Abdul Qayoom & Ors (Appellant) VS The State (Respondent)

51 lvftt ory 1A f tor

Zb/W2 IN THE HIGH COPRT OF SINDH,

CIRCUIT COURT' }IYD}IRAIIAT}

Before Mr. Justice Mohamru*ad l(arirn l(tran Agtra

Cr. Appeal No.S- 17O of 201 5.

Y Abdui Qayoom and another

Versusi

The State

Appellants : Abdul Qayoom Through NIr. Narrclan A. I(ella, Aclvocate and another Respondent : The State Through Mr. Shahicl Ahmed Shaikh

A.P.G.

Complainant: Natho Through Mr. Wali Xl{r,rtrarrrrnarl .lanra-rri, Advocate

Date of hearing 26.O4.20t7 Date of juclgment 27.O4.2017

JUDGMIENl' MOHAMMAD KARIM I(HAN AGHA J.- A ppellanls Alrr1rrl Qayoour and Daleel were tried by lbarned Additional ,.jessions .Trrrlge , '['arrrlo Muhammad Khan, in Sessions Case I\o.616 of 20 1t, arisirrg onl of Crime No.89 of 20 11, registered at Police Station Etr-rlri ljtrah l{arirn, under sections 322 and 2Ol PPC. Accused / appellant,s wele tbunrl guilty by judgment dated 2L.IL.2Ol5 (the impugnecl .jtrdgrnent) anrl were convicted and sentenced u/ s 3O2 P[,(-- [o sr-rller rigorous imprisonment for 10 years and to pay-fine of Rs.IOO,OOO/- each as compensation to be paid to the legal hpirs of cleceased rr.rirror', il1 carrr-: of default in payment of fine the accused / appellants shall rrndergo .tif .

T I. for O1 year. The benefit of section 382-8 Cr.P.C. was also e.rtendecl to the accused / appellants.

2.Briefly, the facts of the prosecution case are tlrarl- complainarrt Natho on L2.O5.2O11 lodged F.l.lt. stating therein thal- "I anr hari, about 2O years back we entered into rnarriage with orrr r.lrrcles ari exchange marriage, in which we gave the hancl of otrr sister Msl,. Uzor,r to Hussain son of Laiq and in exchange the sister of Flr-rssairr w.as

<L{

married with my brother Khair Muhamrlad and therealtel in tl-re year, 1996 Hussain Lund has murderecl my brother Abclr-rl tVtaieecl aucl hc was sentenced and presently he is conlinecl in iail ancl my sister Mst Uzoo was residing in her brothers-i1-law's ltr:gse tlalllely Al-rtlr-tl Qayoom ancl Dalel. on 18.o4.2011 I was available itl nry lrortsc, wlrete JUman son of Mubarak Lund and AlAtn sc,n of 1\rlarrt l'rtttrl tli:r'':lrlsterl that we and Abdul Qayoom are resicling adjacerrt- irrtcl aI lrlgtrt we wele ' available and at O9.O'Clock there was hue antl cries o{ ltre ltrrly ft'orrr the house of Abdul Qayoom, upon which they wenL t't.ttrtrirrg att(l .savv that Abdul Qayoom was duly arlnecl with Llamboo ancl lrc ivas l-reatitrg your sister Mst. Uzoo and Dalel was holclin11 he1 irorrr her lrait-s'arrr'l both of them were beating her and the lady rvas givirrg- llte: trartre '.rl Almighty Allah that clon't beat her but the act:usecl pt:r^sotrs lt-rlcl tlrrlt we will kill you ancl we r.aised haketls but ttrey lcrld r-ls clotr't corttt: nearer as such they did not go nearer ancl the latly hlrcl tlied. ttn hearing such facts, I proceeded to Police slatiorr Brrlri shnlr l(arinr, where I gave such kind of information ancl at ttrat tirne lj.lt., ^^,,.-l l-';rl Maheshwari reached at the place of warclat a1rl l.oqh tl're tJearl llorly rrt RHC Bulri Shah Karim, where postrnolterll 1vA{i t'(rttrltt'. lorl ,rtr(J rlte

parts taken out from the body, were clispatcht:cl lo clterntcrtl attalyztr I(arachi and after receiving the chemical report the wMO has issrte'tl final postmortem report, which reveals that Mst. [Jzoo ha,'; clied clue to torture and fear as such today I lrzive come at P'ij anrl trrztke [itt: rtry complaint that accused Abctul Qayoom and Dalel have l'orl-rrred sister Mst. Uzoo aged about g3 134 years and clue l.r.r lortttre, she hitr; the died and the accused have suppressecl the crirne and trave spreacl news that Mst. Uzoo has taken the poison ancl has comrrritterl suicirlc,

investigation be made.

ttrt

3.After completing the usual investigatiorr' police sulrrrritted challan against above named accused'

was fi'artrerJ lry lriarl t:otrt{

4..Formal charge against the accused Y Accused pleaded not guilty and claimed to be tried' 5.lnordertosubstantiateitscasetheprosecutiorrexauriDecl(lti rlkrserl ilri sitl(.-' prosecution witnesses (PW's) ancl thereafter prosecLltiorl 6.Thereafter,statementsofaccrrsed/appellantsltnder.'.:iecttc,tt 342 Cr.P.C. were recorded vide Exs'14 and 15' wherein they deniecl theprosecutioncaseclaimingtheirinnocencestatingthatllreyltave ,|, tf

3 6-t

been falsely implicated in tl'ris case as the complainant wantecl to usurp their agricultural land ancl on account of enfility. 'l'hey ltowever, did not examine themselves on oatli rror led arty evirlenr:c itr tlrcir' defence.

7.The learned trial court after hearing tl-re leartrerJ cor-rnsel for the parties and on the assessment of the entire r:vir-lelr:e t:prlvit:1etl art'l Y sentenced the accused / appellants as statecl in t'tre irrrpugrrecl judgment.

8' The facts of this case as well as evidencr: lrrorlucerl I'ry lro(tr tlre parties before the trial Court fincl an elatrorate tttetttitltt in tlre judgment passed by the trial court therelble tlle srrttre ttta.y ltc.rt l't: reprOcluceri here so as to avoicl cluplica.tiorr atrttI lllttlr:t:t]risaly tl'ltelili'rtr g.Learnedcounselfortheappellantscontendedlhatlheonly;eye witness was not confidence inspiring, reliable o. ,r'.,"1urorithy attcl itl; such his evidelce shoulcl be cliscarclecl; in 1.ra1tic:rtlal Lris t''t.rrtr.[rlr;t '.litl not appeal to reason as he failed to intervetle when he saw lris a'tttrt being beaten and killed by the appellants; tltat l.tre inr:irletrt- rrlbgecll;' took place at 9pm however there was no eviclence ttrnt lhe:r'e w€t.r i-tlly light available for the eye witness to see the mttrder ol Llre cleceatierl' rlays by tlre that the FIR was registered after an inorclinate delay of 21 complainant; that a day after the inciclent wherr the r:r.[rr 1:rtr'rinat t nur'rle t

t'l-lc tranr{lfi an NC of the incident at the relevant PS he clid nol rnentiott ofJumaaSaneyewitnessandinsteaclnrentionedt}tillRi.rl;rlttlllltt.r Lund informed him that the deceasecl I'racl been proisonerl; 1.116 116i1tt-irl evidencedidnotsupportthecaseoftheprosectttiorrandtlrattlrc entttitv ittt'l appellants had been falsely implicatecl in this case due to in order to usurp their lar-rds an<l lbr all ltre aborie tea:irtn:.i lltr prosecutionhadfailedtoproveitscaseagairrsttl'reappellarltsLreyrrtt.'| a reasonable doubt and as suctr their appenl should be nllowetl rrtrtl

the appeltants should be acquittecl

Y lo.Insupportoflriscontentions,Iearnedcotrnselforalrpellarrttl}rztll reliecl upon the cases of Muhammacl Riaz and 2 others v"fhe fitill't:

and another (2Ol3 PCr.LI ll22l, Zafar v"l'he state (2O15 [)(-'r'l'J

424l,RlazHussain v. The State (2O13 PCr'LJ L42Bl' Snml llllah nrrrl others v. The state and others (2015 PCr.tJ 416''), Mst' Shnzia Parveenv.Thestate(2o14SCMRtl97),SajjadAh'rrretlv.,[.lr.e'.Jlrrll. and 3 others (2015 PCr.l^l 585), Ishtiaq Masih aliar $obi v"llrt: Stete (2015 PCr'LJ 797), Shahbazv. Tlre State (2oo8 YI.Ii 4f},/), Zatfat

t

1(ts

Iqbal alias Zafri and another v. 'Ihe State ('2Ol5IrClr.l^/ 2it[,), 'l'aritg Aziz v. The State (2011 YLR t844},'fazeem Akhtar v- 'l'he $tal:e (2OO2 YLR 768), Muhammad Wasif Khan and others v' The Sitate and others (2011 PCT.LJ 47O) and Muhammad ltalique v' 'Ihe State (2Or4 SCMR 1698).

11.Learned A.P.G. while supportirrg the irnpr-rgrrecl .irrrlgrn.'ttt lrrlr, contended that the prosecution had proved its case lleyoncl a reasonable dor-rbt through ocular evidence which [acl beetr ,J,tl-1' corroborated by the medical evidence; that the appellants t--rlultl lre convictecl on the testimony of eye witness Juma alone ils his evitlerrr-:e was reliable and confidence ilspiring; that there was a rnisttrlre irr tlre original NC as the complainant was illiterat.e; that all the prosecutic-rrr evidence is corroborative and there are no major contradictiotrs ir-r the same and thus for all the above reasons t[e impttgnecl iuclgmerrt should be upheld and the appeal dismissed.

12.In support of his contention, learned APC} tras t'eliecl rrprotr 1.lre cases of Muhammad Ehsan v. The state (2006 scMlt 1t157), Naih Muhammad alias Naika and another v. '['h.e filat.r: (ilo()'/ l'i(]Mt'l 1639), Anwar Shamim and another v. 'I'lre state (2O1O SCMIT l',lq1), Arif v. The state and 2 others (PI-D 2006 Peshawar 5), ',fhe state ). through Muhammad Afzal and others v. waheecl Iqbal and others (2oos PCT.LJ 1384).

13.Learned counsel for the complaiualt acloptecl ttre argr-tnretrts ol the APG and reliecl upon the cases of The state v. Haider zaidi and 2 others (2OO1 SCMR 19i9) and Dildar llussaiu v. Muhamrnatl Alzaal allas Chala and 3 others (PLD 2OO4 Supreme Court 663)'

14.I have considered the argumentp of learned counsel, pertrsecl tltt' record and the case law cited by them at the bar'

15.It woulcl seem to me that the lcey issues tn this case are trour tJtt- deceased died i.e her cause of death and whether the appellatrts were responsible for her death bearing in mincl that the prosecntion has to prove its case based on the eviclence lead against the appellantF at trial beyond a reasonable doubt and that arry benelit ol the aoltrt must go to the aPPellants.

16.It is well settlecl law t.hat an accttsed rnay be convicl.ecl lrnsetl orl the testimony of one eye witness alone provided that the evirlencc' of such a witness is unlmpeachable and confldence-inspiring arrd

Y/

,l

corroboreted by medical evidence. Reference in this respect can be made to the case of Muhammad Ehsan v. The state (2OO(; SCMIT 1Bs7)

17.I however do not Iind the sole eye witness PW 2's evidence to be either unimpeachable, credible, trnst worthy or confirtence irrspiritlpi for the following leasons when such reasolls are reacl asr a whote especially when the other prosecution eviclence is also consiclerecl:

(a)That the complainant is his rrraternal uncle and his farnily lre.rve enmity with the appellants and may well be irrterest.ed ir-r [alselv implicating the appellants.

(b)He lives about Yz an acreaway from the house (PW 7 Ali Ahmecl) where the deceased was killed yet he was able to hear her cries'

(c)After hearing the her cries he was still able to reach the tlotrl;t: where the deceased was killecl after covering at least | 12. an ac:t'e atttl

be in time to witness the deceased being beaten ancl l<illecl by the

appellants in his Presence.

(d)That despite the time being gpm he was atrle to clearly wit[e''ss [lt':

beating and killings despite there being no evidence of erny availrrl;lr:

, lightandthehousewherehewitnessedthebeatingsarrdrnttrclerbcirrg surrounded by a hedge. He coulcl also allegectly hear wtrat tl-re With appellants were saying to the victim from outside the hor-rse' regardtoalackotlightreferencemayberrradetcrtlrecal;esoI.Mst.. Ahmed v" Shazia Parveen v. The State (2014 SCMR Il97\' SajJad Biaz and 2 The State and 3 others (2O15 PCr'LJ 585)' Muhamma<t and sfrrni ullah others v. The state and another (2013 PCT.LJ ll22l and others v. The Stite and others (2015 PCr'LJ'116) startetl tlrtrl lrt:

(e)In his 5.161 Statement.which was put to hitlr lre r)r;cut|erl rirr hearcl the hue and cries on 18-04-2011 when the inciclerrl. 17-4-2011 which is a glaring contradiction' inflictetl

(f)In cross examination he also states that the appellants as per the lathi blows on the entire body of the deceased however meclicalevidencethedeceasedreceived3bruiseinjuriesirrrclrrrost as per the importantly none of which causecl the death of the deceased medical evidence.

PW Aalirtlr

(g)allegedly he was accompanied by another eye witness wlro who also saw the murder however this most important witr-ress 1+'l'

l

<*le would have corroborated him was not callecl by the ltrosecutiorr despite being namecl in the challon as a witness. lt may well be thut such witness woulcl not have supportecl the version of PW .Jtrman especially as he lived 4/5 KM tiorrr his house and he disclose<l lbr the first time during cross examination that PW Aalam was stayirrg over night as his guest.

(h)More slgnillcantly in my view there are certain aspecl.s of tl're unnatural conduct/actions of eye witness PW .luman after wit.nessirrg the incident (if in fact he did witness the incident which in rn1. vls1,v seems highly doubtful based on the evidence) which clo trot $eem k) appeal to reason.. Firstly the deceased was his aunt aud according ttr his evidence he heard her crying out, heard the appellan[s say t.hev were going to kilt her, saw her being beaten by a lathi (wleich canllol be equated to such a dangerolrs weapon to himself such as a lire arrn) and was with Alam yet neither he nor Alam made any atternpt to intervene to stop the beating and murder of his aunt. Secondly, having witnessed the brutal murder of his aunt lte tnade no elltrrt tc) immediately report this most seriolls o[ incidents to the police. According to him he went home, told,his motltet' o[ the inci<lent arrtl then went to bed and slept soundly before going to the house of ttre victims brother in the morning where he related the events ol' ttle previous night to him. It is not understandable in rny view why Jttrnan did not register the FIR immediately (if ir-r fact lre was an eye witnesr;) especially as the PS was only about 10 KM's away connected by {r pacca road as per PW 5 Nand Lal).According to his crossj exallinettion he told his mother about the incitlent i.e the lrlurder of her sister'bltt his mother did not react at all ancl dicl not even go ancl see the deceased's bocly despite them living close by. FIis mother was als0 ncrt callecl as a prosecution witness to corroborate tttis aspe<;l ol his evidence. In my view none of the above condttct appeals to ?I reasonable man. As was recently held by the l-Ion'ble Srlpreme CottIt in the case of Muhammad Asif v. 'l'he state (2O.1"/ S C N4 lt 4t](t) which found as under in rpspect of such incidents at Para's 7 and 10' "Para7.........This lacly was aged about 50/:;1 yearrl' while her husband was 70 years of age ancl whett the tw<l eye-witnesses not produced at the trial namely lftil<ttarr and Tajammal, weie close fi iends of the deceased Lhe[ why she being an aged tady and her husbancl, wlto was itl the advanc"d.g. of fri" life followecl thenr' ll Lltey wr.:t'' apprehending s=omething abnormal, Jh"y worrlcl havt: conveniently told the above two friends of the deceasecl that being late dark night time, it was not advisal''le tt.r

I

V

/r

1rt take the deceasecl outsicle. No coilvinciug and plausibltr reason has been advanced as to why they lrol'h followed the deceased and his two friends aud what wastheobjectbehindit'Ttrecorrdrrctofbotlrtlr,ese alleged eye--witnesses runs colrnter to rrolural huurtrrt behavioui and habit in the giveu circ.mstances arrtl. i, the absence of plausible explanation, rro pnrdcnt mintl would believe such larrtastic story which nppears to hc: the hand-Art of the local policc he<:rtrtsr: itl n rrighl occurfence of this nature, rernaiiling un-witrressed, the police imprudently indulges in such like tactics to mislead the court of law and justice' (lrold arldetl)

B

lo.WefailtounderstandtlratirrtlrePfeseltcetrfl:lrr: two close friends accomparrying the deceased arrrl parents, how such tragedy with a son could ltappert wtttrout any interverrtion on their part to (:olne l't'r rescue of the deceased when they were not far away as shown in the site plan." (bold addecl)

(i)According to eye witness Jnman the appellant-s rntrrclerecl his aunt. with a lathi however the appellants made nc, effort tti hide or conceal the lathi which accorcling to hiilr ,165 tltr: rntttrlel weapon and left it at the scene of the ctirne' l'ikewise the appellants made no efforts to clispose of the body of the cleceatst:tl * which presumably the appellants would have l<rrown ()lr a lr()i;l mortem would have shown that the deceasecl was beaten trr death with a weapon such as a lathi which when tbuud was 1]o[ even blood stained. Neither was there any bloocl lotturl at ";tairts-i the house which ought to have been expectec-l aller it severri- beating and pulling of hair which lead to the death of the deceased. In my view again suchbehavior-rr/concluct ol' llri appellant's action does not appeal to r-eason ' Agairr as was helcl in the case of Muhammad Asif (Supra) at Para l'/ "|T.Itis,normalpracticean<lcorrducl-ofr:tllpr'itsllral when they select nignt time tbr cornmissiorr ol sLlch crirrrc, Y their firsi anxiety is to cancel their identity so thert thcv maygoscot-freeunidentifiedandintlratcottr.setl-re.ytry their level best to conceal or clestroy each piece o[ evitletrcc' incriminating in nature which, rnight be tlserl rrgaitrsl. thern in the iu tr'u'c Llrus, lL.rrrart lacul[y oI ;'r uelcrrt'' rr;uLt1[ not accept the present story rather, aftel' conrrnittirrg crirLtt' with th; dag[er, the appellant cor"tlcl throw it awal' an5rwhere ir-, iry field, water canals, well tlr tlllrer' l.rlatre ancl no circumstances would have chosetl ftj lrret;etve iI irr his own shop if believed so because thnt was suscelrtibl,' to recovery by tl-re Police."

\ky

1'l L

18.Thus, having found the eviclence of the sole eye witness PW ''l Juman to be neither unimpeachable, credible, trust worthy llor' confidence inspiring I now turn to examine the other available evidence.

i9. PW 1 was Jano @ Natho who is the complainarrL iri ttris case. I'le: l- admits that there is enmity between the appellants ancl trimself. LIe is not an eye witness and according to the original version r.rl events lrr: was informed by Rasool Bux on 18-04-2011 at his l-rouse that his ()tl sister had expired at the appellant's house a{'ter clt-irll<ittg ptril;tlt'l' receiving this ipformatiorr lre wcrrt tt-i PS BLrhi shalr [ii,r.l't-crrl i.trrLl registered a NC which is reproduced g.s ttrtcter lb1 earse ol'tr:l'etettce' Note Arrivall0-27 At this lime we InsP./S.ll't) Nancl t.al Maheshwari catne from Quarto-r' in tht- office of P.S ancl becatne busy in official worl< No.6 Note At this tirne aPPeal'ed one Natlrt-r son oi Entry of Mooso by caste Lund t f o village l-la{i departure Sawan Lurncl near Manil<wa-lrorwa Roarl, Taluka Bulri Shatr l(aritrt who clisclos;r:tl that his sister Mst. Uzoo who was marriecl l with my maternal uttcle'$ son narncrly Hussaitr son o[ Laicl Ltrn<'l about l'/ ll[t' years ago. ln year I996, tlrrssain pnlll' murdered trly brothet Allth'rl Majeerl' thereafter. are tl()t in agreernent- I-l e r'l'a:; sentenced irr my brother's ftLlrcler casc and is presently confined in Jail' Wherr:ar;

my sister Mst. Uzoo, who is resicling witlr brothers of her husband Abdul ()ayoorrt and others. Today in the mnrulng when I 'l'rurd nntl was in my house Rasool llrr* Rustam Luntl inforrned rue about tuy sister Mst. Uzoo. He was inforurecl by her husband's brother Ahdrrl Qayoortt party that my sister has expirerl drre lrr tlrinking of poisorr. Orl this ltews I itrrt now appearing at the P'S thltt l lrrrv.

doubt that my sister nright have heerr killed. The sttch informatiorl w€ts enteterl t

(l'z

andIS H.O-Nanclalal Ma hesl-rwari alor-rg with staff arrcl olTicial vehicle t\o'ilt' 6952 ancl along with WFIC c'le1:arletl fcrr the Sl'fll' ----Not leg ible--- is witl'r rrs. Afil ---rrc)t Ieeible-at the Police Statiotr

Sd/- in Englislt t.'l'I S.H.O Nand Lal Natho s/o Mooso Luntl

bold aclded

20.ThisNCdoesnotmentionthenamesofJurrrtaanclAlarn(:ornlrrg tohishouseandnordoesitmentionthathissisterwasbeatetrtt-t death. Rather it says that his sister died of poisoning' 2t.AccordingtothecomplainantthiserrorwastnaclebecaLtse[re: wasanilliteratemanandwasnotabletoreadtlreNC.HowevertheNC was recorded by SHO Nand Lal who was also the first- l() of the cnse tlrat the NC and appeared as PW 5 and in his evidence conlirrned

PW 5

recorded exactly what was narrated to him by the complainant' t'ro evidet-'ce + Nand Lal was not contradicted on this point. Fr.rrthermore' between liFlC) has been brought on record that there was any enrnity NandLalandthecomplainantoranyotherlloliceofficerasstrciatecl withthiscasefortheretobeanyreasortlbrtherrrtollo[toacr.:trrate|y record the complainants NC. In tact the vet'siort o[ t.lrr: r-:ottrlllaittirttl

andinhisevidenceandinhisNCrecorcledthedayal.ter.tlrcirrciclent T'he onl'y are so different that there can be no case of any inaccuracy' explanation for the difference is that the NC was clelitreralely arrcl

maleficlelyrecordedbyNandLaltoshowactrmpletelydifferentsttlly Nand Lal had any and there is no evidence that this was the case or reasontodoso.This,raisesfurtherdoubtonPW2'h'rtnatltheallegerl eyewitnessthathewenttoseePWlthecorrrplainarrt,atrcltrat.rateclt<, v versiorr is him the events of the earlier night since his (Juman's) completely different to the NC'Juman ancl Alam are not rnentioned irr sist-er' beirrg the NC and there is no allegatiorr of tlre colnplainant,s beatentodeath.InsteadtheNCreferrecltolrissisterbeinglroisonecl. InfactifPw2Jumanhadnarrateclthestorycrft.trebeatil-rg,o.1-i11[rrf the corrrPlainants sister' to the cornplainant thert why did llr';

complainant not record an FIR to this effect? This is nol-

r)

1'l q understandable. Accorcling to PW 5 (Nand Lal the initieil IO) in hirr evidence this was because the complainant only had suspiciorrs of the murder of his sister but even at that time tlre cornplainarrrt did not disclose to him (Pw 5 Nand Lal) that the appellants har.l car'rried latlri blows to his sister. Despite being illiterate this was sotnethirrg whit:l.r the complainant coulcl have easily orally told Nand Lal the initial lO but quite incredibly it appears that he failecl to cto so'

22.In the event an FIR was registerecl by the complainant' 25 days after the incident against the appellants for beating his sist.er to deatl-r and 5 days after the receipt of the post morteln repolt wtrich tlelav is not explained in the FIR .Such a long clelay ir-r liling Lhe [rlR is rr seriousflawintheprosecutionscaseespeciallyassrrchclelayhasrtot been adequately explained: Even if it can be said that the complainant waswaitingonthefinalmedicalreporttherewasstillarrrtnexplainerl delay of 5 days in lodging the FIR' It is well settled law lhat such a tlarnage tlre long unexplained delay in lodging the FIR can seriously gives tlre complainants case or even be fatal to it sin.:e the delay o[ Lime complainant, other interested witnesses and the police ptenty tocookupafalsecaseagainsttheaccused.Thereisalrlr:tlrot,aol.crrse be madc to law on this point however for the time being reterence nray the cases of Muhammad Sharlfan Bibi and others v' Muhammad I Yaelnandothers(2oI2SCMR82),Iftikharl:Iussainandotlrersv, The State (2OO4 SCMR 1185), Muhammad ltafique v' The $ltate (2014 SCMR l6gill.Zafar Iqbal alias Zafri and arrother v' The State (2015 PCT.IJ 285), Tariq Azlz v' The St'ate (2O11 Yl'R lB'[4] arrrl Shahbaz v. The State (2OO8 YLR 487) can Lre

23.There is even case law to the effect that no reliance placed on an FIR after a preliminary investigation' In tlris resperjt reliance is placed on Tazeem Akhtar v' The State (2OO2 Yl'R 768) andthatsuchapracticeopenedupt}reclangersofirrrprovir.rgtlre prosecutioncaseandtryingtoalignitwitlrtlrenredicrrlevirlerrr:ettt'; the case itt this instartt t and when it became avaitable as appears to be case. In this respect reference is macle to the case of Mrrharnmad (2O11 PClr'tJ 470)' Wasif Khan and others v' The State and others the eviclertce t"rl

24.ln myview little, if any, reliance can be placecl on nnct it erppeats; lt'ri-rt the complainant for the reasons discussecl above medical evicletrce as the he has tried to tailor his case to fit in with the case developed.

V*'

l0

('r s

25.With regard to the'medical eviclence in my view this is triglrty unreliable and does r-rot appear to supFort the prosecution case'

26.As per the police Danishnarma dated 18-04-2011 it wars opitred was that the deceased died due to drinking poison and a post tnottem recommended.

27.PW 3 Dr.Zubeda carried out the post mortern and iu ltel as was evidence she states that the death was caused due to Asphyxia informed to her by the police which is contraty to tl-re opirtiorr oltlrr' policeintheDanishnarmaanclwasdenieclbytheirritiall(-]Pw5Narrcl of death Lal who stated that he ngver told Dr.Zubeda l-hat the cause 3'3O pm on was Asphyxia. Interestingly in her post mortem notes at 18-O4-2Oll Dr.Zubeda has noted the cause of death as"'asphyx'ilr'" And later ,,reserved (the cause of death) until the report ol sartrples (visera's) from the chemical analyst laboratories'" There also appears is opinecl' to be some over writing on the time and date where asphyxia reporl of In my view this contradiction brings the mediczrl eviclence ancl Dr.Zubeda in doubt. In any event it appears that asphvxia is more related to strangulation thdn to being beaten by a lattri' whethel'

28.Dr.Zubeda finds 3 bruised injuries but she does not opine []ltc these are caused by hard substance or sharp cutting weapon' + specifically gave evidence however that,

..Itiscorrectthatduetobruisesasrnerrtiorredinthepost mortcm teport in ordinary Gotlrse a person cannot die" 2g.InmyviewsuchastatemenLwouldseerntoinclicatetlrateverril the deceased was beaten by a lathi this was not the callse of her death.

30.Dr.Zubeda further states in her evidence as under: ..ItiscorrectthatvisceraofthecleceasedWeref-ientforexllet.t opinion as I was not sure about cause of death of deceersecl '

There is no such instrurment whicl-r certl tlisckr:rc lItr: r:lr:'rt;t t]flllf;r:

ofdeath.Itiscorrectthatlwasnotsrrrealrrrrrtll,*gqugerrf' death of deceased Mst' Azoo after tlre postmortonl' ilt the

tirne of handing over the dead body to the police ' " ' - ' ' ' Itiscorrectthattherewasno,ruptul.eoftllooclvesselsirrt'lre body of deceased. It is correct illat there was no clot in the clead body of deceased".

31.The chemical report tbr poisoning carre bacl< negative' y.t-

1l

1'l t (5 clavs

32.However in her final Post Mortem report clated 07-05-2011 later the complainant filed the IrlR) Dr'Zttbeda finds tlre cause rrl death as under,

"Cardio pulmonary arrest drre to fear of the signs ol' violence" 33.InmyView,althoug}rlarnnotanrerlicalexperl-,tlirrditditfi.-.r.rlt to understand as to how Dr.Zubecla hacl reached sr'tclt olrini()r.r especially as she was not an eye witness ancl hacl been tolcl by ltrt:

police, according to her, that the deceasecl died on account ol poisoning.

34.I cannot even understand as to l-tow someone otr a simple po:;l mortem can conclude that Someone clied cltrc to fear cll tlre sigrr:.; clt

violence which apparently brought on a cardio pulmouary'

35.I find such an opinion to be confi-rsing and certainly rroI corroborative that the deceased diecl due to a lathi attert:lc as ,;l it:

herself (Dr.Zubeda) had already opinecl

36.Thus, I find the rnedical evidence l.o be ol little, if rrrrY, corroborative value to the ocular evideuce which as I have alreacty

discussed in terms of the eye witness PW 2 Juman and tlte

,\. complainant PW 1 Jano @ Natho to be completely unconvincrng'

37.It is also relevant that absolutely no motive has corne on recutcl especirrlly as to why the appellants would want to tnurcler the rleceased rvitlr as it appears that her young minor dar-rghter was living happily them. No evidence of any fights between the appellants and the deceasecl or any other motive has come on record as Lo why the appellants would want to murder the cleceased which may alsn lrc damaging to the prosecution case when the evidence is reacl as at whole, In this respect reliance is placed onZafar v' The State (20 15 PCr.l) 4241

38.The Mushir's were interested persons and the new lO PW tt

Muhammedlqbalwhowasappointeclafterfilingoltl-reFIRtlnl2-()5i. statenit:ttts 2011 recorded the state'ments of Alam ancl .lurnatl.T'hese wererecordedmorethan25daysaftertheinciclentatrdassltclrllle delayinrecordingthem.especiallyastheywerebotheyewitnesstrti-ty be fatal to the prosecutions case. Rel'erence in this respect ttrety l'r:

macle to the case of Muhammed'Asif (supra).Even otherwise as

mentioned earlier for unexplained reasons Alam was rlot callecl ers ur

\'t '

l'.)

q11

witness despite being on the witness list' Since the vardal was in my view is ol' inspected days after the incident such an inspection any, relevance' On 14-O5-2O11 PW 8 Muhatnmr:tl [c1[ral little, if butl dicl not associate arrested appellant Abdul Qayoom at a busy areil (12 noou) and tltelc:

any independent Mushir despite it being day time ally is no evidence to suggest that he attempted Lo assor:iale independent mushir.

L

ttrat the

39.It would appear from my assessment of the evidence deceased is ttrat she main linkage of the appellants to the cleath of tl're oI1 my earlier was found in their house' A part from that basecl to be very tittle' if discussion of the evidence and the law there appears againsl tl-re apprellant"-r any, credible, reliable and trust worthy evidence for the offense for which they have been convicted'

40.I agree with the well settled legal proposition that an eYe witne'ss shouldnotbedisbelievedsimplybecatrselreisrelatecltrrtlreclecea:;t:cl, Lhe apPellant:r but in this case enmity h4s come on recorcl lletweetr andthecomplainantsideandinmyviewascliscurssedal'rovePW2'"; evidence (the only eye witness) is not at all trust wtrrthy' reliable or corrtraclictiotrs al.e Lcl l-,e confidence inspiring' Like wise as a rttle nrinor. prosecution wittresses;

ignored but in this case in my view the 3 key eye witness Jutnau (PW 1 the complainant Jano @ Natho' PW 2 the and PW 3 Dr.Zubeda's evidence is cornpletely unreliable' such cannot l-re untrustworthy and not confidence inspiring ancl as safely relied upon whaL to speak of any potential rninor corll-racliction'

4l.Evenotherwiseitisawellsettleclprincipleofcrimina]lawthr-rt beyortcl ir it is for the prosecution to prove its case against the accused shadow of a doubt and if there is any doubt in the prosecution's r:ase the benefit of such doubt, as set ottt iu the case ol I'ariq ltervez v' TheState(1995SCMR1345)mustgototlreappeltantasol.riglrtrl.s opposedtoconcession'Howeverinconsideringthisaspect'ofthet:arsel V fitrr(e am also guided by the case of Faheem Ahmecl Irnroorpri (2OO8 SCMR 15721 whete it was helcl as uncler at P' 1576 at Pala L)

"It needs no reiteration that for the purpose of giving benefit ' ;i;;;;;;;;; person, moie than one infirmiw is not inlirmity creating reasonable doubtthe ""tttsed iu required, a single the mind oi" iu""o"able and prutlent rnind regartllng truth of tfre "t "tg"' makes the-whole case doubtful' Merelv becausetheburde-nisontheacctrsedtoprovelrisinrtocettct:prove its. it does not absolve the prosecution from its duty to ,l.,

l_t

1ta case against the accused beyond any shadow o{ doubt'"(bolcl added)

42.In the recent supreme Court case of Hashim Qasim V State (Criminal Appeals No.l15 and 116 of 2O13) claterl 12th April 'l0l'/ ol'dor'ttrt treltl as the Hon'ble supreme Court in respect of the benefit under at Para 2O:

ertl-itle ttre "Even a single doubt, if found reasonable, woulcl of several accused pe rson to acquittal and not a r:ombination doubts is b edrock PrinciPle of j ustice. Relerence maY be nracle 'I'he $tate (Nr,t{ 1995 to the case of Riaz Mas ih@ Mithoo v.

Crl. 694)."

the 4g. In this case for the reasons discussed above primarily being noncredible,trntrustworthyanclnonconfiderrceirrspir.irrgevir'lerrcec,[ tilecl vis a vis PW 1,2 and 3, the unexplained contraclictory NC initialty the part of tl're the FIR finally filed 25 days later, the lack of motive on appellants, the delay in filing of the FIR which w(:nt c(rnllrletcly irrtptt-rvecl if rLcrt unexplained, the high probability that tl-ris case was concocted after the preliminary investigation but before liling of the rny ruirid that wtrerr FIR, enmity between the parties I have no cloubl in rvorrld Lre rntltc the evidence is read and considerecl in totalitv t-here thanareasonabledoubtinareasonableanclprudentpel-soil'smincl wtrich they have that the appellants were not guilty of the offenses lbr been convicted bY the trial court' that the

44.Thus, for the reasons discussed above I find prosecution has failed to prove its case beyond a reasonahle cloul-rt entitled to the against the appellants and that the appellants are jr-rdgment ancl benefit of the doubt and as such set aside the impugned and Daleel up hold the appeals of both appellar-rts Abdul Qayoorn are hereby

45.As such the appellants Abdul Qayoom ancl Daleel jail authorities are acquitted in the above case and the concerned herebyorderedtoimmediatelyreleasethemfromcust.orly|trovitlr:tl behirrcl bars in ilrly that they have not been convicted or been placed ^ other case.

Hyderabad: h ri), .[rr{dn Dated: 27-O4-2O17

r.l