IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No.S-50 of 2018
Appellant : Shafquat Hussain s/o Muhammad Detho, Through Ms.Reshma Zangejo, Advocate
The State : Through Mr.Ali Anwar Kandhro, Addl.P.G
Date of hearing: 27-01-2023 & 09-02-2023
JUDGMENT
ZULFIQAR ALI SANGI, J:- The instant criminal jail appeal is directed against the judgment dated 13.06.2018, passed by learned Additional Sessions Judge, Ratodero, in Sessions Case No.499/2016 (Re. St. Vs. Shafquat Hussain Detho), emanating from FIR bearing Crime No.52/2016, for offence punishable Under Section 302 PPC registered with Police Station, Naudero, whereby the appellant has been convicted for an offence punishable Under Section 302 (b) PPC and sentenced to suffer rigorous imprisonment for life as Tazir with compensation of Rs.200,000/- to be paid to the legal heirs of deceased and in default whereof, to suffer simple imprisonment for six months, with benefit of Section 382-B Cr.PC.
2. Brief facts of the prosecution case are that on 15.06.2016, at about 1200 hours, complainant Ali Muhammad son of Ali Nawaz Detho got registered the FIR with Police Station, Naudero, in which he mentioned that his daughter Mst.Saira aged about 18/19 years was wedded with Shafquat Hussain son of Muhammad Detho. On the eventful day i.e 14.06.2016, the complainant alongwith his brother Naseer Muhammad and nephew Raheem Bux came to visit the house of his daughter where found Mst.Saira un-well whereupon her husband and father-in-law Muhammad while taking her for treatment, departed on the motorcycle for Naudero and the complainant party also followed them. At about 02.30 P.M, they found an unknown person standing at Bridge of Dadu Canal where Shafquat Hussain stopped his motorcycle besides him. Within their sight, accused Shafquat Hussain, Muhammad and unknown person while holding Mst.Saira from her legs and arms thrown her in Dadu Canal and she drowned in the water, thereafter, all three accused fled away on motorcycle. They then called divers (Toba) and searched her dead body. On 15.06.2016, at about 1000 hours, dead body of Mst.Saira was discovered from Pir Jan Muhammad New Bridge which was then taken to Naudero Hospital. Leaving the witnesses over her dead body, the complainant came and reported the incident with police to the above effect.
3. The investigation officer on completion of investigation submitted final report under section 173 Cr.PC against accused before the Court of concerned Judicial Magistrate. Thereafter, the formal charge was framed against present appellant/accused by learned trial Court, to which he pleaded not guilty and claimed trial.
4. To establish the charge against appellant/accused, the prosecution examined in all nine witnesses i.e PW-01 Woman Medical Officer Dr.Naila, PW-02 Complainant Ali Muhammad Detho, PW-03 Eye-witness Raheem Bux Detho, PW-04 Eye-witness Naseer Muhammad Detho, PW-05 SIO/ASI Niaz Hussain Kolachi, PW-06 Mashir Ali Murad Detho, PW-07 Author of FIR/ASI Qurban Ali Gopang, PW-08 Corpse Bearer/PC Imtiaz Ali Sehto and PW-09 Tapedar Sher Muhammad Siyal, who all produced certain relevant documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.
5. The present appellant/accused in his statement recorded in terms of Section 342 Cr.PC, denied the allegations leveled against him by pleading his innocence stating therein that his wife was very close and loyal to him but she was mental and always remained sick and on the eventful day he was out of village, she went out of the house and jumped in Dadu Canal; he thus prayed for justice. However, he neither examined himself on oath in disproof of the charge nor led any evidence in his defence.
6. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide impugned judgment, as discussed above.
7. Per learned defence counsel, there are material contradictions in the evidence of prosecution witnesses which have shattered veracity of their evidence; that the complainant and PWs being related inter-se are interested witnesses and their evidence has no credibility, as such the same cannot be relied upon without independent corroboration; that there is conflict in between the ocular and medical account; that the prosecution has failed to prove motive. Summing up her contentions, the learned defence counsel submitted that present accused has been arraigned in the present case falsely on account of committing suicide by the deceased herself. She lastly concluded that the case of prosecution is doubtful and appellant/accused is entitled to his acquittal in circumstances of the case. In support of her contentions, she relied upon cases of Abdul Khaliq v. The State (1996 SCMR-1553), Rana Muhammad Ashiq and 6 others v. The State ( 1996 SCMR-1559), Najaf Khan and others v. The State and others (2016 PCr.LJ-380), and Ghulam Abbas and another v. The State and another( 2021 SCMR-23).
8. On the other hand, learned Addl.P.G for the State submits that all the witnesses have fully supported the case of prosecution and no any major contradiction has been noticed in their evidence; that an innocent lady has been done to death by throwing her in Dadu Canal at the hands of appellant/accused giving it color of a suicide; that the ocular evidence is consistent with medical as well circumstantial account; therefore, the learned trial Court finding the appellant/accused guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which does not call for any interference by this Court, hence, the criminal jail appeal filed by him being meritless is liable to its dismissal.
9. I have given due consideration to the arguments advanced by learned counsel for the parties and have minutely gone through the material made available on record with their able assistance.
10. To establish the guilt against present appellant/accused, the prosecution examined three eye-witnesses, complainant Ali Muhammad, PWs Raheem Bux and Naseer Muhammad, brothers and nephew inter-se, father, uncle and cousin of deceased Mst.Saira, their evidence when analyzed, is found unreliable and untrustworthy. They all gave contradictory evidence on each and every aspect of the case. In that the complainant in his examination-in-chief deposed that his son-in-law/accused Shafquat and his daughter Mst.Saira boarded on motorcycle and proceeded towards Naudero hospital for checkup/treatment and that one unidentified person and his son-in-law both thrown her daughter in Dadu Canal but their version is in conflict with the averments made by him in his FIR wherein it was mentioned that his daughter felling unwell was taken by her father-in-law Muhammad and husband Shafquat Hussain for treatment towards Naudero and that accused Shafquat, Muhammad and one unidentified accused after holding from her legs and arms thrown her in Dadu Canal. Further, the complainant in his examination-in-chief deposed that on the fateful day, at about 02.30 P.M they proceeded towards house of his daughter Mst.Saira while he in his cross examination stated that they reached at house of accused at 01.00 P.M, whereas, PW Naseer Muhammad in examination-in-chief deposed they reached at the house of accused at 01.30 P.M. Furthermore, the complainant in his cross examination stated that they saw unidentified person at distance of one furlong while PW Raheem Bux stated that he was noticed from distance of 01 K.M or 1 ½ K.M, whereas PW Naseer Muhammad in his cross examination stated that they noticed unknown person at a distance of 250/300 feet. PW Naseer Muhammad in his cross examination stated that they remained at place of vardat for whole night but the evidence of complainant and PW Raheem Bux is totally silent to it. The complainant in his cross examination stated that his cousin called the swimming person (Toba) through Riaz Hussain who came on Qingqi Rickshaw while PW Raheem Bux stated that they then and there asked friend for calling the water swimming person (Toba) and friends of his friend came with 3/4 water swimming persons (Toba) at place of vardat on motorcycles, whereas PW Naseer Muhammad in his cross examination stated that PW Raheem Bux dialed the cell phone to Riaz for calling the water swimming person (Toba) and only two water swimming persons (Toba) came on motorcycle at place of vardat. Moreover, the complainant in his cross examination stated that “it is fact that it is mentioned in the FIR that accused alongwith his father thrown my daughter in the water. Voluntarily says I had implicated the father of the accused on the ground that father of accused did not help us for searching of dead body of my daughter”. This piece of evidence itself smells that either the FIR of incident was lodged after due deliberation and consultation nominating the persons of their own choice in order to satisfy the previous grudge with accused or a false story has been cooked up just to color a suicidal death as murder. Over and above this, it was quite incredible and do not attract to the judicial conscience that a lady was thrown in Dadu Canal without any resistance offered by her knowingly that she was got stopped adjacent to Dadu Canal where an unknown person together with his husband and father-in-law hold her from her legs and arms and then thrown her in the water but the medical officer Dr.Naila in her cross examination admitted that no any marks of violence were found on body of deceased, which itself clearly led to adverse inference against the claim of the complainant. All these aspects of the case suggest that the prosecution witnesses tried to prove the case by making dishonest improvements, which obviously has made the credibility of their evidence at stake and rendered it highly doubtful. The Honourable Supreme Court of Pakistan in case of Muhammad Mansha v. The State (2018 SCMR-772), has held as under:-
“Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses. Reliance, in this behalf can be made upon the cases of Sardar Bibi and another v. Munir Ahmad and others (2017 SCMR 344), Amir Zaman v. Mahboob and others (1985 SCMR 685), Akhtar Ali and others v. The State (2008 SCMR 6), Khalid Javed and another v. The State (2003 SCMR 1419), Mohammad Shafique Ahmad v. The State (PLD 1981 SC 472), Syed Saeed Mohammad Shah and another v. The State (1993 SCMR 550) and Mohammad Saleem v. Mohammad Azam (2011 SCMR 474).”
The Honourable Supreme Court of Pakistan in case of Muhammad Mansha (supra) also held as under:-
“In that eventuality, the conviction upon the statements of the witnesses who, in the assessment of the High Court, made dishonest improvements and their divergent stances in the FIR and the private complaint made them doubtful then there was no legal justification to convict the appellant Muhammad Mansha on the same set of evidence without independent corroboration conspicuously lacking in the instant case, as held by this Court in the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v.The State (2004 SCMR 1185), Akhtar Ali and others v.The State (2008 SCMR 6), Muhammad Ali v.The State (2015 SCMR 137), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) and Shahbaz v. The State (2016 SCMR 1763). The above principle has been appreciated by the High Court in the instant case, but erroneously convicted the petitioner against the said settled principle.”
11. The complainant during his cross examination stated that there was no ill-will between the spouse and both were visiting his house frequently. PW Naseer Muhammad during his cross examination admitted that they never received any complaint from the deceased against accused over his conduct. There was no dispute which is to be stated as motive of murder. In such circumstances, the plea taken by accused that the deceased was mental and always remained sick and on the eventful day when he was out of village, she went out of the house and jumped in Dadu Canal. Looking to the above contradictions and improvements in the evidence of prosecution witnesses, the defence plea taken by the appellant carries weight and this aspect of the case has not properly been considered by learned trial Court.
12. The medical evidence is in nature of supporting, confirmatory or explanatory of the direct or circumstantial evidence, and is not “corroborative evidence” in the sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not show connectivity of the accused with the commission of offence. It cannot constitute corroboration for proving involvement of accused person in commission of the offence, as it does not establish identity of the accused person. Reliance can be placed on the cases of Yaqoob Shah v. State (PLD 1976 SC 53); Machia v. State (PLD 1976 SC 695); Muhammad Iqbal v. Abid Hussain (1994 SCMR 1928); Mehmood Ahmad v. State (1995 SCMR 127); Muhammad Sharif v. State (1997 SCMR 866); Dildar Hussain v. Muhammad Afzaal (PLD 2004 SC 663); Iftikhar Hussain v. State (2004 SCMR 1185); Sikandar v. State (2006 SCMR 1786); Ghulam Murtaza v. Muhammad Akram (2007 SCMR 1549); Altaf Hussain v. Fakhar Hussain (2008 SCMR 1103) and Hashim Qasim v. State (2017 SCMR 986). In the case in hand, from the oral evidence produced by the prosecution witnesses it established that they made dishonest improvements and gave contradictory evidence on each point, as discussed above, therefore, the medical evidence alone is not sufficient to maintain the conviction keeping in view that every case is to be decided on its own facts and the circumstance.
13. It is observed that the medical evidence produced by doctor during trial in shape of her oral as well documentary evidence consisting upon the postmortem and other items was not put to the appellant while recording his statement under section 342, Cr.PC, enabling him to explain the circumstances, therefore, the same cannot be used against him and on that basis the conviction cannot be sustained as has been held by Honourable Supreme Court of Pakistan in cases of Imtiaz alias Taj v. The State (2018 SCMR 344), Qadan and others v. The State (2017 SCMR 148), Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others (2017 SCMR 1710) and Muhammad Shah v. The State (2010 SCMR 1009).
14. It is further observed that the Court(s) must never be influenced with severity of the offence while appreciating evidence for finding guilt or innocence because severity of an offence could only reflect upon quantum of punishment. Therefore, even such like tragic cases, the Courts are always required to follow the legally established position that it is intrinsic worth and probative value of evidence which plays a decisive role in determining the guilt or innocence and not heinousness or severity of offence. Reliance can be placed on the case of Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274). The rule of benefit of the doubt is essentially a rule of prudence which cannot be ignored while dispensing justice following the law. The conviction must be based on unimpeachable evidence and certainty of guilt and doubt arising in the prosecution case must be resolved in favour of the accused. The said rule is based on the maxim. "It is better that ten guilty persons be acquitted rather than one innocent be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly because of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is casted upon the accused to prove his innocence. It has also been held by the Honourable Superior Courts that the conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Honourable Supreme Court that "In the criminal trial it is the duty of prosecution to prove its case against the accused to the hilt, but no such duty is casted upon the accused, he has only to create doubt in the case of prosecution. "Honourable Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377), held that "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against accused, entitles him to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise. "Reliance is also placed on case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
15. From the above discussion it appears that the prosecution has miserably failed to prove the guilt against present appellant beyond shadow of any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there should not be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right. In this respect reliance is placed on the case of Muhammad Masha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:-
“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)”.
16. The sequel of above discussion is that the learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding present appellant as guilty of the offence. Thus, the conviction and sentence recorded against him by way of impugned judgment could not be sustained, it is set aside. Consequently, the instant criminal jail appeal is allowed and the appellant is acquitted of the charged offence. Office is directed to issue release writ, directing the concerned jail authority to release him forthwith in the present case, if he is not required in any custody case.
17. The instant criminal jail appeal is disposed of accordingly.
JUDGE
.