2020 PLP 2411 (YLR)

FAHIM AHMED SIDDIQUI, J.

The appellant, through the instant Criminal Jail Appeal has assailed the conviction judgment dated 31.05.2014, passed by learned Sessions Judge, Matiari in S.C. No.291/2012, emanating from Crime No.02/2012 for the offence punishable under section 302, P.P.C., registered at Police Station Salaro. The impugned judgment was pronounced after finding the appellant guilty and sentenced him to death for an offence under Section 302(b), P.P.C. Accused was also directed to pay Rs.2,00,000.00 (Rupees two hundred thousand only) as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased. A reference for confirmation of death sentence was also sent to this Court for confirmation.

2. The factual matrix of the case is that on 06.11.2012, complainant Muhammad Yousif lodged FIR stating therein that about four years back his daughter namely, Mst. Soomal got married with Ghulam Hyder (appellant). According to complainant on 04.01.2012, he along with his sons Imtiaz Ali and Ayaz Ali went to the house of appellant to meet with his daughter. As soon as, they arrived at the house of appellant, the appellant annoyed upon Mst. Soomal saying that why the complainant party has come in his house and inflicted two hatchet blows upon the head of Mst. Soomal on her left hand; the complainant party interfered to which the appellant went away and they carried Mst. Soomal at Taluka Hospital, Hala after obtaining letter from P.S. wherefrom carried at LMCH Hyderabad for treatment where she succumbed to the injuries on 06.01.2012.

3. After usual investigation, the police submitted the final report before the concerned Judicial Magistrate, who took cognizance of the offence. The learned trial Court framed the charge against the accused, who pleaded not guilty and claimed trial.

4. In order to establish their case, the prosecution examined PW-01 Dr. Naheed [Exhibit-06], who produced referring letter of deceased and provisional medical certificate of deceased [Exhibits-06/A and B] respectively. PW-02 Dr. Shahida Mukhtiar [Exhibit-07], who produced post mortem report of deceased [Exhibit-07/A]. PW-03 complainant Muhammad Yousif [Exhibit-09], who produced receipt of receiving dead body of deceased and FIR [Exhibit-09/A and B] respectively. PW-04 Imtiaz Ali [Exhibit-10], who produced his statement under section 164, Cr.P.C. [Exhibit-10/A]. PW-05 Ayaz Ali [Exhibit-11], who produced his statement under section 164, Cr.P.C. [Exhibit-11/A]. PW-06 Allah Nawaz mashir [Exhibit-13], who produced inquest report, memo of inspection of dead body, memo of arrest of accused and recovery, memo of inspection of place of incident, memo of recovery of clothes of deceased [Exhibits-13/A to E] respectively. PW-07 SIP Ahmed Khan Khaskheli Investigating Officer [Exhibit-14]. After closure of the side of prosecution under the statement (Exhibit-15), statement of appellant under section 342, Cr.P.C. was recorded [Exhibit-16]. In his statement, the appellant denied all the allegations levelled against him by the prosecution and claimed his innocence as well as his examination on oath. However, after recording of statement under section 342, Cr.P.C. an application under application under section 540, Cr.P.C. [Exhibit-17] was filed on behalf of appellant with prayer to produce defense witnesses. Meanwhile, D.P.P. for the State also filed application under section 540-A, Cr.P.C. [Exhibit-18] for calling I.O. to produce Expert's report. Accordingly, I.O. was recalled and who produced Expert report [Exhibit-14/A]. Again D.P.P. under the statement [Exhibit-19] closed the prosecution side. The statement of the appellant was also recorded under Section 342, Cr.P.C. (Exhibit-20). In his statement, the appellant reiterated his innocence and denial of the allegations levelled against him by the prosecution so also his examination on oath as well leading defense witnesses. Deposition of appellant Ghulam Hyder as DW-01 was recorded on oath [Exhibit-21]. DW-02 Ghulam [Exhibit-22. Thereafter counsel for appellant closed side through statement [Exhibit-23].

5. After observing all the legal and requisite formalities, trial Court found the appellant guilty of the offence with which he is charged and pronounced death sentence as stated above.

6. Mr. Muhammad Jamil Ahmed, learned counsel for the appellant after going through the entire prosecution evidence points out certain contradictions in the deposition recorded before the trial Court. He submits that it has come on the record through the complainant that his deceased daughter has contracted freewill marriage with the appellant four years back from the date of incident. According to him, it has also come on the record that the complainant and his wife [mother of the deceased] are not on good terms and she was residing separately. He points out that complainant himself admitted that the marriage of deceased daughter was solemnized with the appellant without his will and permission but his wife was ready to such marriage and on her patronizing the marriage was performed. His main point is that when complainant and his sons were not on good terms rather disputation with the appellant then why they came to the house of the appellant. He submits that the factual position is that the complainant and his sons have committed the murder of the deceased as they were not happy with the marriage of deceased with appellant. He points out that the same plea has been raised by the appellant in his statement recorded under section 342, Cr.P.C. as well as statement on oath and defense witness produced by him. According to him, the trial Court has ignored the defense evidence recorded before the trial Court.

7. On the other hand, learned Assistant Prosecutor General Sindh has half-heartedly opposed the instant appeal but she admits that in the peculiar circumstances of the case, the possibility of murder of the deceased by her father and/or brothers cannot be ruled out.

8. We have heard the arguments advanced and have scanned the entire material in the light of valued submissions made before us.

9. In the impugned judgment, it is important to note that the defense version is that the complainant himself is responsible for the alleged incident. It has come on the record through mouth of the complainant that the deceased and appellant entered into love marriage for which the deceased has opted under her freewill and consent. It has also come on the record through prosecution witnesses that the complainant is on disputation with his wife Mst. Niabat and they were living separately. The appellant and deceased entered into marital bond four years prior to the incident. It is also on the record that the complainant has never visited marital house of appellant and deceased during such long period. Nothing on the record is available which persuaded that the parties have come closer on account of intervention of some notables. In such a situation, it is indeed surprising that all of the sudden complainant and his two sons visited the house of appellant and deceased. The purpose of such sudden and un-timing visit has not been disclosed by the complainant either in his FIR, statement under section 161, Cr.P.C. or deposition recorded before the trial Court. We are of the view that in presence of such a grave disputation between the parties, such visit by the complainant and his sons appears to be dubious and the same cannot be termed as normal and perceivable practice or routine.

10. It is alleged by the complainant that the appellant became furious due to their visit and under such fit of fury and displeasure, he attacked upon the deceased. However, it is astonishing that the appellant did not cause any harm to the complainant and his two sons and allegedly decamped from the scene of offence without even trying to onslaught upon them, while the complainant party was empty handed at that time. Another aspect requires consideration, although, complainant claims in FIR that he and his sons have taken his injured daughter to hospital at Hala but record belies this fact. It appears from the record that the deceased was taken to hospital by the brother of the appellant and mother of the deceased and this fact is also admitted by prosecution witnesses. It is not believable that when the complainant was in good term with his wife and after the incident appellant ran away from the scene of the offence, instead of complainant and his sons, the brother of the appellant and mother of deceased has taken the deceased to the hospital. It is worth mentioning that when the deceased was shifted to hospital by the brother of appellant and his mother-in-law [mother of the deceased], then they should be examined by the prosecution. It has also come on the record that the dead body was handed over to mother of the deceased but she was not made witness by the prosecution. It appears that the prosecution has purposely avoided to produce these important witnesses, which goes against the prosecution as per provision of Article 129(g) of Qanun-e-Shahadat and supports the defense plea. It is also astonishing that after the incident, the complainant and his sons remained out of the picture and they did not try to lodge FIR just after the incident and have waited till the death of the deceased, the dead body was not handed over to complainant or any of his sons but the same was handed over to the mother of the deceased with whom the complainant was not in good term. The complainant in his statement recorded before trial Court has admitted that the marriage of the deceased with appellant was performed under the consent of his wife. In this backdrop, the story narrated by the complainant in the instant case seems doubtful when considered under the juxtaposition of defense evidence.

11. While examining the depositions of the prosecution witnesses, it is observed that the complainant has stated that he and his sons went to the house of deceased first time after her marriage with the appellant by observing freewill and consent but son of complainant PW Imtiaz states that they visited the house of her deceased sister prior to incident also. PW Imtiaz further states that his deceased sister married with appellant on the consent of his mother Mst. Niabat due to which, they were annoyed with her. PW Allah Nawaz is a marginal witness of all the memos during cross-examination, he admits that all the memos were prepared at PS. He also states that clothes of the deceased were light purple colour but he admits that in memo they were mentioned as black color. Regarding recovered hatchet, he states that the handle of the same was broken. This witness also states that at the time of arrest of the appellant, the crime weapon i.e. Axe was in his hand, which is not believable. Another fatal blow to the prosecution was caused by the Investigating Officer SIP Ahmed, who during cross-examination, admits that the accused is falsely implicated in this case. He also states that at the time of identification of dead body of the deceased, her father and brothers were not available in the hospital. The alleged incident was taken place on 06.01.2012 and on the same day the crime weapon was recovered but the same was sent to chemical Examiner on 13.01.2012 through one Khan Muhammad who was not examined. Ocular and medical version of the prosecution is also not on the same line when the complainant in the FIR says that appellant inflicted two hatchet blows upon the head of deceased and one blow upon her left hand whereas, as per Medical Officer [Exhibit-07], who conducted post mortem of the deceased, the deceased was having only two injuries, one over right arm and the other over temporal region of skull.

12. The appellant in his statement under section 342, Cr.P.C. has stated that the complainant party is responsible for the death of deceased. The appellant has described motive for doing so as the love marriage of deceased with appellant. The appellant also opted for recording his statement on oath and he has deposed on the similar line in his statement recorded on oath. It is worth mentioning that during cross-examination, the appellant remained firm regarding his opinion in respect of the alleged incident. The similar line was adopted by the defense witness during examination. The appellant in his statement on oath has stated that at the date and time of incident, he was not available at his home and in his absence, the complainant and his sons entered in the house and caused the fatal blows to deceased. He further states that due to his absence, his brother and relatives took his wife to hospital in injured condition. Similar statement was recorded on oath by his brother Ghulam Hussain during trial and both could not be shaken by learned prosecutor during cross-examination.

13. It is worth mentioning that the motive that was described by the complainant in his FIR and during his examination appears to be week as compared to the motives described by the appellant in his statement recorded before trial Court as discussed above. When the factual matrix of the case is judged by considering the prosecution evidence keeping the defense version in juxtaposition, the case against the appellant appears not free from doubt. In .the instant case, the prosecution could not explain about the purpose of visit of complainant party to the marital house of deceased after four years. The prosecution also could not explain how the disputation and opposition of love marriage of the daughter of complainant was softening to constrain the complainant party to visit the house of his daughter. The prosecution also remained failed to explain about the delay in lodging FIR especially when neither the complainant nor his sons have taken the deceased to hospital and none of them has received dead body of deceased. Prosecution could not explain about non-examining of the mother of the deceased who accompanied her while taking to hospital and received the dead body of the deceased.

14. It is well settled principles of criminal administration of justice that no conviction can be awarded to an accused until and unless reliable, trustworthy and unimpeachable evidence containing no discrepancy casting some cloud over the veracity of prosecution story is adduced by the prosecution. We are of the view that in the present case, the earlier prosecution story engulfed under the think clouds of doubt, as such, we are of the considered view that prosecution could not establish the guilt of appellant at home without reasonable doubt.

15. In these circumstances, we have no other option but to allow this appeal, as such, the appeal is allowed through our short order dated 30.10.2018, whereby the appellant was acquitted of the charge and ordered to be released forthwith if not required in other custody case. These are the reasons for our aforesaid short order.

16. As a result of our above findings, the reference as provided under section 374, Cr.P.C. submitted by trial Court for confirmation of death sentence to the appellant is answered in negative. JK/G-22/Sindh ???