SARDAR AHMED NAEEM, J.---Naveed Sadiq son of Muhammad Sadiq (appellant) along with Adeel Haider, Muhammad Siddique and Farooq Sadiq (since acquitted), accused of Private Complainant, under sections 302, 324, 337-D, 34, of the Pakistan Penal Code, 1860, Police Station Saddar Wah, filed by Naveed Sultan complainant, was tried by learned Additional Sessions Judge, Taxila for committing Qatl-i-amd of Anees Sultan and Waheed Sultan. During the occurrence Naveed Sultan also sustained injuries. The learned trial court vide judgment dated 05.01.2019, acquitted Adeel Haider, Muhammad Siddique and Farooq Sadiq of the charges, whereas, Naveed Sadiq (appellant) was held guilty, convicted and sentenced as under:-- i. Under section 302(b), P.P.C. for committing Qatl-i-Amd of Anees Sultan and sentenced to death with compensation of Rs.2,00,000/- under section 544-A, Cr. P.C. to the legal heirs of the deceased, in default thereof to further undergo simple imprisonment for six months. ii. Under section 302(b), P. P. C. for committing Qatl-i-Amd of Waheed Sultan and sentenced to death with compensation of Rs.2,00,000/- under section 544-A, Cr. P. C. to the legal heirs of the deceased, in default thereof to further undergo simple imprisonment for six months. iii. Under section 324, P. P. C. for causing injuries to Naveed Sultan and sentenced to ten years rigorous imprisonment with fine of Rs.1,00,000/ - to the injured, in default thereof to further undergo simple imprisonment for six months.
All the sentences were ordered to be run concurrently and benefit of section 382-B, Cr. P. C. was extended.
2. Naveed Sadiq convict/appellant has lodged. the instant appeal against his conviction and sentences. Murder Reference No 30 of 2020, under section 374, Cr.P.C. for confirmation or otherwise, of death sentence of the appellant is also before us. This judgment will dispose of both. the above mentioned matters.
3. It was observed that initially FIR No.413, dated 05.11.2013 under sections 302, 324, 34, P.P.C. (Exh.PY) was registered on the basis of statement of Java4 Safdar (PW.13) at Police Station Saddar Wah.
During investigation, the police declared Adeel Haider, Muhammad Siddique and Farooq Sadiq as innocent. The complainant levelled allegation of partiality against the police and being dissatisfied with the investigation, filed the private complainant (Exh.PX) regarding the said occurrence.
4. Brief facts of the case are that on 05.11.2013 at about 10:45, Naveed Sadiq (appellant) armed with pistol and along with his co-accused (since acquitted) committed Qatl-i-Amd of Anees Sultan and Waheed Sultan. During the occurrence, Naveed Sultan and one passerby, namely, Muhammad Hashim also sustained injuries.
5. Naveed Sadiq (appellant) was arrested in this case, on 19.11.2013, by Muhammad Shareef, S.I.
(CW.1).
6. In the private complaint, after recording preliminary -evidence of the complainant the accused/ appellant and the acquitted accused were summoned by the learned trial court to face trial.
Charge was framed against the accused persons on 14.02,2015, to which they did not plead guilty and claimed trial.
7. The prosecution, in order to prove its case, produced as many as fifteen witnesses. The ocular account, in this case, was furnished by Javed Safdar (PW.13), complainant of FIR and Naveed Sultan (PW. 14).
8. Medical evidence was furnished by Dr. Abu Hanifa M.O., T.H.Q. Hospital (PW. 11) who, on 05.11.2013 conducted postmortem examination on the body of Waheed Sultan and observed following injuries on his person: i. A gun shot entry wound .5 x .5 cm on right side of front of chest, 10 cm away from right nipple.
Edges inverted going inside and forward; ii. A gun shot exit wound 1 x 1 cm on right side of back of chest. 7 cm away from mid line. Edges evened; iii. A gunshot entry wound .5 x .5 cm on posterial aspect of left shoulder. Edges inverted going inside and forward; iv. A gunshot exit wound 1 x 1 cm on lateral aspect of right side of chest in mid axillary line, 10 cm away from right axilla. Edges everted.
Cause of death in this case was shock and haemorrhage due to injury to vital organs like liver and right lung, sufficient to cause death in ordinary course of nature. Probable time elapsed between injury and death was 30 minutes and between death and postmortem was within three hours.
On the same day Dr. Abu Hanifa (PW.11) also examined dead body of Anees Sultan (deceased) and observed following injuries on his person. i. A gunshot entry wound .5 x .5 cm on left shoulder 3 cm away from left shoulder joint. Edges inverted going inside and forward. ii. A gunshot exit wound 1 x 1 cm on left lateral aspect of chest 14 cm away from left nipple. Edges everted. iii. A gunshot entry wound 1 x 1 cm on left renal area (lumber region) 17 cm away from mid line.
Edges inverted going inside and forward. iv. A gunshot exit wound 1.5 cm x 1.5 cm on back of chest (right side), 15 cm away from right shoulder joint. Edges everted. v. A laceration 5 x 3 cm on left knee joint. vi. A laceration 4 x 2. cm on posterolateral aspect of left knee joint.
Cause of death in this case was shock and haemorrhage due to injury to vital organs like heart and left lung which is sufficient to cause the death in ordinary course of nature. Probable time that elapsed between injury and death was 30 minutes and between death and postmortem was within 4 hours.
Sajid Mehmood (PW.1) identified the dead body of Anees Sultan. Tariq Mehmood (PW.2) identified the dead body of Waheed Sultan. Aurangzeb (PW.4) was witness of recovery of pistol (P.2), magazine (P.3) got recovered by the appellant from his residential room. Khurram Shahzad (PW. 5) prepared scaled site plan (Exh.PE/ 1-2). Muhammad Waseem 5329/ HC (PW.6) received one sealed parcel said to contain pistol 9mm on 28.11.2013 for safe custody at malkhana and handed over to Muhammad Ayub constable (PW. 12) on 09.12.2013 for its transmission to the office of Punjab Forensic Science Agency. On 05.11.2013 Kaleem Akhtar 2104/ HC (PW.7) received two sealed parcels said to contain blood stained cotton and seven crime empties of .9mm pistol from Muhammad Sharif S.I. and handed over to Muhammad Amin on 13.11.2013 for their transmission to P.F.S.A. Fayaz Haider (PW.8) escorted the dead body of deceased Waheed Sultan to THQ Hospital for postmortem. Sakhawat Hussain (PW.10) escorted the dead body of Anees Sultan for postmortem at T.H.Q. Hospital Taxila. Muhammad Ayub 808/C deposited sealed parcel said to contain .9mm pistol along with the magazine in the office of Punjab Forensic Science Agency on 09.12.2013. Muhammad Bakhsh S.I. (PW. 15) chalked out the formal F.I.R. (Exh.PY). The learned trial court also examined Muhammad Shareef, S.I. (CW.1), Muhammad Tufail, S.I. (CW.2) and Muhammad Ameen 3626/C as CW.3.
9. Learned counsel for the complainant gave up Zulfiqar Ali, Taj Muhammad, Iftikhar Ahmad and Dr. Muhammad Masood M.O. D.H.Q being unnecessary and Nasir Iqbal being won over. Learned Deputy District Public Prosecutor gave up Khalid Jameel being unnecessary and after tendering into evidence report of Forensic Serology Analysis as Exh.PZ and firearais and Tool Marks as Exh.
PAAA closed the prosecution evidence.
10. The statement of the appellant under Section 342, of t e Code of Criminal Procedure, 1898, was recorded. He refuted the allegations levelled against him and professed his innocence. Responding to question "Why this case against you and why the prosecution witnesses have deposed against you?", the appellant replied as under: "I am innocent and have been falsely involved in the instant case. All the witness are close relative inter-se. No person from the place of occurrence i.e. market, ever supported the prosecution version. Even no person of the vicinity of the occurrence is a witness in the case in any respect.
The occurrence took place in front of a market, having numerous shops and rush of public on the road. The complainant party have also enmity with different people. In the investigation it has been confirmed that occurrence was committed by one un-known person. Even the injured PW Hashim who belongs to the complainant brothers also stated in his statement to the Investigating Officer, on the day of occurrence, that there was only one mart who made firing. So the version of the prosecution was found false during investigation. The motive as alleged was also not proved.
Neither any motorcycle was recovered nor produced by the complainant. Nobody is witness of the motive occurrence nor anybody pointed the said place during investigation. The report of the PFSA also negates the prosecution story and confirms the findings of the investigation. All my co- accused were found innocent and nothing was recovered from them during investigation to connect them with the occurrence. Due to political rivalry I, and others relation have been falsely involved in the instant case. As the complainant parry belonged to the then sitting MNA and MPA, whereas we opposed them politically. There are material contradiction in the statement of the witnesses which renders the entire prosecution story doubtful. There is no independent corroboration in support of the false accusation. Eye-witnesses were not present at the place of occurrence nor witnessed the occurrence. There is no enmity with complainant party and my brother to restrain him from pursuing my case."
The appellant neither appeared as his own witness under section 340(2), Cr.P.C. nor produced any evidence in his defence.
11. The learned trial Court after evaluating the evidence and considering the merits of the case, held the appellant guilty, convicted and sentenced him as detailed above. Hence, this appeal.
12. Learned counsel for the appellant contended that the prosecution case. was replete with doubts; that version of the complainant was contradicted by the medical evidence; that the ocular account was full of contradictions/diserepancies regarding salient features of the case, in particular, mode and manner of occurrence; that no independent witness was cited by the complainant, who also failed to establish his own presence on spot at the time of occurrence; that best evidence in this case was withheld by the prosecution, thus, necessary inference under Article 129(g) of Qanun-e-Shahadat, 1984 must be raised; that majority of the accused earned acquittal on the basis of same evidence and as no independent corroboration was forthcoming on record, thus, the appellant was also to be treated alike; that the prosecution miserably failed to prove motive and that the prosecution failed to prove its case against the appellant beyond reasonable doubt and every doubt even slightest is always resolved in favour of the accused.
13. Learned Deputy Prosecutor General assisted by the learned counsel for the complainant opposed this appeal with vehemence and submitted that it was a daylight occurrence, the parties were known to each other and there was no question of mistaken identity; that the witnesses have assigned specific role to the accused nominated in the FIR as well as in the private complaint; that version of the complainant was supported by motive, medical evidence and recovery of weapon found wedded with some crime empties secured from the crime scene; that the contradictions/ discrepancies hinted at by the learned counsel for the appellant were not fatal to the prosecution; that injure-eye-witnesses had no axe to grind against the appellant and they firmly withstood the test of cross-examination. Add that the prosecution has proved its case against the appellant up to the hilt, thus, appeal deserves dismissal.
14. We have given anxious considerations to the arguments advanced by the learned counsel for the parties and have paused the record with their able assistance.
15. The occurrence in this case took place on 05.11.2013 at 10:45 a.m. within the area of Mouza Losar Sharfu. During the occurrence, Anees Sultan and Waheed Sultan lost their lives. Whereas, Naveed Sultan and Malik Muhammad Hashim sustained injuries. The incident was reported by Javaid Safdar (PW.13). In the crime report appellant was nominated along with Adeel Haider and Muhammad Siddique and an unknown accused, later on nominated as Farooq. The Investigating Agency did not confirm the participation of the co-accused of the appellant including Adeel Haider, Muhammad Siddique and Farooq Sadiq in the occurrence and declared all the three as innocent, thus, a private complaint was filed by the injured witness, namely, Naveed Sultan (PW.14).
16. The allegations levelled in the FIR as well as in the private complaint were specific. The injuries sustained by both the deceased were attributed to the appellant. Whereas, Malik Muhammad Hashim (given up PW) and Naveed Sultan (PW.14) sustained injuries at the hands of Adeel Haider.
17. All the PWs, except the official witnesses were closely related to each other and details of their relationship find mentioned in the statement of Javaid Safdar (PW. 13), which can advantageously be reproduced hereunder: "Deceased Waheed Sultan is my real brother whereas the injured Naveed Sultan is my nephew.
PW Khalid Jameel is also my brother. PW Iftikhar is also my relative. PW Aurangzaib is also my brother. Fayyaz is my cousin. Injured Hashim is not from our baradari"
18. The motive behind the occurrence was an altercation between the appellant and one of the deceased,. namely, Anees Sultan due to the collusion of their motorbike about 30 minutes prior to this occurrence.
19. The occurrence took place opposite to Babar Market situated in Mouza Losar Sharfu. Javaid Safdar (PW.I3) was told about the incident of motive by Anees Sultan (deceased), who left for Babar Market and the other deceased Waheed Sultan also reached there on a motorbike but the appellant along with his co-accused fired at both the deceased and Adeel Haider (acquitted co- accused) attempted at the lives of injured above mentioned.
20. It is advisable at this stage to examine and analyze the chain of events in this case in order to arrive at some conclusion. It was a daylight occurrence and the parties were known to each other but the prosecution witnesses failed to establish their presence at the crime scene as their version was not inconsonance with the material collected during the investigation. First of all, it was observed that after the occurrence, the injured, both, were shifted to hospital of Pakistan Ordnance Factories (POF). The record divulged that their death certificates were issued from said hospital.
Whereas, Naveed Sultan was shifted to T.H.Q. Taxila by (PW.13) who, on the one hand, has shown ignorance regarding shifting of Malik Muhammad Hashim (injured-given up PW.) to hospital and, on the other hand, admitted that he dispatched both the injured to T. H. Q. Taxila.
At this stage it may be mentioned that prosecution attempted to make out a case that Malik Muhammad Hashim was a passerby and as he was won-over by the defence, thus, was given up.
However, he sustained firearm injury and was also examined under section 161, Cr.P.C. as admitted by CW.2 and PW. 13.
21. The complainant, namely, Naveed Sultan during the cross-examination came out with different/ ambiguous version. He claimed that he was semi unconscious and remained in hospital for long time. He remained admitted in D.H.Q. Hospital, Rawalpindi and again admitted in Christian Hospital, Taxila. Then he categorically mentioned in his statement that he remained in the hospital for one month. He was discharged from hospital on 28.11.2013 and his statement was recorded under section 161, Cr.P.C. on 05.12.2013 but record was mute if he was incapable of making statement. The Investigating Officer (CW.1) admitted during cross-examination that he did not enquire from the Medical Officer through a formal application if the complainant/injured was capable of making statement. Assuming for the sake of arguments that the injured remained in hospital being semi unconscious and was unable to move but nothing was brought on the file that he was incapable to make a statement. This is also belied by another fact as the Medical Officer (PW.11) admitted during the cross-examination that he received an application of Naveed Sultan forwarded by the Court whereby the injured requested for issuance of referral slip. He gone on to add that the complainant intended to get his complete medical examination including X-rays etc for production of evidence in the Court. A particular question was asked by the Court, to PW. 11 that was there any order by the Court for re-examination of the injured Naveed Sultan and responding to court question, the Medical Officer replied that the application produced before him by the injured for his re- examination was without order of the court and that it was dispatched and addressed to the Medical Superintendent. No material was available on record as to how the injured/ deceased were shifted to hospitals. Had the eye-witnesses been there, they could have confidently described about the shifting of the deceased/ injured. The complainant sustained firearm injury at the hands of Ali Haider hitting on his back, chest and different parts of body. The Medico Legal Report of the injured (Exh.PU) suggested twelve injuries on his person but the story described by the complainant PW.14 does not fit in the probabilities and his presence at the crime scene at the time of occurrence is not confirmed by the facts and circumstances of the case.
It is settled by now that injury on a witness is only indication of his presence at the spot but is not affirmative proof of his credibility and truthfulness. It is not a universal rule that each and every word coming from the mouth of injured person is truth. This Court in case of "AItaf Hussain and 4 others v. The State" (PLD 2000 Lah. 216) observed as under: "22. Believability and acceptability of a witness depends on numerous factors being injured is just one of them. The injury on the person of a witness does not transform his nature, or his attitude, or mentality. This would make him more vindictive. The injury primarily proves one fact only, and that is, that he was present at the scene of crime but it by no stretch of imagination proves him to be right of truthful. Where a witness is biased, and inimical towards the opposite party which is the case here, his testimony has to be scrutinized with care and corroboration of prosecution case in all of its material aspects is required. In Jahangir Hayat v. The State (PLD 1999 Lah. 285) the principles and guidelines for assessment of evidence were stated to be that different constituent factors of prosecution case must support each other and no single factor would suffice for recording conviction unless the same was corroborated in material respects by other constituent factors of elements. In serious cases entailing harsh sentences a single factor in itself would provide too narrow a foundation to base conviction of an accused. Evidence of witnesses of fact who were injured in the incident is just one factor or facet of prosecution case. Viewed in isolation, it might give impression of a plausible story to an untrained mind, but examined in a proper ambience its seamy side would become palpable immediately...."
Mere presence of injuries would not stamp that he is a truthful witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness. A similar question came up for consideration before their lordships in "Amin Ali v. The State" (2011 SCMR 323), the relevant observations of their lordships can also be reproduced hereunder: "12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P. Ws. would not stamp them truthful witnesses..."
22. The statement of the Medical Officer further suggested that the arrival time of Naveed Sultan was 12:30 p.m. and the probable duration of the injuries was 30 minutes, which reflected that he sustained injuries at about 12:00 (noon), whereas, the occurrence as stated by the PWs took place at 10:45 a.m. The Medical Officer gone on to add that all the injuries of the complainant have different size/ shape (dimension) and he was referred to D.H.Q. Hospital Rawalpindi and then after consulting the operation notes he was unable to comment upon the recovery of any foreign body from his body. During postmortem examination, the Medical Officer observed 04 and 06 gunshot wounds on the body of Waheed Sultan and Anees Sultan, respectively. The dimension of the injuries" sustained by both deceased were different suggesting usage of different weapons during the occurrence, also admitted by the Medical Officer during his cross-examination.
It was further admitted by the Medical Officer that dimension of the injury No.1 in Medico Legal Report of Malik Muhammad Hashim (Exh.PS) was different from all other injuries mentioned in Exh.PU, Exh.PK and Exh.PO. Though the postmortem of the deceased, both, were not conducted with inordinate delay but the following excerpts from the statement of PW.11 can advantageously be reproduced: "It is correct that the police papers were not received in the hospital along with the dead bodies. It is correct that police papers of both the dead bodies were received at different times and after the dead bodies reached in the hospital. In Exh.PO the dimension of exit wounds injuries No.2 and 4 are different. It is correct that injuries Nos. 5 and 6 in Exh.PO are through blunt weapon."
23. The critical condition of the complainant was asserted by the PWs during trial but no evidence whatsoever was brought on the file to confirm his incapability to make any statement till 05.12.2013 as described by Muhammad Sharif (CW.1). He further admitted that Naveed Sultan was discharged on 27.11.2013 and this fact was not reported to him by the prosecution witnesses. However, the statement of the injured Naveed Sultan was recorded by the Investigating Officer by reproducing his statement printed on a computer-generated paper, which is also open to objection. No convincing or plausible explanation was forthcoming on record for belated recording of the statement of complainant (Naveed Sultan) under section 161, Cr.P.C., which makes the prosecution story doubtful. Dealing with similar preposition in case titled "Syed Saeed Muhammad Shah and another v. The State" (1993 SCMR 550), the apex Court ruled: "28. ...In this case unsatisfactory explanation which is not. substantiated can be equated with no explanation. In the case Sikandar v. The State (PLD 1963 SC 17) there was controversy as to when police statement of eye-witness was recorded and in that regard there was choice between version of eye-witness and Investigating Officer. It was held that controversy is to be resolved on the basis of rule that benefit of doubt must be given to the accused hence evidence, of that eye- witness was viewed with doubt. In the case of Ismail and others v. The State (1983 PCr.LJ 823) evidence of witnesses was ruled out of consideration on the ground that their police statements were recorded after 8 days and prosecution offered no explanation. In the case of Sirajuddin v.
Kala and another (PLD 1964 SC 26), evidence of witness was held to be not reliable for the reason of patent doubt as to the time as he first appeared before the police for his statement."
24. As mentioned above, majority of the accused have earned acquittal. They were acquitted by the learned trial court on the same set of evidence. It is also settled law that if the majority of the accused nominated in a case are acquitted on account of their false implication by the eye- witnesses then allegations of the remaining accused on the basis of same evidence cannot be sustained without independent corroboration. In this respect, reliance is placed on "Iftikhar Hussain and another v. State" (2004 SCMR 1185), "Sarfraz alias Sappi and 2 others v. The State"
(2000 SCMR 1758) and "Akhtar Ali and others v. The State" (2008 SCMR 6).
25. Now it is to be seen on the touch stone of the law declared in the above precedents if the independent corroboration was forthcoming on record. The witnesses failed to establish their presence at the crime scene and witnessing the occurrence. The motive is not a component of murder as it is hidden deep in the mind of the perpetrator of the crime and even some crimes are motiveless but once a motive is setup by the prosecution and is not established, then it adversely effects the case of prosecution. The eye-injured witnesses have not seen the altercation between the appellant and the deceased half hour prior to this occurrence. No other witness was produced during trial to establish this fact, thus, the prosecution failed to prove motive.
26. The appellant was arrested in this case on 19.11.2013 and got the weapon recovered on 28.11.2013.
The place of recovery was admittedly not in exclusive possession of the appellant. The recovery was effected from a residential room of the house of the appellant. It was lying on a table along with license. The recovery, in such circumstances, is not normally effected. It seems as if raiding party was awaited and welcomed by the inmates of the house at the place of recovery from where it was effected with everything ready to be handed over to the Investigating Officer.
27. The scaled site plan was prepared by Khurram Shahzad (PW.5). One of the deceased, namely, Waheed Sultan reached at the crime scene on a motorbike but no motorbike was shown in the scaled site plan. Another fact cannot be lost sight of as the draftsman admitted during the cross- examination that he prepared the scaled site plan under instruction of the Investigating Officer as he was instructed by the PWs meaning thereby that scaled site plan was prepared at the instance of Investigating Officer.
28. The record further divulged that one of the injured, namely, Malik Muhammad Hashim was not produced during trial being won-over. He sustained firearm injury attributed to Ali Haider. He was also medically examined on the same day through police. His statement under section 161, Cr.P.C. was recorded and according to Malik Muhammad Hashim, the episode was enacted by one unknown accused. This fact has also been admitted by Muhammad Tufail (CW.2). He described that Malik Muhammad Hashim joined the investigation on 03.01.2014 and endorsed/ verified his earlier statement dated 05.11.2013. He further added that he recorded his statement wherein nobody was nominated as accused. He further added that on 28.11.2015 ten persons appeared before him to support the defence version and Habib-ur-Rehman and Rafaqat Ali supported the plea of Malik Muhammad Hashim.
29. While going through record, we have observed that the learned trial court put certain questions to the prosecutions witnesses regarding story described by Malik Muhammad Hashim in his statement recorded under section 161, Cr.P.C. For instance, Naveed Sultan was asked following question: Q: Whether it was version of Hashim PW that the occurrence was committed by only one unknown accused?
Another similar question was responded by Muhammad Sharif; S.I. (CW.1) read as under: "Is it correct that injured Hashim took the version before me while recording of his statement under section 161, Cr. P. C. that there was only one accused who committed the occurrence, who' could be recognized by him?"
30. We have observed that the above question posed by the learned trial court were opposed- objected to by the learned counsel for the complainant for the reasons mentioned in the respective statements of the PWs. However, it would be appropriate to produce the remarks of the learned trial court to drop its own question which read as under: "Learned counsel for the complainant has objected that this question cannot be asked pertaining to other witness who has not been examined and the contents of his statement under section 161, Cr.P. C. cannot be asked from this witness. Learned defence counsel has argued that this witness has himself stated that he read the statement of Hashim so he be asked to reply this question.
Although this witness has stated that he has read statement of PW Hashim recorded under section 161, Cr. P. C. but the said witness has not been examined before this Court as witness and the contents of statement under section 161, Cr. P. C. of other witness cannot be got verified or contracted through the present witness and question regarding his statement under section 161, Cr.P.C. cannot be asked from the present witness".
For guidance of the learned trial courts to meet with the similar situation, we would like to reproduce Article ,161 of Qanun-e-Shahadat Order, 1984: "161. Judge's power to put question or order production. The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant, and may order the production of any document or things and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:"
Provided that the judgment must be based upon facts declared by this Order to be relevant, and duly proved.
Provided also that this Article shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Articles 4 to 14, both inclusive, if the question were asked or the document were called for by the adverse party: nor shall the Judge ask any question which it would be improper for any other person to ask under Article 143 or 144; nor shall be dispensed with primary evidence of any document, except in the cases hereinbefore excepted.
Article 161 of Qanun-e-Shahadat, 1984 has armed the judge with the most exhaustive powers possible for the purposes of getting at the truth. It is settled by now that courts of law are not to sit entirely unconcerned during proceedings, like a dummy nor is a court holding a criminal trial expected to act only as unthinking statute or as a mere referee in a technical bout leaving to the contestants to do what they like and nor interfering unless the rules of the game were violated. The Investigating Agency, the counsel, the parties and the witnesses before such courts are the instruments provided by law to reach a correct and just decision. The courts of law should not leave themselves to the mercy of the parties but required to actively participate in the proceedings to dig out the truth. Powers conferred under section 540, Cr.P.C. and Article 161 of Qanun-e- Shahadat not only empower the courts to adopt such a course but in fact obliged them to do that.
Asking question to any witness during trial to reach at a just conclusion, when the court feel necessary in the interest of justice can ask: any question; in any form; at any stage; of any witness; or of the parties; about any fact relevant or irrelevant. The powers given under this Article are supplementary to the power of the Court provided in section 540 of the Code of Criminal Procedure, 1898.
Examination of witnesses is very important for any case whether civil or criminal. Articles 130 to 161 of Qanun-e-Shahadat, 1984 explain the examination of witnesses, which covers all the things, like who can first examine the witnesses and what are the relevant facts that are accepted during the examination of witnesses. It also covers what questions can or cannot be asked during 'cross- examination. It also tells that power of Judges during the examination of witnesses. It is the Judge's power or right to put questions to witnesses related to a particular case which is expressly recognized in Article 161 Qanun-e-Shahadat, 1984. It is expected from the judge as well as it is his duty to be well aware of all the evidence produced before the court to discover the truth. To give a fair verdict or judgment, it is mandatory for the judge to question witnesses on the points which the lawyers have willingly overlooked or left. If the judge is not satisfied with the way in which examination of witness is conducted by the counsel, he has the right and duty to interfere with questions. It is duty of a judge to discover the truth and for that purpose, he may ask any question in any form at any time to the witness about any fact relevant or irrelevant related to the case but this he must do without trespassing the function of a counsel and without appearing to frighten the witness.
There is no time limit for which the judge may ask a question and if he has not got the depth of the matter he should further go with the examination no matter whatever is the number of questions required to dig out the truth. Under Article 161 of Qanun-e-Shahadat, 1984, the parties nor their agents are entitled to raise any objection to any such question, nor, without the leave of the court, to cross-examine any witness upon any answer given in reply to any such question. It is discretion of the judge to allow permission for cross-examination of the witnesses.
31. The main object of Article 161 of Qanun-e-Shahadat, 1984 is to enable the Court to reach the truth irrespective that the prosecution or defence has failed to produce some essential evidence, which is necessary for a fair verdict.
Lord Denning said that in exercising this power, the court must actively participate in the trial to elicit the truth and to protect the weak/ innocent. He must not assume the role of a prosecutor in putting questions. Any question put by the judge, must be so as not to frighten, coerce, confuse or to intimidate the witness.
A judge is empowered to ask clarifying questions, but must not cross-examine, impeach, badger, harass, humiliate or belittle the witness.
In criminal trial, it is not uncommon to see a judge inserting himself/herself into the proceedings and ask questions to a witness directly. A judge is, by law, permitted to question the witness.
However, this power is not without limits.
The trial court is vested with ample authority to put questions to the witness under Article 161 of Qanun-e-Shahadat Order, 1984, however, certain limitations upon such powers are as under:
(i) Power of this amplitude must be exercised with caution and circumspection. "Inhaf Ullah v. The State and another" (2021 SCMR 1725); ii. Question shall be carefully put to a witness in such a manner so it may not give an impression to one or the other party that the Court is inclined in favour of the defence or the prosecution and one party or the other. "Muhammad Ajmal v. The State and another" (2018 SCMR 141). iii. Such powers are used with great care and only when it is absolutely necessary in the interest of justice. "Muhammad Abid v. Mst. Nasreen Yousuf and another" (2002 CLC 655); iv. While exercising such power the Court shall weigh the scales of justice evenly. "Javed Shamshad and 3 others v. The State"- (1996 PCr.L.J 3); v. A Court should normally refrain from warning the witness of his unsatisfactory demeanour because the effect of such warning would be to put the witness on his guard and his subsequent demeanour will not be his natural demeanour. "Syed Kanchan Ali v. Shahjahan and others" (PLD 1962 Dacca 192); vi. The Court should normally refrain from putting itself in the position of a prosecutor or a defence lawyer. "Syed Kanchan Ali v. Shahjahan and others" (PLD 1962 Dacca 192); vii. When it is absolutely necessary in the interest of justice (For reference see State v. Balahari Dass Sutradhat PLD 1962 Dacca 467 (D.B.) and Kanchan Ali v. Shahialian PLD 1962 Dacca 192 (D.B.)). "Muhammad Abid v. Mst. Nasreen Yousuf and another" (2002 CLC 655); viii. The power construction of the said Article in its totality would be in. our humble view that the above power is to be exercised by the Court to resolve any ambiguity or confusion found in the evidence and to clear away the doubts created by different pieces of evidence but while exercising such power the Court shall weigh the scales of justice evenly. "Javed Shamshad and 3 others v. The State" (1996 PCr.LJ 3).
It may also be mentioned that under subsection (2) of section 265-F, Cr.P.C. of the Code of Criminal Procedure, the Court is under an obligation to ascertain from the Public Prosecutor or the complainant the names of the persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and thereafter, summon such persons to give evidence before it. This provision is not merely a procedural step but it manifests a positive intent to advance the cause of justice for meeting a situation when any material evidence is left out for whatever motive.
The purpose of section 540, Cr.P.C. is to enable the court to reach at the truth of the matter and imposes a duty on the court to summon a person in the witness box, whose evidence is essential for just decision of the case. Under first part of the section, the court my in its discretion summon or recall a person or a witness for examination or re-examination but under the second part, it is obligatory for the court to summon and examine or recall or re-examine any person if his evidence appears essential for just decision of the case, but the court cannot use the power under section 540, Cr.P.C. to advance the case of prosecution or that of the defence. However, this discretionary power should be used in a case in which the examination of a person is material and is essential to come to a proper conclusion. In this case, it appeared that learned trial court was mindful of a different version of the occurrence described by given up PW, namely, Malik Muhammad Hashim.
At some stage, the learned trial court also asked questions to PW.4 and CW.2 regarding the same fact but got no answer. Then section 540, Cr.P.C. could have been resorted to, thus, the learned trial court failed to discover the truth in this case as no meaningful discussion on this aspect of the case is available in the impugned judgment.
32. Reverting to the merits/ facts of this case, we may add that the complainant party and the PWs were involved in different decided and pending criminal cases. Their enmity with Afridi Pathans was also suggested from the evidence recorded at trial. The motive was not proved. Medical evidence does not corroborate the complainant version. The co-accused of the appellant have been acquitted by the learned trial court on the same set of evidence. The recovery of the weapon and positive report of Forensic Expert is of no help to prosecution because it can neither remove any defect of the oral evidence nor is by itself sufficient to bring home guilt of the appellant. Above all, the plea of Malik Muhammad Hashim before CW.2 was verified. His statement under section 161, Cr.P.C. was recorded to the same effect as admitted by PW. 13 and CW.2.
The resume of the above discussion is that the occurrence might have taken place but not in the manner as described by the prosecution. The material facts regarding the occurrence appeared to have been suppressed and the complete tale was not described by the prosecution, which failed to prove its case against the appellant beyond reasonable shadow of doubt.
33. It is cardinal principal of law that findings of guilt against accused must rest surely in the evidence of unimpeachable character, thus, all the factors and circumstances leading to doubt have to be resolved in favour of the accused and could not be withheld in favour of the prosecution. The apex Court in the case of "Tariq Pervaiz v. The State" (1995 SCMR 1345) held as follows: "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is nor necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
In another judgment titled "Abdul Jabbar v. The State and another" (2019 SCMR 129), their lordships observed: "It is settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict... benefit of such loophole/ lacuna in the prosecution case automatically goes in favour of an accused."
34. As a result of the discussion noted above, we are left with no option but to accept the appeal as the suspicions are so compelling that we are constrained to grant benefit of doubt to the appellant. Resultantly, Criminal Appeal No.72 of 2019 is accepted. The conviction and sentences recorded against the appellant by learned trial court vide impugned judgment dated 05.01.2019 is set aside. The appellant is acquitted of the charges and shall be released forthwith unless required in any other criminal case.
35. Murder Reference No.30 of 2020 is answered in the NEGATIVE and death sentence of Naveed Sadiq (convict) is NOT CONFIRMED.