2013 PLP 836 (MLD)

??????????? NISAR HUSSAIN KHAN, J.

Questioned herein is the judgment of learned Sessions Judge, Karak, dated 22-9-2010, whereby appellant was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life and to pay a fine of Rs.1,00,000, as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased Mst. Naureen or in default whereof to undergo 6 months' S.I., in case F.1.R No.273, dated 10-10-2009, registered under section 302, P.P.C., at Police Station Latambar District, Karak. 2.???????? The prosecution case is that on that night, Mst. Naureen wife of appellant-convict started vomiting so she was taken to Dr.Rafique of village Paloski Banda for treatment. On her recovery, she was brought back home by her husband-appellant. On the next morning at about 5-30 a.m., being not feeling well, was again being taken to the doctor in Latamber by her husband appellant, but she expired on the way. Report was lodged by her husband-appellant, which was incorporated in D.D. No.24 dated 11-8-2009. As the cause of death of the deceased was not known, so local police started inquiry under section 174, Cr.P.C. Autopsy on the dead body of deceased was conducted, during which, contents of her stomach and blood from heart were taken and sent to the FSL for chemical analysis, report whereof was received. According to which, cause of death was poisoning. Hence, F.I.R was registered. Later on, on the basis of statements of Mst. Noor Shad Bibi (mother) and Muqarab Khan (father) of the deceased, recorded under section 164 Cr.P.C., appellant was charged for murder of his wife. 3.???????? On conclusion of investigation, challan was put in the Court, where appellant was charge sheeted to which he pleaded not guilty and claimed trial. To bring home the guilt of accused-appellant, prosecution examined twelve witnesses. After close of prosecution evidence, statement of accused under section 342, Cr.P.C. was recorded wherein he denied the prosecution allegations and professed his innocence. However, he neither wished to be examined on oath nor opted to produce evidence in defence. On conclusion of trial, learned Trial Court after hearing the Prosecutor and defence, convicted and sentenced the appellant-accused as mentioned above. Hence, this appeal. 4.???????? Learned counsel for the appellant-convict argued that there is no eye-witness of the occurrence nor there is any circumstantial evidence which may connect the appellant-convict with the commission of crime; that appellant has been convicted on the basis of inadmissible evidence; that deceased was the beloved wife of the appellant, who, from the very beginning, when she, not feeling well, was taken to the doctor for her medical treatment; that it was the appellant who lodged the first report and his conduct shows that he is innocent but he has falsely been implicated by parents of the deceased in the case, and that too after two months of the occurrence; that there is no motive against the appellant, that prosecution case is full of doubts, benefit of which has not been extended in favour of appellant, to which, he was entitled. 5.???????? As against that, learned counsel for complainant argued that appellant is directly charged by Muqarab Khan and Mst. Noor Shad Bibi, parents of the deceased; that no proper treatment was provided to the deceased; that pointation memo of the shop, where from insecticides/ pesticide tablets were purchased by the appellant, was prepared by the Investigating Officer, on the pointation of the appellant; that deceased has made dying declaration before her mother, hence, the prosecution has squarely proved the guilt of appellant. 6.???????? We have gone through the record with the valuable assistance of the learned counsel in light of their arguments advanced at the bar. 7.???????? It is borne out from the record that appellant had love affairs with the deceased Mst. Naureen prior to her marriage and developed illicit relations with her, as a consequence whereof, she conceived. When her pregnancy became known, a Jirga was convened between the two families, where it was decided that deceased shall be given in the Nikah of appellant and appellant was burdened to pay Rs.4,00,000 to her parents. The deceased was sent to the house of appellant, where she gave birth to a female child, who was left in the Clinic where the delivery took place while the deceased was brought to the house of appellant, where their Nikah was performed. During subsistence of their marriage after 6/7 months, this unfortunate incident occurred where the deceased was allegedly administered poison. The matter was reported by the appellant himself on 11-8-2009 in Police Station Latamber, which was reduced into writing vide D.D. No.24. 8.???????? According to report, his marriage with the deceased took place some 6/7 months back and she was living with him. On the preceding night at 11 p.m. the deceased started vomiting, so she was taken to doctor Rafiq of village Paloski Banda for treatment, where she recovered and was taken back to the house. On the next morning at 5-30 a.m., suddenly, she was not feeling well, on which, she was being shifted to Latamber for treatment, but she expired on her way to the hospital. Appellant suspected that her death might have occurred due to taking poison or by biting of poisonous reptiles. He did not charge any body, having no suspicion. He stated in his report that he had love marriage with the deceased. On the report of appellant investigation under section 174, Cr.P.C. was initiated. On 11-8-2009, autopsy on the dead body of deceased was conducted, during which, specimen of blood from heart and contents of stomach were taken and sent to the Forensic Science Laboratory, report whereof reveals that Aluminum phosphate was detected. On the basis of this report, F.I.R. mentioned above was registered on 10-10-2009, under section 302, P.P.C. After registration of case, Muqarab Khan and Mst. Noor Shad Bibi (parents of the deceased), charged appellant for murder of their daughter by recording statements under section 161, Cr.P.C. on 13-10-2009, and appellant was arrested on the same day. It is strange to note that deceased died on 11-8-2009 but both these P.Ws., who are real parents of the deceased, did not inform any body about administering poison to their deceased daughter by appellant and all of a sudden, after registration of the case, they came forward with this version. It is stated by Muqarab Khan PW.10 (father of the deceased) that on 10-8-2009, his wife Mst. Noor Shad Bibi (mother of the deceased), after getting information about illness of Mst. Noreen Bibi, went to the house of Naseeb ur Rehman appellant, where she was informed by the deceased that appellant has administered her poison in a mango juice, due to which, she was not feeling well. Despite the knowledge of Mst. Noor Shad Bibi and Muqarab Khan of administering poison by the appellant to their daughter, they kept mum for long period of two months. They both have admitted their strained relations with the appellant as well as their non-visitation terms with him. In such like situation, visit of Mst. Noor Shad Bibi, mother of the deceased, to the house of appellant/her son-in-law, is something unbelievable, which cast doubts about the version put forth by said P.Ws. 9.???????? It is admitted position of the case, that there is no direct evidence in shape of ocular account of the incident nor is there any circumstantial evidence, which may connect appellant with the commission of crime. As regard, the evidence relied upon by prosecution like pointation memo of the shop, prepared on the pointation of appellant, wherefrom he allegedly purchased two tablets of pesticide, and administered the same to deceased; the same is of no help to the prosecution. Firstly, the said pointation memo is not admissible in evidence as nothing was recovered or discovered on the pointation of appellant in terms of Article 43 of the Qanun-e-Shahadat Order, 1984. On? the? other? hand,? the? owner? of? the? said? shop? has? not? been? examined? as witness before the Court. However, he stated before the Investigating Officer that he did not know as to whether the appellant had purchased any pesticide from his shop or not. Admittedly, appellant has not confessed his guilt before the Court. While confession, if any, made by accused before the police is not admissible in evidence nor it can be proved in terms of Article 39 of the Qanun-e-Shahadat Order, 1984. 10.?????? The other evidence relied upon by the prosecution against the appellant is alleged dying declaration made by the deceased before her mother. The statement of mother of the deceased cannot be believed, firstly, for the reason that had she been apprised by the deceased about administering poison to her by the appellant, she might have disclosed this fact at the earliest to the police. But situation herein is contrary, as it was the appellant, who lodged the report and investigation under section 174, Cr.P.C. was initiated. The mother of deceased kept quite for two months and all of a sudden, she woke up from her deep slumber and came forward with the allegation that her daughter was done to death by the appellant by administering poison to her. Secondly, the mother of deceased, having strained relation with the appellant and interested in his conviction, cannot be believed that she has come forward with truthful account of the events. It is settled principle of law that a delayed statement of a witness is always doubtful and cannot be believed for recording conviction in a capital charge, what to talk of delay of two months by a witness, who is none else, but real mother of the deceased. It is hardly believable that a real mother was informed by her daughter about administering her poison by the appellant, but she kept mum for long period of two months. Thirdly, there is a procedure provided in Police Rules 1934, for recording a dying declaration under Chapter-25, Para-21, which clearly postulates that a dying declaration whenever possible be recorded by a Magistrate, and the person making the declaration, shall be examined by the Medical Officer, to ascertain that he is sufficiently in a position of his reason to make a lucid statement. In case of non-availability of any gazetted police officer, it shall be recorded in presence of two or more reliable witnesses, unconcerned with the police department and the parties concerned. If no such witnesses can be obtained due to risk of injured being expired his statement shall be recorded in presence of two or more police officers. While a dying declaration made to a police officer be signed under section 162, Cr.P.C.? by? the? person? making? it.? This? procedure? has? been provided in the Police Rules for safe administration of criminal justice to screen out any possibility of tutoring or manipulation on the part of any interested person. In the instant case, not only the procedure prescribed in the Police Rules, has not been followed, but the person before? whom? the? deceased? made? the? dying? declaration,? kept? mum? for 2 months, who was none else, but real mother of the deceased. This conduct of the P.Ws., rocks the very foundations of the prosecution case,? as? a? consequence,? the? whole? edifice? built,? thereon? would? crumble. 11.?????? The learned Trial Court has convicted appellant on the basis of circumstantial evidence. It is established principle of law, that all pieces of the circumstantial evidence must be so inter-connected as a chain that one end of it be at the dead body of the deceased and the other around the neck of the accused. If any chain of the circumstantial evidence is broken the whole prosecution case falls to the ground. In the instant case, all pieces of circumstantial evidence are so weak and scattered that no piece connects the other. Rather, the case is based on no legal evidence or evidence of no legal consequence, as discussed earlier. The Trial Court has recorded conviction against the appellant on mere assumptions and conjectures by considering his behaviour. On the other hand, learned trial Court has not considered that it was none else, but the appellant, who reported the matter at the very earliest and he remained in touch with the investigation, so much so, that at the last moment when he was charged by parents of the deceased, he did not try to flee away, but surrendered before the police. In view of conduct of the appellant, contra presumption also arises that he was innocent that's why he has been running from pillar to post, firstly, to provide her medical aid and then to lodge report about her death. It is well settled principle of law that when two interpretations of evidence are possible, then one favouring the accused is to be followed. From whatever angle the case of prosecution is considered and evidence is appreciated, it leads to an assumption that either the deceased, in the peculiar backdrop of the events, might have committed suicide, or she might have been administered poison by some one else. But by whom, has not been traced out by the police after the charge was levelled by parents of the deceased against the appellant. 12.?????? In view of all these facts, the case of prosecution is doubtful, which does not satisfy the judicial conscious of the Court. For recording conviction in a capital charge, the evidence must be of unimpeachable character, having no shadow of doubt. Whenever there is any reasonable doubt in the prosecution case, benefit of the same is to be extended to the accused not as a matter of grace or concession, but as a matter of right. 13.?????? For what has been discussed above, the prosecution case has been found pregnant with jumble of doubts, benefit of which is extended to the accused. Thus by accepting appeal of the appellant-convict, impugned judgment of the Trial? Court/Sessions? Judge, Karak? dated? 22-9-2010, is set aside and appellant is acquitted from the charge in case F.I.R. No.273, dated 10-10-2009, registered under section 302, P.P.C., at Police Station Latamber District Karak. He be set at liberty forthwith, if not required in any other case. HBT/124/P????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.