IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. S – 38 of 2013

 

Appellant            :         Ali Gul son of Atta Muhammad bycaste    

Mirbahar through Mr. Ubedullah Malano, Advocate

 

Respondent         :         The State, through Mr. Syed Sardar Ali Shah  

                                       Deputy Prosecutor General

 

Date of hearing   :         06-05-2019

Date of decision  :         06-05-2019

JUDGMENT

IRSHAD ALI SHAH, J:-   The appellant by way of instant Criminal Jail Appeal has impugned judgment dated 04th June 2013 passed by learned IInd Additional Sessions Judge Khairpur, whereby they he for an offence punishable u/s 302(b) r/w Section 34 PPC for committing Qatl-e-Amd of Mst. Rozina has been convicted and sentenced to undergo imprisonment for life with fine of Rs.100,000/- as compensation to the legal heirs of said deceased and in case of his failure to make payment of fine to undergo simple imprisonment for six months, with benefit of Section 382-B Cr.P.C.

2.                 It is alleged that the appellant with rest of the culprits by making trespass into house of PW Bashir Ahmed committed death of his wife Mst. Rozina by causing her hatchet blows for that they were booked and reported upon by the police.

3.                 At trial, the appellant did not plea guilt to the charge and prosecution to prove it examined PW/1 HC Ghulam Shabbit (at Ex. 5), he produced receipt with regard to delivery of dead body of deceased, PW/2 Dr. Seema Shaikh (at Ex. 8), she produced post mortem report of the dead body of said deceased and letter of the police, PW/3 complainant Ghulam Mustafa (at Ex. 11), he produced FIR of the present case, PW/4 Bashir Ahmed at Ex. 13, PW/5 Tapedar Nadir Ali (at Ex. 15), he produced sketch of wardhat, PW/6 ASI Noor Ahmed (at Ex. 16), PW/7 SIO/Inspector Badaruddin Bhutto (at Ex. 17), he produced inquest report, memo of place of incident, memo of recovery of clothes of deceased, memo of arrest of accused, memo of recovery and then closed the side. 

 4.                The appellant during course of his examination u/s 342 Cr.P.C denied the prosecution allegation by pleading innocence, by stating that Mst. Rozina was killed by her husband Bashir Ahmed. Appellant did not examine himself on oath, but examined DWs Nizamuddin, Guhram and Ghous Bux in his defence and then closed the side.

5.                It has inter-alia stated by DWs Nizamuddin, Guhram and Ghous Bux that Mst. Rozina was killed by her husband Bashir Ahmed.

6.                On evaluation of evidence so produced by the prosecution, learned trial Court convicted and sentenced the appellant by way of impugned judgment, as stated above.

7.                 It is contended by learned counsel for the appellant the appellant being innocent has been involved in this case falsely by the complainant party in order to satisfy their dispute with him over ‘Karap’, the FIR of the incident has been lodged the delay of one day; the medical evidence is in conflict with ocular evidence so far number of injuries is concerned and the evidence which the prosecution has produced before learned trial Court being inconsistent and doubtful has been believed by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant.

8.                 Learned Deputy Prosecutor General for the State has sought for dismissal of the instant appeal by contending that the impugned judgment is well‑reasoned.

9.                 I have considered the above arguments and perused the record.

 

10.              Admittedly the incident took place within the house of PW Bashir Ahmed, who happened to be husband of the deceased. It was natural that he ought to have lodged the FIR of the incident, which he has failed to lodge without any lawful justification, such omission on his part could not be over looked. The statement u/s 161 CrPC of PW Bashir Ahmed as per SIO/Inspector Badaruddin has been recorded on       13-12-2007. If it was so, then it was with the delay of one day to the FIR even. No plausible explanation to such late recording of 161 CrPC statement of PW Bashir Ahmed has been offered by the prosecution. In that situation, no much reliance could be placed upon evidence of PW Bashir Ahmed.

11.              In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;

“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C reduces its value to nil unless delay is plausibly explained.”

12.               PW Ghulam Murtaza  being sole independent witness has not been examined by the prosecution without lawful justification. He was given up. The inference which could be drawn of his non-examination would be that he was not going to support the case of prosecution. On ocular premises now there remains with the prosecution, the evidence of complainant Ghulam Mustafa. It has been stated by the complainant that deceased Mst. Rozina was his sister. On 12-12-2007 he, PWs Bashir Ahmed, Ghulam Murtaza and the deceased when were available at the place of incident, there at about 5-00 am, came, accused Ali Gul (appellant), Atta Muhammad and Ashiq, they committed death of the deceased by causing her hatchets blows. The incident was reported to the police and dead body of the deceased was then taken to Hospital for postmortem. The incident was reported to police with the delay of more than two hours. Such delay could not be ignored. As per postmortem report, time between the death and postmortem on the dead body of the deceased was about twelve hours. Why the postmortem on the dead body of the deceased was conducted with such delay? No explanation to it is furnished by the prosecution.

13.              In case of MUHAMMAD RAMZAN AND ANOTHER VS. THE STATE (2009 P.Cr.L.J 533), It has been held by Hon;ble Lahore High Court that:

“Delayed post mortem usually needs to an inference that FIR might be recorded after preliminary investigation”

 

14.              No postmortem report in original is produced at trial by the prosecution. As per the complainant, the deceased sustained six injuries, same according to medical officer Dr. Seema were nine in number. Such inconsistency with regard to number of injuries between medical and ocular evidence could not be over looked. As per complainant, he went to the house of deceased, 01 day prior to the incident. The complainant in that respect is belied by PW Bashir Ahmed, by stating that the complainant came to his house 2/3 days prior to the incident. Such inconsistency has made the availability of the complainant at the place of incident to be doubtful, who even otherwise was resident of Saeed Abad, District Sukkur a distant place. In that situation, no much reliance could be placed upon the evidence of the complainant as he is appearing to be chance witness.

15.              In case of G.M Niaz Vs.The State (2018 SCMR 506), it has been held by Hon’ble apex Court that:

“First Information Report in respect of the alleged occurrence had been lodged after about seven hours and forty minutes which by itself was a circumstance doubting the claimed availability of the eye-witnesses with the deceased at the time of occurrence---Post-mortem examination of the deadbody of deceased was conducted belatedly after two days of his death---Further deceased received three blunt weapon injuries which had not been explained by the eye-witnesses---Blood-stained clothes of the deceased had not been brought on the record of case---High Court had categorically found that the motive set up by the prosecution had not been proved by it---Alleged recovery of a firearm from the accused's custody during the investigation was legally inconsequential because no crime-empty had been secured from the place of occurrence so as to connect the recovered weapon with the alleged murder---No blood-stained earth had been secured from the tea stall whereat the occurrence had statedly taken place--- Prosecution had failed to prove its case against the accused beyond reasonable doubt---Conviction and sentence of the accused were set aside in circumstances and he was acquitted of the charge of murder by extending the benefit of doubt to him             

16.              The sketch of wardhat, which is brought on record by prosecution through Tapedar Nadir Ali is taking no mention of the availability of the complainant and his witnesses at the place of incident. There is no report which may suggest that the blood stained earth secured from the place of incident has been subjected to chemical examination.  The recovery of the hatchet is made from the appellant on 7th day of his arrest, same too has not been subjected to examination by expert. In that situation, the appellant could hardly be connected with recovery of alleged hatchet. As per PW/mashir Dost Ali, the contents of the mashirnamas were not read over to him, which appears to be significant. As per SIO/Inspector Badaruddin, all the documents relating to the investigation were prepared by Munshi Ghulam Shabbir at his dictation.  No document so produced by the prosecution contains any note that it is prepared by Munshi Ghulam Shabbir at the dictation of SIO/Inspector Badaruddin. In that situation, it could be concluded safely that it was table investigation of the case, which allegedly was conducted by SIO/Inspector Badaruddin Memon.

17.              The conclusion which could be drawn of the above discussion would be that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt.

18.              In case of Faheem Ahmed Farooqui vs. The State                      (2008 SCMR 1572), It has been held by Hon’ble Apex Court that;

“Single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful.”

 

19.               For what has been discussed above, the impugned judgment is set aside, consequently the appellant is acquitted of the offence for which he was charged, tried and convicted by learned trial Court, he shall be released forthwith in present case.

20.              The instant Criminal Jail Appeal is disposed of accordingly.

 

Judge

 

Nasim/P.A