Hakim Zada vs State etc.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA BENCH

(DAR-UL-QAZA), SWAT

(Judicial Department)

Cr.A No. 02-M/2013.

Date of hearing:.......... 10.12.2014

(Appellant-Petitioner: Muhammad Khurshad) by Sajjad Anwar Advocate.

Respondent: The State by AAG.

ABDUL LATIF KHAN, J.- This appeal has been preferred against judgment/order dated 13.12.2012, passed by learned Additional Sessions Judge/Izafi Zilla Qazi, Matta Swat whereby the appellant involved in case FIR No.226 dated 28.06.2012 u/s 302 PPC of P.S.

Kalakot Swat, was convicted u/s 302-B PPC and sentenced to undergo imprisonment for life and also to pay Rs.80,000/- as compensation to be paid to the legal heirs of deceased and in default thereof to suffer further SI for 8 months. Benefit of Section 382-B Cr.PC was extended to the appellant.

2.As per prosecution case, the dead body of deceased Mst.Rekhma was found hanging in the room of her house where the complainant reported the matter to local police that the appellant (husband of deceased) was contracting second marriage to whom he met one day prior to the occurrence and stated that if the deceased is unhappy with the second marriage, he would take her with him but after satisfying by the appellant, the complainant went to his house and on the day of occurrence he was informed about the suicide of deceased in her house, which attracted him to the spot and found her dead body in hanging/strangulation position. He charged the appellant for committing murder of deceased. Consequently instant FIR was registered against the appellant.

3.After completion of investigation, complete challan was put in Court for trial against appellant, where in order to prove its case the prosecution examined the following 9 PWs:-

"PW.1 Jamal Nasir constable is marginal witness to recovery memos Ex.PW.1/1 & Ex.PW.1/2, vide which the I.O, took into possession one plastic rope tied with the neck of deceased, one piece of wood (wol)

with lock & key of the door of room and two plastic boxes sent by doctor; PW.2 Sawab Khan who on receiving information from PW.Isa Khan about the death of deceased went to the spot and opened the door of the room which was closed/shut from inside through a wood (wol) which he opened by kicking the door and found the deceased in strangulation position who then brought the local police who untied the deceased and after conducting P.M. examination, the dead body was handed over to him. He is also marginal witness to pointation memo Ex.PW.2/1; PW.3 Sardar Ali deposed that he was sitting in his shop when informed by one Sher about the occurrence who accompanied the said boy to the Police Post where PW.2 was already present and from there he accompanied the police party to the spot where in his presence the local police conducted rest of proceedings; PW.4 Gul Dad (complainant) is the father of deceased who narrated the whole story regarding incidence as per his initial report; PW.5 Deedar Ghani SHO incorporated the report of complainant into contents of murasila, prepared injury sheet and inquiry

report of deceased and sent the dead body to the mortuary for P.M.

examination. He also prepared recovery memos Ex.PW.1/1 & Ex.PW.1/2 and after conducting rest of investigation by PW. Khan Sherin Inspector, he submitted complete challan against the appellant; PW.6 Lady Dr.Sofia conducted autopsy on the dead body of deceased Mst.Rekhma and submitted her report Ex.PW.6/1, X-Rays Ex.PW.6/2 & Ex.PW.6/3, NICs of witnesses Ex.PW.6/4 & Ex.PW.6/5; PW.7 Khan Sherin Inspector conducted partial investigation in the instant case; PW.8 Sher Afsar Khan SI, on receipt of murasila, registered the case vide FIR Ex.PA; PW.9 Muhammad Karim ASI, also conducted partial investigation in the case."

4.At conclusion of trial, the learned trial Court through impugned judgment/order convicted and sentenced the appellant, hence the instant Criminal Appeal has been preferred by the appellant.

Arguments heard record perused.

5.Perusal of record reveals that the dead body of deceased was found in hanging/strangulated

position in her room which was locked from both sides.

Admittedly there is no eye witness of the occurrence nor the deceased was lastly seen by anybody with the appellant which could connect the appellant with the commission of offence. PW.2 Sawab Khan, who was the first person to reach the spot and informed the police, has stated that when he reached the spot the door of room was locked so he got the keys through his own women folk from the family members of appellant and unlocked the door but it was also locked/shut from inside the room, so by kicking the door, he opened the same and found the deceased in hanging/strangulating position where nobody except the deceased was present at that time. He was unable to prove the presence of appellant on the spot at relevant time as he was not an eye witness of the occurrence nor lastly seen the deceased in the company of appellant. He was informed by one Isa Khan regarding the occurrence but the record is silent as to how Isa Khan was informed about the occurrence nor he was examined by the prosecution in the Court for ascertaining the actual facts so the prosecution has withheld its best evidence which makes the story of prosecution dubious. It is well-settled principle of law

that if a best piece of evidence is available with a party and the same is withheld by him, then it is presumed that the party has some evil motive behind it in not producing the said evidence. Even otherwise, a presumption under illustration (g) to Article 129 of Qanun-e-Shahadat Order can fairly be drawn in the matter.

6.It is also admitted fact that on the day of occurrence the ceremony of second marriage of appellant was in progress in a separate house where other peoples including children and rest of family members of appellant were also there so it is not possible that in such situation a person goes out, leaving his marriage ceremony, commit murder of a person and then took the dead body to the other house who was not seen by anyone in the whole process and then lock the door from inside the room, leaving no place for his exit, so it is not appealable to a prudent mind that how he came out of the room which is locked from inside which exonerates him from the liability of commission of offence.

7.None of the above witnesses have narrated about the time of occurrence nor seen the deceased in the company of appellant. As per Post Mortem report,

no sign of resistance or torture was found on the dead body of deceased which was duly supported by PW.5 Deedar Ghani SHO, who stated that there was no sign/marks of any struggle of deceased in the said room and he felt that she was killed in another place which creates the spot doubtful. Besides as per witnesses, an old woman was also there who was having the keys of the room but neither her name has been mentioned in the case nor her statement has been recorded to this effect which also makes the prosecution case as doubtful.

8.It is not clear as to whether it is a homicide or suicide as the dead body of deceased has been from her room which was locked from both sides. If it is presumed that she was killed in another place, even then there is no evidence on file to observe that the deceased was done to death by appellant in another place and was lateron taken to the said house. The I.O, also admitted that there was rumors that the deceased was mentally not stable, due to which she might have committed suicide. He also admitted in his Court statement that he could not collect any ocular evidence which could connect the appellant with the commission of offence.

9.The appellant despite remaining in police custody has not confessed his guilt before the competent Court nor his presence on the spot at relevant time has been proved by the prosecution.

Besides no material in the shape of finger prints of appellant on the dead body of deceased, rope, clothes or any place was found, linking him with the commission of offence, which makes the prosecution case doubtful and the benefit of which would go the appellant. It is cardinal principle of administration of criminal justice that prosecution is bound to prove its case beyond any shadow of doubt. If any reasonable doubt arises in the prosecution case, the benefit of the same must be extended to the accused not as a grace or concession, but as a matter of right. Likewise, it is also well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case, rather any reasonable doubt arising out of the prosecution evidence, pricking the judicious mind is sufficient for acquittal of the accused. Basically, it is the principle enshrined in Islamic jurisprudence, fourteen hundred years ago that “it would be better to acquit hundred culprits than convicting one innocent soul.”

Which has now been transformed into the form of the

principle that, “acquitting by error would be better than convicting by error”. The said commandment has evolved into the theory of benefit of doubt, which, invariably, is extended to the accused for safe administration of criminal justice.

10.Quite apart from this, the provisions of Section 174 Cr.PC has not been complied with by I.O, who was duty bound to inquire about commission of suicide by a person or has been killed prior to registration of case. For convenience sake Section 174 Cr.PC is reproduced as follows:

Section 174: Police to inquire on suicide, etc.(1) The officer incharge of a police-station or some other police-officer specially empowered by the Provincial Government in that behalf, on receiving information that a person: a) has committed suicide, or b) has been killed by another, or by an animal, or by machinery, or by an accident, or c) has died under circumstances raising a reasonable suspicion that some other person has committed an offence, shall immediately give intimation thereof to the nearest Magistrate

empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the Provincial Government shall proceed to the place where the body of such deceased person is, and there, in the presence of two or more respectable inhabitants of the neighborhood, shall make an investigation, and draw up a report of the apparent cause of death describing such wounds fractures, bruises and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any), such marks appear to have been inflicted.

2)The report shall be signed by such police officer and other persons, or by so many of them as concur therein, and shall be forthwith forwarded to the concerned Magistrate.

3)When there is any doubt regarding the cause of death or when for any other reason the police officer considers it expedient so to do, he shall, subject to such rules as the Provincial Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other

qualified medical man appointed in this behalf by the Provincial Government, if the state of the weather and the distance admit of its being so forwarded without risk of such putrefaction on the road as would render such examination unless.

5)The Magistrate of the first class are empowered to hold inquests.

A look of the referred provision reveals that on receipt of information by the Police Officer in respect of suicide shall intimate it to nearest Magistrate having powers to hold inquiry and thereafter proceed to spot and investigate the matter in the presence of two or more respectable persons hails from the place and draw a report of apparent cause of death describing full details, mode and manner of commission of crime and weapon used and in case of doubt refer the dead body with view to be examined by the nearest Civil Surgeon or other qualified doctor appointed by the Provincial Government. No such procedure has been adopted in the instant case which makes the case doubtful and is fatal to prosecution case.

11.In view of what has been observed above, the prosecution has badly failed to prove its case

against the appellant beyond any shadow of doubt therefore the judgment of conviction and sentence passed by learned trial Court is based on misreading, non-appreciation of evidence available on record which is against the law, facts on record and liable to be set aside. Thus the instant Criminal Appeal is allowed and the conviction and sentence passed by learned trial Court vide judgment dated 13.12.2012, is set aside and the appellant is acquitted of the charges leveled against him. He is in custody, be released forthwith if not wanted in any other case.

The above are reasons of our short

order of even date.

Announced.

Dt:10.12.2014. JUDGE

JUDGE

"A.Qayum"