2003 PLP 2143 (YLR)

3. I have gone through the trial Court's record, with the assistance of the learned counsel for the parties and the learned A.A.-G. I have already re-produced above the contents of the F.I.R. Now the said Muhammad Yousaf complainant appeared as P.W.6. After stating some preliminaries regarding his relationship with the deceased -lady and the marriage between her and the appellant and the children, he states that the couple resided in front of his house in Mohallah Sakhi Nagar, City Hassan Abdal. He woke up at 2-30 or 2-45 a.m. in the night on 5-5-1999 for urinating when he heard the sound of crying from the house of the appellant. He awoke up his sons Abdul Wahid and Muhammad Iqbal and all three of them went out. His sons following him. The door of the house of the appellant was closed from inside and they scaled over the door and went inside. The appellant was holding a cricket bat in his hand and he was beating his wife Mst. Rehana and blood was oozing from her head and her hair were cut. He asked appellant to allow him to provide some medicines but he did not allow. Then he states that after a short while she succumbed to the injuries. His sons also came inside and saw the occurrence. The appellant stated that his wife was a thief and does not enjoy good character and he has killed her. P.W.6 informed Fida Hussain Shah, Councillor about the occurrence. Then he states that as soon as he went outside a Police party on patrol duty met him and he reported the matter and gave statement Exh.P.B./1. In his cross-examination he was confronted with the said statement Exh.P.B./1 and several contradictions were pointed out and noted by the learned trial Court. He was further cross- examined and he stated that towards the south of his house there is a street 6 feet wide. He admitted that in front of his house there are houses of Ayub and Mst. Amtul Zahra and both the houses were inhabited at the time of occurrence. He then admitted that houses of Muhammad Akram and Riasat Hussain are located towards the East of his house. He then states that after 5/6 minutes of his entering the house of the appellant his sons came in. He stated that on his asking the appellant stopped beating his wife. He then states that after the death of Mst. Rehana he stayed there for about 15 minutes. He then stated that in his presence the appellant hit his wife twice with the bat. He then states that just after the death of Mst. Rehana the appellant fled away forthwith. He states that the police party met him at a distance of half a mile from the house of the appellant while he took 15 minutes while going to the house of Fida Hussain from the place of occurrence. He states that he left the said place at 3/3-30 a.m. for the house of Fida Hussain Shah where he stayed for 30/45 minutes and then they left to report the matter to the police who were at a distance of one furlong from the house of Fida Hussain and it took them 20/25 minutes while reporting the matter to the police where-after he came to his house. He states that he had recognized the cry of Mst. Rehana while he was in his house. He admits that no other neighbour woke up. He admits that on that very day Mst. Rehana had been arrested by the police on the accusation that she had committed theft in the house of an officer where she was working that when the appellant came to know he went there at 10-00 P.M. and got her released. He denied that the appellant after leaving his wife in his house at about 10-00 p.m., went to the house of the S.D.O. with whom he was attached as a Driver and that when he came back at about midnight he found his wife lying dead and he himself went to the police station to inform the occurrence.

4. Now Dr. Najaf Masood appeared as P.W.8. She stated that she conducted post mortem examination on the dead body of Mst. Rehana deceased on 5-5-1999. She proved the post-mortem report as Exh.P.G., Pictorial sketch Exh.P.G./1 and Exh.P.G./2. According to her it was a dead body of a weak built woman wearing faded colour Shalwar Qameez. Shalwar was blood-stained at middle area. Scalp hair was cut short but irregularly, left wrist showed old deformity. Rigour mortus was not fully developed. Numerous contusion marks and burnt skin marks present on the body both in front and back. A lacerated wound was present on left side of upper part of skull measuring 3 x 1 c.m. up to bone deep which was exposed also. Then she gives the detail of the injuries on external examination. Now apart from the various injuries described by the Doctor, she also found burnt skin marks on face and neck. According to her while other injuries were anti-mortem, the said burnt skin marks were post-mortem. Then she stated that the time elapsed in between the injuries and death was 2 to 4 hours and between death and post-mortem was approximately 8 to 12 hours. In her cross examination she confirmed that the deceased remained alive for two hours after receiving the injuries and according to her possibility cannot be ruled out that she remained alive for further two hours.

5. Now the learned trial Court while referring to the statement of P.W.8 has simply stated that the lady Doctor conducted post-mortem examination. While dealing with the evidence under the heading "Medical Evidence" in paras. 21 to 24 of his judgment, the learned trial Court has observed in para. 22 of the impugned judgment as follows:-- "Lady Dr. Najaf Masood P.W.8 conducted post-mortem examination on the body of deceased. She found numerous contusion marks on face, neck, trunk, and other parts of body. According to her, all the injuries were anti-mortem and were caused within 2 to 4 hours in between injures and death". I have already referred in some detail to the statement of the said Doctor P.W.8. The post-mortem report is Exh.P.G. Now this report reveals that according to the police the death had occurred at 6-15 a.m. on 5-5-1999. The body was examined at 3-00 p.m. on the same date. In Part VI of the report the Doctor has opined that burnt skin marks on face and neck were not anti- mortem.

6. Now according to the complainant P.W.6 as also his son Abdul Wahid P.W.7 the lady had died in their presence and the appellant fled away. Now according to the said F.I.R. Exh.P.B. the complainant had left his son Muhammad Iqbal to keep an eye on the dead body while he left first for the house of Fida Hussain Shah, Councillor and then proceeded to the police. I find that the said witness i.e. Muhammad Iqbal son of the complainant was given up. The said eye-witnesses P.W.6 and P.W.7 have categorically stated that they saw appellant beating his wife with a bat, P.W.6 stopped him, the lady died a short while after and the appellant fled away. All this happened between 2-30/2-45 a.m. and 3/3-30 a.m. when according to P.W.6 he left for the house of Fida Hussain Shah. Now according to the Doctor P. W .8 the death occurred at least two hours extendable to 4 hours from the time of receipt of injuries. There is no explanation whatsoever on record for the said discrepancy. The learned trial Court has simply failed to notice the same while reading the statement of the Doctor and the said report Exh.P.G. Even if this may be overlooked as asserted by the learned A.A.-G. What, however, really matters is that the said doctor had categorically opined that the burnt marks noted by her on the dead body were not anti-mortem meaning thereby these were post-mortem. Now both the P.Ws. 6 and 7 insist that the appellant fled away when the deceased succumbed to ~ her injuries. It is noted in Exh.P.B. recorded by Muhammad Sharif P.W.9 that Muhammad Iqbal is present in the house keeping a watch on the dead body. It has not even been alleged by the prosecution or even any of its witnesses that at any time after the death of the lady the appellant managed to go back to the house to cause the said burns post mortem.

7. So far as the recoveries are concerned P.W.9 states that he arrested the appellant on 6-5-1999 and he led to the recovery of bat P.3 which was recovered from a box lying in the room vide memo. Exh.P.E. He then states that the hair P.5, pieces of rope P.6/1-8, pair of scissors P.7, blood-stained clothes Shalwar P.8. Qameez P.9 and Dopatta P.10 were got recovered from the appellant from his residential house vide memo. Exh.P.J. Now it is in the inquest report Exh.P.I. that lady was wearing light gray shirt and shalwar and the Shalwar was blood-stained. Similar is the statement of Doctor P.W.8 and the contents of post mortem report Exh.P.G. There is no explanation as to how the said blood-stained Qameez and Shalwar came to be recovered from the house of the appellant. Similarly it is hardly believable in the circumstances of the case that the appellant managed to go back to put the bat in the box and to get it recovered from there.

8. Now the explanation, given by the appellant in reply to question No.7 of his statement under section 342, Cr.P.C. is that during the days of occurrence he was employed in WAPDA as a Lineman and posted in Hassan Abdal and was also working as a Driver in the matter of private vehicle belonging to an S.D. O. He had been provided a Servant Quarter where he was residing with his family. This quarter was attached to Bungalow of the S.D.O. and his wife used to work in the house of the said S.D.O. About a year prior to the occurrence his wife stole Rs.30,000 from the house of the S.D.O. and the family has turned out from the Quarter but he continued to work as Driver and reimbursed Rs.30,000 in instalments. He used to reprimand his wife every now and then to give up the said habit. According to him, she was of a loose character and had developed illicit relations with different people in Hassan Abdal and for this reason she remained absent from the house. On 4-5-1999 he came to know that police of Police Station Wah Cantt. took her along in a theft case. He went to the said police station and got her released on the promise that he shall pay back Rs.15,000 to the complainant. On the same night he took her back to his house at 10-00 p.m. and left her and proceeded to duty in the house of S.D.O. WAPDA'. He returned home at 12-00 midnight and found his wife lying dead. Thereafter he proceeded to the Police Station Hassan Abdal and informed the police about it who accompanied it to the place of occurrence. The complainant who is closely related to his wife lives in the same vicinity came to his house and involved him in this case only because of suspicion.

9. Now I must say that the said statement of the appellant in a manner of speaking is rather inculpatory if seen in the light of the case sought to be set up by the prosecution. The infirmities found above in the matter of prosecution case vis-a-vis the medical evidence also equally apply to the said statement made by the accused inasmuch as he admits having been in the company of his wife at 10-00 p.m. when he left her home. The fact remains that even if it is to be assumed that he gave her, the fatal injuries at 10-00 p.m. or shortly thereafter, the death could not have occurred at a point of time stated.

10. Having thus examined the records, do find that the so-called eye-witnesses have given absolutely false statements. The medical report and the statement of the Doctor completely demolishes the said ocular account particularly with reference to the post-mortem burn marks found by the Doctor on the dead body.

11. Learned counsel for the appellant draws my attention to a judgment in the case of Muhammad Khan and another v. The State (1999 SCMR 1220). Their Lordships found the ocular testimony to be in conflict with the medical evidence and doubted the presence of the eye-witnesses at the spot a, the relevant time, it was observed as follows in para. 15 of the judgment at page 1228 of the report:-- "It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt."

12. As a result of the above discussion allow this appeal, set aside the impugned judgment, conviction and sentence and acquit the appellant, giving him the benefit of doubt. In case he is not required in any other case, he shall be released forthwith. M.B.A./B-142/L Appeal allowed.