2000 PLP 1419 (MLD)

3. The prosecution in order to prove its case examined Syed Nisar Hussain Shah, the first informant, Muhammad Imtiaz, the Conductor of the Wagon, and Muhammad Bashir as eye‑witnesses of the occurrence. Sher Afzal Khan and Zafar Khan and Zafar Iqbal were examined as recovery witnesses of the robbed money. Jan Muhammad, S.H.O. who handed over the investigation to A.S.I. also appeared as a witness. A.S.I. Naseer Ahmed Khan, who conducted the investigation and recovered the robbed money from the convict‑appellant, was also examined by the Court. After the conclusion of the prosecution evidence the accused was examined under section 342, Cr.P.C., wherein he denied the incriminating pieces of prosecution evidence brought on record and put to him. The convict appellant in support of defence produced Muhammad Bashir and Muhammad Razzaq.

4. At the conclusion of the trial the District Criminal Court, Bagh, for the reasons recorded in its judgment, observed that the essential ingredients of section 17(3) of the Offences Against Property (Enforcement of Hudood) Act were lacking, however, the offence against the convict‑appellant under section 14 of the Offence Against Property (Enforcement of Hudood) Act proved. Thus, the trial Court vide its order dated 5‑3‑1996 convicted the appellant for commission of offence under section 14 of the said Act and sentence him to a rigorous imprisonment for two years and a fine of Rs.2,000 failing which he was further ordered to undergo a simple imprisonment of two months more.

5. Being dissatisfied with the conviction order recorded by the trial Court, the convict‑appellant preferred an appeal before the Shariat Court which was dismissed vide the impugned order dated 15‑12‑1998, and the conviction order recorded by the trial Court was upheld. Hence this appeal, as of right in this Court.

6. Arguing the case on behalf of convict‑appellant, Raja Muhammad Hanif Khan, the learned counsel, contended that as the appellant was not named in the F.I.R. nor the money stolen away by the accused was recovered at the instance of appellant, therefore, the conviction order passed by the trial Court and upheld by the Shariat Court suffers from serious legal infirmity. The learned counsel also submitted that it was through an oversight or inadvertence that the bag of complainant was taken by the convict‑appellant as he himself was also carrying a hand bag and was travellaing with the complainant in the same Wagon. The learned counsel pressed into service the submission that one Muhammad Bashir, the eye‑witness produced by the prosecution, and who was declared as a hostile witness, totally negates the ocular version of the other eye‑witnesses namely Syed Nisar Hussain Shah, the first informant,, and Muhammad Imtiaz. The learned counsel for the convict‑appellant also contended that the recovery memo. Exh.P.C.' relied upon by the prosecution shows that the stolen money was recovered at the instance of accused in presence of Sher Afzal and Zafar Iqbal witnesses allegedly from a Jungle of village Bangran but both the recovery witnesses during their evidence have deposed before the trial Court that recovery of the stolen currency was made from the accused from the office of a college. the learned counsel strenuously argued that the prosecution case being full of contradictions and doubts, the convict‑appellant may be acquitted.

7. Controverting the arguments advanced by the learned defence counsel, Raja Shiraz Kayani, the learned Advocate‑General appearing on behalf of the State, fully supported the prosecution version. He argued that the prosecution succeeded in proving the case against the convict‑appellant beyond and reasonable shadow of doubt. According to the learned counsel the testimony of the eye‑witnesses is further supported by the evidence of Muhammad Bashir, the hostile witness, whose evidence cannot be burshed aside merely for his being declared as hostile. The stolen money was recovered from the convict‑appellant by the Police in presence of Sher Afzal and Zafar lqbal. Even the convict‑appellant admitted his presence in the Wagon where the occurrence took place and the convict also admitted carrying away the currency bag of the complainant and ran away from the place of occurrence. Thereafter, he was chased by the complainant and other people and was caught hold of by one Muhammad Anwar. The learned Advocate‑General strenuously argued that the case against the convict -appellant was established beyond any reasonable shadow of doubt. Thus, the conviction order recorded by the trial Court and confirmed by the Shariat Court suffers from no such legal infirmity as has pointed out by the learned defence counsel.

8. After hearing the respective contentions of the learned counsel for the defence, the learned Advocate‑General and perusing the record made available with care, we are of the firm view that in the instant case the prosecution has brought the guilt home to the convict‑appellant beyond and reasonable shadow of doubt. The occurrence is of daylight. Both the complainant and convict appellant were traveling in the same Wagon and were going from Nomanpura Bazar to Mallote. After drawing the salary of Science College Mallote, a sum of Rs.62,241.23 from the National Bank of Pakistan, Bagh, the complainant put the currency notes in his hand bag and boarded on the Wagon No. AJKB‑5795 and proceeded to Mallote at 11.30 a.m. An unknown person from Nomanpura managed to get a ticket of the vehicle and sat alongwith the complainant in the same Wagon and proceeded to Mallote. When the Wagon was somewhat away from Mallote the unknown person asked the Driver of Wagon to stop the vehicle. As soon as the vehicle was stopped the unknown person snatched the bag carrying currency notes and ran away from the place of occurrence after opening the firing. The complainant raised hue and cry and chased the accused. After chasing him or sometime he could not manage to get hold of him. Ultimately after sometime the accused was caught hold by one Muhammad Anwar, a co- villager, who brought him to the College wherein the police arrived and made the recovery of stolen amount from the accused in presence of Sher Afzal Khan and Zafar Iqbal. The above factors positively show that the prosecution case, as it is stated in the F.I.R. and its saliant features stand corroborated by the version taken by the defence as well as the other circumstances. It remains admitted by the complainant as well as the accused side that they were traveling in the same Wagon. It also stands conceded that the convict‑appellant took away the bag of complainant wherein the currency notes were lying. Though the accused‑appellant has taken the plea that he took the currency bag of complainant through inadvertence or by a bona fide mistake as he was also holding his own bag in the same Wagon, but the fact remains that if the convict‑appellant had taken away the currency bag of the complainant through inadvertence or oversight, there seems to be no point that soon after taking the currency bag he would run away from the scene of occurrence and the complainant and other people would chase him but he did not stop as a matter of fact he wanted to get rid of them. Even ultimately when he was caught hold of by one Muhammad Anwar of the locality this is no case of the convict that he told Muhammad ‑Anwar or any other villager that he had taken the bag of complainant through inadvertence and has not stolen the same. In this view of the matter the conduct of the convict‑appellant shows him nothing but that of a guilty mind.

9. The prosecution on the basis of evidence of eye‑witnesses namely Syed Nisar Hussain Shah, complainant, Muhammad Imtiaz, the Conductor of the Wagon and Muhammad Bashir, a passenger of the same Wagon, has proved the case against the convict‑appellant beyond any reasonable manner of doubt. The above eye‑witnesses produced by the prosecution are natural and independent witnesses having no animus or grudge against the accused so as to implicate him in the false case. Both the eye‑witnesses namely Nisar Hussain Shah and Muhammad Imtiaz, the Conductor, were subjected to a lengthy cross‑examination but they stood on the touchstone of the cross -examination and nothing positive was achieved out of their evidence, which would have given some sort of benefit to the convict‑appellant. In our view the ocular account of Syed Nisar Hussain Shah and Muhammad Imtiaz further gets support from the evidence of Muhammad Bashir, who is stated to be a hostile witness. For instance this witness has stated that on the fateful day of occurrence he was a passenger in the same Wagon. He knows the complainant who was Head Clerk in the Mallote College and another person sitting in the Wagon all of a sudden jumped of the Wagon and ran away. The complainant raised hue and cry by saying that he had taken away‑‑‑‑‑‑. After the said deposition at this stage the Public Prosecutor declared this witness as a hostile witness and cross‑examined him. The witness has also admitted in the cross‑examination that the Driver of Wagon was Said Muhammad and Conductor was Imtiaz. This is the sum total of the evidence of the hostile witness from which the learned counsel for the defence wants to get some benefit for the accused‑convict. Needless to say that the above assertion of the hostile witness supports most portions of the prosecution version.

10. We have not oblivious of the act that in a criminal case the evidence of a hostile witness is not to be discarded as a whole merely because that the witness has turned hostile. The law on the subject stands settled that those portions of the evidence of a hostile witness, which ring true can be used in support of the prosecution case. The real test is as to whether in some portions of the evidence of hostile witness he speaks truth with regard to some events or not and if a hostile witness highlight some features of the occurrence which ring true those could be easily relied upon in support of the story of the prosecution. In a case reported as Muhammad Sadiq v. Muhammad Sarwar and 2 others 1979 SCMR 214 the relevant observation recorded by the learned Judge of the Supreme Court of Pakistan appears at page 219 of the report which may usefully by reproduced:‑‑ "Now, there can be no dispute about the proposition that as a rule of prudence, the evidence of a hostile witness in a criminal. case requires corroboration, but the primary question in a case is not whether the witness is a hostile witness or a disinterested witness, but whether he is an honest witness or a dishonest witness Sometimes even a hostile witness may speak the truth, whilst a totally disinterested witness may, be bribed or pressurized into giving false evidence, therefore, if I may be permitted to say so, the test of enmity is a rule of thumb method for ascertaining the veracity of a witness, and the question will always be of the veracity of the witness, and therefore, in addition to the question whether a witness is interested or hostile or disinterested, the Courts should also examine the question whether the evidence is inherently probable and whether it is consistent with the circumstantial evidence. "

11. In another case from Azad Kashmir jurisdiction reported as Muhammad Shafique v. 'Tile State PLD 1977 SC (AJ&K) 1) on page 7 of the report it was observed as follows:‑‑ "It may not be safe to accept any portion of the testimony of a hostile witness but it would be quite wrong to discard the statement of such a, witness simply for the reason that he has been declared hostile by the prosecution. The evidence of a hostile witness is to be adjudged on its own merits and carries the same value, whether he is called by the prosecution or by the accused."

12. In an identical case reported as State v. Muhammad Aziz Khan 1993 P.Cr.LJ

29. Shariat Court (AJ&K)l the Shariat Court of Azad Jammu and Kashmir observed at page 32 of the report: "It has been next contended by the learned counsel for the State appellate that the trial Court was not right in disbelieving the eye‑witnesses simply on the ground that who out of them were declared hostile at the request of the prosecution, especially when they had categorically stated that it was in their presence that the deceased was fired at by the respondent and killed. Legally speaking, it is correct that the mere fact that a certain witness turns hostile is not per se sufficient ground for not relying on his statement and the Court has to believe that part of the statement which appears to it to be worthy of‑reliance, after considering it as a whole. "

13. So, it is evident from the case‑law referred above that it is an established principle of law that the evidence of a hostile witness cannot be outrightly thrown out. The principle enunciated in various authorities is that those portions of evidence of hostile witness which ring true and which appear to be truthful can be used in favour of prosecution alongwith the other evidence. So, when we examine the case in light of the evidence of Syed Nisar Hussain Shah and Muhammad Imtiaz, the eye‑witnesses, who are natural witnesses alongwith the evidence of hostile witness, there remains no manner of doubt that the prosecution has brought the guilt home to the convict‑appellant beyond any reasonable shadow of doubt.

14. Another factor which lends support to the prosecution version is that the convict‑appellant in his statement under section 242, Cr.P.C. and by the trend of cross‑examination made on the eye‑witnesses, his case appears to be that he although was traveling in the same Wagon, wherein the occurrence allegedly took place but he through inadvertence took way the currency bag of complainant in place of his own bag which remained in the Wagon. This explanation after careful consideration on the face of its appears to be afterthought and un plausible for various reasons; for instance if the convict appellant inadvertently took away the currency bag of the complainant then there seems to be no point that after taking the bag he should start running away despite the fact that the complainant and the other person raised hue and cry and the complainant chased him for a considerable time but failed to catch hold of him. The convict‑appellant did not stop anywhere but he kept on running till he was apprehended by one Muhammad Anwar who after catching hold of him brought him to the College whereof the currency bag was recovered from him in presence of the marginal witnesses of the recovery memo. The explanation furnished by the convict‑appellant also appears to be unreasonable for the simple reason that what happened with his own bag if at all he was carrying the same as he neither demanded the same from the police nor from the Driver and Conductor of the Wagon nor from any other passenger. This also show that this false story was cooked up later on for which no benefit can be given to the convict‑appellant.

15. The last contention of the learned counsel for the appellant that since the stolen money was recovered from the accused from the office of College and not from a Jungle as alleged by the Investigating Agency is also devoid of any legal force. Even if we discard this piece of evidence that the recovery of currency notes was not made on the pointation of the convict‑appellant as alleged by the prosecution, this fact itself does not detract the convict appellant from the commission of offence alleged. It is our common day experience that police during the investigation of cases usually highlights the factum of stolen property by planting it in an isolated place and then in a routine way take the accused persons to the place of recovery alongwith the marginal witnesses for effecting the recovery by showing their extraordinary efficiency. But at the same time a duty is cast upon the Court of law to ascertain the truth and to dig out the irregularities and unnecessary padding up of the cases by the prosecution. In the instant case it was natural for the prosecution to prove the occurrence against the convict‑appellant on the basis of testimony of eye‑witnesses and the other circumstances read with the statement of accused‑convict under section 242, Cr.P.C. and keeping in view the conduct of the accused‑convict. The accused convict in support of his defence also examined Muhammad Bashir and Muhammad Razzaq. From their evidence nothing spells out with regard to the innocence of the accused rather from the statement of D.W. Muhammad Bashir it transpires that Muhammad Niaz took away shopping bag upon which the person who was the claimant of bag raised hue and cry that the accused has taken away his bag. Soon after Police reached and the accused was apprehended. The statement of this witness also lends support to the version of the prosecution.

16. For the aforestated reasons, by dismissing the appeal filed by the appellant, we uphold the conviction order recorded by the Shariat Court and the District Criminal Court Bagh. The personal bond and the surety bonds' executed by the convict‑appellant and his surety shall stand cancelled and he will be sent to prison forthwith. . H.B.T./32/SC (AJ&K) Appeal dismissed.