QAZI MUHAMMAD AMIN AHMED, J:- Prosecution case structured on complaint Ex.PA, lodged by Syed Ashiq Hussain (PW-1) recorded by Ata Hussain SI (PW-8) relates to an incident which occurred on 2-6-2001 at 4:00 a.m. within the area of village Fatehpur situating at a distance of nine miles from Police Station Saddar Ali Pur; it was reported at 12:00 noon upon arrival of Investigating Officer at the spot. According to Syed Ashiq Hussain (PW-1) on the fateful day he in the company of his brother Rasool Bukhsh and Ali Naqi, PWs was on his way to village Fatehpur Baseera Sadaat when at about 4:00 a.m. they came across Ghulam Haider and Nazik Hussain PWs who informed them about commotion they had heard from the house of Ejaz Hussain, hereinafter referred to as the deceased, a real brother of the complainant. It was on this information that the PWs reached at the outer gate of the house of the deceased to find it bolted from inside and when they peeped through the door they saw the deceased hanging by a traverse/Shahteer with a noose around his neck while Muhammad Naqi and Shabana Bibi wife of the deceased, both hereinafter referred to as the appellants, were present there; upon alarm Muhammad Naqi appellant fled from the scene by scaling over the wall. It is prosecution's case that a short while later when the complainant along with the witnesses again reached at the outer gate the door was opened and Shabana Bibi appellant had also decamped; when the PWs attended the deceased and found him dead with his both knees touching the ground.
Appellants were alleged to have committed the crime and the motive was illicit liaison inter se them for which the deceased had restrained Muhammad Naqi Shah appellant to visit his house.
The dead body was dispatched to the mortuary where postmortem was conducted at 2:30 p.m. by Dr. Naseem Ahmad (PW-3) who noted a ligature mark measuring 1 x 1/2 cm in width around the neck with a knot on its right side, a noose made of nylon rope was wrapped around the neck. Skin underneath the ligature was taken and sent to histopathologist for examination. According to the medical officer, deceased was of middle age with a good built physic; cause of death was cited as asphyxia which occurred between 8 to 16 hours preceding the postmortem examination.
Muhammad Naqi, appellant was arrested on 8-6-2001 followed by Mst. Shabana on 9-6-2001; the former, pursuant to a disclosure led to the recovery of 32 caliber revolver P-5 with two live cartridges, nothing else was recovered from the appellants and they were sent to face trial upon conclusion of investigation before a learned Addl. Sessions Judge at Ali Pur where they were indicted on 19-6-2002 when they denied the charge and claimed trial; pursuant whereto, prosecution produced as many as nine witnesses; Sheerin Zahara daughter of the deceased aged about 10/11 was examined as CW-1. Confronted with the prosecution evidence, Muhammad Naqi appellant alleged false implication in the backdrop of his engagement with Sheerin Zahara (CW-1) daughter of the deceased to the annoyance of Ashiq Hussain and Rasool Bukhsh, PWs. Mst.
Shabana appellant supported him in his plea.
2. Upon conclusion of the trial, the learned trial Judge returned a guilty verdict and convicted the appellants under Section 302 (b) PPC with sentence of imprisonment for life; they were required to pay compensation in the sum of Rs.50,000/- each or to undergo six months SI in the event of default with benefit of Section 382-B Cr.P.C.
3. Learned counsel for the appellants contends that case of the prosecution is fraught with improbabilities and inconsistencies; it sans credible evidence to sustain the charge finally concluding that it is an incident of suicide which is dishonestly transformed into a case of homicide.
4. Contrarily, the impugned judgment is defended by the learned Deputy Prosecutor General assisted by learned counsel for the complainant.
5. Heard. Record perused.
6. Ocular account has been furnished by Ashiq Hussain (PW-1), Nazik Hussain (PW-2) and Sheerin Zahara (CW-1). Arrival of Ashiq Hussain (PW-1) who is a real brother of the deceased and his meeting with Nazik Hussain (PW-2) his neighbor was per chance. It was 4:00 a.m. in the morning when Ashiq Hussain (PW-1) was going towards his land for a purpose which has not been disclosed; not much different is the case of Nazik Hussain (PW-2) who claimed to have arrived at the spot after offering morning prayer; there is no mosque in the vicinity. They saw the deceased for the first time while he was hanging with a traverse/shahteer with knees touching the ground through an aperture in the door, the picture drawn in Ex.PA in the calmness of morning sans source generating commotion and noise. What is more intriguing is the stance taken by the witnesses about their having first seen the deceased while in a hung posture through door bolted from inside and then again their subsequent arrival at the entrance to find the door opened; position taken by the PWs is so incoherent and inconsistent that it cannot be reconciled, taken from any angle.
Throughout Ex.PA which embodies a detailed narrative account of the incident, the presence of Sheerin Zahara (CW-1) is conspicuously missing. Muhammad Naqi appellant is not shown as armed with 32 caliber revolver which is shown to have been recovered at his instance during the course of investigation. In this backdrop, it was really not very difficult for the PWs who were four in number to apprehend the appellants. According to Medical Officer, besides a ligature mark only injury sustained by the deceased was an abrasion measuring 3 1/2 cm x 1/4 cm on the dorsum of left feet. No injury or postmortem staining is noticed on the knees. Deceased was a well-built person of middle age; no mark of violence is seen on his body except the two referred to above, that may be suggestive of any resistance offered by him while he was being put to homicidal strangulation which is the case of the prosecution. Examination of Sheerin Zahara as CW-1 with an option of cross-examination to the prosecution is antithetical to the settled norms aimed at ensuring safe administration of criminal justice where accused confronting the charge is presumed as innocent with the sole and exclusive responsibility of the prosecution to bring home charge against him beyond a shadow of doubt; she was not mentioned as a witness in the first information report and if at all the prosecution desired to examine her, she ought to have been examined as a prosecution witness. In criminal dispensation of justice which is adversarial in nature, Court has no responsibility either towards the prosecution or for the defence; no doubt the Court is vested with powers to examine a person as a witness whose evidence is considered as essential to reach a just conclusion nonetheless this venture is not to be undertaken to the detriment of an accused facing the charge; power of this amplitude is to be exercised with circumspection while ensuring procedural fairness which is inherent in the Due Process of law where under an accused can comfortably defend himself without embarrassment and without being put in a disadvantageous position. While there is nothing wrong in summoning Sheerin Zahra as a witness in support of a charge, nonetheless, affording opportunity to the prosecution to cross- examine her so as to advance its case is prejudicial to the accused. A combined reading of Article 130, 132 and 150 clearly suggest the order and manner in which a witness is to be examined; this scheme and order of examination is essential to ensure a fair trial, particularly on a criminal charge, that too, involving capital sentence; Sheerin Zahra should have been examined in chief as a prosecution witness, if at all her testimony was considered essential for the just decision of the case; her examination as a court witness with option of cross-examination to the prosecution has caused serious prejudice to the appellants as she was first cross-examined by the prosecution thus placing the appellants in a vulnerable position; a witness who is called to advance the case of the prosecution cannot be given into the hands of the prosecution to cross-examine him in derogation to the commands of Article 150 of the Qanun-e-Shahadat Order, 1984. Evidence recorded or brought on the record in violation of statutory safeguards referred to above must be excluded from consideration, so is statement of Sheerin Zahra examined as CW-1 as it overrides the statutory safeguards referred to above; she is not named in the first information report as a witness, nor her name figures in the report under section 173 Cr.P.C; her statement is not recorded by the Investigating Officer and as such there was no occasion for the appellants to anticipate the evidence which the prosecution contemplated to produce against them. No doubt, summoning of this witness was challenged by Muhammad Naqi appellant through Crl. Revision No.327 of 2002 which came up before a learned Judge in Chamber of this Court when on 21-8-2002 when it was dismissed in limine. However, this by no stretch of imagination authorized the prosecution to bring on record statement of Sheerin Zahra in violation of law regulating examination of a witness during a criminal trial nor it can be pressed into service to validate induction of evidence which otherwise cannot be admitted in evidence.
On medical side, ligature mark leading to asphyxial death is anti mortem, except for a minor injury on left foot; there is no other mark of violence. Recovery of revolver does not advance the case of the prosecution. In this backdrop, it would be unsafe to maintain the conviction. Consequently, Crl.
Appeal No.16 of 2003 is allowed; appellants are acquitted from the charge; they are on bail; their sureties stand discharged. Mst. Shabana, appellant has been produced by the District Police Officer, Muzaffargarh in execution of non-bailable warrants of her arrest; she is ordered to be released forthwith.