P L D 2008 Karachi 182 (PLP)

KHAWAJA NAVEED AHMED, J.

This appeal has been filed against the judgment of 1st Additional District and Sessions Judge, Karachi Central in Sessions Case No.260 of 2002, whereby the learned Judge had convicted the appellant for an offence under section 302(c), P.P.C. and sentenced him to suffer R.I. for 10 years with benefit of section 382-B, Cr.P.C. while co-accused namely Aftab, Saqib alias Bobi, Azeem and Javed were acquitted. The brief facts of the case are that on 26-7-2002 the mother of the deceased Kashif namely Mst. Noor Jehan had given her statement under section 154, Cr.P.C. on 26-7-2002 at 0300 hours at Abbasi Shaheed Hospital, which is reproduced hereunder:-- "Statement under section 154, Cr.P.C. Statement made by Mst. Noor Jehan Begum w/o Ashiq Ali (late) Resident of House No.C-17/23, Baboo Chowk, Gharibabad, Karachi stated that I reside at above mentioned address along with my children for 27 years. Person namely Sheera reside in our locality along with his wife and her daughter namely Sadia alias Guddi, aged 15 years used to love my son namely Kashif Ali while my son Kashif Ali also used to love with Sadia and were desired to marry, but Shera and his family has conflict,. On Sunday 21-7-2002 at 5 p.m. Sheera's daughter Sadia from house had come at our house and said me that you get conduct our marriage whereupon I persuaded her then I left her at her house. When parents and brothers of Sadia knew about this then they beat Sadia while Irian, brothers of Sadia and his friend namely (1) Saqib alias Boby (2) Azeem (3) Javed issued threat to my son Kashif that do not keep terms with Sadia otherwise we shall kill you. On Tuesday dated 23-7-2002 at 10 a.m. son Kashif was standing in front of his house that Irfan son of Sheera while enticing took my son Kashif at his house and after about 20 minutes my son Kashif came at home and after just coming he had fallen unconscious whereupon I raised commotion and along with brother of my son of law Syed Arif and, my daughter Aashi alias Nousheen brought Kashif at Abbasi Shaheed Hospital and got admitted him: S.I. Maqbool Ali Shah had come from Police Station. But at that time Kashif was unconscious and we were also worried. Today at 2315 hours my son Kashif became conscious then he in presence of me, my son Asif Ali and his friend stated that sons of Shera (1) Irfan (2) Aftab and their friends (1) Saqib alias Boby (2) Azeem (3) Javed while mixing some thing in wine forcibly had got drunk me. After short while of stating this Kashif died away. My complaint is against (1) Irfan (2) Aftab (3) Saqib alias Boby (4) Azeem (5) Javed for forcibly got drunk wine by mixing anything and to kill him. Legal action may be taken. I have heard the report which is correct." This statement was incorporated in F.I.R. book vide F.I.R.No.157 of 2002 at Police Station Sharifabad on 26-7-2002 at 0600 hours. Police had investigated the matter and had dropped the co-accused named in the F.I.R. and kept them in Column No.2 of the charge-sheet and challaned Muhammad Irfan in this case. Charge was framed in the Court on 2-11-2002 only on accused Kashif to which the accused has not pleaded guilty and had claimed trial. During trial prosecution had examined eleven witnesses including complainant, Doctor, Investigating Officer as well as Chemical Examiner. The material witnesses are Mst. Noor Jehan, who is complainant, she has supported the version narrated by her in her statement recorded under section 154, Cr.P.C. as well as her statement recorded by the Magistrate under section 164, Cr.P.C. and during her deposition in the Court she has produced both the statements i.e. 154, Cr.P.C. as Exh.5 and her 164, Cr.P.C. as Exh.7. According to Mst. Noor Jehan, the mother of deceased Kashif, the place of incident was house of accused Irfan where allegedly Kashif was forced by appellant Irfan to take Liquor, which was mixed with insecticide and had resulted in death of her son. The memo. of place of incident has been produced by her in her evidence as Exh.6. The second witness of the case is P.W.2 Mst. Nosheen, who is sister of the deceased. Her evidence has been recorded as Exh.B. She has also produced her 164, Cr.P.C. statement, which was recorded by the Magistrate during the investigation. Mst. Nosheen is the star witness of this case, as she is one who had taken the deceased in semi-conscious condition to the Abbasi Shaheen Hospital where she had narrated that the deceased had taken KHATMALIN at his house. P.W.3 is Kashif Bhaya. He is a neighbour, who most probably lives alone, because according to the statement everybody could walk in his house. His statement 'has been recorded as Exh.10. He has also produced his statement recorded before the Magistrate during investigation under section 164, Cr.P.C. P.W.4 is Arif. He is husband of Mst. Nosheen and is brother-in-law of the deceased Kashif. He had helped in removing the deceased in semiconscious/unconscious condition from house to Usmania Hospital and thereafter shifted him from Usmania Hospital to Abbasi Shaheed Hospital and he claims to be in the hospital round the clock where deceased was being treated in intensive care ward after his stomach was washed. P.W.5, Muhammad Ashraf, who is living in the same vicinity has stated that on 23-7-2002 at about 10-00 a.m. he came to know that Kashif Bhaya and Arif took deceased Kashif to the hospital due to his illness, he and Rashid went to Memon Medical Hospital, then we came to home not found them, at about 11-30 p.m. Kashif Bhaya came and told that he is in Abbasi Shaheed Hospital. He reached Abbasi Shaheed Hospital, Kashif was unconscious. This statement contradicts to the statement made by the Mst. Noor Jehan under section 154, Cr.P.C. P. W.6 is Asif Ali, who is the elder brother of deceased and he has also repeated the same story given by Mst. Nosheen and Arif. P. W.7 is Sohail Ahmed Khan, he is the Investigating Officer of the case who has submitted challan in the Court and has arrested the accused, who had voluntarily produced himself at the police station. According to memo. of arrest produced by him as Exh.19 nothing incriminating was recovered by the police from the possession of the accused at the time of his arrest. Even during the site inspection nothing incriminating was found at the place of incident. The alleged bowl in which the liquor was allegedly consumed mixed with insecticide by the deceased as well as other bowl, which was in use of accused Irfan has not been recovered by the police from the place of incident or during the course of investigation by the Investigating Officer. He states that he had only challaned Irfan while all other named in the statement under section 154, Cr.P.C. were exonerated by him from the charge at the investigation stage. P.W.8 is P.C. Wahid Khan, who is the witness of memo. of arrest. P.W. 9 Dr. Syed Mazharuddin was examined and his evidence is on record as Exh.19. He has produced Medico-legal certificate of deceased Kashif as Exh.24. This is very, very important piece of evidence of this case and it appears at page 69 of the paper book. Perusal of Medico-legal Certificate No.4539/2002 dated 23-7-2002 reveals that the time of arrival of the patient Kashif son of Ashiq Ali at the Hospital is 12-00 noon. He has been shown to have been brought by Mst. Nosheen. While giving the history of the patient she disclosed to the Doctor according to this document:-- "History: Taking some insecticide (KHATMALIN) as alleged 23-7-2002 at 11-00 a.m. The address of Kashif shown in this MLO is House No.C-17/23, Garibabad, Karachi. In the column ...Place of occurrence... it is mentioned ...same as above... This shows that Mst. Nosheen arrived at the hospital along .with patient Kashif had disclosed to the Doctor that incident had taken place at House No.C-17/23, Garibabad, Karachi and incident is of taking ...KHATMALIN... on 23-7-2002 at 11-00 a. m. The above observations have been gathered from the documents called Medico-legal Certificate No.4539/2002. Now I revert back to the evidence of Doctor, which is at page No.69 of the paper book. Doctor was examined as P.W.9. His name is Dr. Syed Mazharuddin. His evidence along with cross-examination is reproduced hereunder: "

On 23-7-2002, at 1200 noon., one lady namely Noushin wife of Syed Asif, brought one boy Kashif son of Ashiq Ali, Aged 17 years, resident of C/17/23, Garibabad, Karachi, with history of taking some insecticide (Khatmalin) as alleged at 11-00 a.m. on 23-7-2002. I examine him these findings are as follows:-- General condition-semi-conscious Pulse-82/min B.P.110/80 mmHg. Smell like insecticidal substance from mouth and breath. Pupils-reactive, constructive. I have taken the stomach wash contents and blood samples sealed, labelled and handed over to the Investigating Officer for Chemical Examination. This patient was admitted in Medical Ward. Mole on right cheek. Scare left ankle joint I produce the ML Report No.4539/2002 as Exh.-20. Cross Examination on behalf of accused. It is correct Nosheen brought patient to the Hospital. It is correct detail of said case was disclosed by Nosheen, she disclosed that he had taken (Khatmalin). It is incorrect to suggest that after taking Khatmalin patient condition become worst and is ____became good in health, on observation no smell of wine was coming from the mouth of deceased, smell of insecticide lower then smell of wine. The patient of such nature remain in ICU on the condition of patient.... The facts narrated by Mst. Noor Jehan in her statement as well as in statement under section 154, Cr.P.C. and her statement under section 164, Cr.P.C. are contradictory to one anti other and finally are not in line with the statement of the Doctor and medical evidence. Even from the statement of Mst. Nosheen, Arif, Asif and Kashif Bhaya it appears that all the witnesses are in anxiety to rope up the accused and connect him with the alleged crime in accordance with the statement of Mst. Noor Jehan. In their effort to corroborate Mst. Noor Jehan they have repeatedly forgotten the time of the' incident and sequence of the occurrence, which had been taken place after. Kashif had consumed insecticide. The defence theory set up in the cross-examination right from the very beginning had been consistent and only one stand has been taken through out the case, which is that the deceased after refusal the hand of Mst. Guddi by her father Shera had become disheartened and he has consumed insecticide at his house. I have gone through the entire evidence and R&P with the help of learned counsel of the appellant Mr. Shaukat H. Zubedi and learned Assistant Advocate-General Mr. Muhammad Sabir Haider. There are contradictions between medical evidence and the ocular testimony of all the witnesses in respect of timing of consuming the insecticide, place of consuming the insecticide and the manner in which it has been consumed. The stand of the prosecution is that the insecticide was mixed up on liquor and deceased Kashif was forced by accused Irfan to drink it even when Kashif had pointed out to him that it smells very badly. It has come in evidence that at this point Irfan had advised to Kashif to close his nose and drink it. This version narrated by Mst. Noor Jehan attributed to her son Kashif has not been supported by any witness. The conversation between mother and son has not been heard by any independent witness. There is evidence that deceased had regained consciousness and he was speaking and was reciting KALMA. In spite of this no police officer or doctor or other paramedical staff has not heard the conversation between Mst. Noor Jehan and her son Kashif. At no occasion in the hospital it was stated that the deceased had used liquor. The Chemical Examiner report which is at page 81 of the paper book reveals as under:-- "insecticide belonging to chlorinated group detected in the above sealed parcels Nos.1 and 2." Parcels Nos.1 and 2 contained the stomach wash. The report does not say that any alcohol was detected from the stomach wash of the deceased. This is fundamental principles of law that when documentary evidence in the shape of certificates issued by experts specially medical experts, Chemical Examiner and Forensic Experts is available and it is in contradiction with the oral testimony of related and interested witnesses, the evidence of experts is to be believed and it always prevails upon the oral evidence produced by the interested parties. Doctor, Chemical Examiner and Forensic Expert are government servants and they are not related to any party and they issued certificates and report in performance of their duties without knowing the facts of the case of knowing the parties. Mr. Muhammad Sabir Hadier, learned A.A.-G. with whose assistance I have gone through the evidence agrees with me that the oral evidence given by the complainant and prosecution witnesses is in-consistent and is contradictory. He states that alleged statement attributed to the deceased by the mother of the deceased has not been proved beyond reasonable doubt and as such is to be discarded from the evidence. After perusal of the evidence and hearing both the counsel learned counsel for the appellant Mr. Shaukat H. Zubedi and the learned A.A.-G. Mr. Muhammad Sabir Hadier I have reached on the conclusion that prosecution has failed to prove its case beyond reasonable doubt. The benefit of doubt is always given to the accused in criminal jurisprudence. I hereby allow this appeal and acquit the appellant from the charge and order his release forthwith if not required in any other case. Criminal Appeal No.330 of 2006 is disposed. N.H.Q./M-190/K Appeal accepted.