Faqir-ur-Rehman Vs Hussain Ahmad and another

Judgment Sheet

[B{ TI{E PESITAWAR HIGT{ COUHT,

PMSHAWAR"

WDICIAL DEPARTIWENT"

JUDGMENT

Criminal Appeal h[o. 155-F/2S]I- Date of hearing 28"A2.2024" Faqir ur Rehman Vs I{ussain Ahmad

.dppellant (s) by: Barrister .A.min Khan Chamkani.

Accused/respondents by: Mr. Arshad Bilal Advocate.

State by: Mr. Muharnmad Nisar Khan AAG.

WIOAR. AI{MAD. J. Throu gh instant crirninal appeal filed under Section 417(2)A Cr.PC, appellant/complainant Faqir-ur-Rehman has challenged impugned judgment dated 21.02.2012, passed by learned Additional Sessions Judge-II, Swabi, whereby accused/respondent namely Hussain Ahmad, was acquitted from the charges levelled against him in case FIR No.616 dated 05'09.20i1 registered under Sections 3A2/201 FPC at Police Station Zaida, District Swabi.

2 As per prosecution case, appellant/ complainant Faqir ur Rehman brought dead body of his daughter namely Mst. Mahjabeen to Police Station Zaida on 31.08.2011 and made report that his daughter had been married to Hussain Ahmad (accused/respondent), who on 27.A8.2011 had lodged report regarding burning of Mst.Mehjabeen due to gas cylinder and she had been taken by Hussain Ahmad to POF Bum Center Wah Cantt: for treatment. After death of his daughter, complainant satisfied himself that his daughter had been burnt by accused Hussain Ahmad and charged him in his report for cornmission of offence.

3 After completion of investigation, complete challan against accused/respondent was subrnitted before leamed trial Court where after frarning of fonnal charge against accused/respondent, the prosecution in order to prove its case produced as many as 12 witnesses. On close of prosecution evidence, staternent of accused/respondent was recorded under Section 342 Cr.PC, wherein he denied allegations levelled against hirn however, he did not opt to be examined on oath or to produce defence evidence. After hearing arguments of leamed counsel for the parties, learned trial Court Cr.A ro.1a5-P/2,O12.

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acquitted the accused/respondent from charges levelled against him vide impugned judgment dated,2I.A2.20l2.

Aggrieved from impugned judgment, complainant/appellant filed instant appeal before this Court for convicting and sentencing the accused according to law.

4 Learned counsel for the

appellant/complainant argued that deceased had been killed inside the house of accused/respondent and that in report lodged by him, he had stated that deeeased had died after catching fire from gas cylinder but as per report Ex.PW.1/1 of Dr. Zafar lqbal (PW.l), traces of kerosene oil had been found on the body of deceased therefore, leamed trial Court should have drawn an inference that the lady had been burnt to death by sprinkling kerosene oil on her.

5 On the other hand leamed counsel for accused/respondent contended that medical report Ex.PW.1/1 had been issued on 05.09.2011 after five days of death of lady i.e, 31.08.2011, which fact had also been admitted by PW.1 in his cross examination. trt was further contended t-hat said witness has also admitted that lady had not remained under his treatment c..A tr!.115-P/20!2.

and that he had inspected the dead body after her death.

Learned counsel next contended that it has been admitted by PW.7 that the lady after receiving bum injuries had been taken to various hospitals for treatment by none else but accused/respondent, whioh showed his conduct immediately after the occrurence and was also fortifying factum of his innocence.

6 Learned AAG also supported arguments

advanced by leamed counsel for appellant/complainant.

7 Arguments heard and record perused

I Perusal of record reveals that deceased was wife of accused/respondent Hussain Ahmad, who had no doubt died inside house of accused/respondent but it was apparent that accused had taken the lady to the hospital immediately after receiving bum injuries and also shifted her to more equipped hospital so as to save her life. In this respect PW.7 (Mst.Naheed Akhtar) who was sister of deceased had admitted in her cross examination that after receiving bum injuries by deceased , she was first shifted to Swabi hospital by accused, then to LRH and thereafter to POF Wah Cantt:. Record also suggests that the lady had died at POF hospital, Wah Cantt:

where she had been taken for treatment by her husband cr.A xo.l5!-Pl2(,!2.

(accused/respondent). Report had also been lodged by accused/respondent on second day of occurrence vide Naqal Mad No.l1 dated 27.08.2011 to the effect that he alongwith other family members were present in his house where Mst. Mahjabeen was making preparation for 'Sehri' when she was bumt due to gas cylinder, which occurrence had taken place due to her negligence and thereafter she had been taken to POF Hospital Wah Cantt: for treatment. He did not charge anybody for the occuffence. In the circumstances burden lying on hirn under Article i22 of Qanun-e-Shahadat Order 1984, has also been discharged by accused/respondent wherein sufficient explanation is available in evidence in the shape of lodging report as well as taking lady to hospital. Besides, there is no direct evidence of occurrence which could connect accused/respondent with the commission of offence.

9 Regarding plea of leamed counsel for appellant that lady has died due to sprinkling kerosene oil, analysis of statements of PW.l and PW.2 is deemed necessary. PW.l Dr. Zafar lqbal (who was surgeon deputed at POF Hospital Wah Cantt;) stated in his examination in chief that as per history and record, the CrA No,ls5-F/2{r11.

deceased had got fire by kerosene oil. FIe also stated that on medical examination, her body had been found extremely burnt (upto 75Yo of total body area) and expired in hospital on 31.08.2011. In cross examination he admiued that the medical report Ex.PW.l/l had been issued by him on 05.09"2011. He also admitted that it had not been mentioned that the lady has ever remained under treatment of said doctor. He also adrnitted that after death of the patient, death report had not been issued by him. Likewise, PW.2 Dr. Munawar Latif, Resident Medical Officer Surgeory POF, Ftrospital Wah Cantt: has stated in exarnination in chief that he had issued death certificate Ex.PW.2/1. In his cross examination he adrnitted that death certificate had been issued on the basis of available history of case and that he had nowhere mentioned cause of bum to be kerosene oil. Same record was before the two doctors but the one issuing death certificate Ex.PW.Zll had not mentioned anything about kerosene oil to be cause of burn while the other doctor i.e, PW.l (Dr. Zafar lqbal) has mentioned in his report that Kerosene oil has been cause of buming of body of deceased. T,atter report of Dr.

Zafar lqbal had also been issued on 05.09.201 1 after five CiA llo,l65-Pr201t

days of death of the lady which had taken place on 31.08.201 1" The complainant had also recorded statement under Section 164 Cr.FC, on 08.09.2011, at much belated stage. In rest of evidence there is nothing to the effect which could have supported this factum of, burning of body through kerosene oil. This Court while giving judgment in case o "Amir Khan Versus The State and another" reported as 2000 MLD 766 (Feshawar), had ignored a similar report of a lady doctor when said report had been found to be in contradiction of well established evidence in said case.

Relevant observation is reproduced hereunder for ready reference:-

"71/e &Fe, therefore, af the view tkat in this case the prosecation hus saccessfully proved tkut the deeeased was bwrnt wtth acid and the statement of PW.9 Dr. Shakida Nuveed though positive on the point of thermal injury yet creating doabt witk regard to the substsnce of hurning, cannat be made basis for discarding tke whole conftdence inspiring eye-witness account and other strong circumstantial evidence in tke c&se."

While deciding petition for leave to appeal against above judgment, Hon'ble Supreme Court of Pakistan in its judgment given in case of "Armir Khan Versus The cr.A No.l66'P/2ilrA,

State and another" reported as 2000 SC[4R 1885 has held;

It has time and again been keld by the superior Court that if a bsld statement of a medical expert is opposed to tke proved and admitted confidence inspiring and reliable account of the elte-witnesses or other ,4 msterial and trustworthy evidence on record, tken the latter sre to be prefewed agatnst the former. In this case tt is not wnderstandable how could the lady doctor determine the natwre af the tnjuries by certain smell. h is on record as referred to in the uhove para. from the trial Court judgement that the trend of crass-exemination by tke defence itself wils that the deceased received burnts/hurts with acid. The qte-witnesses have consistently stated tkat tke scid was tkrown on the deceased" The report of the Chemical Examiner from Forensic Science Laboratory also shows tkat the clathes etc, of the deceased were burnt witk nsulphartc acid". In view of this conftdence inspiring evidence the -gratuitous remarks of the medical officer witkoat flny valid basis have no signfficance.

In this case also the report Ex.PW.1/1 was not found well substantiated. Same was also issued by doctor at belated stage and same sufficiently stood contradicted by rest of evidence. I-,earned Court below through cr.A llo.165-P/20le

impugned judgment has properly appreciated the evidence and discussed each and every point minutely.

10" Accused/respondent has already earned the order of acquittal from the learned trial Court and reappraisal of evidence by this Court in an appeal against acquittal requires a more liberal approach. ,.An order of acquittal" as held by the Flon'ble Supreme Court of Pakistan in case of "The State through A.-G.

N.-W.F.P vs Mehmood Khan and others reported as 2007 SCMR. 1390, o'doubles the initial presurnption of innocence of accused which would be stronger in case of verdict of acquittal recorded by Court of record."

Similar observation had also been recorded bv the Hon'ble Apex Court in the case of "Mutrarmmad Shafi Vs Mmhamnnad Raza and another'o reported as 2008

SCMR.329.

11" In light of what has been discussed above, it is clear that prosecution has not been able to prove the case against accused/respondent beyond reasonable doubt. The judgment of acquiual impugned herein is based on proper appreciation of evidence and contains solid reasons recorded therein.

The appeal in hand was therefore found to be lacking Cil Io.la5-P/@12.

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substance and same is accordingly dismissed in limine.

f Puisn

J GE

Dae olhearlng ll announcamenl ol Jurtgrnent,., ..........,.,,.......28.02.2021.

Due ol preparution and signing otludgwnt ..., , 29.02,2021.

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ct.r lo16l.P/20lA.