2005 PLP 954 (YLR)

8. We have heard the advocate for the appellant. Assistant Advocate General of the State and perused the record of this case very carefully.

9. The learned Advocate for the appellant has stated that there is no eyewitness in the case connecting the appellant with the commission of the offence; that the evidence of two witnesses viz. Feroz Khan and Alam Sher is only to the effect that they saw four boys coming on two motorcycles, out of them, two boys having shopping bags went inside the Jamait Khana compound and after sometime they came back and then the explosion occurred; that the said evidence is not sufficient to connect the appellant with the crime as there were thousands of the people available in the Jamait Khana; that there is no evidence to show that the shopping bags carried by the boys contained explosive substance or bomb; that nobody had seen the appellants leaving the shopping bags at the place where the explosion occurred. He has further stated that both these witnesses are set up witnesses arranged by transporter Sikander Shah as they were not present at the time or place of the incident. Out of them, one witness Alam Sher was declared hostile by the prosecution which has created doubt in the prosecution story; that the witnesses have improved their statements from their 161, Cr.P.C. statements, therefore, their evidence requires corroboration but the prosecution did not lead any such evidence; that the third eyewitness has not been examined by the prosecution; that merely on presumptions and surmises the appellant cannot be convicted. He has challenged the identification test on the ground that no features of the culprits were shown by the witnesses in their 161, Cr.P.C. statements; that the appellant was arrested on 14‑7‑2001 and the identification test was held on 8‑8‑2001 after the delay of 24 days without any explanation; that the identification test was held after about 8 or 9 months of the incident; that the witnesses had momentary glimpse of the culprits during night time without any proof of availability of light, which they cannot remember for a long period of 8 or 9 months, therefore, the prosecution has failed to prove the case beyond reasonable doubt.

10. The learned Assistant Advocate General has stated that the case rests upon the evidence of two witnesses viz. Feroz Khan and Alam Sher who had seen the appellant at the place of the incident going inside the Jamait Khana having a shopping bag in has hand, coming back at the motorcycle without shopping bag and then explosion occurred; that the appellant was identified in the identification test which is sufficient to connect the appellant with the offence, therefore, he has supported the impugned judgment.

11. We have given due consideration to the arguments, gone through the evidence with the help of the learned advocate for the appellant and find that the prosecution examined 12 witnesses. Out of them P. Ws. 2, 3, 5, 6 and 8 gave the details of the incident as to how the incident occurred in which several persons received injuries due to bomb explosion. Their evidence further reveals that one unexploded bomb was secured from the place of the incident, which was defused by the witnesses. On the diffusion of bomb as to who defused the bomb there are contradictory statements as some of the witnesses deposed that the bomb was defused by P.W. Munir Ahmed Inspector Bomb Disposal Squad, some of the witnesses deposed that it was defused by P.W. Mujahid Ali, the Group Leader of Scouts; while SIP Abdul Rauf deposed that inspector Agha Hussain defused it. However, through the evidence of these witnesses the incident has been proved. Two police officials viz. P.W.1 and P.W.5 have been examined who reached at the place of the incident after the incident took place. P.W.9, Munir Ahmed Inspector Disposal Sqaud also reached the place of the incident and defused the unexploded bomb.

12. The important evidence in this case is the evidence of P.W. Feroz Khan the Rickshaw driver and P.W. Alam Sher the taxi driver. The entire case rests‑upon the evidence of these two witnesses. Out of them, one witness Alam Sher was declared hostile by the prosecution, as he did not support the case. The learned trial Judge discarded his evidence and did not place any reliance on his evidence by relying upon an authority of Hon'ble Supreme Court of Pakistan in the case of Habib‑ur -Rehman v. Mustafa Abbas reported in, PLD 1989 SC 20.

13. The evidence of hostile witness has been the subject‑matter of consideration of the Privy Council and Supreme Court in number of cases. In some cases, evidence of such witness was discarded and in some cases it is to be examined with other pieces of evidence to see whether any part of his statement is corroborated by other pieces of evidence and if so then it can be relied upon. The said points were examined in the following cases.

14. The Privy Council in the case of Mohammad v. Emperor AIR 1949 P.C. 45 held that when the Court considers that the witness has been won over his evidence in Court must be entirely ignored. The Hon. Supreme Court of Pakistan in the case reported in Niaz Ali v. State 1980 SCMR 75 observed that statement of even undeclared hostile witness is to be ignored without leaving effect on the prosecution case. In the case of Habib‑ur‑Rehman v. Mustafa Abbas reported in PLD 1989 SC 20 it has been observed that hostile witnesses who resiled from their police statements, no importance is to be attached to evidence of such witnesses. At the same time the Hon. Supreme Court of Pakistan in the case of the State v. Abdul Ghaffar; 1996 SCMR 678, observed that testimony of hostile witness cannot be altogether left out of consideration, and has to be considered like the evidence of any other witness, but with a caution for the simple reason that he has spoken in different tones. It is for the Court to decide in what voice he speaks the truth. In such cases, the evidence has to be tested by corroboration from independent sources, and conformity with the remaining evidence. In the case of Muhammad Sadiq v. Muhammad Sarwar, 1979 SCMR 469 it has been observed that primary question is not whether a witness is hostile or disinterested. A hostile witness is honest or dishonest. A hostile witness may be truthful one, while a disinterested witness may be bribed or pressurized to make a false statement. The Court should look to the quality of evidence whether probable or constant. In the case of Manzoor Ahmed v. State PLD 1983 SC 197 it has been held that if P.W. resiled from previous statement then it cannot be held as a rule that he is necessarily telling a lie, because on proper scrutiny the latest statement on oath may be found to be true.

15. Keeping in view the above principle of law of assessing the evidence of hostile witness, we have examined the evidence of hostile witness Alam Sher. His evidence shows that on 13‑12‑2001, at 7:30 PM he was present alongwith this Taxi at a distance of about 15 paces away from the main gate of Jammait Khana, when a person hired his Taxi. As soon as the said person went inside the Jammait Khana to bring his family he heard, a huge explosion and people started running here and there and there was, commotion. Then the police arrived. They inquired from him. He further deposed as under:‑‑ "on such inquiry I narrated the entire facts of the incident to police and further informed the police that I had brought the passengers and dropped them at the Jammait Khana, and parked .my Taxi car near the main gate of Jammait Khana, where I noticed two motorcycles already parked near the gate and found two boys sitting on them. One of each motorcycle, I further informed the police that after about 5/10 minutes I saw two more boys emerged from the main gate of Jammait Khana joined two motorcyclist already present outside, who required from them as to what happened, the incoming boys told them that the job was over, I further informed the police that I can identify only one boy out of those four boys. I had not seen those boys/motorcyclists coming to Jammait Khana in my presence in fact when I came the motorcyclists were already present, before my arrival. Police recorded my statement at about 11‑30 p.m. on the same day at the police station."

16. From the above evidence it is clear that first part of the statement of P. W. Alam Sher discloses the facts, which he saw on the day, time and place of the incident. The said facts are admissible in evidence under Article 71 of Qanun‑e‑Shahadat Order. The second part of his statement discloses the facts, which he stated before the police. As such, it is a statement before a police officer, which is coming within the scope of section 162, of Cr.P.C.

17. According to section 162, Cr.P.C., no statement of any person to a police officer in the course of investigation can be used for any purpose except by the accused and for the purpose of contradicting the witness as provided by Article 140 of Qanun‑e‑Shahadat Order. A reference is invited to AIR 1960 SC 391, AIR 1944 FC

38. Furthermore, it can neither be used for corroboration of the prosecution or defence witness or even a Court witness nor for contradicting the defence or a Court witness. A reference is invited to AIR 1959 SC 1012. It is also pointed out that the statement under section 162, Cr.P.C. is not a substantive piece of evidence. It can only be used for a limited purpose of contradicting such witness and the statement cannot be used for any other purpose. Reference is invited to PLD 1965 SC 188, PLD 1964 SC 26.

18. The second part of the statement of P.W. Alam Sher is inadmissible in evidence. The trial Court was not justified to record such inadmissible evidence. It should have not allowed to come on the record. The Court would have saved the time by disallowing such evidence. The Hon. Privy Council in the case of Zaheeruddin v. Emperor reported in AIR 1947 PC 750 observed that when a Magistrate or presiding Judge discovers that the witness has made the use of a statement under section 162, Cr.P.C. when he was giving evidence at the trial, it is his duty under the said section to discard the evidence of such witness as inadmissible.

19. In view of above position the second part of the statement of the P.W. Alam Sher is discarded as inadmissible.

20. After excluding the second part of the statement of P.W. Alam Sher, we are left with his evidence of first part, which simply discloses that he heard an explosive and saw people running here and there. Therefore, through this evidence the involvement of the appellant is not established or his presence on the date, time and place of the incident. He did not state that he saw the appellant at the time and place of the incident. On the contrary when the special prosecutor conducted his cross‑examination he clearly stated that he had not seen the appellant going inside the Jammait Khana. In the cross‑examination to the defence counsel the witness categorically stated that he had stated in the police statement that on hearing the explosion, he started his Taxi car and went away and on reaching his house he disclosed the facts of the incident to Seth Sikander Shah transporter at about 12‑30 a.m. From the above admission, it is clear that the witness left the scene of the incident just after hearing the explosion and went to his house. The special prosecutor fully cross‑examined the witness but he could not get anything from him which can support the prosecution case about the involvement of the appellant with the offence.

21. P. W. Alam Sher and his statement further stated that he had identified the appellant in an identification test held before a Magistrate. The evidentiary value of an identification test is of corroborative value. It by itself is not a substantive piece of evidence. It can only corroborate statement of a witness if he deposed that he had seen the culprit on the date, time and place of the incident and subsequently identified him to be the same culprit in the identification test. In the present case, there is no evidence that the P.W. Alam Sher saw the appellant on the day, time and place of the incident therefore the identification test carries no weight because it is not corroborating any statement of P.W. Alam Sher.

22. After scrutinizing the evidence of P.W. Alam Sher we are of the considered view that his statement is of no help to the prosecution.

23. Now we are left with the evidence of P.W. Feroz Khan. His evidence reveals that on the day and time of the incident, he was present outside the compound wall of Jamait Khana with his rickshaw as he had brought some passengers who went inside the Jamait Khana and he was waiting for them to come back. During that period, he saw two motorcycles on which four persons were sitting; parked their motorcycles near his rickshaw. At that time he was clearing his Rickshaw. Out of them two boys went inside the Jamait Khana through the main gate. They were carrying plastic shopping bags with them, whereas two persons remained present with their motorcycles. After a short while, the two boys who went inside the Jamait Khana came hurriedly and told their companions to leave immediately as they had finished their job and at that time they had no shopping bags with them and thereafter they drove away their motorcycles. After about 5 or 6 minutes of their departure, he heard an explosion, inside the Jamait Khana. The persons started running here and there. The police arrived at the place of the incident, the police took his driving licence and he narrated the incident to the police. After about 8 or 9 months of the incident, an identification test was held before Magistrate in which he identified the appellant to be the person who went inside the Jamait Khana alongwith another person carrying shopping bag with him.

24. The purpose shown by the witness for his presence outside the Jammait Khana is that the family to whom he brought at Jammait Khana asked him to wait for them as‑ they had agreed to pay Rs.15 per hour as fair for waiting purpose. He stated such facts in his examination in chief. The defence counsel challenged the said aspect of the case by denying the said statement and inquired from him about such a deal as to whether he stated so in his police statement to which he replied that he did not state so in his police statement. P.W.5, who recorded the statement of the witness disclosed that P.W. Feroz Khan did not state in his police statement that the family who had engaged him, asked hira to wait until their return from the Jamait Khana and further that they would pay him Rs.15 per hour for waiting purpose. As such, the purpose shown by the witness for his presence at the place of incident is an improvement in his statement before the Court. Therefore, a doubt has been created about his presence at the relevant time. This has put us on guards to examine the case very minutely.

25. On further examination it was found that this witness was inquired whether he deposed before the police that as soon as there was explosion he immediately started his rickshaw and went away; to which he replied in negative. A question was asked from P.W.5 S.I.P., Abdul Rauf who recorded the statement of P.W. Feroz Khan as to whether P.W. Feroz Khan stated such facts before him. He admitted that P. W. Feroz Khan stated in his police statement that as soon as there was explosion he drove away his rickshaw and moved away from there. Thus, the witness has further improved his statement before the Court. If the statement made by the witness before the police was correct, then how he was present at the place of the incident when the police arrived there. This aspect of the case has further put doubt on the veracity of the witness.

26. Further, he disclosed in the examination‑in‑chief that the police had shown him a plastic bag at the place of incident, which he identified to be the same that was carrying the boy. The defence counsel enquired from him as to whether he stated such facts in the police statement to which he replied in negative. As such he further improved his statement in the Court.

27. The witness‑ tried to show his presence at the place of incident just after the incident tram the fact that the police had obtained his driving licence when they arrived. The defence counsel enquired from him as to whether he stated such facts in his police statement to which he replied in negative. Thus, he further improved his statement in the evidence.

28. About the conversation of the boys when they returned to their companions by telling them that the job was done, the defence counsel inquired from him about the tone of their voice to which he replied that it was in a loud voice. Such facts were not told to the police. Even otherwise, it is unnatural that the culprits would discuss such matters in a loud voice if they had guilty mind. A guilty conscience person would use to communicate with his companions in coded words or in such a manner, that they would not become conspicuous of any of their actions. This statement is not appealing to the common sense.

29. From the above position, it is clear that the witness had improved his statement during the course of evidence from his previous statement recorded by the police. The improvements are touching the main aspects of the case, which are going to the very root of the story of the prosecution. The improvements are on very important aspects of the case such as the presence of witness at the place of incident on the date, and time of incident, leaving the place of the incident just after the incident, seeing the plastic bag after the incident, tone of the conversation of the culprits. These improvements have been made to strengthen the prosecution story on the above points. As such, it has affected the credibility of the witness. In such a situation, it is very unsafe to rely upon such witness without any corroborative piece of evidence, which is lacking in the present case. The Hon'ble Supreme Court of Pakistan in the case of Syed Saeed Muhammad Shah v. State reported in 1993 SCMR 550, observed that improvements in statement made by a witness in the Court to strengthen the prosecution case, are not worthy of reliance.

30. We are conscious of the fact that a conviction can be based on a solitary eyewitness but his evidence should be reliable, dependable, trustworthy and confidence inspiring. If such qualities are missing from the evidence then conviction cannot be based on the solitary witness. Under the law, emphasis is on the quality of evidence rather than quantity. Reference is invited to the cases of Gulistan v. State 1995 SCMR 1979, Allah Bux v. Shammi PLD 1980 SC 225 and Kathi Ohabbai v. State 1993 SCMR 2405. In the present case the statement of P.W. Feroz Khan is unreliable and is not confidence inspiring or dependable. Therefore, it cannot be made the basis for conviction.

31. It is not out of place to mention here that the prosecution has cited three eyewitnesses namely Feroz Khan, Alain Sher and Abdul Gaffar as disclosed by the investigation officer P.W. 12 Pir Munawar Shah. Out of them two witnesses, Feroz Khan and Alain Sher were examined but the third witness Abdul Gaffar was not produced before the trial Court for recording his statement. When one witness out of the two witnesses examined in the Court was declared Hostile then it was incumbent upon the prosecution to have examined the third eye‑witness namely Abdul Gaffar. The prosecution did not furnish any reason for not examining this witness. Therefore, a presumption under illustration "g" of Article 129 of Qanun‑e -Shahadat Order can fairly be drawn that had the P. W. Abdul Giffar been examined in Court, he would have not supported the prosecution case or his evidence would have not been favourable to the prosecution. Non‑examination of P.W. Abdul Gaffar in the circumstances of the present case has adversely affected the prosecution story.

32. It is pertinent to point out that the incident took place on 13‑12‑2001. The case was investigated and thereafter it was found that the culprits were not traceable therefore the same was disposed of under "A" class being untraced crime. The F.I.R. of this crime was a blind F.I.R. in which no names of the culprits were mentioned. It is very easy for the police to involve any person in such type of F.I.Rs. From the statement of P.W. 12 investigation officer, it is clear that he was posted at the Police Station Perabad from 26‑4‑2002. The case was reopened for investigation. On 13‑7‑2002 the investigation was handed over to P.W.

12. On the next viz. 14‑7‑2002, the appellant was arrested and then further evidence was collected. From the statement of the investigation officer, the appellant was already arrested in another crime of another police station. He was involved in some other cases also. The false involvement of the appellant in the circumstances of the present case cannot be ruled out particularly from the facts that out of three eyewitnesses only two witnesses were examined in the Court, one of them I did not support the prosecution case, the second eyewitness improved this statement during the course of evidence on material aspects of the case which have made his statement doubtful and untrustworthy while the third eyewitness was not examined. Thus, the oral evidence is not free from doubt. It is well‑settled principle of law that it is not necessary that there should be many doubts in his case but if a single doubt appears in the evidence then it is to be given to the accused. Even a single infirmity in the prosecution story would entitle the accused to benefit of doubt. The Hon. Supreme Court of Pakistan in the case of Tariq Pervaiz v. State 1995 SCMR 1345, observed that for benefit of doubt, it is not necessary that there, should be many circumstances creating doubts. If a single circumstance creates reasonable doubt, then the accused will be entitled to such benefit not as a matter of grace or concession but as a matter of right.

33. In view of the above discussion on the evidence of P.W. Feroz Khan, the subsequent identification test of the appellant through this witness appears to be carrying no weight even if the same is relied upon, as the substantive piece of evidence of P.W. Feroz Khan has not been relied upon. The identification test is a corroborative piece of evidence. It simply corroborates and strengthens the substantive piece of evidence. If substantive piece of evidence is disbelieved then the corroborative piece of evidence cannot be made sole basis for convicting the accused, as a corroborative piece of evidence cannot be read in isolation. The Hon. Supreme Court of Pakistan in the case of Asadullah v. Muhammad Ali reported in PLD 1971 SC 541, observed that corroborative evidence is meant to test the veracity of ocular evidence. Both corroborative and ocular evidence is to be read together and not in isolation of each other.

34. However, position is quite different in this case because the incident took place on 13‑1‑2001. The appellant was arrested on 14‑7‑2002 and the identification test was held on 8‑8‑2002. As such, there is delay of 24 days in holding the identification test. Even otherwise, the custody of the appellant remained with the police up to 25‑7‑2002 under police remand. During this period, the appellant was produced before the Magistrate for recording 164, Cr.P.C. statements of some of the witnesses. But the police did not care to produce the appellant before the Magistrate for holding identification test. The prosecution could not explain such delay. Furthermore, the witnesses had momentary glimpse of the culprits at the place of the incident. Suddenly thereafter an explosion occurred which might had made an impact on the mind of the witness if he was available. The age of the witness Feroz Khan was 80 years at the time of recording his statement on 25‑1‑2003. As such, he was of a very advanced age. The age was such where the deterioration of human organs begins from the age of 70 or before that, depending on the health of a person. In such circumstances, it appears that, it was not possible for this witness to have remembered the faces of the culprits. Apparently, they did not make any special acts to make them conspicuous. Such delay in the circumstances of the present case has adversely affected the identification test.

35. After considering the material available on the record we are of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt, therefore, the appellant is entitled to the benefit of doubt, which was accordingly given to him while passing short order.

36. Above are the reasons of our short order, dated 4‑11‑2004 by which we had allowed the appeal. H.B.T./M‑179/K Appeal allowed.