2022 PLP 119 (YLRN)

AFTAB AHMED GORAR, J.

This Criminal Appeal is directed against the impugned judgment dated 22-10-2015 passed by the learned IInd Additional Session Judge, Karachi [East] in Session Case No. 961 of 2011 State v. Muhammad Feroz Kachhi and others, FIR bearing Crime No 268 of 2011, Police Station New Town, Karachi [East], registered under sections 284, 319 and 34, Pakistan Penal Code. Whereas; accused Feroz Kachhi and Muhammad Ishaque have been acquitted by the learned trial Court while extending them benefit of doubt as provided under section 265-H(i), Cr.P.C. Appellants Syed Abdul Asif Shah and Syed Abdul Haseeb Shah have been convicted and sentenced appellants on same set of evidence coupled with benefit of section 382-B, Cr.P.C. as follows.- (a) Syed Abdul Asif Shah son of Abdul Latif Shah Found guilty for committing offence under section 319, P.P.C. and convicted as such directed to pay the amount of half of Diyat for death of deceased Ayaz. He is also convicted for committing offence under section 284, P.P.C. and sentence for three months and fine of Rs.3.000/-. If recovered shall be paid as compensation to the L.Rs. of deceased as provided under section 544-A, Cr.P.C. in default he shall further undergo for 15 days. (b) Syed Abdul Haseeb Shah son of Abdul Latif Shah Found guilty for committing offence under section 319, P.P.C. and convicted as such directed to pay the amount of half of Diyat for death of deceased Ayaz. He is also convicted for committing offence under section 284, P.P.C. and sentence for three months and fine of Rs.3,000/-. If recovered shall be paid as compensation to the L.Rs of deceased as provided under section 544-A, Cr.P.C. In default he shall further undergo for 15 days.

2. Succinctly facts as is envisaged in the prosecution story are that, complainant Syed Adnan lodged his FIR on 30th June 2011 alleging therein that, on 28th May 2011 at about 1400 hours two employees of Tyfon Company came to his apartment for termite profiling as such employees of Tyfon Company were called by one Abdul Wahab, who is one of resident as well as President of Arkey Apartment. His wife and mother in law told them that this was a sleeping time for children but they informed them that termite profiling would not harm and first they injected the termite profiling in the room of children. In evening, complainant went out the house along with his children to visit. When night at about 0100 hours, they went to asleep as usual, then at 04:30 hours his son Syed Ayyan aged about 03 years started to vomiting but they ignored it, again at about 7:30 hours he started to vomiting then he and his wife immediately took him to Medicare Hospital and the Medicare Hospital referred them to Agha Khan Hospital as such during this time, his other son Syed Azaan's condition also spoiled. Complainant took them to Agha Khan Hospital where doctors suggested critical conditions of children, they were kept on ventilators however, during the treatment his son Syed Ayaan passed away. Doctor were of the opinion that due to poison in body, the child could not be survived therefore expired.

3. After usual investigation chalan was submitted before the court of Law. Compliance of section 265-C, Cr.P.C. was carried out and necessary requisite papers were supplied to the convict appellant vide Ex.1 Formal charge at Ex. 2 was framed and read over to the convict appellant to which convict appellant pleaded not guilty and claimed trial. Prosecution in order to prove the charge examined PW-1 Syed Adnan Ahmed [complainant] vide Ex.3, PW-2 Mrs.Sobia Adnan at Ex.4, PW-3 Mst.Nasreen Pervaiz at Ex.5, PW-4 Dr.Khalid Masood at Ex.7, PW-5 SI Tanveer Awan at Ex.8, PW-6 Inspector Shah Jahan at Ex.11, P-7 ASI Mohammad Akram at Ex.12, thereafter prosecution closed the side vide Ex.13. Statement of accused was recorded as provided under section 342, Cr.P.C. to which accused claimed themselves to be innocent and prayed acquittal vide Exs.14 to 17 respectively but accused did not choice to examined themselves on oath as provided under section 340(2), Cr.P.C.

4. Mr. Faheem Shah, learned counsel for the appellant contended that impugned judgment is bad in the eyes of law; learned trial Judge has erred both on facts and law while recoding judgment; per learned counsel there are series of material contradiction in the statement of prosecution witnesses; there is crystal clear violation of mandatory provision of section 103, Cr.P.C.; there is one month and two days inordinate delay in lodgment of the FIR not explained properly; there is no eye-witness of the incident; the evidence of complainant is also hearsay; complainant did not report the matter on very same day when termite refilling was carried out; no inference has been drawn by the trial court with regard to the evidence so brought on record which ultimate led the case of prosecution dubious from every canon; there is no motive designed against the incident; the impugned judgment requires interference by this Court; lastly learned counsel contended that the appellants may be acquitted from the charged offence. Learned counsel has relied upon 2010 SCMR 846; 2012 SCMR 428, 2010 SCMR 1029, PLD 1994 Supreme Court 31, 1995 SCMR 1345, 2008 SCMR 1221, and unreported judgment of this court in Crl. A. T. Appeal No. 62 of 2014.

5. Mr.Khadim Hussain Khoharo, Additional Prosecutor General, Sindh, opposed the instant criminal appeal; learned Addl. P.G. further contended that the impugned judgment is outcome of appreciation of entire evidence available on record; the conviction and sentence awarded to the appellants does not require interference; there is sufficient material available on the file which ought to have connect the appellants with the commission of offence; per learned Addl. P.G. there are no errors of law as well as facts; that prosecution has fully established its own case and due to said development the learned trial court has rightly convicted the appellants; per learned Addl. P.G. the instant Criminal Appeal merits no consideration and may be dismissed; lastly learned Addl. P.G. contended that the sentence conviction awarded to the appellants may be upheld.

6. Heard and perused.

7. It is now by well settled provision of criminal law that this Court has to reappraise the entire evidence for safe administration of justice. PW-1 Syed Adnan Ahmed [complainant] at Ex.3, who admitted in his cross-examination as follows:- "It is fact except of my flat none had complaint against the fumigator. My flat which I now left consists upon two bedroom, dining and drawing fumigation were conducted by fumigator. I cannot explain the time of completion of fumigation. It is fact that at the time of completion of fumigation I was not present. It is fact that in all the flats of R.K. Apartment families were residing over there. The children at the time of incident night were sleeping with us. On the night of incident we have taken dinner at Bar B.Q. Night, we meat Tikka and Maghaz. When we were going to sleep we observed some smell of T-Fone" PW-2 Sobia Adnan Ahmed [wife of complainant] at Ex.4 admitted in the cross-examination as follows:- "It is fact that none had made complaint against the fumigator except us. AT the time of completion of fumigation my mother was also with me. It is fact that in another 06 flats families were residing there. Due to voice of drilling and fear my son were not sleeping at that memento. Till taking meal at Bar B.Q Night we all family member were quite and healthy. It is fact that when we went in the room for sleeping there was no smell of T-Fone" PW-3 Nasreen Pervaiz, [mother of PW-2 Sobia Adnan] at Ex.5 admitted in the cross-examination as follows:- "At the time of fumigation we well smell slightly. I never disclosed in my statement before police that at the time of fumigation we feels smell slightly. I made complaint about the smell to one Asif [fumigator]" PW-7 ASI Mohammad Akram [Investigation Officer] at Ex.12, admitted in the cross-examination as follows:- "It is fact that Mst.Sobia in her statement not states that the drill not fully sealed by the fumigator. It is fact that husband also hospitalized in result of fumigation. Mst. Nasreen in her statement not disclosed that after departure of fumigator she inspected the drill and found cape not properly. The Minor Ayaz had already been buried therefore his post mortem not conducted. It is fact that I not comply with the direction of District Attorney for examination of DNA of deceased. It is fact that two accused namely Haseeb Shah and Abdul Asif Shah were the employees of Typhone Company. It is fact that I not inspected the drill through expert"

8. After evaluating prosecution evidence, it seems that there is inordinate delay of one month and two days in lodgment of the FIR which is not explained properly by the prosecution at any stage. Whereby; presumption would be gathered that, the present FIR is the result of due deliberation and consultation. As otherwise alleged incident had taken place as on 28.05.2011, deceased master Ayan died as on 29-05-2011 thereafter FIR was lodged on 30-06-2011. Complainant remained quite calm and did not report the matter immediately to police when deceased started vomiting even in odd hours of the night of 28-05-2011. Prior to the incident, neither complainant wrote written letter to the administration of Arkey Apartment or Tyfon Company for making complaint with regard to the termite profiling which was against the settled terms and conditions as is envisaged in the letter dated 28-05-2011 and its expiration period will be May 27th, 2016. The flaws and loopholes as occurred in the case in hand would not be cured at appellate stage. It was obligatory upon the prosecution to fill up all canon of the prosecution case in its spirit as is contemplated under the settled provisions of Criminal Law. In absentia of non-explanation of the delay so occurred I am of the opinion that the present FIR is result of deliberation and consultation. I am fortified with the case law reported in 1995 SCMR 127 in the case of Mehmood Ahmad and 3 others v. The State and another, it has been laid down as follows:- "

Ss. 302/34 & 323

Appreciation of evidence

Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate

Non-explanation of the delay in making the report to might wish to implicate

Non-explanation of the delay in making the report to the police coupled with the improvements and contradictions made by the eye-witnesses in their statements had rendered their testimony doubtful and unreliable which did not inspire confidence

Medical evidence by itself was unable to establish the identity of the accused

Non-association of any independent respectable witness from the locality with the recovery proceedings, in the absence of any explanation in this behalf by the prosecution, had made the recovery of the carbine and the empties unreliable and consequently the Ballistic report was of no importance

Picking up of the accused in the identification parade without describing the roles played by them in the crime was illegal rendering the proceedings unreliable having no evidentiary value

Accused were acquitted in circumstances"

9. The place of incident is located Arkey Apartments which is ought to have been thickly populated area where other inhabitants are residing; besides above, Investigation Officer did not offer anybody from the general public to act an independent source as a witness of place of incident, arrest of the appellants to identify the fumigator(s) respectively. In absentia of direct, cogent and reliable evidence inasmuch as for the sake administration of justice, it would be appropriate to reproduce herein below the requisite legal requirement of mandatory provisions of section 103, Cr.P.C. which have been flatly violated in the case in hand by the Investigation Officer. The pre requisite of mandatory provisions of section 103, Cr.P.C. entails as follows:-

103. Search to be made in presence of witness. (1) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do. (2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such office or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it. (3) Occupant of place searched may attend. The occupant of the place searched, or some person in his behalf, shall, in every instance be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witness, shall be delivered to such occupant or person at his request. (4) When any person is searched under section 102, subsection (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request. (5) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Pakistan Penal Code. It has been held in 2000 SCMR 683 in the case of Tayyab Hussain Shah v. The State, as follows:

S.103

Penal Code (XLV of 1860), S. 302/34

Search in presence of witnesses

Mandatory, requirement

Requirement of making two members of the public of the locality as Mashirs to the recovery is mandatory unless was shown by the prosecution that was not possible in the circumstances of the case to have two Mashirs from the public. Reference is also made to case law reported in PLD 1996 Lahore 402 it has been observed as follows:- (c) Qanun-e-Shahadat (10 of 1984)

"

Art. 71

Direct evidence

Law insists for a direct evidence of the primary source and it would be inadmissible if it comes from an indirect source.

10. From the record, it has been transpired that there is no post mortem report available on record with regard to unnatural death of deceased master Ayan. The certificate of death as was issued by the Doctors at Aga Khan University Hospital, Karachi, would not reflect as deceased master Ayyan died due to profiling of termite at the apartment or following by eating dinner at Bar B. Q. As alleged in the FIR deceased master Ayyan started vomiting in odd hours of the night of incident but parentage of deceased could not noticed when deceased time and again started vomiting complainant visited hospital(s) for better treatment. Be that as it may, no doubt there is unnatural death of deceased. Probably medical report would not reflect that either it was poison of Tyfon or it was poison following dinner at Bar B.Q. As otherwise medical evidence is not sufficient to identify the accused as well. In this perspective, reference has earlier been quoted in the case law reported as 1995 SCMR 127 and in the case of Muhammad lqbal v. Abdul Hussain reported in 1994 SCMR 1928.

11. Whilst, there are no photographs of the drilling termite profiling of walls as well as space for termite profiling which was agreed in between owners of the Tyfon Company and the Head of Arkey Apartment neither there is DNA report of the deceased master Ayan, nor medical report has designed the poison which as alleged was inside body of the deceased was of Tyfon Company or following dinner at Bar. B.Q. Furthermore there is nothing on record with regard to an independent, cogent, reliable and tangible evidence brought on record against the appellants. Simultaneously there no report from FSL has been obtained with regard to the substance for testing poison; utmost are series of dents in the prosecution case which led the case of prosecution doubtful. I am fortified with the case law reported in 1995 SCMR 1345 Tariq Pervez v. The State wherein the Honorable Apex Court has held as follows:- "

Art. 4

Benefit of doubt, grant of

For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts

If a simple circumstance creates reasonable doubt in a prudent mind about the gilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right"

12. At the juncture I am of the considered view that prosecution has miserably failed to bring appellants into home of guilt. The upshot of above discussion is that there being no satisfactory basis for upholding the conviction and sentence of the appellants, the appeal is allowed, the conviction and sentence awarded to the appellants by the learned trial court stands set aside, appellants are acquitted of the charge. The appellants are present on bail, their bail bond stand cancelled and sureties are discharged. Office is directed to return the surety papers to the applicant surety after proper verification and the identification as per rules. MH/A-28/Sindh Appeal allowed.