1997 PLP 1228 (MLD)

"In the criminal trial the onus always lies on the prosecution to prove its case and the prosecution has to succeed on the strength of its own case and not on the weakness of the defence. "

11. It therefore follows that anything which goes in favour of the accused must be taken into consideration and the benefit of the same, if any, be extended to him, not as a matter of grace but as a matter of right.

12. It may be stated here that the fate of the instant case, in the main, hinges on the ocular testimony of the complainant (P.W.4) and the I.O. (P.W.3). Since both of them are Police witnesses, therefore, their testimony has to be subjected to close/critical analysis/ examination. Let us proceed to discuss them one by one.

13. The complainant, Ghazi Marjan, was examined as P.W. While in the witness‑box he narrated in detail the incident which is almost the same as has been given in the Murasila. According to him on the receipt of the information that a person had come to M/s. Zeb Art Publishers and wanted to get ten thousand copies printed, from a coloured photograph, allegedly of Hazrat Muhammad (s.a.w.), he rushed to the Printing Press, alongwith. Muhammad Fazal (P.W.1). He further stated, that he apprehended Qambar Ali accused ?appellant, on the pointation of P.W. Alamzeb, the owner of the Press. He further stated that the body search of the said accused led to the recovery of a coloured photograph, allegedly of Hazrat Muhammad (p.b.u.h.), in the presence of P.W. Alamzeb. According to him he took the same into his possession vide Recovery Memo. Exh. P.C., which was signed by I.H.C. Muhammad Fazal (P.W.1) as well as P.W. Alamzeb, the owner of the press (not produced) as marginal witness. P.W.4 further stated that it was appellant‑accused Qambar All who had informed him that the said photograph was given to him by Barat Ali. He stated that thereafter he drafted the Murasila (Exh.P.A/1) and sent the same, alongwith Recovery Memo, the photograph and the Identity Card to the Police Station for the registration of the case.

14. When cross‑examined the complainant (P.W.4) admitted that he had received the information about accused Qambar Ali on telephone while he was in the Police Station. He also admitted that he did not enter the said information in the Daily Diary. He categorically refuted the suggestion that the said information was given to him by Lutfur Rehman (P.W.2). He admitted that besides the accused, P.W. Alamzeb, the owner of the Press and few other persons were present inside the Printing Press at the relevant time. He further stated that he did not know as to whether or not those persons were working for the Printing Press: 15.? A perusal of the statement of the complainant (P.W.4) shows that he‑‑ (i) had gone to the Press belonging to Alamzeb after he received the information on telephone, and (ii) arrested accused Qambar Ali from inside the Press, carried out his body search and recovered the alleged photograph (Exh.P.l) and took the same into his possession vide Recovery Memo. Exh.P.C. in the presence of I.H.C. Muhammad Fazal (P.W.1) and P.W. Alamzeb (not produced)."

16. I.H.C. Muhammad Fazal, deposed as P.W.1. He stated on oath that in his presence a coloured photograph (Exh.P.l) was recovered from the possession of accused Qambar Ali which was taken into possession, vide Recovery Memo. Exh.P.C. in the presence of its marginal witnesses and that he had also signed the same as one of the marginal witnesses.

17. In cross‑examination he admitted and thus contradicted I.H.C. Ghazi Marjan (P.W.4):‑‑‑ "Alamzeb pointed out the accused who was present in his Press and on search, the 1.0. (i.e., A.S.I. Abdullah Jan P.W.3) recovered Exh.P.1 and Exh.P.2 ????????.Alamzeb also signed the recovery Memo. in my presence. "

18. This material contradiction between the eye account, as given by these two eye‑witnesses, in respect of the recovery of the alleged photograph (Exh.P.l), being totally irreconcilable, has shattered the veracity of the ocular testimony. In the circumstances we are of the view that the prosecution case has become highly doubtful. Both the Police witnesses have contradicted each other on this material point, as discussed above, and have made the factum of the recovery of photograph from the possession of Qamber Ali, extremely doubtful.

19. Lutfur Rehman was produced as P.W.3. He, while in the witness‑box, stated on oath that P.W. Alamzeb (not produced) was his nephew and that on the day of occurrence P. W. Alamzeb produced the photograph (Exh.P.l) before him and also informed him (P.W.3) that a person had brought the said photograph to his Press and asked him to print ten thousand copies of the same. He further stated that he forbade his nephew from printing the photograph and at the same time informed the Police on telephone about it.

20. In cross‑examination this witness stated that his nephew Alamzeb came to him on 11th or 12th August, 1993 alongwith the photograph (Exh.P.l) and showed him the same. He further stated:‑‑‑ "Later on, my nephew informed me that he handed over the photograph to the Police."

21. It may be noted that by advancing an altogether new story this witness has materially contradicted the version of the complainant (P.W.4) as well as the version contained in Murasila (Exh.P.A/1). It would therefore follow that this witness has totally demolished the prosecution case. Both the Police officials i.e., P.W.1 as well as P.W.4 had stated on oath that the photograph (Exh.P.l) was not handed over to them by P.W. Alamzeb (not produced) on 11th or 12th of August, 1993 and that the same was recovered from the possession of the accused Qambar Ali on 13‑8‑1993.

22. It appears that A.S.I. Abdullah Jan (P.W.3) is not at all a truthful witness. While in the witness‑box he stated that on the receipt of the Murasila (Exh.P.A/1) he registered F. I. R. Exh.P.A. and immediately left for the scene of occurrence and found that P.W.1 and P.W.4 were already present there. He stated that he prepared the site plan (Exh.P.B.) at their instance. This was categorically denied by PWA who stated:‑‑‑ "the site plan was not prepared at my instance by the I. O. " (Page 24 of the Printed Book)

23. In the circumstances, the prosecution was duty bound to have produced the "best evidence" i.e., P.W., Alamzeb to prove the fact that the photograph' (Exh.P.l) was in fact recovered from the possession of accused Qambar Ali. Since the prosecution has abandoned this most important witness, without any rhyme or reason, therefore, an adverse inference shall be drawn against it and it shall be presumed that in case he (P.W. Qambar Ali) was produced he would not have supported the prosecution case. It may be mentioned here that we have not found anything on the file which might suggest that this star witness was won over by the accused. In Altaf Hussain case reported as 1996 SCMR 167, it was held:‑‑‑ (b) West Pakistan Arms Ordinance (XX of 1965)‑‑‑ S. 13‑‑‑Appreciation of evidence‑‑‑Prosecution had dropped the most important public witness from the list of witnesses who had attested the recovery on the ground of having been won over without any explanation in this regard‑‑‑Mere declaration of the prosecutor was not enough to abandon such a witness ......... Record did not show that the said witness had been won over as he did not appear before the Court‑‑‑If the witness had not supported the prosecution after appearance he could be declared hostile and subjected to cross‑examination by the prosecutor to find out the truth, but such procedure was not adopted for the reasons best known to the prosecution‑‑‑Prosecution had failed to produce the best evidence by withholding the public witness and an adverse inference, therefore, could be drawn that in case he was produced, he would not have supported the prosecution‑‑‑Evidence of Police witnesses who were in a way the complainant could not solely be accepted to be relied upon to convict the accused, especially when the aforesaid public witness had been abandoned without any rhyme or reason‑‑‑Possibility of the accused having been implicated with some ulterior motive could not be ruled out‑‑‑Accused was acquitted in circumstances. (c) West Pakistan Arms Ordinance (XX of 1965)‑‑‑ S. 13‑‑‑Criminal Procedure Code (V of 1898), S. 103‑‑‑Recovery to be supported by public witnesses‑‑‑Argument that public witnesses do not come forward to support such like recoveries because of risk to their life and liberty, nonetheless cannot absolve the police of their heavy responsibility to produce witnesses from publio."

24. Beside this the fact (admitted by the Investigating Officer (P.W.3), in his cross‑examination) that both the appellants‑accused were earlier involved/arrested in case registered vide F.I.R. No.21 dated 4‑1‑1993 under section 5 of the Explosive Substances Act read with section 13 Arms Ordinance, 1965, cannot be lost sight of. As such the possibility of the accused having been implicated, with some ulterior motive, cannot be ruled out.

25. For the foregoing reasons we hold that the prosecution has not been able to prove its case against the appellants‑accused beyond reasonable doubt and therefore accept this appeal, set aside the conviction/sentence of the appellants, as recorded by the Additional Sessions Judge on 10‑1‑1995 and acquit them. Both the appellants‑accused shall be set at liberty forthwith if not wanted in any other case. N . H. Q. /2029/P ?????????????????????????????????????????????????????????????????????????????? Appeal accepted.