' Hamidullah (22) son of Musa Khan Ustrana of Kiri Sharrozai, who was charged alongwith his three co-accused Nasib Khan, Abdur Rahim and Tor Khan, under section 302/34, P.P.C., vide F.I.R. No.49 dated 13-4-1986, of Police Station Chowdwan, for the murder of Mst. Asal Bibi, was convicted of the offence under section 304(ii), P.P.C., and sentenced to 8 years R.I. And a fine of Rs.10,000 or in default two years further R.I. By the order dated 11-6-1988, of the learned Sessions Judge, D.I.Khan.
Aggrieved by his conviction and sentence he has preferred this appeal in this Court.
2. The prosecution case in brief is that on 3-4-1986 after 'Pashi' prayers Attal Khan complainant alongwith Zaman Khan P.W. Was busy constructing wall near the gate of his house when in the meantime Nasib Khan (acquitted accused) armed with Barcha and Hamidullah accused- appellant, Abdur Rahim and Tor Khan (acquitted accused) armed with Kandeshah, Wahola and Danda respectively came there and catching hold of Attal Khan started belabouring him when in the meantime Mst. Lal Bibi mother of Attal Khan came there and Hamidullah accused-appellant gave her a blow with Kandeshah on her head with which she was injured and fell down to the ground unconscious whereafter all the accused decamped from the spot. The occurrence was allegedly witnessed by Zaman Khan. It is also alleged that there was no previous enmity between the parties. The injured lady Mst. Lal Bibi was taken to the Police Station Chowdwarr where Attal Khan lodged a report which was recorded in the daily diary, copy of which is Exh. P.A.1 on the file.
The injured lady was referred to the Rural Health Centre Kiri Shamozai where the Medical Officer Incharge examined her and found the following injuries on her person: -
(1) Lacerated wound 1-1/4" x 1/3" on the left parietal region.
(2) There is swelling all around the wound extending to occipital region. There was bleeding from the wound. There was bleeding from the nose.
(3) Both eyes were black. Patient was unconscious. Breathing sterttrous.
' According to the Doctor the injury had been caused within a duration of 3 to 6 hours with blunt means and its nature was serious. A case under section 307/34, P.P.C. Was accordingly registered against all the accused and the contents of the daily diary referred to above were duly incorporated in the F.I.R. Exh. P.A. The deceased lady, however, did not survive and succumbed to the injury on 12-4-1986 and on receipt of information about the death of the lady the local police accordingly changed the section of law from 307 to 302, P.P.C. Doctor Riazuddin P.W.10 conducted post-mortem examination. On the completion of the investigation a complete challan against all the four accused was put in the Court of the learned Sessions Judge, D.I.Khan, who after conducting due trial extending the benefit of doubt acquitted Nasib Khan, Abdur Rahim and Tor Khan but convicted Hamidullah Khan accused-appellant under section 304(ii), P.P.C., and sentenced him as aforesaid.
3. Arguments of the learned counsel for the appellant and the learned counsel appearing on behalf of the State have been heard at length and record of the case has been thoroughly examined.
4. Before I proceed further I would like to reproduce the reasons given by the learned trial Judge in disbelieving the prosecution case against three acquitted accused namely Nasib Khan, Abdur Rahim and Tor Khan and concluding the guilt of the accused-appellant:- "In this case, all the four accused are not only charged in the F.I.R., but the P. Ws. (the complainant and P.W. Zaman) have also charged them. However, I have to see whether all the four accused were present on the spot at the relevant time and whether they all have participated in the occurrence. In this Court, the complainant, while appearing as P.W.8 has stated that all the four accused had given blows to him with their respective weapons. P.W.9 Muhammad Zaman has also stated that all the four accused had given blows to the complainant with their respective weapons.
' He has stated that all the four accused gave one blow each to the complainant with their weapons. The statement of the complainant P.W. Zaman shows that the complainant has received four blows one blow each from each accused, but the doctor has found only three injuries on the body of the complainant. All the injuries are bruises and according to the doctor, these injuries were on the left side of the body. The doctor has also stated that the nature of all the injuries was simple and that these injuries were caused by blunt means. The injury of deceased Mst. Lal Bibi was also with blunt weapon. Wahola is a kind of sharp edged weapon. The complainant has not received any injury caused by sharp means, therefore, it is proved that he has incorrectly stated in this Court that all the four accused had given him one blow each with their respective weapons. As mentioned above, the complainant and P.W. Zaman have stated that all the four accused gave one blow each to the complainant with their respective weapons, but the doctor has found only three injuries on the person of the complainant. It means that all the four accused have not given him one blow each. Who is that accused who has not given blow to the complainant? The record is silent in this behalf. It is also possible that three blows were given to the complainant by one accused and when he wanted to give the fourth blow, the mother of the complainant came in between that accused and the complainant and then received the fourth blow on her head. It is also proved from the statement of the complainant that accused Tor Khan is paralysed. His one arm and one leg are crippled. The complainant has admitted that accused Tor Khan is a patient of Epilepsy. Doctor Abdur Rauf P.W. 5 has also stated that accused Tor Khan is known case of Epilepsy.
According to him, he is crippled. As Tor Khan accused is crippled, therefore, he can neither take part in any fight, nor can give blow of club to anyone. The complainant has also admitted that accused Naseeb Khan is a patient of T.B. To my mind, patient of T.B. Cannot and does not take part in fights. Accused Hamidullah, Abdur Rahim and Tor Khan are brothers inter se, while accused Nasib Khan is their uncle.
' Accused Abdur Rahim and Tor Khan are charged, because they are the brothers of Hamidullah, the principal accused. Accused Naseeb Khan is charged, because he is the uncle of accused Hamidullah. From the available record, one can safely gather that in this case, only accused Hamidullah has taken part in the fight, while remaining three accused have been involved, because two of them are his brothers, while third one is his uncle. I am fully satisfied that accused Naseeb Khan. Tor Khan and Abdur Rahim have not taken part in the present occurrence. The recovery of spear and club from accused Naseeb Khan and Abdur Rahim cannot connect them with the present occurrence, because according to the complainant, accused Tor Khan was having club, but the club, according to the I.O. Is recovered from accused Abdur Rahim. The complainant has stated that accused Abdur Rahim was armed with Wahola, but the said Wahola is not recovered from his possession. Nothing has been recovered from accused Tor Khan. The I.O.
Has recovered Kandesa from accused Hamidullah. Today I have seen the said Kandesa in the Court, which is an iron rod. The injuries of the complainant, according to the Doctor, are caused by blunt means; similarly, the injury of the deceased was also caused by blunt means. Iron rod is also used as blunt means weapon. It is proved beyond any doubt that accused Hamidullah has used the said iron rod in the present occurrence. He is guilty.
The learned trial Judge was of the view that from the statements of the complainant and Zaman P.W. It was proved that the occurrence had taken place all of sudden and that accused Hamidullah had no intention to kill either the complainant or his mother. He was of the view that under sudden provocation Hamidullah accused-appellant started quarreling with the complainant and he had no intention to kill Mst. Lal Bibi. In his view he wanted to give blow to the complainant but the same fell on the head of Mst. Lal Bibi. Accordingly he convicted accused-appellant under section 304 (ii), P.P.C. For culpable homicide not amounting to murder and exonerated him of the charge of murder. It is the consistent view of the superior Courts that a A trial Judge is best qualified to appraise evidence of a witness, because he is the only judge who saw and heard the witness and whose view therefore, deserves consideration if there is nothing in the record to show that effect should not be given to his view. In Gul Nawaz v. State 1968 SCM R 1168 it has been held that:- "The appreciation cf evidence made by the trial Court must always be given due weight and importance, for that Court has the advantage of not only hearing the evidence but also observing the demeanour of the witnesses deposing before it. Its judgment of the credibility of a witness is not to be lightly discarded, particularly, where such judgment is supported by cogent and substantial reasons."
' I have gone through the reasoning of the learned trial Judge in discarding the statements of the P.Ws. Attal Khan and Zaman Khan. I feel that the same are based on solid appreciation. The question that falls for determination therefore, is whether in the circumstances of the case when the learned trial Judge has disbelieved the assertion of the prosecution witnesses regarding guilt of the three accused reliance can be placed on the same statements while convicting the accused- appellant. The occurrence has admittedly taken place in the thoroughfare in the broad daylight.
Besides the houses of the accused and the deceased party there are houses of other people as well but curiously enough to establish its case besides the complainant At tal Khan one Muhammad Zaman was produced in support of the prosecution case but this Muhammad Zaman is not the resident of Kiri Shamozai, on the other hand he is the resident of a far distant village Pota.
On the other hand the perusal of the site plan would indicate that at point No.8 one Khuda-e-Yar was present and had witnessed the occurrence. This Khuda-e-Yar has not been produced at the trial. The testimony of the two P.Ws. Produced at the trial having been disbelieved altogether by the learned trial Judge, the evidence of Khuda-e-Yar aforesaid, was of the more importance to have been recorded but his non-production at the trial by the prosecution would give a valid presumption that his evidence was not favourable to the prosecution and as such his non- production adversely reflects on the prosecution case. No doubt the prosecution is not bound to produce each and every witness if by production of some of them it establishes its case beyond reasonable doubt but in a case where evidence of the P.Ws as produced is not viewed credible the withholding of a material witness from production at the trial gives a natural presumption that had he been produced at the trial he would have not supported the prosecution case.
5. The learned trial Judge appears to have been mainly influenced by the statement of the accused Hamidullah under section 342, Cr.P.C. Which he gave in the Court of the learned trial Judge in reply to the question as to what was his statement and why he was charged. His reply is reproduced as follows: - "I am innocent and have falsely been charged. The fact is that on the fateful day, at about peshi time, after having offered my peshi prayer in the Mosque of the Mohallah, I was returning home in the street. When I reached in front of the gate of the house of Attal Khan complainant, I saw that he (complainant) having Kandesah in his hand present in the Devrhi. He was digging the drain which was blocked with mud morter and pieces of bricks etc. , used in the construction of the pardah wall of the devrhi.
' That drain was an outlet of rain-fall water of the house of the complainant towards the street.
Attal Khan was throwing the brick pieces and mud morter material in the street, during the cleaning process of the drain.
' I requested him not to throw the rubbish in the street but the complainant in turn got annoyed and started admonishing me that I should mind my own business.
' I further requested him that he should not condemn me without any fault of mine on which the complainant came out of his devrhi in the street in a wrath and started abusing me. As such an altercation ensued between us, which attracted the mother of the complainant alongwith inmates of the house of Nadir Khan, who lives in the same house alongwith the complainant in a separate compartment. The mother of the complainant intervened, when I and the complainant were grappling with each other in the street. I withdrew, when in the meantime, the complainant gave a Kandesa blow to me. I jerked my head to one side and the blow landed on the head of the mother of the complainant because she was at that time in between us. I was all alone at that time and was not accompanied by my co-accused. Similarly, the complainant was also alone. P.W. Zaman was not present with him and was later on summoned from his house from other village and was introduced as witness being close relative of the complainant. The complainant might have received some slight bruises due to scuffle. The apisode took place in the street and it was the complainant who had come out there from his devrhi to punish me. The recovery of the Kandesa and other articles from me and from my co-accused are foisted one. However, these articles are commonly available with almost every man in the village. I am innocent and the complainant has falsely shifted his responsibility on my shoulders."
' The fact that the learned Sessions Judge did not believe the story advanced by the prosecution witnesses and in my view for cogent and sufficient reasons, the prosecution failed to establish its case against the accused charged including Hamidullah accused-appellant beyond reasonable doubts. Once credibility of a witness is shattered at the trial it would be a dangerous practice to rely on the assertion of the same witness with regard to a particular accused. Attal Khan complainant has charged three brothers and their uncle for the injuries caused to the deceased lady and himself. All the accused charged are said to be armed with heavy husbandry tools and in the ordinary course if for the sake of arguments it is presumed for a while that they wanted to commit the murder of the complainant or wanted to cause grievous hurt, one fails to understand as to how Attal Khan complainant warded off the blows by the accused and instead the deceased lady became the scapegoat when it is nowhere the prosecution assertion that the accused or any one of them had the least intention to cause hurt to the lady. It has been proved on record that one of the accused charged namely Nasib Khan is a paralysed and crippled man and his taking part in the incident is totally impossible but to satisfy the vengeance complainant party, in order to entangle as many of the family members of the accused party as possible did not even spare a person who was for all practical purposes incapable of even moving what to speak of taking part in fight. In these circumstances had the accused-appellant not admitted his presence at the venue of occurrence and taking part in the fight the learned trial Judge having found the P.Ws.
Incredible witnesses he would have acquitted all the accused charged. It is the established principle of criminal practice that where the prosecution has failed to establish its case beyond the shadow of reasonable doubt, and reliance is placed on the plea of guilt or the confession made by the accused the statement so made is to be either believed or disbelieved in its totality. It is not safe in criminal justice to rely on the inculpatory part of the statement of the accused and to disregard the exculpatory part in which he clears his position from the alleged fault or guilt. In Faiz and another v. The State 1983 SCMR 76 it was held:- "Accused in his statement under section 342, being questioned only on matters found incriminating against him in evidence, his reply being neither tested nor completed either by cross-examining him or putting him further questions, such statement, in absence of any evidence, held, to be accepted as a fact even though apparently not fully established. Statement of accused, held further, to be taken into consideration in its entirety where conviction sought to be based entirely on such statement."
' Similarly in Muhammad v. The State 1985 P Cr. L J 649 it was observed that the trial Court was wrong in ruling out of consideration exculpatory part of confessional statement of the appellant. It was further observed that conviction of the appellant on his own confession can be upheld by reading it as a whole. In the instant case fully realizing that the prosecution case suffered from infirmities in that neither the prosecution case conformed with the medical evidence nor were the facts proved, the accused-appellant did admit his presence at the spot and the fight that ensued between him and the complainant and if this part of his statement is believed why should one disbelieve the other part of the statement in which he has explained the manner of fatal blow which fell on the head of the deceased lady.
6. In these circumstances while I fully concur with the conclusion of the learned trial Judge disbelieving the prosecution witnesses, I do not agree with the findings of the learned trial Judge convicting the accused-appellant in view of his own statement under section 342, Cr.P.C. Because the learned trial Judge has erred in basing his conviction on the inculpatory part of the statement of the accused-appellant and disbelieving the exculpatory part. The prosecution having failed to establish its case through the independent evidence the only circumstances connecting the accused-appellant in his own statement where he has fully explained the manner in which the deceased lady received injury and in that situation the accused-appellant cannot be held responsible for the hurt caused to the lady which subsequently proved fatal.
7. Consequently I would accept this appeal, set aside the conviction and sentence of the accused- appellant and would direct his immediate release if not required in any other case. Order accordingly. 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.