2021 PLP 41 (YLRN)

MUHAMMAD IQBAL MAHAR, J.

By this common judgment, I intend to dispose of above captioned criminal appeals filed by the appellants-accused, against one and same judgment dated 21.01.2016 passed by learned Additional Sessions Judge, Matiari in Sessions Case No.196/2012 (Re: State v. Arbab alias Wadho and others), arising out of Crime No.12/2011, registered at Police Station Sekhat District Matiari, whereby they have been convicted under section 302(b), P.P.C. and sentenced to suffer life imprisonment and to pay Rs.2,00,000/- (Rupees Two Hundred Thousands) each being compensation to legal heirs of deceased Ghulam Sarwar in terms of section 544-A, Cr.P.C., however benefit of section 382-B, Cr.P.C. has been extended to them.

2. Precisely, prosecution case is that deceased Ghulam Sarwar, brother of complainant Ghulam Mustafa, was married with appellant-accused Mst. Fozia Babar and from this wedlock he has one daughter, namely, Mst. Maria. The complainant came to know that Mst. Fozia has developed illicit relations with appellant-accused Khan Muhammad alias Kaloo, on which he separated the house of Ghulam Sarwar by raising wall but Khan Muhammad alias Kaloo with the help of appellant-accused Arbab alias Wadho used to visit house of Ghulam Sarwar. On 07.04.2011 at about 1130 hours complainant Ghulam Mustafa, his brother Ghulam Rasool and maternal uncle Mir Muhammad heard cries and went to the house of Ghulam Sarwar and saw appellants-accused Khan Muhammad alias Kaloo holding legs of Ghulam Sarwar, Arbab alias Wadho holding arms of Ghulam Sarwar by putting his knee upon his chest while Mst. Fozia putting something in his mouth forcibly. On hakkal, Arbab alias Wadho and Khan Muhammad alias Kaloo went out side the house while Mst. Fozia went to adjacent house. Ghulam Sarwar disclosed that appellants-accused have forcibly put poison in his mouth and by saying so he went unconscious. The complainant party took Ghulam Sarwar to Matiari Hospital, where he succumbed to the injuries. They informed the police of Police Station Sekhat, who came there and after post mortem of deceased handed over the dead body to complainant party. After funeral ceremony, the complainant went at P.S. and lodged the FIR on 10.04.2011 at 2000 hours.

3. The I.O. after usual investigation submitted challan of the case against the appellants-accused before the competent Court. The learned trial Court framed charge against the appellants-accused but they did not plead their guilt and claimed trial.

4. To substantiate' the charge, prosecution examined P.W-1, Complainant Ghulam Mustafa at Ex.8; who produced FIR at Ex.8-A, P.W-2, Ghulam Rasool at Ex.9, P.W-3, Mir Muhammad at Ex.10, P.W-4, Muhammad Hajjan at Ex.11, who produced danishtnama, lash chakas form, mashirnama of inspection of dead body, mashirnama of clothes of deceased, mashirnama of place of incident, mashirnamas of arrest of accused persons at Exs.11-A to 11-I respectively, P.W-5, Dr. Muhammad Sabir at Ex.12, who produced letter, provisional post mortem report, his opinion dated 13.05.2011, chemical examiner's report and report of histopathology at Ex.12-A to 12-E respectively, P.W-6, H.C, Abdul Ghafoor at Ex.13, P.W-7 and Tapedar Abdul Jaleel at Ex.14, who produced sketch at Ex.14-A. Thereafter, learned DDPP closed the prosecution side vide statement at Ex.15.

5. Learned trial Court, then recorded the statements of appellants-accused as required under section 342, Cr.P.C. at Ex.16 to Ex.18, wherein they denied the prosecution case and claimed their innocence, however neither they examined themselves on oath nor any witness in their defense.

6. On evaluation of evidence so produced by prosecution, learned trial Court convicted the appellants-accused as stated above, hence they have filed these appeals with prayer to set aside the impugned judgment.

7. Learned counsel for the appellants-accused contended that the impugned judgment passed by learned Judge is contrary to law and facts of the case; that the appellants-accused are innocent and have falsely been involved in this case by the complainant due to enmity; that there is unexplained delay of three days in lodging the FIR; that medical evidence does not corroborate the ocular evidence; that as per prosecution case the deceased was shifted to Matiari Hospital where he succumbed to the injuries but record of Matiari Hospital has not been produced; that there are material contradictions in the evidence of prosecution witnesses, which have created doubt. By contending so, they prayed for acquittal of the appellants. Learned counsel for the appellants-accused relied upon case of Mst. Tasleem Bibi v. The State (2011 SCMR 1215), Liaqaut Ali v. The State (2008 SCMR 95) and Pathan v. The State (2015 SCMR 315).

8. Learned Deputy Prosecutor General appearing for the State half heartedly supported the impugned judgment, however he stated that no marks of violence have been found on the dead body of deceased Ghulam Sarwar and there is no material on record as to how the post mortem examination of the deceased was conducted by M.O. of Khyber Hospital, when deceased was shifted to Matiari Hospital.

9. Heard learned counsel for the appellants-accused, learned Deputy Prosecutor General for the State and perused the record. It appears that the incident in the present case has taken place on 07.04.2011 at 1130 hours, on the very same day the Police was informed, they came at Matiari Hospital prepared danishtnama in presence of complainant who disclosed the cause of death "for taking poison" but the FIR was lodged by the complainant on 10.04.2011 at 2000 hours with delay of more than three days and eight hours with above story but such delay in lodging the FIR has not been explained by him plausibly, hence possibility of concocting the prosecution story cannot be ruled out.

10. The ocular evidence rests upon two brothers of the deceased and third maternal uncle, who were annoyed with deceased and appellant Fozia due to their love marriage and no independent person of the locality has been cited as witness. As per prosecution case two bothers and one maternal uncle went running on cries of the deceased and saw two appellants holding arms and legs and third appellant, the wife of deceased, putting poison in his mouth but neither they attempted to intervene nor to apprehend the accused persons, who were said to be empty handed, hence such attitude is not worth believing rather brings serious cloud over claim of the witnesses that they were present at relevant time. In case of Pathan v. The State supra the honourable Supreme Court of Pakistan has observed as under: "The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore no explicit reliance can be placed on their testimony. They had only given photogenic/photographic narration of the occurrence but did nothing nor took a single step to rescue the deceased. The causing of that much of stab wounds on the deceased loudly speaks that if these three witnesses were present on the spot, being close blood relatives including the son, they would have definitely intervened, preventing the accused from causing further damage to the deceased rather strong presumption operates that the deceased was done to death in a merciless manner by the culprit when he was at the mercy of the latter and no one was there for his rescue. In similar circumstances, the evidence of such eye-witnesses was dis-believed by this Court in case Masood Ahmed and Muhammad Ashraf v. The State (1994 SCMR 6)."

11. So far as the medical evidence is concerned, it is settled proposition of law that the medical evidence has only corroboratory role but conviction cannot be based on medical evidence. In case in hand medical evidence does not corroborate the ocular evidence. As per prosecution case appellant Khan Muhammad was allegedly holding the legs of Ghulam Sarwar and Arbab was holding arms and putting his knee upon the chest of Ghulam Sarwar but as per evidence of medical officer neither marks of violence nor visible injury externally and internally was seen on the body of the deceased and only there was history of poising. Furthermore, as per prosecution case deceased Ghulam Sarwar was shifted to Matiari Hospital where medical officer examined the dead body and after post mortem examination handed over to the complainant at 4.00 or 4.30 pm but none from Matiari Hospital has been examined in support of the claim of the complainant party and there is nothing on record to show that the dead body was ever shifted to R.H.C, Khyber but Dr. Muhammad Sabir of R.H.C, Khyber was examined in Court who deposed that on 07.04.2011 he was present on duty at R.H.C, Khyber he received dead body of Ghulam Sarwar for conducting post mortem examination, he started post mortem at 03.30 pm and completed at 05:30 pm, thus the evidence of M.O. Kyber does not corroborate the ocular evidence.

12. The motive of the incident as alleged by the prosecution is that the wife of deceased (appellant Fozia) was having illicit relations with appellant Khan Muhammad but during trial none of the witnesses deposed about the motive, hence motive stands not proved.

13. Adverting to circumstantial evidence, it is mentioned here that as per prosecution case the place of incident was shown to Police by the complainant but he in his evidence has deposed that "I never showed the place of incident to police." Appellant Fozia was arrested from the house of her deceased husband, it means she was present in her house. If she had committed the murder of her deceased she must have gone to some other place in order to hide herself. Mashir Muhammad Hajjan, the maternal uncle of the complainant, has deposed that he was not present when the accused persons were arrested but his signatures were obtained at P.S. on next day. He also deposed that "it is correct that contents of not a single mashirnama were read over to me by the police and only my signatures were obtained on mashirnama." This shows that all the documents were prepared at Police Station. The investigating officer of the case could not be examined due to his death, hence documentary evidence stand not corroborated.

14. Furthermore, there are material contradictions in the evidence of prosecution witnesses which have created doubt but have not been considered by learned trial Court.

15. For what has been discussed above, I have reached at the conclusion that the prosecution has failed to prove its case against the appellants-accused beyond reasonable doubt and it is settled proposition of law that for extending benefit of doubt it is not necessary that there should be many circumstances creating doubt and if there is single circumstance which creates reasonable doubt in a prudent mind about the guilt of accused then the accused will be entitled to the benefit not as matter of grace and concession but as matter of right. In this regard reliance can be placed upon case of Tariq Parvez v. The State (1995 SCMR 1345) wherein it has been held by honourable Supreme Court that: "For giving benefit of doubt to appellant it is not necessary that there should be many circumstances creating doubts. If there is a single circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as matter of right".

16. In view of foregoing reasons, the captioned appeals are allowed and impugned judgment dated 21.01.2016 passed by learned trial Court is set aside and the appellants-accused are acquitted of the charge. They are in jail, hence they are directed to be released forthwith if not required in any other case. JK/A-126/Sindh Appeals allowed.