placed on the judgment reported as 2007 SCMR 1427. As far as medical evidence furnished by Dr. Sadeeq Ullah (PW.9) and lady Dr. Bushra Afreen Malik (PW.16), is concerned, the same is also supporting piece of evidence, which may confirm the ocular account with regard to receip of injury, nature of the injury, kind of weapon used in the occurrence but it would not tell the name(s) of the assailant(s). Reference in this context may be made to the cases of "Muhammad Tasaweer versus IJafiz Zulkarnain and 2 (PLD 2009 SC 53). "Altaf Hussain versus Fakhar Hussain and another" (2008 SCMR f103) and "Mursal Kazmi alias Oamar Shah and another versus The State" (2009 SCMR 1410\.

17.On reappraisal of the evidence on record we have reached to an inesistible conclusion that the prosecution has miserably failed to prove guilt of the appellant through cogent

v and confidence inspiring direct or circumstantial evidence beyond shadow of reasonable doubt. There are so many circumstances discussed above, which create serious doubt in the prosecution's case, benefit of which is to be extended to the appellant not as a matter of grace or concession but as a matter of right. Cardinal principle of criminal administration ofjustice is based on the concept of justice in Islam which is to be observed more consciously and carefully. Benefit of doubt features appearing in the case invariably are required to be given full effect while deciding the ancillary matters in a criminal case. If one circumstance is sufficient to discharge and bring suspicion in the mind of the Court that the prosecution has faded up the evidence to procure conviction then the Court can come forward for the rescue of the accused persons as held by this Court in Daniel Boyd (Muslim Name Saifullahl and another vercus the State {1992 SCMR 196t: Gul Past Khan versus the State {2009 SCMR 4jll: Muhanntad Ashraf alias Acchu versus the State (2019 SCMR 6521: Abdul labbar and another versus the State {2019 SCMR 129): Mst. Asia Bibi vercus the State and others (PLD 2019 SC 641: ond Muhammad fmran versus the Stote (2020 SCMR 857).

"Saiiad Hussain v. The State and otherc" (2022 SCMR 15401 and "Taiamnl Hussain Shah v. The Stale and another" (2022 SCMR 1567), "Ahmod Ali and another vs. The State" (2023 SCMR 7811 and "Sarfraz and another vs. The State" (2023

SCMR 670I

V 18. For what has been discussed above, the instant appeal is allowed. Conviction and sentence of the appellant recorded by the leamed trial Court through the impugned judgment are hereby set-aside and he is acquitted from the charge levelled against him in the instant case. He be set at liberly forthwith, if not confined in anY other case.

19.These are the reasons of our short order of even date, which is reproduced below:-

'oFor reasons to be recorded later, we allow this appeal, set- aside the conviction and sentence of appellant shakoor Khan, recorded under section 302(b) PPC, by learned Additional Sessions Judge-II Tehsil Pabbi Nowshera vide judgment dated 23.10-2023, in case FIR No'180 dated 12.03.2012, registered under section 302 PPC, at Police StationPabbiDishictNowsheraandherebyacquithim fromthechargelevelledagainsthimintheinstantcase.

The appellant be set at liberly forthwith, if not confined in any other case".

Announced:

M.Shai Afridi CS

JUDGE