' TASSADUQ HUSSAIN JILANI, J.---This judgment shall dispose of Murder Reference No,236 of 1990 and Criminal Appeal No,850 of 1990 filed by Abdul Ghaffar, appellant as they arise out of the same judgment, dated 25-11-1990 passed by learned Additional Sessions Judge who having tried the appellant Abdul Ghaffar for the murders of Murtaza alias Ghani and Iftikhar alias Younis, convicted and sentenced him to death and a fine of Rs,5,000 or in default whereof to one year R.I. And also a compensation of Rs,5,000 to be paid to the legal heirs of the deceased; failing which to further undergo R.I. For six months each on two counts (in the F.I.R. No,236 of 1990, dated 27-5-1989 registered at Police Station Chak Jhumra, District Faisalabad).
2. This case was earlier heard and decided by a Division Bench of this Court consisting of our learned brothers, Ijaz Nisar and S.M. Zubair, Judges and vide the judgment, dated 29-3-1997, they allowed the appeal; set aside the conviction and sentence and resultantly, the death was not confirmed. However, the State filed an appeal before the Hon'ble Supreme Court (Crl. P.S.L.A. No,261- L of 1993) which was allowed vide judgment, dated 2-1-1996 and the case was remanded to this Court with a direction to decide afresh with the observations as under:-- "In the appeal under consideration, it is quite clear that the learned Judges of the High Court have hot 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 appears to have not considered the case on merits at all but have been wrongly influenced by the evidence of the three hostile eyewitnesses."
3. The prosecution story as given in the F.I.R. (Exh.P.K/1) registered by Muhammad Sajid Moharrir/Head Constable on the statement Exh.P.K. Of complainant Muhammad Bashir P.W.8 recorded by Muhammad Ashiq P.W.15 at Pull Nehrwala at 11-00 p.m. Briefly stated is that complainant's sons Zulfiqar, Murtaza alias Ghani (deceased), Iftikhar alias Younis (deceased) and Mustafa were sitting outside the house in Bazar. At 9-30 p.m., Abdul Ghaffar, appellant armed with Chhuri, came there and raised a Lalkara at Younis and others that whatever be the consequences, he would not spare them. The complainant and his wife Mst. Inayat Bibi P.W.12 came out and within their view, Ghaffar gave chhuri blows to Murtaza alias Ghani which landed on his abdomen and other parts of the body and he fell down. When Iftikhar alias Younis tried to save him, he too was injured. Complainant's sons Zulfiqar and Mustafa chased Abdul Ghaffar and injured him by giving him Danda blows. Murtaza alias Ghani succumbed to the injuries and died at the spot. Younis was shifted to hospital where he too latter died. The motive alleged in the F.I.R. Is that appellant's sister Mst. Bushra was married to Muhammad Younis deceased and appellant Abdul Ghaffar wanted her divorce to which Iftikhar deceased was not agreeable. Hence, the attack and murders.
4. After recording the statement of P.W.8 Muhammad Ashiq, P.W.15/Investigating Officer proceeded to the spot; recorded statements of the four prosecution witnesses under section 161, Cr.P.C.; prepared injury statement of Murtaza deceased; took into possession blood-stained earth from the place where the dead body of Murtaza was lying vide memo. Exh.P.N which was witnessed by P.Ws.8 and 10. Also took into possession bloodstained earth from the place where Iftikhar deceased fell vide memo. Exh.P.M.; got prepared site-plan Exh.P.G. And arrested Abdul Ghaffar on 2-6-1989.
On 4-6-1989; he led to the recovery of blood stained Chhuri P.5 near a wall of High School which was taken into possession vide recovery memo., which could not be exhibited as only carbon copy of the same was on record.
5. During the trial, the prosecution examined 15 witnesses including the doctors and the Investigating Officers. Dr. Iqbal Ahmad Javed, appeared as P.W.1. On 28-5-1989 he conducted the post-mortem examination of Murtaza alias Ghani (deceased and found following injuries on the dead body:-
(1) An incised wound on the front of the left side of the chest, in lower portion, 3-1/2" below the left nipple. 1" x 1/2" into probe passed deep into the left side of the chest cavity. A corresponding cut was present on the shirt and Bunyan, which were both blood stained.
(2) An incised wound on the front of the left side of the chest, 6" below the medial end of left clavicle bone, and one inch away and laternal to the middle line, 1/2" x 1/4" x muscles deep with oblique direction. A corresponding cut was present on the shirt and Bunyan, which were both blood stained.
6. According to the Doctor, the death was caused on account of Injury No,1.
7. Dr. Munir Ahmad Naz, appeared as P.W.2. He conducted the postmortem examination on the dead body of Iftikhar alias Younis on 28-5-1989 and following injuries:--
(1) Incised wound 3 c.m. x 1 c.m. On the outer part of middle of right arm perforating the muscles and terminating at an incised wound 2 c.m. x 5/4 c.m. On the back of the same arms, 1 c.m. Away, 13 c.m. Above the elbow in almost horizontal plane.
(2) An abrasion 5 c.m. x 3 c.m. On the front of right arm 4 c.m. Above the Injury No, 1.
(3) An incised wound 2-1/2 x 3-1/4 c.m on the outer side of right side of chest 15 c.m. From middle line 9-1/2 c.m. And on the outer part from the right nipple.
8. According to the doctor, the death was on account of Injury No,3 which was sufficient to cause death in the ordinary course of nature. Muhammad Bashir (Complainant) appeared as P.W.B. He stated that on the fateful day and time, his wife told him that a fight had taken place outside their house; he went out and saw his son Zulfiqar chasing Abdul Ghaffar appellant and giving him Dang blows as a result of which Abdul Ghaffar fell down. He asked Zulfiqar not to give him further belows: that he and his sons Zulfiqar and Mustafa P.Ws. Lifted Ghaffar and brought him near their house; when they reached he came to know that his sons Murtaza (deceased) had been murdered by three person while his other son Iftikhar having been seriously injured by Ghaffar and his companions had been shifted to hospital. He further stated that those companions who had killed his sons were Jabbar and his two brothers-in-law, Goga and Pappu. He admitted that he had not seen Ghaffar appellant and his companions committing murder of his sons Murtaza or causing injuries to Iftikhar alias Younis deceased. On account of afore-referred statement, he was declared hostile by the D.D.A. And was cross-examined. He denied the suggestion that appellant Abdul Ghaffar had killed his sons. Zulfiqar appeared as P.W.10. He is real brother of the deceased. He stated that Ghunna deceased had raised an alarm that he was given injuries with a dagger by Pappu and brother-in-law of Ghaffar appellant; he rushed to the spot and saw that Iftikhar deceased had caught hold of appellant Abdul Ghaffar from his collars. He admitted that he gave two Dang blows to Pappu. He further stated that he saw Ghaffar appellant causing injuries to his brother Ghunna with a dagger and that his brother Iftikhar deceased was given injuries by the brother of Ghaffar, namely Jabbar. He stated that Ghaffar appellant did not give any injury to Iftikhar alias Younis (deceased). He admitted having Dang blows to Ghaffar appellant whereafter he fell down. They apprehended Ghaffar at the spot. He too was declared hostile. In cross- examination, he denied the suggestion that Ghaffar appellant had caused injuries to both the deceased in his presence. He further denied the suggestion that he was present outside his house at the time of occurrence. Mustafa, appeared as P.W.11. He too is real brother of the deceased and son of P.W..8 Bashir complainants. He, in his examinationin-chief, did not say anything about the appellant causing injuries to either of the deceased but merely stated that when he came out of his house, he saw his brother Zulfiqar P.W.10 chasing Ghaffar appellant and giving him Dang blows in consequences of which he fell down, whereafter he was apprehended at the spot. He too was declared hostile and cross-examined by the D.D.A. He denied the suggestion that Ghaffar appellant killed both his brothers and volunteered that Ghaffar, his brother Jabbar and his brothers-in-law Akbar and Pappu also inflicted injuries to both the deceased. He stated that Chhuri was picked-up by one Rafique from the street. He added that the said Chhuri was thrown by Ghaffar appellant in the street. He admitted in cross-examination that he had not seen Ghaffar appellant causing injuries to either of the deceased persons. Mst. Inayat Bibi appeared as P.W.12.
She stated that she had seen Ghaffar appellant and his other companions namely, Jabbar, Akbar and Pappu committing the murder of both her sons and that Ghaffar appellant inflicted Chhuri blows to both the deceased. She stated that Ghaffar appellant was apprehended at the spot by Zulfiqar P.W.
9. The appellant when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication into enmity. Explaining the reason of this false implication, he stated that his sister Mst. Naseem Bibi was married to Zulfiqar P.W. But she died. Zulfiqar P.W. Demanded the hand of his other sister Mst. Bushra to which he opposed whereafter Mst. Bushra was married to Iftikhar alias Younis deceased. Zulfiqar bore a grudge against him on that account and he had falsely implicated him in the instant case.
10. Learned counsel for the appellant, in support of the appeal, submitted that it was an occurrence which took place at night and it was not witnessed by anybody; that all the prosecution witnesses were declared hostile except P.W.12 wherein she has named other persons as well who caused injuries to the two deceased. According to him, the possibility that other persons named by P.W.8 might have caused the fatal blows cannot be ruled out. He further stated that P.W.12 has been contradicted by P.W.8 on material point i,e, qua the manner in which the occurrence took place; persons who caused the injuries to the two deceased and the persons who saw the occurrence.
Learned counsel further submitted that although the occurrence allegedly took place outside the house of the complainant in open Bazar, yet no independent eye-witnesses was produced and it would be rather unsafe to convict the appellant on a capital charge on the basis of uncorroborated testimony of a related witness which statement itself is full of contradictions.
Coming to the question of recovery of blood-stained Chhuri, he submitted that the evidence of recovery has been demolished for more than one reasons. Firstly; according to P.Ws. 11 and 12, Abdul Ghaffar appellant was apprehended at the spot whereas according to P.W.15, the Investigating Officer, he was arrested on 2-6-1989 whereafter on 4-6-1989, he led to the recovery of blood-stained Chhuri. If he was arrested on the spot, then the recovery could have been affected there and then. Secondly; according to P.W.11 Mustafa, Abdul Ghaffar appellant threw the Chhuri in the street and the same was picked-up by one Rafique, this negates the prosecution story that the chhuri was recovered from the place after digging out earth near a High School. He lastly contended that the prosecution evidence consists of hostile witnesses and the same is not worthy of reliance.
11. Learned Assistant Advocate-General, on the other hand, has defended the impugned judgment by submitting that the prosecution case at least to the extend of Murtaza deceased has been proved not only by the statement of P.W.8 but the same stands corroborated by P.W.12. According to her, the prosecution case stands proved and there is no ground tenable in law to warrant the acquittal of the appellant.
12. We have heard learned counsel for the appellant; learned Law Officer and have given anxious thoughts to the arguments addressed at the Bar.
13. We have gone through the evidence in the light of the observations made by the Hon'ble Supreme Court and have also considered the principles laid down in the precedent case law to which reference has been made by the August Court. In Islam v. The State (PLD 1962 (W.P.) Lahore 1053) it was held that an hostile witness is not necessarily an unreliable witness and one Mst. Sattan who was declared hostile by the prosecution was found to be credible if it is corroborative by some other evidence. At page 1058, it was observed as under:-- "Since, however, she is a natural witness and in all likelihood should have seen the occurrence, her evidence as to the crime should be accepted where it is corroborated by some other evidence. It will not be safe to convict any of the appellants on her uncorroborated testimony."
' Her statement was found to have corroborative value because in the said case, there was extra- judicial confession of the appellant; recovery of bloodstained weapon was proved and the motive was also established on record. In Kaloo and 2 others v. The State (1973 PCr.LJ 334) the evidence of an hostile witness was found to be credible to the extent that it was corroborated by other material evidence on record and that the previous statement of the such witness recorded under section 164, Cr.P.C. And that the witness had been confronted with previous statement recorded under section 164, Cr.P.C. Which have been brought on record.
14. The facts in the instant case are distinguishable. All the eyewitnesses who are father and real brothers were declared hostile. They were not confronted with their previous statements recorded under section 161 Cr.P.C. The only eye-witness who was not declared hostile is Mst. Inayat Bibi but her statement alone would not be safe to sustain a conviction on a murder charge firstly because, she has introduced a new story negating the prosecution story as given in the F.I.R. Exh.P.K./1 by stating that appellant Abdul Ghaffar alongwith three others, namely Jabbar; Akbar and Pappu were committing the murders of his sons; that the appellant Ghaffar was apprehended at the spot and that one Anwar was also present who had seen her son Murtaza deceased going toward a shop to bring a packet of cigarettes. These new elements in the prosecution story would cause a doubt with regard to her presence at the spot. Secondly, the statement is not corroborated by any other material circumstance i,e, recovery of weapon of offence. The recovery itself has become doubtful as according to the eyewitnesses including the P.W.12, the appellant was apprehended at the spot whereas as per the Investigating, Officer P.W.15, he was arrested on 2-6-1989 and he led to the recovery of blood-stained Chhuri after digging earth near a High School on 4-6-1989. He is contradicted by P.W.11 Mustafa who stated that the blood-stained Chhuri was thrown in the street and the same was picked up by one Rafique. There is no cavil to the proposition that the statement of an hostile witness cannot be discarded entirely. The statement of such a witness has to be examined in totality i,e, alongwith other material on record. The evidence of such a witness is to be considered with utmost caution and cannot be extended credit unless the same is corroborated by some other evidence. In the afore-referred judgment i,e, Kaloo and 2 others v. The State (1973 PCr.LJ 334 at page 343), it was held as under:-- "In the light of the above principles, the testimony of a hostile witness cannot be left out of consideration and the evidence 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 person speaks in different voices, it is 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."
A bare reading of the statement of P.W.12 shows that besides, partially negating the prosecution story as set out in F.I.R. It remained uncorroborated by any independent circumstance. Respectfully following the. Dictum laid down by August Supreme Court in afore-referred case we feel that as the family had strained relations with appellant Abdul Ghaffar, it would be unsafe to extend implicit credit to her sole testimony and uphold conviction on a capital charge. This is in line with yet another judgment of the Honourable Supreme Court in Manzoor v. The State (PLD 1983 SC 197). For what has been discussed above, we were left with no option but to extend benefit of doubt to the appellant. Resultantly, the appeal is allowed and the impugned judgment, dated 25-11-1990 is set aside. The appellant shall be released forthwith if not detained in some other case. The Murder Reference is answered in negative.