' IJAZ-UL-HASSAN, J.--- Appellant Abdur Rehman alongwith Khudadad Tariq Mehmood and acquitted co-accused Abdur Rashid and Fida Hussain Shah, all residents of Pind-Kamal-Khan District Haripur were tried by Additional Sessions Judge, Haripur, for the murder of Muhammad Ayub, of the same residence, a young man of 30/31 years of age. Per judgment, dated 4-1-1997 Abdur Rehman, Khudadad and Tariq Mehmood having been found guilty were convicted under section 316, P.P.C. And sentenced to suffer imprisonment already undergone by them during the trial and ordered to pay. Diyat amount of Rs,2,20,000 to the legal heirs of the deceased. They were also directed to be kept in jail till the payment of Diyat amount by them or in default suffer simple imprisonment. Abdur Rashid and Fida Hussain Shah were extended benefit of doubt and acquitted.
2. Abdur Rehman, feeling aggrieved, of his conviction and sentence has filed Criminal Appeal No,5 of 1997 seeking his acquittal and refund of amount of Rs,73,333.33 deposited by him as Diyat amount. Mst. Akbar Jan, mother of the deceased has also filed Criminal Appeal No,7 of 1997 questioning the sentence of Abdur Rehman, Khudadad and Tariq Mehmood with the prayer that the same be enhanced to death and acquitted co-accused Abdur Rashid and Fida Hussain Shah be convicted and sentenced in accordance with law. This judgment is proposed to dispose of both the appeals.
3. Briefly stated the prosecution case is that S.-I. Khurshid Khan P.W., the then S.H.O. Police Station Khanpur while on Gusht on 2-5-1995 was informed at village Mang.By Malik Muhammad Banaras P.W. About the presence of a dead body lying under the trees. The S.H.O. Having reached the proposed place, found the dead body of an unknown person. He prepared injury sheet (Exh.P.W.7/1) and inquest report (Exh.P.W.7/3) in respect of the dead body and dispatched the same to the mortuary for post-mortem examination under the escort of P.W. Ghulam Jan F.C. The S.H.O. Also made a report in the daily diary Mad. No,26 of the even date. On the receipt of post-mortem examination report, formal F.I.R. (Exh.P.A.) was drawn and in the said F.I.R. Contents of daily Diary No,26 were incorporated. He then prepared site plan Exh.P.B. And got photographs (Exh.P.C.) of the dead body and handed over the same to the Municipal Committee, Haripur for burial. After post- mortem examination F.C. Ghulam Jan P.W. Brought the last-worn clothes of the deceased, consisting of Shalwar Exh.P.1, shirt Exh.P.2 and Chapple Exh.P.3 and handed over the same to the S.H.O. Who collected these articles vide memo. Exh.P.W.1/1. It may be pertinently mentioned here that Mst. Akbar Jan had also recorded the report in Police Station Khanpur regarding the disappearance of her son which was reduced into writing at Mad No,12, dated 4-5-1995. In view of the said report the appellant, convicted co-accused and acquitted co-accused were arrested on 8-5-1995 and on the following day at the pointation of Abdur Rehman appellant, a plastic pipe and a piece of rope were recovered and taken into possession vide memo. Exh. P . W.10/1 witnessed by Haider Zaman P.W. And Abdur Rashid. Similarly, the place of murder of the deceased was pointed out by the appellant and to this effect pointation memo. Exh.P.W.6/1 was prepared. The jeep stated to have been used in the commission of crime bearing No,7204 PRE was taken into possession by the Investigating Officer through memo. Exh.P.W.1/2. Khudadad and Tariq Mehmood accused led the Investigating Officer to the place where the dead body of Muhammad Ayub was stated to have been thrown. To this effect pointation memo. Exh.P.W.11/2 was prepared. The Investigating Officer produced all the prosecution witnesses before the Magistrate who recorded their statements under section 164, Cr.P.C. After completion of the investigation in the manner described above, complete challan was submitted in Court against the accused.
4. Dr. Habibur Rehman P.W. Medical Officer D.H.Q. Hospital. Haripur on 3-5-1995 performed post- mortem examination on the dead body of Muhammad Ayub deceased and noted the following on external examination:--
(1) Bruise 2" x 2" over the right cheek.
(2) Multiple bruises over the right side of neck.
(3) Multiple bruises over the left cheek and left eyebrow.
(4) Wound 4" x 2" skin deep over the top of scalp with multiple bruises over the skull.
(5) Multiple bruises over the left shoulder.
(6) A wound 2" x 1" skin deep over the lower part of right fore-arm.
(7) Multiple bruises both in front and at the back longitudinal.
(8) Bruises multiple over the front of left chin.
' On internal examination spleen was found ruptured and stomach contained semi-digested food.
Probable time between death and postmortem examination was noted to be 18 to 24 hours.
5. At the commencement of trial, a formal charge was framed against the accused to which they pleaded not guilty, professed their innocence and claimed trial. In order to prove its case against the accused, prosecution examined as many as 11 witnesses and abandoned Abdur Rashid, Sultan, Roshan Din, Manzoor Hussain, Ejaz Hussain and Inhamullah Khan M.I.C.
6. After close of prosecution evidence the accused in their statements recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged. They produced no evidence in defence and did not opt to be examined on oath under section 340(2), Cr.P.C.
7. After hearing arguments of learned counsel for the parties, the learned trial Judge found the appellants Khudadad and Tariq Mehmood guilty of the offence in question and acquitted Abdur Rashid and Fida Hussain Shah by extending them benefit of doubt.
8. Haji Muhammad Iqbal, Advocate appearing on behalf of Abdur Rehman appellant contended, inter alia, that the conviction has been based on an uncorroborated testimony of a hostile witness namely Gul Baz Akhtar P.W.9 who clearly admitted in his cross-examination having not seen the occurrence. The learned counsel added that the prosecution version is in direct conflict with medical evidence supplied by Dr. Habibur Rehman P.W.; that recovery of plastic pipe and a piece of rope has not been satisfactorily proved; that same set of evidence has been disbelieved qua acquitted co-accused and that the order of learned trial Judge is against law, facts of the case, evidence on record and as such cannot be allowed to remain intact. To substantiate the pleas reliance was placed on The State v. Abdul Ghaffar 1996 SCM R 678; Muhammad Sadiq v. The State 1997 SCM R 611; Khawand Bux and 3 others v. The State 1997 PCr.LJ 280 and Muhammad Riaz and 3 others v. The State PLD 1994 Pesh.
102.
9. On the contrary, Mr. Muhammad Ayub, Assistant Advocate-General for State supported the impugned judgment and prayed for its sustenance. Moreover, Mr. Samiullah Khan and Miss Rahilla Mughal, Advocates for the complainant challenged the impugned judgment and submitted that the learned trial Judge has failed to appreciate the material brought on record qua the acquitted co-accused and that the impugned judgment suffers from gross misreading and non-reading of evidence which has resulted in grave miscarriage of justice. The learned counsel reiterated that keeping in view the evidence brought on record by the prosecution the accused deserved extreme penalty of death and no indulgence could be shown to them. To substantiate the pleas reliance was placed on Sharafat Ali v. The State 1999 SCM R 329, Muhammad Mehdi v. The State 2000 SCMR 22 and Qaid-e-Azam v. The State 2000 PCr.LJ 216.
10. We have heard at length the arguments and submissions of learned counsel for the parties" and we have also gone through the case-law cited at the Bar.
11. The fore-most question in this case is whether the murder of Muhammad Ayub was committed by the appellant and his companions. The case mainly hinges on ocular testimony of Gul Baz Akhtar P.W.9. This witness deposed at the trial that on 1-5-1995 at about 10 p.m. He noticed accused Abdur Rehman, Khudadad and Tariq Mehmood giving fists and kicks blows to Muhammad Ayub deceased. On the next day he informed the mother of the deceased about the incident. He asked the accused as to why they were belabouring the deceased to which they replied that he has committed theft. When subjected to the test, of cross-examination, the witness stated that after 8 days of the incident he was taken to the police station and asked to depose against the accused also he would be implicated in this case. He deposed against the accused due to torture and fear of the police. He had not seen any of the accused giving fists or kicks blows to the deceased. The Investigating Officer dictated statement before Muharrir and he (Gul Baz Akhtar) was asked to sign the same.
12. In view of the obliging concessions given by this witness, the witness was declared hostile by the prosecution and the public prosecutor was allowed to cross-examine him.
13. It is true that the evidence of a hostile witness as observed by the superior Courts, cannot be altogether left out of consideration but it is equally true that the testimony of a hostile witness has to be considered with caution and care for the simple reason that the witness has spoken in different tones. When a witness speaks in different voices, it is for the Court to decide in what voice he speaks the truth. In such-like cases, the determining test is corroboration from independent source and conformity with the remaining evidence. In the instant case we find that the solitary statement of Gul Baz Akhtar P.W. In the absence of independent corroboration, should not have been made basis of conviction of the accused-appellant. In such-like cases intrinsic value of the testimony of the witness has to be adjudged.
14. A plastic pipe and a piece of rope are stated to have been used in the commission of the crime.
The plastic pipe and the rope were taken into possession by the Investigating Officer vide recovery memo. Exh.P.W.10/1 witnessed by Haider Zaman P.W. And Abdur Rashid (since abandoned) Haider Zaman when examined at the trial admitted having signed on the recovery memo. Mentioned above but deposed in his cross-examination that his signature was obtained by the Investigating Officer on a blank paper and that nothing was recovered at the instance of the accused in his presence. The other witness of the recovery memo. Namely Abdur Rashid has been abandoned by the prosecution as won-over. In the circumstances, we find that the recovery under consideration has become doubtful and does lend support to the prosecution story.
15. Adverting to the medical evidence, we find that the appellant and the acquitted co-accused are alleged to have beaten mercilessly to the deceased Muhammad Ayub resulting in the death of the deceased whereas the medical evidence runs contrary to the version and story of the prosecution.
16. So far as the case of acquitted co-accused, namely, Abdur Rashid and Fida Hussain Shah, is concerned, we feel that the learned trial Judge was quite justified to pass a finding of acquittal in their favour. The prosecution has not been able to connect them with the murder of E Muhammad Ayub deceased. Nothing has been brought on the file that the dead body of Muhammad Ayub was removed by the acquitted co-accused from the site of occurrence and thrown at a deserted place, i,e,, under the trees. There cannot be any cavil with the legal proposition that an acquittal appeal stands on a different footing than an appeal against the conviction. In acquittal appeal, the superior Courts generally do not interfere with unless they find that miscarriage of justice has taken place. The factum that there can be a. Contrary view on reappraisal of the evidence by the Court hearing the acquittal appeal simpliciter would not be sufficient to interfere with the finding of acquittal.
17. We have considered the submissions made by the learned counsel for the parties and are of the view that the case of the prosecution is doubtful in nature qua the appellant. The evidence available on record is in no way sufficient to lead to a conclusion that the appellant can be convicted of the offence alleged against him. We are not inclined to subscribe to the conclusion arrived at by the learned trial Judge so far as the appellant is concerned. The finding of the trial Court is not based on any valid evidence and moral conviction by a Judge about guilt of an accused person could not form the basis of conviction. The Honourable Supreme Court in a case reported in 1995 SCM R 1345 observed:-- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts.
If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concessions, but as a matter of right."
18. In view of the reasons mentioned above, we have reached the irresistible conclusion that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt. We, therefore, set aside the conviction and sentence awarded to the appellant and acquit him of the charge. The amount of Rs,73,333.33 deposited by the appellant in Court as "Diyat" amount shall be returned to him. The appellant is on bail. His bail bonds shall stand cancelled.
19. We have already observed above that the learned trial Judge has given valid and cogent reasons for extending benefit of doubt to co-accused Abdur Rashid and Fida Hussain Shah. The finding of acquittal is unexceptional and hardly calls for any interference. The criminal appeal filed by Mst. Akbar Jan fails which is hereby dismissed.
20. Needless to add here that observations made above relate to the appellant alone. They shall have no bearing on the case of Khudadad Khan and Tariq Mehmood accused.