2019 PLP 441 (YLR)

MUHAMMAD SALEEM JESSAR, J.

By this single judgment I intend to dispose of above two Criminal Appeals, as both the appeals have been filed by the same accused/appellant Asghar Shah son of Misri Shah. Criminal Jail Appeal No.176 of 2013 was first sent by him through jail authorities and thereafter Criminal Appeal No.32 of 2013 was filed by him through his counsel against the same judgment dated 09.01.2013 passed by the learned Sessions Judge, Thatta.

2. Through these appeals, Appellant Asghar Shah assailed the Judgment dated 09.01.2013 passed by the learned Sessions Judge, Thatta in Sessions Case No.277/ 2009 arisen out of FIR No.236/2009 registered at Police Station Sujawal, whereby learned Sessions Judge convicted the appellant/accused for the offence punishable under Section 302(b), P.P.C. as Tazir for committing murder of deceased Baby Shahida and awarded him sentence of life imprisonment. The trial Court also convicted the appellant/accused for an offence punishable under Section 376(2), P.P.C. and sentenced him to undergo life imprisonment. Both the sentences were ordered to run concurrently, however, the appellant was extended benefit of Section 382-B, Cr.P.C.

3. Precisely, the facts of the prosecution case as disclosed in the FIR are that on 26.10.2009 complainant Gul Mohammad Mallah lodged his report at Police Station Sujawal, alleging therein that he is labourer and resides with his family in village Allah Dino Mallah near Misri Shah. He has four daughters and three sons, out of whom Baby Shahida was aged about 7/8 years. On 25.10.2009 he had gone for labour work and when at about 1200 hours he came at his house to take lunch, his wife disclosed that at about 11.00 a.m. baby Shahida had gone to purchase some articles from the cabin of Imtiaz Memon and has still not returned, whereupon the complainant, his brother Mooso and his son Akram went to search his daughter. It was further alleged that when they reached at the cabin of Imtiaz Memon situated at Nawaz Ali Shah Mohallah, his cousin Aaroo son of Angario met them to whom they disclosed the fact regarding missing of Baby Shahida who disclosed that accused Mohammad Shah after purchasing the articles from the cabin at about 1100 hours had caught hold arm of Baby Shahida and was going towards park. On such information, they all went to search Baby Shahida and at about 05.00 p.m. they reached at the house of Hashim Parahi situated at Saeed Pur and on query from the complainant, he disclosed that at about 02.00 p.m. Mohammad Shah brought Baby Shahida in his house and after taking lunch at about 03.00 p.m. Mohammad Shah told him that they are going towards Sujawal. Thereafter, complainant party along with Hashim searched Baby Shahida for the whole night at different places. On next day i.e. 26.10.2009 at about 01.00 p.m. when they reached at Gap Khori, they found the dead body of Baby Shahida lying in water and they found that her neck bone was broken, blood was oozing from her nose and the tape of her shalwar was opened and she was subjected to Zina. Thereafter, the complainant while leaving other persons at the dead body of her daughter reached the Police Station and lodged report.

4. During course of investigation, complainant's further statement was recorded under Section 162, Cr.P.C. wherein he also implicated the present appellant. On 28.10.2013 police arrested accused Mohammad Shah, Asghar Shah and Nawaz Shah. Confessional Statement of accused Mohammad Shah was also recorded who in the said statement while confessing his guilt to commit the alleged offences, also implicated appellant Asghar Shah being his accomplice in the commission of the alleged offences. During the investigation accused Nawaz Shah was released by the police under Section 169, Cr.P.C. After completing the investigation, police submitted challan before competent Court of law against the two accused persons.

5. A formal charge was framed against the accused persons to which they have denied the prosecution allegations and claimed to be tried. However, during pendency of trial, main accused Mohammad Shah has expired, as such, the proceedings against him were abated vide order dated 09.07.2011.

6. In order to prove its case, prosecution examined P.W.1 Complainant Gul Mohammad at Ex.5 who produced FIR as Ex.5/A and receipt of dead body as Ex.5/B, P.W.2 Mooso Mallah at Ex.6, P.W.3 Aaroo Mallah at Ex.7, P.W. 4 Mohammad Hashim Parahi at Ex.8, P.W. 5 Faqiro Mohrio Mallah at Ex.9 who produced Mashirnama of place of incident, danishtnama, mashirnama of clothes of deceased, mashirnama of arrest of accused Mohammad Shah, mashirnama of arrest of accused Asghar Shah and the release of accused Nawaz Ali Shah, mashirnama of clothes of accused Asghar Shah, mashirnama of clothes of accused Mohammad Shah as Ex.9/A to Ex.9/F respectively. P.W. 6 Dr. Irshad Parveen Qazi was examined at Ex.10 who produced post mortem report of deceased Baby Shahida as Ex.10/A and letter of police as Ex.10/B. P.W.7 ASI Mohammad Gurmani was examined at Ex.11, while P.W. 8 Abdul Haq Mangrio, the then IInd Civil Judge / Judicial Magistrate, Sujawal was examined at Ex.14 who produced confessional statement of accused Mohammad Shah as Ex.14/A. P.W. 10 Tapedar, Syed Aftab Ali Shah, was examined at Ex.15 who produced sketch as Ex.15/A whereas P.W.10 SIO Mohammad Ismail Jat was examined at Ex.16 who produced receipt of dead body collected from Medical Officer as Ex.16/A, duplicate copy of letter addressed to Medical Officer as Ex.16/B, chemical report as Ex.16/C and duplicate copy of letter addressed to Mukhtiarkar concerned as Ex.16/D. P.W.11 Dr. Maqsood Ahmed Memo was examined at Ex.17 who produced attested copy of letter given to him by I.O. as Ex.17/A, provisional and final medical certificates in respect of accused Asghar Shah as Ex.17/B and 17/C respectively, whereas P.W. 12 Dr. Chela Ram was examined at Ex.18 who produced letter of SIO addressed to him as Ex.18/A, provisional and final medical certificates in respect of deceased accused Mohammad Shah as Ex.18/B and Ex.18/C respectively. Thereafter, DDPP for the State closed the prosecution side vide statement Ex.19.

7. Statement of accused Asghar Shah was recorded under Section 342 Cr.P.C. as Ex.20 in which he denied the allegations of prosecution and stated that the prosecution witnesses are related to the complainant, thus they are interested witnesses.

8. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment dated 09.01.2013 convicted and sentenced the appellant/accused, as stated above. Against the said judgment the appellant has preferred instant appeals.

9. I have heard learned counsel for the appellant as well as learned D.P.G. appearing for the State and perused the material available on the record.

10. Learned counsel for the appellant contended that the appellant has been falsely implicated in the present case. He further contended that the trial Judge has passed the impugned judgment without properly appreciating the evidence brought on the record and without applying his judicial mind to the factual and legal aspects of the case. He further contended that there are material contradictions in the evidence of prosecution witnesses as well as legal infirmities and flaws which create serious doubts in the prosecution case. He further contended that the name of the appellant does not transpire in the FIR and none of the witnesses has claimed to have seen the appellant along with deceased baby Shahida. He further contended that the appellant has been involved merely on the basis of further statement of the complainant, so also the confessional statement of deceased accused Mohammad Shah which have no evidentiary value and have no sanctity in the eye of law. He argued that ocular testimony and medical evidence are contradictory to each other, thus such ocular testimony cannot be relied upon. He further argued that the prosecution witnesses are related to the complainant, thus interested witnesses and their testimony cannot be relied upon without strong corroboratory evidence. He further contended that there is violation of Section 103, Cr.P.C. as no private witness of the locality was associated as mashir of recovery and arrest although private persons were available at the relevant time. He pointed out that the trial Judge while awarding capital punishment, has not discussed the cross-examination of the prosecution witnesses, thus the impugned judgment cannot be termed as a 'speaking order'. He lastly prayed for setting aside the impugned judgment and acquittal of the appellant/ accused.

11. Conversely, learned D.P.G. appearing for the State, while supporting the conviction and sentence awarded to the appellant, contended that the impugned judgment has been passed in accordance with law after considering each and every point involved in the case. He further contended that the testimony of related witnesses is also worth reliance and the same cannot be discarded merely for the reason that they have relations with complainant party. According to him, minor contradictions in the evidence of prosecution witnesses are ignorable and the same cannot be made basis for acquittal of the accused. He further contended that the appellant is involved in a heinous crime as such he do not deserve any leniency. He prayed for dismissal of the appeals and upholding the impugned judgment.

12. I have gone through the material available on the record. It seems that appellant Asghar Shah was not named by the complainant in the FIR and even from perusal of evidence of the prosecution witnesses, including the complainant, it appears that none of them has deposed that he had seen accused Asghar Shah with deceased victim Baby Shahida. Complainant deposed that during the process of search of the deceased he, his son Akram and brother Mooso met with P.W. Aaroo who told them that he had seen deceased Baby Shahida along with accused Mohammad Shah who, while holding her arm, proceeded towards Sujawal Park. Thereafter, they came to know that accused Mohammad Shah had brought the deceased baby at Khairat (Dawat) of Sain Naseer Shah in village Saeedpur, therefore, they went to village Saeedpur from where they were informed that accused Mohammad Shad along with deceased baby Shahida had gone towards forest side. In the morning they went towards forest side and at about 01.00 p.m. they found the dead body of the deceased baby Shahida in dirty water pond. It is clear from his evidence that right from the beginning till the dead body of deceased Baby Shahida was found by the complainant party, at no point of time the complainant was informed by any person that appellant Asghar Shah accompanied accused Mohammad Shah and deceased Baby Shahida. In his cross-examination also the complainant admitted that: "It is correct to suggest that name of Asghar Shah not referred in the FIR by me. Voluntarily says his name was pointed out by accused Mohammad Shah after his arrest before police being his companion."

13. Similarly, other prosecution witnesses namely Mooso, Aaroo, Mohammad Hashim and Faqiro have also deposed in the same line and in their entire evidence too there is no mention of accused Asghar Shah, rather P.W. Mohammad Hashim in his cross-examination stated that: "Accused Mohammad Shah present in the court is same boy, who brought baby Shahida to my house on the particular day. Second accused Asghar Shah was not seen on the day of incident by me."

14. In view of above, it can safely be held that the prosecution witnesses have not implicated present appellant Asghar Shah in the commission of the alleged offences. In the FIR complainant had stated in clear terms that accused Mohammad Shah son of Nawaz Shah (since deceased) had taken his daughter Shahida aged about 7/8 years on the pretext of giving stuffs/things, committed rape with her, broken her neck bone and committed her murder. There is not a single word about accused Asghar Shah in the FIR, whereas, subsequently the complainant improved his version made in the FIR through his further/supplementary statement recorded by the I.O. of the case on 27.10.2009 wherein he implicated present appellant Asghar Shah by stating that he was also companion of accused Mohammad Shah in the commission of the alleged offences. However, in his cross-examination he admitted in clear terms that: "It is correct to suggest that name of Asghar Shah not referred in the FIR by me. Voluntarily says his name was pointed out by accused Mohammad Shah after his arrest before police being his accomplice." Further, evidence against the present appellant is the confessional statement of deceased accused Mohammad Shah wherein he stated that accused Asghar Shah was also his accomplice in the commission of the alleged offences.

15. So far as further/ supplementary statement of the complainant is concerned, it is suffice to say that the same has got no sanctity in the eye of law in view of the principle laid down by the Superior Courts from time to time. In the case of Noor Mohammad reported in 2008 SCMR 1556 it was held by Hon'ble Supreme Court that any statement or further statement of the first informant recorded during investigation of the police is neither equivalent to the FIR nor to be read as part of the same. In another case reported as Mohammad Irfan v. The State (2012 PCr.LJ 625) Hon'ble Lahore High Court has held as under: "Supplementary statement is a recent innovation, not recognized by law, devised by incompetent, incapable and dishonest investigating officers to cut short the process of investigation without realizing that such a short cut is generally destructive to the prosecution case

practice of manufacturing and fabricating supplementary statements has to be checked by drastic measures

Police high-ups and the authorities at the helm of affairs should perceive the horrendous consequents caused by such innovation

unbridled powers enjoyed by the police would do more harm instead of doing good to the oppressed."

16. As regards the alleged confession of deceased accused Mohammad Shah wherein he has implicated the present appellant in the commission of the alleged offences is concerned, the same has lost its legal sanctity in view of the fact that the said alleged confessional statement could not be proved at the trial stage which is one of the mandatory requirements for placing reliance on a confessional statement. In the case of Hashim Qasim and another v. The State reported in 2017 SCMR 986 Hon'ble Supreme Court has held as under:-- "It is trite law that for accepting a confession, two essential requirements must be fulfilled i.e. that the confession was made voluntarily, it was based on true account of facts, leading to the crime and the same proved at the trial."

17. In the above case it was further held that:-- "In the instant case, we are confronted with confession consisting of almost six full scape sentences . The confession is contradicted by established facts on record and instead of providing any corroboration, the same is clashing with the rest of evidence."

18. Keeping in view the fact that none of the prosecution witnesses including the complainant has said a single word in their deposition about accused Asghar Shah having participated in the commission of the alleged offenses and also other legal flaws/discrepancies in the prosecution case, it can safely be held that the present appellant could not be convicted merely on the basis of confession allegedly made by deceased accused Mohammad Shah. Needless to emphasize that the confessional statement is a corroboratory piece of evidence and it is to be read together with other pieces of evidence i.e. ocular testimony, medical evidence, circumstantial evidence etc. and not in isolation.

19. Now coming to the Chemical Examiner's evidence, in his provisional Medico Legal Certificate, Dr. Maqsood Ahmed, Medical Officer, who conducted medical examination of appellant Asghar Shah, stated as under:-- "After the examination of above named accused Asghar Shah son of Misri Shah, I am of the opinion the subject is potent and can perform sexual intercourse, however, nothing could be suggested or contradicted for his involvement in this case the final opinion will be communicated after the chemical analysis."

20. In final Medico Legal Certificate he opined as under:-- "Human sperms also detected in the semen swab and semen sample of accused Asghar Shah son of Misri Shah which are the Articles Nos.8 and 9."

21. Merely presence of human sperms does not prove commission of rape by accused Asghar Shah with deceased Baby Shahida unless through semen grouping it is confirmed that the same are matched with the semen found on the person/body of the viginal swab of the victim. In the instant case the report of the Medical Officer do not indicate in any manner that the sample of semen of accused Asghar Shah matched with the semen found on the swab. In the case of Mst. Ehsan Begum v. The State (PLD 1983 FSC 204) it was held that as facility of grouping of semen is available in Pakistan, therefore, the Medical Officer while examining the male for potency purposes should obtain the specimen of semen so that it be sent for grouping and matching with the semen if secured from the person/body of the viginal swab of the victim. In another case reported as Abid Javed alias Mithu v. The State (1996 PCr.LJ 1161) it was held by Hon'ble Federal Shariat Court of Pakistan as under:-- "Viginal swabs of the victim girl were found to be semen stained by the Chemical Examiner, but the report on the swab sent to the Serologist for semen grouping was not produced in Court and the Chemical Examiner's report had lost it evidentiary value." In view of above, it is clear that the medical evidence do not support the prosecution story.

22. There also seems to be violation of Section 103, Cr.P.C. as no private witness of the locality was associated as mashir of recovery and arrest although it has come in the evidence of the prosecution witnesses including the mashirs and the I.O. that private persons were available at the place of recovery and arrest at the relevant time, despite the fact that no independent witness was associated as mashir of recovery and arrest. Needless to emphasize that in view of the provisions of Section 103, Cr.P.C. the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted so as to lend credence to such actions, and to restore public confidence. This aspect of the matter must not be lost sight of indiscriminately and without exception. In the case reported as The State v. Bashir and others (PLD 1997 SC 408) Hon'ble Supreme Court has held as under:-- "As regards above second submission of Mr.M.M. Aqil, it may be observed that it has been repeatedly held that the requirements of section 103 Cr.P.C. namely, that two Members of the public of the locality should be Mashirs of the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public."

23. The accumulative effect of the above said infirmities/flaws in the prosecution case is that serious dents have been put and doubts created in the prosecution case. It is well settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. In view of aforesaid defects and lacunas, it can safely be held that the prosecution has not succeeded in discharging such obligation on its part. Needless to emphasize the well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right. In the present case, there are many circumstances which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under:-- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a 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 a matter of right."

24. After considering the material available on record, and in view of discussion whatever has been discussed herein above I am of the considered view that prosecution has failed to prove its case against the appellant beyond any reasonable doubt. Therefore, the appellant is entitled to the benefit of doubt which was accordingly given to him at the time of passing short order dated 18.01.2018, whereby both the appeals were allowed and impugned judgment dated 09.01.2013 passed by the trial Court was set aside, resultantly appellant Asghar Shah son of Misri Shah was acquitted of the charge and was ordered to be released forthwith if his custody was not required in any other criminal case. Above are the reasons for the said short order. JK/A-78/Sindh Appeals allowed.