IFTIKHAR HUSSAIN BUTT, J.- Both the above mentioned appeals have been preferred against the impugned judgment, one by complainant and other by the State against the order of acquittal passed by the Trial Court dated 29.12.1994. Therefore, shall be disposed off by this single order.
2. The facts as stated in the FIR are briefly that Talib Hussain (P.W. 1), the first informant lodged a report on 10th of July, 1990 at 4-45 p.m. At Police Station Dudyal that Tasawar Hussain respondent- accused, a tractor driver resides at the backside of his house who always plays his tape recorder in loud voice but his father Atta Muhammad used to forbid him. In this connection an acrimony took place some days before. On 10th of July, 1990 at 3.30 p.m. a dispute pertaining to land arose between his cousin Khadim Hussain (P.W. 2) and Tasawar Hussain accused and when his father Atta Muhammad went there for a compromise, Tasawar Hussain accused who was already inimical towards his father hit him with a stone with an intention to kill him on the instigation of his mother Waliat Begum. As soon as the stone hit his father, he fell down then Tasawar Hussain tried to hit him with another stone but Talib Hussain, Khadim Hussain and Tariq Mehmood who were already present on the spot caught hold of the accused. Because of the first injury Atta Muhammad died on the spot. The accused Tasawar Hussain killed his father because of enmity and on the prompting and instigation of his mother.
3. The motive of the occurrence is stated to be that the accused Tasawar Hussain used to play tape-recorder in a loud voice and Atta Muhammad, deceased used to forbid him to do so. Some days before the occurrence, an altercation took place between, Atta Muhammad, deceased and Tasawar Hussain respondent-accused.
4. Talib Hussain (P.W. 1) went and lodged the report at the Police Station, Dudyal at 4-45 p.m. Which was recorded by Sikandar Hayat, AS1 Police (P.W. 12) who registered the case Ex.PB under Section 5 IPI Act, 1974 and went to the spot, prepared the inquest report Ex.PH/6 and sent the dead body for post-mortem examination. He also prepared an injury form of the deceased Ex.PH/2 and picked up and took into possession a stone (P-1) which he found lying near the place of occurrence, which is marked as (P-4) during this course of judgment because the shirt of deceased has also been marked as (P-1) by the Trial Court, vide the recovery memo. Ex.PD in presence of Muhammad Saddiq (P.W. 6) and Muhammad Zaman (P.W. 7). Tasawar Hussain and Mst. Waliat Begum were arrested by Sikandar Hayat, AS1, when they were going on the through fare near village Batli. On that very day Akram Hussain SI (P.W; 13), S.H.O. P.S. Dudyal took over the investigation of the case from Sikandar Hayat, AS1, On the next day Akram Hussain, SI prepared the injury form of respondent Tasawar Hussain Ex.PH/4. After the postmortem the clothing of the deceased shirt (P-1) Vest (P-2)
Tehemband (P-3) were taken into the possession vide memo. Ex.P.C. In presence of Muhammad Azam (P.W. 4) and Muhammad Yasin (P.W. 5). On 12th 'of July, 1990 the statements of the eye- witnesses Khadim Hussain (P.W.-2) and Tariq Mehmood (P.W. 3) were recorded and site plan Ex!PJ was got prepared by Nazir Ahmed Patwari (P.W. 8). Meanwhile Akram Hussain, SI, (P.W. 13) was transferred and Muhammad Amin S.I. (P.W. 15) took over the investigation of the case who obtained the report of Becterologist Ex.PG which revealed that Atta Muhammad, deceased died of "Ischaemic Heart Disease" with recent Myocardial interaction.
5. The post-mortem examination revealed no wound, bruise or injury on the person of the deceased. According to the post-mortem report prepared by Dr. Muhammad Basheer Ch. (P.W.
9):- "There was no evidence of an injury caused by the stone either externally or internally which was detectable on post-mortem examination. However the mark of impact is not invariably present in every case."
In this case death occurred due to sudden attack of "Acute myocardial infarction" (Heart Attack). It is more likely that the attack was precipitated due to severe exertion in the presence of already smpromised coronary circulation. Reference report of the Bacterologist Govt., of Punjab is also enclosed with this report.
6. After the completion of investigation both the respondents- accused were sent up for trial where the prosecution relied upon the ocular testimony of Talib Hussain (P.W. 1), Khadim Hussain, (P.W. 2), Tariq Mehmood (P.W. 3), the evidence of recovery of stone (P-4) recovered from the place of occurrence, the medical evidence and the evidence of motive.
7. At the trial the accused denied their guilt and pleaded innocence. They also denied the recovery of stone (P.4) and submitted that they were falsely implicated on account of enmity. No evidence was produced by the respondents in their defence. The Trial Court found glaring defects in prosecution evidence and held that medical evidence also falsified the evidence of eye-witnesses.
Thus, acquitted the respondents-accused.
8. Feeling aggrieved, the State and the complainant, both filed two separate appeals against the order of acquittal passed by the Trial Court vide its judgment dated 29. 12.1994. Hence these appeals.
9. Mr. Abdul Majeed Mallick, the learned Counsel for the appellant raised the following points:-
(i) That FIR was promptly lodged and the respondents-accused were nominated therein.
(ii) The prosecution produced three eye witnesses namely Talib Hussain (P.W. 1), Khadim Hussain (P.W. 2) and Tariq Mehmood (P.W. 3) who proved the prosecution version beyond any reasonable doubt.
(iii) The evidence of recovery of weapon of offence, the stone (P-4) and the evidence of seizure of deceased clothing was also produced.
(iv) The P.Ws, are admittedly related to the deceased but they are natural witnesses and not at all inimical to the respondents- accused.
(v) According to the ;ross-examination of the defence the time and the place of occurrence, the fact of altercation between Khadim Hussain (P.W. 2) and Tasawar Hussain accused, the presence of Atta Muhammad , deceased, at the place of occurrence and the death of Atta Muhammad, deceased, at the spot has been admitted.
(vi) It is admitted that the deceased was a heart patient but it has been proved by medical evidence, post-mortem report and report of Bacterologist that the deceased died because of hitting by a stone.
(vii) The Trial Court did not record any contradiction in the statements of P.Ws, and order of acquittal was passed in an erroneous manner which cannot he sustained.
(viii) The case does not come in purview of Qisas but the respondents-accused can be sentenced under Tazir.
(ix) The evidence led by the prosecution against Mst. Waliat Begum respondent-accused in connection with her prompting and instigating the principal accused was not cross-examined by defence and an abetter is also entitled for the same sentence as the principal accused.
10. Mr. Muhammad Mushtaq Ch., the learned Additional Advocate General fully owned and supported the arguments of the learned counsel for the appellant-complainant and submitted that the respondents are fully involved in the case, therefore, the order of acquittal may be set- aside and the respondents be sentenced to death.
11. In reply, Mr. Muhammad Azam Khan, the learned Counsel for the respondents accused vehemently contended that the alleged occurrence is not of a' murder and the prosecution has produced the evidence of interested witnesses which cannot be relied upon because of material discrepancies and inconsistencies. The ocular version has also not been corroborated by any independent confirmatory evidence.
He also argued that according to the facts and circumstances of the case medical evidence has become primary evidence in nature which clearly negates the prosecution story. In support of his contention he referred injury form of the deceased Ex.PH/2, inquest report Ex.PH/6 and postmortem report Ex.PF. He maintained that post-mortem was done after I6 hours of the occurrence but impact of injury of hitting by stone did not appear although such impact and symptoms do appear within two hours of the infliction of an injury.
H It was also argued by the learned Counsel for the respondents that after two days of the occurrence FIR .Was lodged after consultation and deliberations which cannot be relied upon.
He maintained that the medical evidence totally negates the ocular version, therefore, the statements of the eye witnesses must be ignored.
He finally defended the impugned order and submitted to up hold the order of acquittal recorded by the Trial Court. In support of his contentions he cited the following case law:-
(i) AIR 1934 Privi Council 227.
(ii) PLJ 1978 S.C. 247.
(iii) PLD 1979 S.C. 934.
(iv) SCM R 1982 420
(v) SCM R 1984 423.
(vi) SCM R 1984 545.
12. The arguments were heard pro an contra in detail and record of the case, the evidence of the prosecution and the impugned judgment was carefully perused. It was agitated that first information report Exh. P.A. Was promptly lodged but this fact finds no support from the statement of Talib Hussain (P.W. 1), first informant, who categorically stated that he signed the document Exh.
P.B. On 12th July, 1990 at the Police Station. His testimony reads as under:- -- .* >' J* J ;> ' J:V' * {{Urdu text}} He also deposed that his statement was not recorded even after 2,3 or , 4 days of the occurrence by the Police. On the contrary Sikandar Hayat A.S.I (P.W. 12) deposed that he registered the case Ex.P.B. On 10-7-1990. The above statement of Talib Hussain (P.W. 1) creates a material contradiction and is clearly inconsistent with the prosecution version. Thus ^ sufficient and convincing evidence is available that FIR was not lodged on 10th of July, 1990 and it can not be considered. The story of prosecution becomes more doubtful in the light of the statement of Talib Hussain (P.W. 1) that when police reached on the spot on the day of the occurrence and again on the next day, at that time Khadim Hussain (P.W. 2) and Tariq Mehmood (P.W. 3) the eye witnesses of the occurrence were present there but it is strange enough that if the case was registered on 10th of July 1990 and at that very day Investigation Officer visited the spot and further more when the complainant Talib Hussain (P. W. 1) and both the eye witnesses namely Khadim Hussain (P.W. 2) and Tariq Mehmood (P.W. 3) were present on the spot, as to why their statements were not recorded and finally the statements of Khadim Hussain (P.W. 2) and Tariq Mehmood (P.W. 3) were recorded on 12th of July, 1990. If the investigating officer could record the statement of Muhammad Saddiq (P.W. 6) and Muhammad Zaman (P.W. 7) in connection with recovery of stone (P-4) vide memo. Ex.PD, than what was the hurdle in his way not to record the statements of eye-witnesses who were present on the spot but the preference was given to record the statements of recovery witnesses of weapon of offence, a stone (P-4).
13. Talib Hussain (P.W. 1) also mentioned this fact in FIR that when Tasawar Hussain respondent tried to hit his father with an other stone then he, Khadim Hussain (P.W. 2) and Tariq Mehmood (P.W. 3) caught hold of the respondent but this fact was not deposed by him in his examination-in-chief.
Talib Hussain (P.W. 1) stated that when his father went to the accused house he, with his brother Tariq Mehmood (P.W. 3) and cousin Khadim Hussain (P.W. 2) were present at the scene of occurrence but Khadim Hussain (P.W. 2) introduced a new story and stated that when the accused entered in his house then and there co-accused Mst. Waliat Begum Started abusing them in his presence. However, Talib Hussain (P.W. 1) and Tariq Mehmood (P.W. 3) came on the spot after hearing the noise and abuses but on the contrary Talib Hussain (P. W. 1) stated in the FIR that when his father was hit by the accused he, with Khadim Hussain (P.W. 2) and Tariq Mehmood (P. W. 3) was also present on the spot. Khadim Hussain (P. W. 2) also admitted this fact that on the day of occurrence he was present on the spot but Investigating Officer did not record the statement of any of the witnesses and police did not initiate the proceeding on the spot on the day of occurrence or on the second day. Tariq Mehmood (P.W. 3) testified that on the day of occurrence when the police reached at the spot he with Talib Hussain (P.W. 1) and Khadim Hussain (P.W. 2) was present over there but police did not ask them about the occurrence.
14. Talib Hussain (P.W. 1) stated in the FIR that Tasawar Hussain respondent used to play his tape recorder in a loud voice and he also stated the same fact in his testimony before the Court but Tariq Mehmood (P.W3) the real brother of Talib Hussain (P.W.. 1) made a vital improvement in his testimony and deposed that respondent used to play tape recorder in a loud voice at his residence and he had fixed the speakers on a tree which was the basis of complaint against him. He also stated that there was no complaint against the respondent about a tape recorder fixed in his tractor. He further deposed that on 11.7.1990 he told the police that he is an eye witness of the occurrence but his statement was not recorded on that day. He stated that on the day of the occurrence, police did not ask from any inhabitant of village about the occurrence. /VII these above mentioned facts and circumstances create clear doubts in the prosecution case and all the three eye witnesses, who are not only closely inter-related but also kith and kin of the deceased deliberately trying to implicate accused by hook and crook, not only contradicting each other on material points of the prosecution story but making improvements of substantial nature.
15. It is also on the record that the place of occurrence is thickly populated area but not a single independent witness was cited as an eye witness even the witnesses of seizure of weapon of offence (P-4), vide memo. Ex.P.D. Are not independent persons. Muhammad Saddiq (P.W. 6) and Muhammad Zaman (P.W. 7) are also closely related to the deceased, they do not even belong to village Batli. Muhammad Saddiq (P.W. 6) belongs to village Chattroe while Muhammad Zaman (P.W. 7) belongs to village Thalia Tehsil Mirpur. The crime weapon stone (P. 4) is a common stone which was picked up by police from a street having no special mark of identification and without any blood stains upon it. Muhammad Saddiq (P. W. 6) stated that Khadim Hussain (P.W. 2) picked up a stone from the street and produced it before police but Muhammad Zaman (P.W. 7) deposed that police picked up the stone (P-4) from the street at its on. Thus, the ocular version does not find any support from any independent source. I am aware of the fact that the testimony of an eye witness could not be simply discorded on the basis of his relationship with the' complainant or deceased, if otherwise it rings true but rule of prudent demands and for the safer administration of justice the Courts should not accept such type of evidence without corroboration from an independent source. The Court must be careful and cautious while relying upon the statement of an interested witness.
16. The learned counsel for the appellant also raised this point that the prosecution witnesses are not at all inimical to the accused, therefore, the prosecution evidence has to be relied upon. I do not find any substance in this argument because mere absence of enmity against the witnesses is not sufficient to convict an accused. It is now established that before recording an order of conviction of an accused the ocular version of interested witnesses must be corroborated by independent evidence. In case reported as Muhammad Iqbal v. The State (1984 SCM R 930), it was observed as under:- Murder--Evidence--Mere absence of enmity against Witness- Held, not sufficient to bring home charge of murder if evidence of such witnesses is found to be inherently unreliable.
17. It is the prosecution case that the respondent Tasawar Hussain hit the deceased with a stone (P-4) weighing one or one and half kilo, from a distance of one or two yards but no bleeding or swelling was found on the place of injury and there was no mark or bruise upon the person of deceased. In these circumstances, when it is admitted on the part of the prosecution that Atta Muhammad, deceased, was a heart patient, the medical evidence becomes of a vital importance.
In this respect, reference can be made to a case reported as Nazim Khan and two others V. The State. (1984 SCM R 1092), where the following principle was laid down:- Murder-Evidence-Prosecution case suffering from serious infirmity and material on record not capable of being relied upon-Conspicuous lack of independent corroboration-Accused entitled to benefit of doubt in accordance, with principles governing safe administration of criminal justice- Conviction and An other reference can be made to a case reported as Muhammad Bashir V. The State (1992 P.Cr.L.J. Sh. C. (AJK) 597), where it was opined as under:- Court has to be careful in imposing punishment on the accused-- More care is desired in the case of charge of grave offence like murder as on account of slightest suspicion it is better to acquit than to convict the accused.
18. I do not accept this argument of the learned counsel for the appellant that medical evidence corroborates the ocular version of the prosecution. Post-mortem report Ex.PF and report of Bacterologist Ex.PG negates the prosecution story because according to the post-mortem report no evidence of injury caused by the stone either externally or internally was detected during the post-mortem examination and according to the said report the death of deceased occurred due to the sudden attack of "acute Mio-Cordial infarction". The same conclusion was drawn by Bactrologist wherein it was observed that the death of the deceased occurred because of Ischaemic heart disease. In this respect, reference can be made to the statement of Dr. Muhammad Bashir Ch. (P.W. 9) whereby he deposed as under :- {{Urdu text missed }} It was further stated by the said witness that:- {{Urdu textr missed}}
19. The above statement of Dr. Muhammad Bashir Ch. (P.W. 9) coupled with post-mortem report and report of Bacterologist caste heavy doubt and clearly contradict the statement of the eye witnesses. In this state of affair, when the medical evidence does not- corroborate the ocular version of the prosecution and the eye-witnesses are closely related to the deceased and testimony of such witnesses has not been corroborated independently, the prosecution evidence cannot be relied upon. A reference can be made to a case reported as Muhammad Ahmed V.
Muhammad Ajzal and others. (1984 SCM R 423), where the following principle was enunciated :- Criminal Procedure Code (V of 1898), S. 417,-Murder-- Acquittal-Appeal from-Glaring defects found in prosecution evidence casting grave doubt on veracity of its case-Eyewitnesses changing version during statements at trial-Medical evidence falsifying evidence of eye-witnesses-Acquittal of accused by High Court-Held, justified in circumstances of case.
20. In the light of above legal position, it appears that the ocular evidence stands contradicted by the medical evidence and a lot of discrepancies and inconsistencies are found in the evidence of P. W.s. Therefore no cogent, convincing or reliable evidence has been produced by the prosecution to prove the grave offence of murder beyond any reasonable doubt. The prosecution is duty bound not only to prove the occurrence but to prove the details of the offence and when two possibilities come forward out of the prosecution evidence, the preference may be given to the possibility which goes in the favour of accused. It is settled principle of law that conviction cannot be recorded on surmises and conjunctures. In these circumstances, the Trial Court has rightly acquitted the respondent- accused and no case of conviction has been made out by the prosecution.
21. During the course of judgment it was revealed that the Trial Court recorded the judgment without conducting the purgation of the eyewitnesses and did not follow Section 26 of Islamic Penal Laws (Enforcement) Act, 1974. For this purpose a fresh notice was given to the learned counsel for the parties and arguments on this point were also heard. The learned counsel for the appellant frankly conceded the fact that the requirement of Qisas has not been fulfilled and thus sentence of Qisas cannot be imposed in presence of prosecution evidence rather sentence of Tazir or Diyat be awarded to the respondents-accused. While replying the arguments, the learned counsel for the respondents contended that the respondents have not been prejudiced by the impugned judgment, therefore, the impugned judgment cannot be set aside for the purpose of purgation. He further argued that in case of purgation even if the witnesses are found Adil it will not change the facts of the case. In the light of the arguments addressed at the point and particularly as held above, purgation of eye witnesses is not essential because the prosecution has miserably failed to prove its case beyond any reasonable doubt. Therefore in case of remand of appeal for the purpose of purgation the respondents-accused will suffer the agony of protracted trial. It would thus appear that the impugned judgment cannot be set aside in absence of purgation of male eye-witnesses because of the peculiar facts and circumstances of the case mentioned above.
22. The nut-shell of the above discussion is that finding no force in this appeal, it is hereby dismissed.