' RAHMAT HUSSAIN JAFFERI, J.---The present appeal is directed against the judgment dated 18-12- 1997 passed by the learned 1st Additional Sessions Judge, Karachi (West) in Sessions Case No.220 of 1993 (State v. Muhammad Siddiq and others) under sections 302, 34, P.P.C. Of Mominabad Police Station. Under the impugned judgment, the learned Judge acquitted the respondents Nos.1 and 2.
The appellant, who was complainant in the case was dissatisfied with the said judgment therefore, he has preferred the present appeal.
2. The facts giving rise to the present appeal are that on 11-5-1993, at about 9-00 a.m. The deceased Choudhari Ameer was present in the street of Gudoo Cattle Bara, when the respondents Nos.1 and 2 and absconding accused Ghulam Mujtaba came there. The respondent Muhammad Siddiq instigated the respondent Asghar Ali and absconding accused Ghulam Mujataba not to spare the deceased. On the said instigation the absconding accused Ghulam Mujtaba took out a dagger and caused dagger injury to the deceased which he received on his arm. During scuffle the dagger of absconding accused Ghulam Mujtaba fell down on the ground. The said dagger was picked up by the respondent Asghar Ali who also caused dagger blows to the deceased which he received on his abdomen. The deceased fell down on the ground. On the commotion P.Ws. Malik Ali Asghar, Aftab Minhas, Malik Yousif, Mst. Nausheen, Baba Dogar and others arrived at the place of incident. Thereafter, the respondents Nos.1 and 2 and the absconding accused ran away. The P.Ws.
Dr. Mir Zaman, Zahid Aslam and Arshad also came there who took the deceased to hospital where the complainant reached on the information received by him about the incident. The deceased narrated the incident to him. The police arrived in the hospital where they recorded the statement of the complainant on a plain paper, which was subsequently sent to Police Station for S.No. P.W.No. Name of witnesses Brief summary of Evidence
1. P. W . 1 Ch. Ghulam Abbas Complainant/brother of the deceased. He went to the place of incident, where he came to know that the deceased in injured condition was taken to hospital, therefore, he went to the hospital where the deceased informed him about the incident and then he lodged the F.I.R.
2. P. W . 2 Ghulam Sarwar Eye-witness of the incident. He supported the prosecution case.
3. P. W . 3 Mst. Nausheen Naz. Wife of deceased. She supported the prosecution case but subsequently she was examined as Defence Witness in which she did not support the prosecution case and resiled from her earlier statement. She exonerated the accused from the case.
4. P. W . 4 Ali Asghar Eye- witnessHe also supported the prosecution case. He acted as Mashir of arrest of respondent, Ali Asghar, absconding accusedincorporating it in 154, Cr.P.C. Book. The deceased in injured condition was taken to the operation theatre but he died there at about 11-20 a.m.
3. The police started the investigation. The Investigating Officer went to the place of incident from where he took the blood-stained earth.. He arrested the respondents Nos.1 and 2 and the absconding accused Ghulam Mujtaba. From the possession of the absconding accused Ghulam Mujtaba, a dagger was secured. After completing the usual investigation the police challaned the respondents Nos.1 and 2 and the absconding accused in the Court of law.
4. On 24-7-1993, a charge under section 302, read with section 34, P.P.C. Was framed against the respondents Nos.1 and 2 and the absconding accused to which they pleaded not guilty.
5. In support of the case, the prosecution examined the following 13 witnesses:1- Ghulam Mujtaba and recovery of dagger from the possession of absconding accused.
5. P. W . 5 Arshad Amir Son of deceased. He reached the place of incident where the deceased informed him about the incident. He supported the prosecution case.
6. P. W . 6 Muhammad Zaraat Mashir of Wardat and arrest of respondent Muhammad Siddique.
7. P. W . 7 Dr. Aftab Azizi Medical Officer. He examined the deceased in injured condition. He found one stabbed wound below the nipple and one incised wound skin muscle deep on the left wrist of the deceased. He opined that the injuries were caused by sharp- edged weapon and were fresh in duration.
The injured was sent for operation where he died. He opined that Injury No.1 was sufficient to cause the death in the ordinary course of nature whereas 'Injury No.2 was declared as Jurh Char Jaifah Badihah.
8. P. W . 8 Choudhari Noor He went to hospital and received the dead body.
9. P. W . 9 Mir Zaman He reached the place of incident on the commotion where he found the deceased in injured condition lying unconscious and several persons were present.
10. P. W . 10 Kairm Bux. He received the copy of F.I.R. For delivering it to S.H.O. For investigation of the case.
11. C.W. Muhammad Gul Awan.Process-server. He deposed that the absconding accused Ghulam Mujtaba was not traceable.
12. P. W . 11 Abdul Qadir Additional City Magistrate. He recorded the 164, Cr.P.C. Statements of witnesses.
13. P. W . 12 Allahjawayo Tapedar.He prepared the sketch of the place of incident.
14. P. W . 13 Malik Muhammad NawazInvestigating. Officer.
He gave the details of his investigation and produced the Chemical Analyser report which report shows that the clothes of the deceased and the dagger were stained with human blood.
6. During the trial the accused Ghulam Mujtaba absconded, therefor, the case proceeded against the respondents 1 and 2.
7. The respondents 1 and 2 in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. They claimed that they were innocent; that the enemies of the deceased had murdered him as he had several enemies.
The respondents 1 and 2 examined themselves on oath. The respondent Muhammad Siddique deposed that the deceased was a "DADA" type person. He had several enemies and that the deceased was his son-in-law. He admitted that there were Civil and Criminal litigations between him and the deceased. The respondent Ali Asghar stated that on the day of the incident he, his father respondent Muhammad Siddique and his mother went to their Advocate Mr. Sada Hussain at about 8-00 a.m. And remained there upto 10-00' a.m. The respondents 1 and 2 examined D.W.1 Syed Sada Hussain, Advocate. He stated that on 11-5-1993 at about 8-30 a.m.
Muhammad Siddique and his wife Mst. Jamila came to his office and remained with him upto 10- 30 a.m. They also examined Mst. Nausheen Naz who was already examined as prosecution witness.
She did not support the prosecution case and exonerated the respondents 1 and 2 from the commission of this crime.
8. After considering the material available on the record, and hearing the parties counsel, the learned trial Judge acquitted the respondents as mentioned above under the impugned judgment.
9. We have heard the Advocates for the appellant, respondents 1 and 2, State counsel and perused the record of this case very carefully.
10. Learned Advocate for the appellant has stated that the witnesses have fully supported the prosecution case and implicated the respondents 1 and 2 but the trial Court had not appreciated their evidence in accordance with law; that the dying declaration has been proved through complainant and P.W. Arshad Amir but the trial Court has not given cogent reasons for discarding the said piece of evidence. He has further stated that the learned trial 'Court has committed material illegality in recoding the statement of P.W. Mst. Nausheen Naz as a defence witness when she was already examined as a prosecution witness. He has stated that same witness cannot be examined as defe.Ice witness even under section 540, Cr.P.C. He has relied upon Ubaida v. Abrar Ahmed (1986PCr.LJ 539), Saleem Ahmed Naseer v. State (1985 PCr.LJ. 1078) and Saifullah v. State (1994 PCr.LJ 1499). He has further stated that the trial Court has discarded the evidence of eye- witnesses on the ground that they were related to the deceased, but mere relationship with the deceased is no ground to discard the evidence. On the said proposition he has relied upon Abdul Hamid v. State (1969 SCM R 302) and Sharif v. State (1973 SCM R 83). He has further stated that the conviction can be based on the solitary evidence of a witness and relied upon Allah Bakhsh v.
Shammi (PLD 1980 SC 225); State v. Rab Nawaz (PLD 1974 SC 87); Muhammad Javed v. State (1993 SCM R 1619) and Milmtazuddin v. State (PLD 1978 SC 114). He has further stated that the reasons given by the trial Court are not proper in discarding the evidence, therefore, the impugned judgment may be set aside and the respondents 1 and 2 may be punished adequately according to law.
11. On the other hand the learned State counsel has stated that the ocular testimony is in conflict with the medical evidence; that the witnesses are not only related inter se but they are inimical and hostile to the respondents 1 and 2 as there is recorded enmity between the parties in the shape of litigations, therefore, the evidence of such witnesses requires strong corroboration. He has further stated that the deceased was not in a position to speak either at the place of incident or in the hospital, as per statement of the Medical Officer, therefore, the dying declaration has no value. He has further stated that the evidence of P.W. Mst. Nausheen Naz carries no weight as she has given contradictory statements. He has supported the impugned judgment.
12. Learned Advocate for the respondents land 2 has adopted the arguments of the State counsel.
13. We have considered the arguments and find that the Advocate for the appellant has relied upon the following two pieces of evidence:--
(i) Ocular testimony.
(ii) Dying declaration.
14. The ocular testimony consists of P.Ws.2, 3 and 4. P.Ws.2 and 4 deposed that at the time of incident when they reached at the place of incident, they heard commotion. The respondent Muhammad Siddique instigated the other respondents and absconding accused to kill the deceased, on which the absconding accused Ghulam Mujtaba caused dagger blow on the arm of the deceased. Then the dagger fell down which was picked up by the respondent Ali Asghar who also caused injuries to the deceased on his abdomen. Both the witnesses are unanimous that several blows were caused to the deceased. But the said piece of evidence has been belied by the Medical Officer as he found only two injuries on the person of the deceased, one on the chest and the other on the wrist of the deceased. The Medical Officer did not find any injury on the abdomen of the deceased. It is pertinent to point out that the incident took place in the morning time at about 9-15 a.m. The witnesses had ample opportunities to witness the alleged incident and had seen the assailants causing injuries to the deceased on the parts of his body and number of blows received by the deceased. However, their evidence is not corroborated by the medical evidence, as such, there is conflict between the medical and oral evidence. P.W. Ali Asghar is a chance witness who was passing from the place of incident and P.W. Ghulam Sarwar is a relative of the deceased.
The deceased had recorded enmity with the respondents 1 and 2. The same is clear from the documents, produced by them in evidence, as such, the statements of both these witnesses require independent and strong corroboration which is lacking in the present case.
15. As regards the evidence of Mst. Nausheen Naz, the trial Court examined Mst. Nausheen Naz twice; firstly, as a prosecution witness and then as a defence witness. Under the law, a witness can be either a prosecution witness or a defence witness but he cannot be a prosecution and defence witness at the same time in the same trial. Mst. Nausheen Naz was examined as prosecution witness. If the defence wanted some clarification, then they could have examined her under section 540-A,. Cr.P.C. For further examination. However, the trial Court was not justified in allowing the prosecution witness, whose statement was already recorded, to examine her/him as a defence witness in the same trial. Thus, the trial Court has committed material illegality in adopting this novel procedure, which has no backing of law. However, in the statement recorded as prosecution witness (Exh.10), Mst. Nausheen Naz supported the prosecution case and implicated the respondents 1 and 2 with the commission of this crime. But when she was examined as defence witness, she disowned her earlier statement (Exh.10), recorded by the trial Court. She also disowned her 164, Cr.P.C. Statement and exonerated the respondents 1 and 2 from the commission of this crime. She had also produced some newspaper cuttings of her press conferences appeared in some newspapers in which she had exonerated the respondents 1 and 2. She also produced an affidavit sworn by her on 26-8-1996 in which she exonerated the respondents 1 and 2. Thus, after examining the above material, it is clear that Mst. Nausheen has made her own statements doubtful, as such, the same cannot be relied upon for any purpose. Thus, the prosecution have failed to prove the ocular testimony.
16. Now we will take up the dying declaration. There are two dying declarations. One at the place of incident and the other in the hospital. P.W.5 Arshad Amir, the son of the deceased, deposed that on 11-5-1993 at 8-15 a.m. He was present in his house. When one Karim came and informed him that a fight was going on in between his father and the respondents 1 and 2, therefore, he went there where he found the deceased lying injured. His evidence further reveals that deceased informed him that the respondent Muhammad Siddique gave him Lalkara and said to his son Asghar Ali and his son-in-law Ghulam Mujtaba to kill him; that first Ghulam Mujtaba caused his dagger blow on the right side of his ribs and then the dagger fell down on the ground which was picked up by Ali Asghar who started giving him dagger blows and then they ran away.
17. This dying declaration if examined in the light of the evidence available on the record then it would show that the same is in conflict with the ocular testimony in respect of the part of causing dagger injuries. To the deceased assigned to the respondents 1 and 2. According to ocular testimony, first Ghulam Mujtaba caused dagger blow on this arm of the deceased and then the respondent Asghar caused dagger blows on the abdomen of the deceased. Whereas according to the witness the deceased informed him that first Ghulam Mujtaba caused him dagger blows on his person which he received on his right side of his ribs and then respondent Ali Asghar started giving him dagger blows. Thus, the dying declaration is not supported or corroborated by the ocular testimony. However, according to this witness the deceased had narrated the incident to him when the other witnesses were already present there. None of the witnesses deposed that the deceased gave any dying declaration at the scene of the incident. None of the eye-witnesses disclosed as to whether the deceased was in conscious or unconscious condition at the place of incident.
However, P.W.9 gave the condition of the deceased at the place of incident. According to P.W.9. Mir Zaman, the deceased was lying unconscious. As such, the evidence of P.W. Arshad Amir on the question of dying declaration is untrustworthy.
18. The second dying declaration, allegedly made by the deceased, is in the hospital in the presence of the complainant Ghulam Abbas. P.W.1 Ghulam Abbas deposed that when he reached the hospital, he found his brother in conscious condition who told him that Muhammad. Siddique, Ali Aghar and Ghulam Mujtaba caused him injuries. According to this witness, the deceased had informed him that all the 3 accused persons had caused him injuries. However, the case of the prosecution is quite different as allegedly by the eye-witnesses. They assigned the part of causing dagger injuries to two accused persons viz., respondent Ali Asghar and absconding accused Ghulam Mujtaba. Thus, the dying declaration is in conflict with the ocular testimony. The same is neither supported nor corroborated by the eye-witnesses. However, according to this witness the deceased was conscious and was able to speak. The Medical Officer in his statement stated that the deceased was conscious but not well-oriented in time and space and was drowsy. This statement is sufficient to discard the evidence of complainant Ghulam Abbas. As such, the prosecution has failed to prove the dying declaration in this case.
19. After considering the material available on the record, we are of the considered view that the prosecution have failed to prove the case against the respondents 1 and 2. Therefore, the learned trial Judge was justified in acquitting the respondents 1 and 2. The impugned judgment does not require any interference. The appeal has no merits and the same is dismissed.
20. Above are the reasons of our short order dated 22-10-2003, by which we had dismissed the appeal.