' ABDUL MAJEED MALLICK, C. J.-The State has preferred this appeal against the order of acquittal, recorded by the learned Sessions Judge Muzaifarabad, on the 17th of January, 1982. The respondents were charged with offence of arson and murder of Suleman Khan and Mst. Shah Begum his wife, under sections 302, 436, 429, 201, 109/34 of the Penal Code. The learned Sessions Judge, Muzaffarabad record the acquittal of respondents for want of establishing the prosecution's case.
2. The incident took place at mid-night of 7/8th of August, 1980. The details of facts contained in the First Information Report are that Muhammad Suleman Khan, deceased and Musa Khan respondent were real brothers. They acquired allotment of evacuee land, in village Koornikot. They partitioned the allotted land and occupied the same separately. In near past, the relations between them were strained on account of damage to the crop, caused by Musa Khan, by leaving free his cattle in the land of the deceased. Suleman Khan, deceased was an employee in some service at Muzaffarabad and used to visit his house at week end. As usual, he went home to spend his week end and was sleeping alongwith his wife, Alst. Shah Begum, inside the house, when Salam Sheikh, who came out of his house to urinate, found the house of the deceased on fire. He raised hue and cry, in consequence of which, the villagers arrived on the scene and found the house completely burnt and the inmates buried under the debris. Muhammad Roshan Khan, A. S.-1. Present in the village, arrived on the scene in the morning, when the. First Information Report was given to him.
Muhammad Zaman who made the report, alleged that he cultivated the land of Muhammad Suleman Khan, deceased, on `batai'. The relations between Suleman Khan and Musa Khan, were unhappy due to their past dispute over the allotted land. Musa, Khan and Mst. Anwar Jan, his wife were attributed setting the house on fire and thereby killing the deceased.
2-A. Suleman Khan deceased was 60 years old and Mst. Shah Begum was 50 years. They were issueless and lived alone in the house. The First Information Report was written by Anwar Khan Patwari at the instance of Muhammad Zaman, complainant, in presence of Hakam Ali, SalaM Sheikh Abdul Aziz, Raja Gulfam Khan and others. It was also accepted that the report was written and presented to the A. S.-I. After the recovery of the dead bodies. During the investigation, the prosecution involved Muzaffar Khan, Abdur Rashid and Ashfaq, the sons of Musa Khan. This was done by improving upon the initial report, showing thereby that all the accused-respondents batched a conspiracy to do away with the deceased, in order to acquire their land. Muhammad Zaman, complainant was related to the deceased through his wife, as Mst. Shah Begum deceased and the wife of the complainant happened to be real sisters.
3. The learned Additional Advocate-General sought indulgence of this Court by pointing out that the trial Court misconstrued the independent evidence of the prosecution and tell in error by misdirecting itself to reject the proved story of the prosecution. He invited attention of the Court to the evidence of Hakam Ali, Salam Sheikh, Abdul Aziz and Gulfam Khan to establish that prosecution successfully proved its case beyond reasonable doubt. Mr. Mumtaz Hussain Rathore, the learned counsel for the defence, supported the impugued findings by pointing out the improvements made by the prosecution in its initial story and the contradictions and inconsistency occurring in the prosecution evidence.
4. It is already seen that in the First Information Report, Abdul Aziz, ascribed the allegation of setting on fire the house of deceased to Musa Khan and Mat. Anwar Jan, his wife. The death of Suleman Khan and Shah Begum was also shown by burning. The motive of burning the house and death of the deceased was attributed as the past dispute between the brothers over the evacuee land. I. He prosecution changed its position on 20th August, when the investigation was transferred to the other team. In earlier version, Salam Sheikh, Abdul Aziz and Hakam Ali, prosecution witnesses, adhered to the story given in the First Information Report. On transfer of the investigation, they changed their position and introduced a new story. In second improved version, they involved Muzaffar Khan, Abdur Rashid and Ashfaq. It was disclosed that the accused-persons hatched a conspiracy to kill Suleman Khan and his wile to gain their part of the, evacuee land. Muzaffar Khan was serving in Army and posted at Quetta. It was alleged that he came from Quetta, met Abdur Rashid at Rawalpindi and brought him alongwith, two days prior to the incident. They prepared a plan and in furtherance of their common object, the respondents, except Musa Khan, went to the house of the deceased Muzaffar Khan armed with lz-bore gun, entered the premises, fired at Mat.
Shah Begum and Suleman Khan turn-by-turn. Suleman Khan snatched his gun. Meanwhile, Abdur Rashid and Asfaq, armed with hatchets, joined Muzaffar Khan and killed both, Suleman Khan and his wife, Mst. Shah Begum. /after killing them, they sprinkled the Kerosine Oil and set the house on fire. Hakam Ali was sleeping in his house. He awoke by firing, when came out of house, he heard the cries of Sulernan Khan. 1-16 awoke Muhammad Akbar and ran towards the place of occurrence. By the time of their arrival, the house was in blaze. Hakam Ali tried to break the door but was unsuccessful. The house was completely burnt in their presence. Hakam Ali and Muhammad Akbar were followed by Salam Sheikh, Abdul Aziz and other villagers. In presence of changed and improved version, the police arrested Abdur Rashid and Asfaq on 25tH August, whereas Musa Khan and Mst. Anwar Jan were apprehended on 10th August. Muzaffar Khan was arrested on release from the Army on the 8th of September. The trial Court was not satisfied with the improved version of prosecution as in its opinion, the prosecution story was found baseless, fabricated and self- contradicted, by the so-called eye-witnesses,
5. We have examined the evidence and have found ourselves in complete agreement with the conclusion of the learned Sessions Judge. Our reasons are as follows :- "(1) Muhammad Zaman, complainant deposed that his house was situate at a distance of a mile from the house of the deceased. He saw the house of the deceased on fire but did not come on the spot immediately on account of the heavy rain. He arrived on the scene. At 5-00 in the morning, Muhammad Roshan Khan A. S. I. Also arrived . There and on the arrival of the A. S. I., the witnesses dug out the dead bodies of the deceased. The First Information Report, Exh. P. A. Written at the instance of Muhammad Zaman, was prepared after digging out the debris and recovery of dead bodies. It is also accepted that the A. S. I. Immediately sent the report for its registration at the Police Station. Note Exh. PA/I, in the hand of Muhammad Roshan Khan A. S.-I. Contains the time of dispatching the report to Police Station at 9-00 a.m. This suggests that the report was written on the completion of preliminary investigation. The fact that the report was prepared after the preliminary investigation, reduced the legal value of the report, but despite that, Musa Khan and Mst. Anwar Jan alone were ascribed the liability of setting the house on fire. Muhammad Zaman, gave the details of report in the light of information furnished to him by the witnesses claiming as first to arrive at the scene. Thus, absence of names Muzaffar Khan, Abdur Rashid and Asfaq, respondents in the F. I. R. Prepared at 9-00 o'clock, by itself, was a good reason to reject the prosecution version.
(2) In the improved version, the prosecution ascribed partisanship to Musa Khan to the level of hatching the conspiracy. He was excluded from participation in actual killing and setting the house on fire. Mst. Anwar Jan was ascribed to stay outside the house to keep a watch. Muhammad Ashfaq was also attributed to stand outside the house for a watch on other side of the house.
Muzaffar Khan alone, was assigned role of first entering the house and firing on the deceased one- by-one. On snatching of gun from him by Suleman Khan, Abdur Rashid and Asfhaq were alleged to have entered the house and killed the deceased by cutting their limbs and thereafter, setting the house on fire. This part of the prosecution allegation finds no support from any direct evidence. But the allegation of firing was sought to be supported by the testimony of Hakam Ali and Muhammad Aicbar. Hakam Ali modified his previous statement and volunteered to testify to support the prosecution version. According to him, he awoke by 'the noise of firing and he went to awake Muhammad ,Akbar when they heard further firing. On, their way to the scene. He also claimed to have hear .1 the cries of Suleman Khan, who was shouting by naming each accused for killing his wife and injuring him. Muhammad Akbar was declared hostile and withheld from. Appearing as witness. No other witness corroborated the statement of Hakam Ali. It is already noticed that Hakam Ali made material important improvements in his evidence, his testimony is likely to be rejected for two reasons, namely :-
(1) His first statement, under section 161, Cr. P. C., recorded on 8th of August, does not contain the allegation of involvement of Muzaffar Khan, Abdur Rashid and Ashfaq. It equally finds no mention of his awakening on the noise of firing, going to Muhammad Akbar and reaching, first of all, on the scene ; hearing the cries and shouting of Suleman Khan, calling each accused-person by name and accusing them for killing his wife and injuring him. He was confronted with part `A' to `A' and 'B' to `N' of his previous statement, Exh. D. C. Made on the 8th of August. He denied making of such statement before the police and said that his statement was recorded first time by the police on 20th of August. On this point, he was contradicted by Muhammad Roshan Khan A. S -L who proved the statement Exh. D. C., and stated that he recorded the statement in actual manner and expression of the witness. Even otherwise, if we accept this claim, his failure to state the facts, he witnessed, immediately on the arrival of police and remaining silent up to 20th August, by itself, was good ground to reject his testimony. For it is an accepted rule of evidence that a witness who observes silence, in absence of reasonable cause for a reasonable 8 time, he assumes the position of a partisan, His evidence, therefore, cannot be accepted.
(ii) It is manifest from the testimony of the witness that he was not hesitant to speak a lie. This was observed by examining his testimony as a whole. . It was found that the witness changed the version conveniently as it found suitable to him. For instance, he admitted his presence at the time of writing of the report T. A. But on his second thought, it was stated that when the report was being written, he was standing aside. Likewise, he accepted his presence at the time of the arrival of the complainant who was informed of the details of the incident by him and other witnesses but in second thought, he considered it convenient to absent himself from the scene on the pretext that he left the place to eat `Sehre and arrived back after the arrival of police and the complainant. In addition to that, his testi mony is found se F-contradictory and inconsistent in material particulars, as such it insane least confidence to entertain it as credible.
(3) Salam Sheikh who was named as the first person to see the house on lire, in his initial statement, before the police, recorded under section 161, Cr. F. C. On the 8th of August, corroborated the First Information Report but excluded assigning of the liability to Musa Khan and rKi.t. Anwar Jan, respondents Nos. 1 and 2. This was evident from Exh.
0. E. In his evidence before. The Court, the witness changed the position and deposed that on ins seeing the house on fire, he awoke Abdul Aziz, bis son and on their arrival on the scene, they called out, if there was any one present there and they were told by Hakam Ali that he was already there and had seen the accused-respondents running away from the place. Abdul Aziz also joined his father in making improvements in his evidence. Both the witnesses were confronted with their previous statements, made before the police. They denied their previous statements, by saying that the statements, recorded by the police on 20th August, was the correct version. Muhammad Roshan, A. S.-I. Who recorded the previous statement, when appeared as a witness, clearly stated that he recorded the statement of the witnesses in their own words and expression and ,nothing was kept behind or introduced of his own. The prosecution failed to satisfy us to disbelieve Muhammad Roshan Khan A. S.-I. Who admitted recording of the previous statement of the witnesses.
(4) Gulfam Khan, prosecution witness was the other important witness in the case. His presence, during the investigation, from. Very beginning to end, and his contribution, cannot be easily ignored. This witness introduced an important docurrientary piece of .Evidence in the shape of an application, Exh, P. B. Purporting to have been moved by Suleman Khan on the 5th of August. This application contains reference to previous incident, which allegedly took place at mid-night on the 3rd of August. Musa Khan, his wife and sons were attributed to let loose their cattle in the field of Suleman Khan at mid-night. On noticing it, Mst. Shah Begum, went on spot but was attacked by accused-persons. She narrated the incident to her husband who made the report to the witness in his capacity as Chairman of Local Council. Apart from the contents of the application, the date in the application was written by different hand and ink. The application was shown to have been marked to S. H.
0. On 6th of August, but it was produced by the witness and recovered at his instance by the investigating officer after the incident of murder. The contents of the application reveal that the same was concocted and intended to fabricate motive to involve the respondents. It was accepted by the prosecution that Muzaffar Khan and Abdur Rashid, sons of Musa Khan, were away to Quetta and Rawalpindi and arrived in the village two days prior to the incident. If that was so, then how they could be present at the time of previous incident ; Exh. P. B. Actually throws light on the conduct of Gulfam Khan, Hak4m Ali, Muhammad Zaman, and Salam Sheikh, his associates, and reflects that the team is the real master of fabrication. Their evidence, when read as a whole, cannot escape the inference that Gulfam Khan and 1-lakam Ali are the master minds behind the improvement in the story of prosecution. It was disclosed during the arguments that 'the deceased and respondents alone were the refugees and the locals were determined to eliminate the shadow of their presence from the village, so as to enjoy fruits of the evacuee land. We are not in a position to subsribe to the argument advanced in the aforesaid manner but the fact remains that the prosecution witnesses named above, cannot escape the inference of liability of their webbing a false story.
6. The prosecution seemed to be active so as to involve even the doctor who conducted the post- mortem of the dead bodies. In the post-mortem report, doctor mentioned that deceased were first killed and then burnt. Doctor Muhammad Afzal C. M. O. Garhi-Dopatta, failed to justify his opinion; recorded in the post-mortem report. In his examination-in-chief, the witness stated that the victims were killed first and then burnt to almost ashes. In answer to a question in cross- examination, it was stated :--- "1 cannot say positively the real cause of death as the body was completely burnt. It is not possible to say whether the limbs of the body were separated before the death or after the death from the bodies. It is not possible to say whether the dead bodies at the time of burning were intact or cut into pieces but I can positively say that the cause of death is not due to burning...."
' It seems that doctor was prevailed upon to record his opinion of killing the deceased first and to burn the dead bodies. The support was found conveniently as legs and an elbow were found disjointed from the dead bodies. It is manifest from the evidence of doctor, particularly, part of the cross-examination that knowledge. Of doctor, was in no manner better than a layman. The condition of dead bodies and absence of marks of firing or cutting and fructure of bone, itself, negated his evidence. This suggests that the witness testified to support the prosecution even in absence of material, D necessary to form a definite opinion about the cause of death. In our estimation, medical evidence does not deserve any consideration.
7. This Court is generally slow in indulging in acquittal orders. Their order of acquittal is not interfered lightly, unless we feel satisfied that an order of acquittal was contrary to the proved facts of prosecution's case, perverse( and bad in law. The independent character of the witnesses claimed by the learned Additional Advocate-General, is not found correct. Absence of relationship of a witness with deceased or aggrieved party, by itself, was not sufficient to constitute independent character of the witness. F The independence of evidence, obviously rests on absence of bias, interest and doubt from the testimony. In the present case, despite absence of direct relationship of the witnesses with deceased, motivated improvements in material particulars, 'contradictions and inconsistency, reflecting from the testimony of the witnesses, discussed in the preceding paragraphs, was good enough to repel] the objections raised by the learned Additional Advocate- G General. We are not posted with the material, sufficient to interfere by reversing the acquittal into conviction. In our estimation, the false evidence, given by Hakarn Ali and other prosecution witnesses, was rightly condemned, and rejected by the learned Sessions Judge. The prosecution failed to absolve itself from the responsibility of proving its case beyond reasonable doubt.
8. In presence of the reasons counted above, we do not feel convicted and satisfied to record our disagreement with the findings of the learned 1-1 Sessions Judge. The appeal is, therefore, dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.