2010 SCMR 1009 (PLP)

RAHMAT HUSSAIN JAFFERI, J.

This judgment will dispose of Criminal Appeal No.48-Q of 2009 (filed by the appellant Muhammad Shah) and Criminal Petition No.35-Q of 2009 (filed by the complainant/petitioner Haji Jalat Khan), as they arise out of a common judgment.

2. On 18-8-2007, the complainant Haji Jalat Khan P.W.1 received information that at about 9-45 a.m., the appellant Muhammad Shah along with acquitted accused Habibullah, Rahmatullah, Haji Akbar and Asmatullah attacked his son Abdul Manan by means of knife due to which the latter received injuries but the persons present in Bazar rescued him and took him in injured condition to the Hospital for treatment. The motive behind the incident was old enmity. It was alleged that the incident was witnessed by Abdullah (P.W.2) and Musa Khan (P.W.3).

3. At the trial, the prosecution relied upon ocular testimony of eye-witnesses viz. P.Ws.2 and 3, motive and recovery of blood stained knife from the possession of the appellant. The appellant in his statement recorded under section 342, Cr.P.C. denied all the allegations of the prosecution but examined 3 defence witnesses.

4. The trial Court relying upon ocular testimony, recovery and taking into consideration suggestion made in the cross-examination to the witnesses, which were denied by them convicted all the accused persons, including the appellant, under section 302(b)134, P.P.C. and sentenced each of them to suffer imprisonment for life with direction to pay compensation of Rs.100,000 to the legal heirs of the deceased or in default thereof to undergo S.I. for six months each with benefit of section 382-B, Cr.P.C., vide judgment dated 16-7-2008. The appellant and co-accused filed appeal before High Court of Balochistan, Quetta. The High Court did not believe the ocular testimony of P.Ws.2 and 3, but relied upon the suggestions made by the appellant to the witnesses in cross-examination, which were abandoned by him in his statement recorded under section 342, Cr.P.C., therefore, while maintaining the conviction and sentence of the appellant, acquitted the remaining accused persons, under the impugned judgment dated 11-5-2009. Hence, the appellant has filed Criminal Appeal No.48-Q of 2009 with leave of the Court and the complainant Haji Jalat Khan has filed Criminal Petition No.35-Q of 2009 for grant of leave to appeal, as he was dissatisfied with the judgment of the High Court.

5. We have heard the learned counsel for the appellant, the complainant and Advocate Supreme Court appearing for Government of Balochistan in both the matters. Learned counsel for the appellant has stated that the learned High Court was not justified in convicting the appellant on a plea raised in cross-examination, which was abandoned at the time of recording the statement under section 342, Cr.P.C., that the accused can take several pleas during cross-examination but that will not strengthen the prosecution case as the prosecution case stands on its own evidence; that when the ocular testimony was discarded then the appellant should have been acquitted instead of convicting him. He has added that names of the eye-witnesses have not been mentioned in the F.I.R., therefore, they were not present at the scene of incident.

6. Conversely, learned counsel for the complainant has stated that the learned High Court was not justified in discarding the ocular testimony as both the witnesses were natural and their presence at the scene of incident was proved; that all the accused shared common intention, therefore, they should have been convicted; that the defence taken by the accused was to save themselves from the commission of offence. He further submits that the ocular testimony is supported and corroborated not only by the medical evidence but also by the recovery of blood stained knife from the possession of the appellant Muhammad Shah. Learned Advocate Supreme Court appearing on behalf of Government of Balochistan has supported the impugned judgment by arguing that the ocular testimony was insufficient; that the appellant put a defence plea in the cross-examination to the witnesses showing his presence at the place of incident, which has been proved from his own defence witnesses, therefore, the learned High Court was justified in taking the said defence plea into consideration while convicting the appellant.

7. Having heard the learned counsel for the respective parties and perusing the record with their assistance, we find that the complainant was not the eye-witness but he was informed about the incident. The name of such informant has not been disclosed by the complainant in spite of the questions put to him in cross-examination. As the complainant was not the eye-witness of the incident and name of the person has not been disclosed by him therefore, non-mentioning of the names of the eye-witnesses in the F.I.R. is not fatal to the prosecution. However, the evidence of both the eye-witnesses is to be scrutinized carefully in order to arrive at a conclusion whether they were present at the scene of incident or otherwise. It has come on record that Abdullah (P.W.2) was a student. The accused took the defence that he was not present at the scene of incident, as on that date he was in the school. To prove such version the appellant examined Aqeel-ud-Din (D.W.3), whose evidence reveals that on 18-8-2007 P.W.2 was present in the school and such fact was mentioned in the relevant register. The High Court has disbelieved P.W.2 on the ground that he was not present on the date, time and place of incident but was available in the school. Thus no exception can be taken to this finding, which has been proved from the record.

8. As regards P.W.3 Musa Khan, the High Court formed the opinion that he did not provide any explanation for his presence at the Taxi Stand at the relevant time, as he was the resident of Chamman. It is pointed out that if P.W.3 brother-in-law of the deceased, had been present at the scene of incident at the relevant time then he would have informed the incident to the complainant but he did not do so. It was but natural for P.W.3 to have shifted the injured to the hospital and get him admitted there, where his presence would have been noted by the Doctor but this has also not been done by him. On the contrary, the deceased in injured condition was shifted to the Hospital by the people of locality, which also creates serious doubts about the presence of P.W.3 at the place of incident. In these circumstances, the learned High Court was justified in disbelieving the statement of P.W.3 and we do not find any reason to interfere with such finding, which is based on correct appraisal of evidence available on record.

9. The High Court after disbelieving the ocular testimony relied upon the suggestions made by the accused in cross-examination to the witnesses to the effect that the appellant was being abducted by the deceased and his companions, which was resisted and during scuffle the deceased received injuries. The witnesses denied such suggestions. The appellant also examined D.W.1 Muhammad Amin and D.W.2 Abdul Rashid. Their evidence reveals that they saw the deceased and his companions abducting the appellant. The High Court did not rely upon said stand and convicted the appellant. It is important to note that the appellant had abandoned such plea in his statement recorded under section 342, Cr.P.C. by simply stating that he was innocent but examined D.W.1 and D.W.2 as mentioned above.

10. Now the question arises as to whether the defence taken in the cross-examination, which was abandoned by the appellant in his statement recorded under section 342, Cr.P.C., can be made basis for convicting him. It is important to note that cross-examination is conducted to test the credibility and veracity of the witnesses and several suggestions are given to the witnesses to create a doubt in their evidence. Thus any stand taken by the accused in the cross-examination is merely in the form of suggestion. This Court in several authorities has held hat an accused can take several defence but that will not improve the prosecution case as the prosecution case stands on its own evidence. If the appellant had taken such defence in his statement under section 342, Cr.P.C. then it could have been validly taken into consideration. He had examined two defence witnesses to the effect that on the date, time and place of incident he was being abducted by the deceased and his companions. The defence witnesses did not state anything about scuffle between the appellant and the deceased. Even in the cross-examination, it has not specifically been suggested or shown as to who was armed with knife and caused injuries to the deceased. From the evidence, two interpretations are possible; one favouring to the accused and other to the prosecution. It is a well-settled principle of law that in such a situation, the interpretation favourable to the accused is required to be taken into consideration. Even otherwise, if the conviction is based solely on the statement of accused in absence of prosecution evidence then said statement is to be taken as a whole and from that statement, if any offence is made out then the accused can be convicted for the said offence. Even if, we take into consideration the stand taken by the appellant in the cross-examination, it does not show that the accused had caused injuries to the deceased. Therefore, from the said stand also no offence appears to have been made out. Consequently, the prosecution has failed to prove the case against the appellant.

11. It is not out of place to mention here that both the Courts below have relied upon the suggestion of the appellant made to the witnesses in the cross-examination for convicting him thereby using the evidence available on the record against him. It is important to note that all incriminating pieces of evidence, available on the record, are required to be put to the accused, as provided under section 342, Cr.P.C. in which the words used are "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him" which clearly demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but the circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him, because the evidence means examination-in-chief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984. The perusal of statement of the appellant, under section 342, CrP.C., reveals that the portion of the evidence which appeared in the cross-examination was not put to the accused in his statement under section 342, Cr.P.C. enabling him to explain the circumstances particularly when the same was abandoned by him. It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Cr.P.C. then the same cannot be used against him for his conviction. In this case both the Courts below without realizing the legal position not only used the above portion of the evidence against him, but also convicted him on such piece of evidence, which cannot be sustained.

12. Above are the reasons of our short order dated 25-1-2010, by which we had decided both the afore-referred natters in the following manner: "For the reasons to be recorded later on, while maintaining the judgment and order of acquittal to the extent of Habibullah and Rahmatullah passed by the High Court, the Criminal Petition No.35-Q of 2009 filed by Haji Jalat Khan is dismissed.

2. Similarly, for the reasons to be recorded later on, while accepting the appeal of the appellant Muhammad Shah, his L conviction and sentences recorded by the High Court, are set aside. He is acquitted of the charges and be released forthwith, if not required in any other case." N.H.Q./M-19/SC???????????????????????????????????????????????????????????? Order accordingly.