SABIT ULLAH KHAN, J- This appeal under Section 410 of the Code of Criminal Procedure, 1898 (Cr.P.C.) has been preferred by appellant/convict Said Naik Amal Shah son of Anwar Shah Pacha through Jail authorities challenging the judgment rendered by learned Additional Sessions Judge, Samarbagh District Dir Lower dated 29.07.2022 in case FIR No. 49 dated 25.04.2019 registered under Section 302 PPC at P.S Samarbagh, District Dir Lower whereby he was convicted under Section 302(b) PPC and sentenced to life imprisonment as Ta'azir with further sentence to pay Rs.500,000/- to legal heirs of the deceased as compensation under Section 544-A, Cr.P.C. or, in default thereof, to suffer further six months S.I. The benefit under Section 382-B, Cr.P.C. was extended to him.2. The report was lodged by complainant, Abdul Saboor Shah (PW-17), son of the appellant, on 25.06.2019 at 22:45 hours. He stated that on the same day, while requesting his mother Mst. Wahila Bibi (deceased) to prepare tea for him, the appellant suddenly entered the kitchen and began stabbing the deceased. As a result, she sustained injuries to her chin and the left side of her neck, leading to her immediate death. The complainant attempted to apprehend the appellant but was unsuccessful. The incident was reportedly witnessed by his brother Syed Abdul Samad (PW-18), however, no motive for the murder was mentioned. The complainant's report was recorded in shape of Murasila which subsequently led to the registration of FIR (Ex-PA).
3. Initially, the appellant remained absconder and was proceeded against under Section 512, Cr.P.C.
He was arrested on 24.07.2019, nearly three months after the occurrence. Following the submission of complete challan, trial proceedings commenced against him. After fulfilling the requisite legal formalities, he was formally charge-sheeted for the offence. He did not plead guilty and opted to face trial. To substantiate its case, the prosecution examined 18 witnesses and closed its evidence.
During his examination under Section 342 Cr.P.C, the appellant once again denied the charge and claimed innocence. However, he neither chose to testify on oath under Section 340(2) Cr.P.C. nor presented any evidence in his defence. Upon conclusion of the trial, the learned trial Court, through the impugned judgment, convicted and sentenced the appellant, the detail of which has already been discussed earlier in this judgment. Consequently, this appeal has been filed.
4. We have heard the arguments of learned counsel for the appellant and learned Assistant Advocate General representing the State and gone through the record with their able assistance.
5. The learned trial Court has found the appellant guilty of murdering his wife by stabbing inside the confines of his residence. In reaching this conclusion, the trial Court has mainly relied on the ocular account provided by complainant Abdul Saboor Shah (PW-17) and his brother Abdul Samad Shah (PW-18). In support of their testimony, corroboration was sought from medical report, incriminating recoveries, including the crime weapon (churri) and the alleged unnatural conduct of the appellant at the relevant time. Notably, PW-17 and PW-18 were declared hostile witnesses upon the application of the complainant's counsel and the prosecution was granted permission to cross-examine them. Before delving into the crucial question regarding the evidentiary value of hostile witnesses in criminal cases and assessing the reliability of PW-17 and PW-18 in the present case, it is essential to first evaluate the record to determine the intrinsic worth of their statements in light of the surrounding circumstances.
6. In the present case, a significant point of contention arises from the evidence regarding handling of the dead body and their instinctive response to the tragic murder of their mother. According to the version of prosecution, the deceased was fatally stabbed by the appellant inside the kitchen of their home, with the incident allegedly witnessed by the complainant (PW-17) and his brother Abdul Samad Shah (PW-18), both of whom are the sons of the deceased and the appellant.
According to the initial report, the complainant stated that he was inside his room at the relevant time and had requested his mother to prepare tea, after which she was attacked and stabbed by the appellant in the kitchen. However, the record does not indicate what had provoked the appellant to take such an extreme step, nor does the FIR mention any specific motive for the crime.
The only allegation against the appellant is that he was a habitual drug addict who frequently quarreled with his wife, but no substantive evidence has been presented to support these claims.
Furthermore, the Investigating Officer Sher Hayat Khan SI (PW-14), testified that the electricity supply was disconnected on the night of the occurrence and that there was no alternative source of light in the appellant's house. He also stated that he had prepared the site plan using a torch.
Upon comparing the site plan with the FIR, a clear inconsistency arises regarding the complainant's position. The FIR does not specify the distance between the kitchen, where the murder took place, and the complainant's room. However, during cross-examination, the I.O. stated that the distance was 20 feet and further admitted that the kitchen was not visible from the complainant's room, where he was present along with his grandmother and brother (PW-18) as reflected from the statement of the latter. Keeping in view these circumstances, particularly the darkness at the scene and the obstruction of visibility from the complainant's room, it is difficult to accept the claim of the eyewitnesses that they had seen the appellant stabbing their mother. The general principle for assessing a witness's statement is that it should align with the probabilities and be consistent with the circumstances of the case. In the case of "Haroon alias Harooni Vs.The State and anther" reported as 1995 SCMR 1627 the Hon'ble apex Court has held that statement of witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent person; if these elements are present, then the statement of the worst enemy of the accused may be accepted and relied upon without corroboration, but if these elements are missing then statement of a pious man may be rejected without second thought.
7. Several other circumstances also indicate the possible absence of the eyewitnesses from the crime scene. During cross-examination, it was revealed by the eyewitnesses that their uncles along with their families and parents, were residing in the same house and shared kitchen expenses.
However, it remains unexplained why the Investigating Officer suppressed this fact and failed to associate even a single other resident of the house with the investigation process. Furthermore, the deceased was taken to the hospital by brothers of the appellant namely Wilayat Shah and Syed Intikhab Shah, who were also recorded as the identifiers of the dead body in both the inquest report and postmortem report. Being sons of the deceased, PW-17 and PW-18 would not be expected to remain indifferent in such a situation, raising doubts about their actual presence at the crime scene at the relevant time. The absence of their names from the inquest and postmortem proceedings further reinforces skepticism regarding their credibility as eyewitnesses. In this regard, reliance is placed on "Ramzan alias Jani Vs. The State" reported as 1997 SCMR 590 and "Liaaat Ali and another Vs. The State and others" reported as 2021 SCMR 780. Another significant factor supporting the absence of the eyewitnesses is the medical evidence. In the OPD slip (Ex. PW-15/1), the doctor noted that the deceased's pupils were fully dilated, which suggests that she remained unattended at the crime scene, as no one was present to close her eyes; a common practice when attending to a dying person. Although this fact is not explicitly mentioned in the inquest report (Ex.
PW-10/2) or the photographs of the deceased (Ex. PW-14/3 & 14/4), however, ASI Ashfaq Ahmad (PW-10), the author of the Murasila, admitted that he had prepared the injury sheet based on the doctor's findings. This implies that the inquest report and injury sheet were completed at the time of the postmortem examination had over, meaning the deceased's eyes were likely closed by medical staff rather than any alleged eyewitness at the scene. The dilated pupils of the deceased serve as a relevant indication that no one was present to attend to her immediately after the incident, further casting doubt on the presence of the eyewitnesses. A similar situation was confronted in "Muhammad Asif Vs. The State" reported as 2017 SCMR 486, wherein the Hon'ble Supreme Court disbelieved the ocular account, observing that; "14. In column No.8 of the inquest report, the eyes and mouth of the deceased were found open, thus, if the parents, witnesses, and the two close friends were present then, at least after the death as is a consistent practice of such close relatives, they would have closed eyes and mouth of the deceased on his expiry. This fact by itself indicates that none was present with the deceased till his death and why his eyes and mouth remained open and were not set right by any one and his dead body was discovered late in the night".
8. Another critical aspect to consider is the probable cause of death, which, as indicated by the medical evidence, was excessive bleeding. However, the medical report discloses that the time between the injuries and death was approximately 15 minutes, while the time between death and the postmortem examination was 15-20 minutes. Considering these timeframes, it is noteworthy that the distance between the crime scene and the police station (P.S.) is approximately 3/4 kilometers, and the hospital is only a 3/4-minute drive from the police station, as confirmed by constable Ghani-ur-Rahman, who testified twice as PW-2 and PW-12 during the trial. The deceased sustained only two cut injuries, and considering the short distance to the hospital, her life could potentially have been saved had she received immediate medical attention. The fact that excessive bleeding led to her death strongly suggests that she remained unattended at the crime scene for a significant period, resulting in fatal blood loss. Additionally, the discrepancies in Murasila further cast doubt on the prosecution's version of events. There is clear overwriting on the recorded time and date, and PW-10, the author of the Murasila, admitted that the time of the report had been altered from 20:45 to 22:45. Furthermore, there is an unexplained delay of approximately 50 minutes in recording the report. According to medical documents, the dead body had arrived at the hospital at 21:55, just 15 minutes after the alleged occurrence, however, the Murasila was officially recorded at 22:45; 50 minutes after the dead body had arrived at the hospital. It is also significant that ASI Ashfaq Ahmad (PW-10), who was in-charge of police at the hospital's casualty, admitted that he was present at the hospital at the relevant time. Yet, despite his presence, he failed to record the report promptly and instead delayed it by 50 minutes without providing any plausible justification. This unexplained delay raises serious doubts not only about the actual timing of the incident and the report but also about the presence of the alleged eyewitnesses at the crime scene. Thus, the statements of the eyewitnesses as well as the contents of FIR are not in conformity with medical evidence. The inconsistencies and inherent weaknesses in the prosecution's case lead to the inevitable conclusion that, regardless of the fact that the eyewitnesses were declared hostile, their testimony lacks credibility and so the trial Court has erred in relying on their statements to convict the appellant.
9. Turning to the crucial issue of the reliability of a hostile witness's testimony, the primary question is whether the inconsistent accounts given by the complainant (PW-17) and his brother, Abdul Samad Shah (PW-18), both of whom were declared hostile, can be relied upon to convict the appellant, particularly when their statements contain contradictions regarding their presence, perception, and recollection of the crime. Another key issue requiring resolution is whether any portion of a hostile witness's testimony can be used as a basis for conviction, especially when cross-examination has exposed significant inconsistencies undermining their earlier statements.
The evidentiary value of a witness's testimony in criminal proceedings is heavily dependent on consistency and credibility. In this case, while the examination-in-chief of PW-17 and PW-18 initially seemed to establish a sequence of events implicating the appellant, their drastic deviation during cross-examination has severely damaged their credibility. It is a well-settled principle that the mere retraction of a witness's earlier statement does not automatically render them hostile.
Hostility and retraction are distinct legal concepts: hostility refers to a witness's deliberate intent to deviate from the truth or act against the interests of the party that called them to testify. Retraction occurs when a witness withdraws or takes back his statement due to its inaccuracy, falsity or unreliability. In this case, while PW-17 and PW-18 have retracted their previous statements, such retraction alone does not necessarily mean they have become hostile in the legal sense. The trial court's decision to declare them hostile solely based on their retraction was, therefore, not justified.
It was observed by the Hon'able apex Court in the case of "Muhammad Boota and another Vs. The State and another" reported as 1984 SCMR 560 that a witness who is unfavourable is not necessarily hostile, for a hostile witness is one who from the manner in which lie gives his evidence, shows that he is not desirous of telling the truth to the Court; that the witness's answer to certain question is in direct conflict with evidence of other witnesses and is not and can never be a reason for allowing the witness to be treated as hostile and permitted to be cross-examined. Moreover, the admission of PW-17 and PW-18 that they were not eyewitnesses and had no direct knowledge of the incident, particularly considering their late emergence from their room to the kitchen where the crime occurred, raises serious doubts about the accuracy and reliability of their initial statements.
Additionally, their failure to identify crucial details, such as the weapon used and the complainant's admission that he had implicated his father (the appellant) at the instigation of the police, further suggest that his allegations were not based on direct observation but rather on secondary influence or hearsay.
10. It is settled principle that when a witness is declared as hostile, the trial Court must examine the totality of his evidence with great caution. The testimony of a hostile witness, by virtue of its inconsistencies, may either favor prosecution or the defence. However, in the instant case, we find that the contradictions emerging from the testimony of PW-17 and PW-18 are such that they cannot reliably be transformed into evidence implicating the appellant. The benefit of any portion of the statement that initially appeared incriminatory cannot be automatically extended to support a conviction when subsequent evidence clearly indicates that witnesses' recollections were not based on first-hand knowledge. Whether statements of PW-17 and PW-18 can be taken into account when they were declared hostile in view of their divergent narrations, in this regard the guiding principle has been laid down by Hon'ble Supreme Court in the case titled "The State Vs. Abdul Ghaffar" reported as 1996 SCMR 678 by holding 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 Court to decide in what voice he speaks the truth. In such cases, the determining test is corroboration from independent source and conformity with the remaining evidence.
In light of the legal principles established in the aforementioned precedent, we have already determined that the presence of the complainant at the crime scene at the time of the occurrence is doubtful, particularly in view of his unusual and unnatural conduct. The same applies to his brother PW-18. Keeping in view that both witnesses failed to substantiate the version presented in their examination-in-chief through any corroborative physical evidence, their testimony holds no probative value for the prosecution under any standard of judicial appreciation. In this regard, reliance is placed on "Dr. Javid Akhtar Vs. The State reported in PLD 2007 SC 249, wherein it was held that the Court is justified in disregarding the testimony of a hostile witness.
11. The record further reveals that the prosecution had requested the trial Court to declare PW-17 and PW-18 as hostile witnesses during the cross-examination of Abdul Samad Shah (PW-18) when cross-examination on the complainant (PW-17) had already been completed. It is a well-settled principle that a witness cannot be declared hostile during cross-examination, as such a concept does not exist in legal precedents as observed by this Court in "Faisal Khan Vs. The State" reported as 2022 YLR 1341. A similar view was reiterated in Fazal Subhan's case (PLD 2023 Peshawar 130), wherein it was held that:
5. It may be clarified that a party can ask for declaring the witness as hostile when the opposite party has not started the cross-examination but when once cross-examination starts or commence then such request could not be entertained as after putting the first question in the cross-examination the said witness did not remain the witness of the prosecution or the complainant, as the case may be.
Thus, not only the decision of the trial Court while declaring PW-17 and PW-18 as hostile witnesses was against the law but its reliance on their testimony, being of doubtful nature, was also against the settled principles. Criminal jurisprudence mandates that any reasonable doubt as to the guilt of the accused must be resolved in favor of the accused. In the present case, the unreliable nature of the testimony of both the eyewitnesses creates a significant gap in the evidentiary chain. The trial Court's reliance on a hostile witness, whose account underwent material alterations, constituted a misapprehension of the weight to be accorded to such evidence.
12. So far as the contention of the prosecution regarding the burden of the appellant under Article 122 of the Qanun-e-Shandat Order, 1984 is concerned, the initial burden was on prosecution to prove the guilt of appellant beyond any doubt under Article 117 of the Qanun-e-Shandat Order, 1984 and this burden can never be shifted to the accused unless the legislature by express terms commanded otherwise. It is settled law that Article 122 comes into play only when the prosecution succeeds in discharging its legal burden under Article 117 by producing sufficient evidence. In the present case, the prosecution has not discharged the aforesaid legal burden, therefore, drawing any inference of the appellant's guilt from his conduct would be against the settled principles of justice. Guidance is taken from "Raia Khurram Ali Khan and 02 others Vs. Tavvaba Bibi and another" reported as PLD 2020 S.C 146.
13. The trial Court has also considered the recovery of crime weapon; a blood-stained churri coupled with the matching FSL report, however, it is an admitted fact that the churri had neither been recovered from possession of the appellant nor on his pointation, therefore, in view of the absence of the link between the churri and the appellant, the same cannot be considered in support of the remaining evidence. In addition, the I.0 has acted in violation of Section 103, Cr.P.C. without any explanation though the house of the appellant is surrounded by other houses and so fabrication of the evidence cannot be ruled out in the circumstances. Even otherwise, when the ocular account has already been discarded by us, the corroborative evidence is of no avail to prosecution. It is settled principle of law that once the ocular account is disbelieved then no other evidence, even of a high degree and value, would be sufficient for recording conviction on a capital charge. Reliance is placed on "Sughra Begum and another Vs. Oaiser Pervez and others" (2015 SCMR 1142).
14. The above discussion leads us to the conclusion that prosecution has not discharged its legal burden to establish the guilt of the appellant beyond shadow of doubt, therefore, the impugned judgment warrants reversal in the circumstances. Resultantly, this appeal is allowed, the impugned judgment is set aside and appellant Said Naik Amal Shah son of Anwar Shah Pacha is acquitted of the charges in the present case. He be released forthwith from jail if not required in any other case.
15. Above are the reasons of our short order of the even date.