' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This appeal through special leave of this Court is directed against the judgment dated 29-3-1993 of Lahore High Court, Lahore, whereby a criminal appeal in a case of double murder was allowed resulting in the acquittal of Abdul Ghaffar respondent from both the charges.
2., The two deceased in this case are Murtaza alias Ghunni and Iftikhar alia Younis. None from side of the two deceased moved this Court against the acquittal of Abdul Ghaffar respondent.
Muhammad Bashir, complainant, while on his way to Police Station, Chak Jhumra, District Faisalabad, lodged the report Exh. PK on the date of occurrence i,e, 21-5-1989 at 11-00 p.m. On Canal Bridge Nulleywala regarding the occurrence which had taken place at 9-30 p.m. On. The basis of the statement Exh. PK, formal F.I.R. Exh. PK/1 was drawn up at 11-20 p.m. The same night.
3. The account of occurrence furnished by Muhammad Bashir complainant in his statement Exh. PK was that he had five sons of whom three were married. At about 9-30 p.m. On the night of occurrence Murtaza alias Ghunni, Iftikhar alias Younis (deceased), Zulfiqar (P.W.10 and Mustafa (P.W.11) were sitting outside his house in the light of an electric bulb. In the meantime, Abdul Ghaffar, respondent, duly armed with a dagger reached the spot and raised . Lalkara' that he would not spare them. On hearing this, Muhammad Bashir complainant and his wife Mst. Inayat Bibi emerged out of their house. Both the parents and their two sons, namely, Zulfiqar and Mustafa saw the respondent attacking Murtaza and giving blows with dagger on the latter's abdomen and other parts of his body. Iftikhar alias Younis in a bid to save his brother was also injured by the respondent. Murtaza alias Ghunni succumbed to the injuries at the spot while Iftikhar alias Younis was shifted to the hospital. In the course of the occurrence the appellant was pursued by Zulfiqar and Mustafa (P.Ws. 10 and 11) respectively and was given stick blows causing injuries to him. He was also taken to the hospital in injured condition. After usual investigation, the Investigating Officer submitted challan in the Court.
4. The motive for the offence stated in the F.I.R. Was that Mst Bushra, sister of the respondent, was married to Iftikhar alias Younis deceased but the appellant wanted her divorce from the deceased who was not agreeable to it. On account of this grudge, the respondent is stated to have committed the murder of Murtaza alias Ghunni and Iftikhar alias Younis.
5. The autopsy on both the deceased was conducted but the details thereof need not be stated at this juncture. The respondent in his statement under Section 342, Cr.P.C. Denied the prosecution allegations. In answer to a question as to what was his statement and why he had been charged that is what he had stated:-- "My sister Naseem Bibi was married with Zulfiqar P.W. But she died. Zulfiqar P.W. Demanded the hand of Mst. Bushra Bibi, my other sister, for himself, but I asked my father not to give her hand to Zulfiqar P.W. Because he was a Malang. Consequently my father gave the hand of Mst. Bushra Bibi to Iftikhar alias Younis deceased. Zulfiqar P.W. Bore grudge against me on that account and he has got me falsely implicated in his case due to that grudge."
The learned trial Judge believed the ocular evidence of Muhammad Bashir complainant (P.W.8), Zulfigar (P.W. 10), Mustafa (P.W. 11) and Mst. Inayat Bibi (P.W. 12), the medical evidence, the evidence of motive and .Found Abdul Ghaffar respondent guilty of the double murder of Murtaza alias Ghunni and Iftikhar alias Younis and resultantly convicted him to death penalty and was directed to pay a fine of Rs,5,000 by way of compensation to the legal heirs of the deceased or in default to suffer rigorous imprisonment for one year on each count. Abdul Ghaffar respondent, feeling aggrieved, filed an appeal against his convictions and sentences in the Lahore High Court.
6.The learned Judges have recorded the order of acquittal of the respondent on the grounds, firstly, that the eye-witnesses had not supported the prosecution version as set up in the F.I.R.; secondly, that there were glaring and material contradictions in their statements before the trial Court and those recorded under section 161, Cr.P.C.; thirdly, that only one accused had been charged in the F.I.R. Whereas in their testimony before the trial Court they deposed that more than one person had committed the offences; and lastly, that according to the F.I.R. The respondent was arrested at the spot on 27-5-1989 but according to the evidence in the Court of Session the respondent was arrested on 2-6-1989 and that he led to the recovery of 'Churri.'
7. Special Leave to Appeal against the order of acquittal was granted to the appellant substantially in the following terms:-- "The prosecution declared the eye-witnesses hostile, except Mst. Inayat Bibi, the mother of the deceased. The learned Judges of the Lahore High Court set aside the conviction order of the respondent, mainly for the reason that after the eye-witnesses were declared hostile there was no legal evidence to connect the accused with the commission of the crime.
' Learned Assistant Advocate-General contended that the statement of Mst. Inayat Bibi, P.W. 12 considered with other evidence including medical and evidence of recoveries provide sufficient corroboration, to prove the guilt of the respondent.
We have heard learned Assistant Advocate-General in support" of this petition. The reasons given by the High Court for acquitting the respondent, necessitate reappraisal of evidence. Leave to Appeal is, therefore, granted in this case. Issue bailable warrant of the arrest of the respondent, in the sum of Rs,25,000 with two sureties in the like amount to the satisfaction of the trial Court."
' The respondent and his Advocate-on-Record despite notice to them are absent. We have, therefore, decided to hear in their absence the learned Additional Advocate-General in support of this appeal.
8. Mr. Yawar Ali Khan, learned Advocate-General Punjab, raised the following contentions in support of this appeal:-- appreciated the statements of eye-witnesses, namely, Muhammad Bashir, Zulfiqar, Mustafa and Mst. Inayat Bibi in accordance with law, in that, these witnesses had implicated the appellant in the offences.
(a) That the learned Division Bench of the High Court has not correctly.
(b) That the learned Division Bench of the High Court erred to depart from the established principles of appreciation of evidence consistently approved by this Court.
(c) That the learned Judges of the Division Bench had fallen into error in ignoring the evidence of the witnesses and that of recovery of 'Churri' which was proved on the record and that the conviction could be based thereon notwithstanding statements of the alleged hostile eyewitnesses.
9. The foremost question in this case is whether the murder of Murtaza alias Ghuni and Iftikhar alias Younis was committed by the appellant. The case mainly hinges on the ocular testimony of Muhammad Bashir (P.W.8), Zulfiqar (P.W. 10), Mustafa (P.W. 11) and Mst. Inayat Bibi (P.W. 12). Of these eyewitnesses, Muhammad Bashir (P.W. 8) is the father, Zulfiqar (P.W. 10) and Mustafa (P.W. 11) are brothers and Mst. Inayat Bibi (P.W. 12) is the mother of the two deceased. At the trial, Muhammad Bashir, Zulfiqar and Mustafa P.Ws. Were declared hostile by the prosecution because they did not implicate the respondent and had resiled from their statements recorded under section 161, Cr.P.C.
Nonetheless, Mst. Inayat Bibi P.W. Had fully implicated the respondent. She is no doubt the mother of the deceased. Nonetheless, she is also the real paternal aunt of the respondent. In this context, the evidentiary value of a hostile witness had to be adjudged by the learned Judges of the Division Bench and then to have placed it in juxtaposition with the testimony of Mst. Inayat Bibi (P.W. 12).
10. Unfortunately the learned Judges in the High Court neither pointed out any so-called "glaring and material contradictions in their statements before the trial Court and those recorded under section 161 Cr.P.C." nor had they examined the evidence of the hostile witnesses in its true perspective. The value of the testimony of a hostile witness is essentially a matter for the Court. In some old cases from Calcutta High Court it was held that when a witness was treated as a hostile witness and was cross-examined by the party calling him, this must be done to discredit the witness altogether and not to get rid of part of his testimony. See Surandra Krishna v. Rani Daasi (AIR 1921 Cal. 677) and Emperor v. Sateyndrakumar (AIR 1923 Cal. 263). This dictum was later on departed from in the case of Profulla v. Emperor (AIR 1937 Cal. 401) by the Full Bench which was constituted to answer the seven questions. The Full Bench in that case answered all the questions.
This case was noticed by the Division Bench of Karachi High Court in Kaloo and 2 others v. The State (1973 PCr.L.J 334) and reproduced the following four questions:--
(i) Whether the evidence of a witness treated as hostile must be rejected in whole or part?
(ii) Whether it must be rejected so far as it is in favor of the party calling the witness?
(iii) Whether it must be rejected so far as it is in favor of the opposite-party?
(iv) Whether the whole of the evidence, so far as it affects both parties favorably or unfavorably, must go to the Jury for what it is worth?
' The learned Division Bench in Kaloo's case while deducing the ratio from Profile's case held that the testimony of a hostile witness has to be considered as for or against the accused in accordance with the well-known and the well-established principles of appreciation of evidence.
Subsequently in Islam v. The State (PLD 1962 Lahore 1053) a Division Bench of the West Pakistan High Court, Lahore Bench also considered the question in regard to evaluation of the evidence of a hostile witness. Sardar Muhammad Iqbal, J., with. Whom M.R. Kayani, C.J. Agreed expressed as follows:- "The learned counsel for the appellants contended that since she was declared to be a hostile witness (this is term of convenience and not of law), she is a witness unworthy of any reliance and her evidence, therefore, should be completely brushed aside. This contention has no force. The fact that the witness is dealt with under section 154 of the Evidence Act, and she is cross-examined as to credit, in no way warrants that the Court is bound in law to place no reliance on her evidence.
There is also no warrant for the proposition that the party who called and cross-examined her can take no advantage of any part of her evidence. Her evidence is not to be rejected either in whole or in part. But the whole of the evidence so far as it affects both parties favorably or unfavorably, must be taken into account and assessed like any other evidence for whatever it is worth."
' Subsequently in Fazlul Hague v. The State (PLD 1959 Dacca 931) and Dawood Ali v. The State (PLD 1962 Dacca 613) a Division Bench of the High Court, Dacca, expressed the view that when a witness was cross-examined by the party calling him, his evidence is not to be rejected either in whole or in part but the whole of the evidence so far as it affects both parties favorably or unfavorably, must be taken into account and assessed like any other evidence for whatever is it worth. The learned Judge referred to and followed the earlier Full Bench decision in the case of Profile supra.
11. In the light of the above principles it is settled 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.
12. In the instant case, the evidence of Muhammad Bashir, Mustafa and Zulfiqar P.Ws. Had been kept out of consideration by the learned Judges ignoring the settled law that testimony of a hostile witness has to be considered as for or against the accred in accordance with the well known principles of appreciation of evidence including the one that grain has to be sifted from chaff.
Likewise the testimony of Mst. Inayat Bibi (P.W. 12) had been completely ignored without any hypothesis. The evidence of motive, the medical evidence and that of recovery of Churri had also not been appraised in its proper perspective.
13. Again the salutary principle applicable to an appeal under section 417, Cr.P.C. By the State is that the High Court should give due weight to the opinion of the trial Judge. In this case, the learned Additional Sessions Judge gave cogent reason based on correct principles relating to the appreciation of evidence in general and that of the hostile witness in particular. On the contrary, the learned Judges in the High Court while setting aside the convictions and sentences recorded against the respondent evidently acted unreasonably and against the recognized principles in discarding the evidence of all the four eye-witnesses. The High Court failed to notice another principle lay down in Ghulam Muhammad v. Muhammad Sharif and another (PLD 1969 SC 398) that a Court of appeal will not interfere with an order of acquittal. But if the reasons given by the trial Judge are of speculative and artificial nature or the findings are based on no evidence or misinterpretation of evidence or the conclusions drawn by him about the guilt or innocence of the accused person are perverse or foolish resulting in miscarriage of justice the Court of appeal will in such a case re-examine the evidence and draw its own conclusions from it.
14. In the appeal under consideration, it is quite clear that the learned Judges of the High Court have not examined the evidence on merits of the case in accordance with the principles governing the safe administration of criminal justice as alluded to above. In fact they appear to have not considered the case on merits at all but have been Wrongly influenced by the evidence of the three hostile eye-witnesses. In our opinion, in doing so, they failed to follow the principles of appreciation of evidence pointed out by us and, therefore, their ' judgment is liable to be set aside.
We would, therefore, accept this appeal, set aside the order of acquittal of the respondent and remit the case to the Lahore High Court, Lahore, with the direction that appeal of. The convict- respondent shall be re-heard and the evidence of the case will be examined for considering the question whether the respondent is guilty of the offences for which he had been charged. The convict respondent shall be arrested and lodged in the death cell till the disposal of the appeal.