2002 P Cr (PLP)

The appellant has preferred the present jail appeal against the judgment, dated 20‑1‑2000 passed by the learned 1st Additional Sessions Judge, Jacobabad in Sessions Case No.96 of 1998 re: State v. Dur Muhammad in an offence under sections 302/342, P.P.C. in Crime No.36 of 1998. The said case was registered on 2‑5‑1998. The above- named appellant was tried by the said Court for having caused Qatl‑i- Amd of Irfan Ali aged about 6/7 years in the Otak of one Raees Bachal situated in Phool Bagh Mohalla Jacobabad. The brief facts of the prosecution case are that on 2‑5‑1998 at 3‑20 p.m. complainant Faiz Muhammad appeared at Police Station Market Jacobabad and lodged report stating therein that he alongwith his brother Imam Bux and brother‑in‑law Mian Khan live in joint house in Pool Bagh Mohallah Jacobabad. On the day of incident at morning complainant by taking his donkey car left for his labour purpose while his brother Imam Bux and Mian Khan went away to earn through labour. At about evening time complainant returned to his house where his brother Imam Bux and Mian Khan were also present when the ladies of the complainant informed Faiz Muhammad that Irfan Ali aged about 6/7 years, who was son of Imam Bux had left the house in morning and was not traceable Mian Khan then informed them that it was 3‑00 p.m. as he passed through the Otaq of Rais Bachal Golo he found Dur Muhammad Golo present there, who was in purplex condition. They went to the Otaq of Rais Bachal Khan and found Irfan Ali lying dead inside the Otaq and neclo was throatled with the piece of cloth. The blood was oozing from the mouth of deceased. The complainant then leaving behind his brother and Mian Khan to guard the dead body went and lodged the report categorically stating therein that he suspect Dur Muhammad or someone e for committing Zina with Irfan Ali have caused his death. The said F.I.R. was registered by A.S.‑I. Nisar Hussain Massan, who then proceeded to the place of Wardat which was shown to him by the complainant. A.S.‑I. then prepared the Mashirnama of Wardat in presence of Mashirs Dost Muhammad and Bashir Ahmed and so also the inquest report of the dead body in presence of Mashirs Mention Khan and Bashir Ahmed. The dead body of minor Irfan Ali was then dispatched to Civil Hospital, Jacobabad for post‑mortem examination and report. He then recorded 161, Cr.P.C. statement of the witnesses. On 29‑5‑1998 he arrested accused Dur Muhammad in presence of Mashirs P. C. Ghulam Rasool and P.C. Bakhtiar Ali. On 30‑5‑1998, A.S.‑I. produced accused Dur Muhammad for recording his judicial confession before Civil Judge and F. C. M. Jacobabad where he did not confess his guilt. On 9‑6‑1‑998 he produced witnesses Imam Bux and Mian Khan before Incharge Civil Judge and F.C.M., Jacobabad, who recorded their 164, Cr.P.C. statements. On completion of investigation he handed over the case papers to S.H.O. who challaned the accused in the Court of Civil Judge and F.C.M., Jacobabad who submitted the case to the Court of Session, from where this case was transferred to the learned 1st Additional Sessions Judge, Jacobabad. The charge was framed against the accused vide Exh.2 to which accused pleaded not guilty and claimed his trial vide his plea Exh.3. The prosecution in order to establish its case examined complainant Fiaz Muhammad as Exh.5, who produced F.I.R. Exh.5‑A, P.W. Mian Khan as Exh.6, who produced his 164, Cr.P.C. statement as Exh.6‑A, Doctor Altaf Ahmed Waggan as Exh.7, who produced post‑mortem report as Exh.7‑A, Mashir Dost Muhammad as Exh.8, who produced Mashirnama of Wardat as Exh.8‑A. Investigating Officer as Exh.9, who produced inquest report as Exh.9‑A, Mashirnama of arrest as Exh.9‑B. Thereafter, the learned D.D.A. closed the side of the prosecution vide statement as Exh.10. The accused in his statement under section 342, Cr.P.C. Exh.11, totally denied the case of the prosecution and stated that he has been falsely involved in this case and he is innocent. Accused, however, neither led any defence evidence nor examined himself on oath. The learned trial Court after hearing the learned counsel for the accused and learned D.D.A, for the State framed the following points for determination:‑‑ Point No.

1. Whether Irfan Ali died unnatural death on 2‑5‑1998? Point No‑

2. Whether the present accused did intentionally committed Qatl‑i‑Amd of Irfan Ali on 2‑5‑1998 at about 12‑00 noon at the Otaq of Rais Bachal Golo situated in Phool Bagh Mohallah, Jacobabad and he also wrongfully confined the deceased. Point No.

3. What offence, if any, the accused had committed? The learned trial Court decided the Point No. 1 in affirmative and Point No.2 as proved and convicted and sentenced the appellant/accused to suffer imprisonment for life under section 302(b), P.P.C and also directed the appellant/accused to pay tine of Rs.50,000 as compensation and in case of non‑payment of fine he shall further suffer S.I. for two years. The trial Court also convicted the appellant/accused in offence under section 342, P.P.C. and convicted and sentenced him suffer R.I. for six months, therefore, the appellant has assailed the said conviction and sentence through this appeal. I have heard the arguments of Mr. Mumtaz Ali Siddiqui learned counsel for the appellant and Mr. Ghulam Sarwar Korai appearing on behalf of the State and perused the record and proceedings of the trial Court. The prosecution has mainly relied upon the evidence deposed by Dr. Altaf Ahmed Waggan who conducted the post‑mortem of deceased Irfan Ali. The said witness was examined vide Exh.7 and has testified that on 2‑5‑1998 he was Medical Officer, Civil Hospital, Jacobabad. On that day S. H.O. Police Station Market referred the dead body of deceased Irfan Ali for post‑mortem examination and report through P.C. Liquat Ali. The dead body was identified by Imam Bux the father and Faiz Muhammad uncle of the deceased. The body was male Muslim aged about 6 years with average built, rigor mortis slightly positive. He started post‑mortem at 5‑00 p.m. and completed it at 6‑00 p.m. On external examination the Medical Officer noted the following injuries:‑ "(1) A lacerated wound about 3 c.m. x 2 c.m. on right side of head. (2) A lacerated wound about 4 c.m. x 2 c.m. on the upper lip. (3) Frontal six teeth were damaged and multiple laceration on the upper and lower gums were present also bleeding from gums were positive. (4) Swelling about 10 c.m. in diameter on the left cheek and left eye. Conjunctal haemorrhage were positive and bleeding from nose were positive. On internal examination the Medical Officer noted the following damages‑ Scalp, memberance brain were lacerated, skull was fractured, larynx and trachea, right lung, left lung, pericordium were conjusted and both lungs and heart was full of blood. Stomach was empty and contains semi blood. " From the external as well as internal examination of the deceased the Medical Officer was of the opinion that the death of the deceased has been occurred due to asphyxia and intercarnal haemorrhage. Injuries Nos.2 and 3 individually and injuries Nos. 1 and 4 collectively were sufficient to cause death in ordinary course of nature. All the injuries were ante‑mortem in nature and were caused with hard and blunt substance. The probable time between injuries and death was instantaneously and death and post‑mortem was about 5 hours. He produced the post‑mortem report as Exh.7‑A and confirmed it to be the same. At the time of cross‑examination the said witness was confronted wherein he admitted that the time of death was 12‑00 noon. He also admitted that he had given the time of death in his post‑mortem report looking, to the symptoms over the dead body. He had also admitted that no mark of violence of injury over the neck of deceased was seen by him. From the perusal of the record and proceedings it is obvious that there was no ocular account of incident and the entire case is based upon the circumstantial evidence. According to the evidence of Mian Khan who is star‑witness of the incident Exh.6 who has stated that on the day of incident he had gone for labour purpose and came back to his house and on his way when he passed in front of the Otaq he saw accused Dur Muhammad standing and his clothes were stained with blood thereafter accused become perplexed. As per 161, Cr.P.C. statement this witness has not specifically stated that at the time when the appellant was standing in front of Otak of Bachal Khan, his clothes were stained with blood. This witness at the time .of recording of his 164, Cr.P.C. statement recorded by Incharge Civil Judge and F.C.M., Jacobabad he specifically stated that he saw accused Dur Muhammad standing in front of Otak his clothes were stained with blood. It is further stated by the said P.W. that at the first time when they went inside the Otaq they saw through the window of room that dead body of Irfan Ali as one penal of window of room was broken and accused gained entry through this window and after committing the offence he ran away through this window. It is obvious that P.W. Mian Khan Golo had improved his earlier statement under section 161, Cr.P.C. No doubt there is no direct evidence available in this case as none of the witness has seen the appellant by committing the murder of Irfan Ali and the accused was seen standing in front of the Otak where the dead body of deceased Irfan Ali was found. It is not clear from the circumstantial evidence as to why the appellant/accused is seen standing after commission of the offence and particularly when there is no previous enmity between the complainant party and the appellant/accused. It is the function of the Court to examine the probability in the light of circumstantial evidence. The presence of the appellant/accused at the time of incident is irrelevant but it is the duty of the prosecution to bring the positive evidence against the culprit and it is not for the defence to explain as to why he was found standing in front of the Otak. It is unbelievable that if an offence is committed by any culprit then culprit has to escape himself so that he may not be seen by any one about the commission of the crime. The trial Court while delivering the judgment has based on this ground that the appellant/accused was seen standing in front of the Otak and onus has been shifted on the accused to have furnished the explanation about his presence in front of the Otak where the deceased was found dead. Mr. Mumtaz Ali Siddiqui learned counsel for the appellant has also attacked the prosecution case on the ground that medical evidence is inconsistent with the ocular evidence as the Medical Officer had not seen any injury around the neck of the deceased. According to evidence of Faiz Muhammad and Mian Khan alongwith the Investigating Officer they saw the dead body of Irfan Ali lying in the Otak and a piece of cloth was wrapped around the neck of minor, still the Medical Officer had not found any injury on neck of the deceased. The Medical Officer further opined that death was caused due to asphaxia and intercarnal haemorrhage. Medical Officer had particularly mention the word "Asphaxia", it means that the death was caused due to reason that the deceased could not breath, and therefore, he lost his life. Mr. Ghulam Sarwar Korai learned counsel appearing on behalf of the State has not supported the judgment of trial Court and stated that there is no direct evidence against the appellant/accused and the conviction has been based on presumption that the appellant/accused was seen standing in front of the Otak where the dead body of Irfan Ali was lying. Since there is no ocular account and the opinion of the Medical Officer only, will not prevail upon the circumstantial evidence. Admittedly there cannot be a second view that accused is presumed to be innocent. It is also a settled principle of law that each criminal case has its own peculiar facts and circumstances and it is an act which defend upon the evidence produced by the parties. I have minutely examined the evidence of the complainant Faiz Muhammad and P.Ws. Mian Khan Golo which did not inspire confidence of the Court and they cannot be presumed as truthful witnesses about complicity of offence as on their evidence no implicit reliance can be made. I am of the considered view that prosecution has not been able to prove the guilt against the appellant/accused. In view of the foregoing reasons this criminal appeal is allowed. The conviction and sentence awarded by the learned 1st Additional Sessions Judge, Jacobabad to the appellant vide judgment, dated 20‑1‑2000 is set aside. The appellant/accused is acquitted from the charge. He shall be released forthwith if he is not required in any other offence. N.H.Q./D‑28/K Appeal allowed.