Umer Zaman vs State

2013 P Cr. L J 708

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

UMER ZAMAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.21-B of 2010, decided on 5th November, 2012.

(a)Penal Code (XLV of 1860)---

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 3---Qatl-e-amd---Appreciation of evidence-- -Sole testimony of minor/child witness---Evidentiary value---Scope---Murder of deceased had not been witnessed by any person---According to the complainant he was informed by his nephew, aged 9/10 years---Travelling of said minor boy in the pitch dark of night from one village to another to inform the complainant was not appealing to prudent mind of a person--- Trial Court recorded the statement of said minor boy without any step to judge the level of his intelligence, maturity and capacity of understanding under Art.3 of Qanun-e-Shahdat, 1984--- Deposition of said child witness had clearly stipulated that he was not present in the house at the relevant time and had not seen the occurrence and he was not speaking the truth---According to version of said minor witness his mother was stabbed by his father/accused, but the medical evidence had revealed that deceased had died due to single firearm injury on her chest---Injury sheet and inquest report were also silent about the stabbing wound---Minor witness had not shown the presence of his father/accused inside the room---According to the minor when he entered the room he saw his mother lying on the cot in injured condition and after some time she succumbed to her injuries at the spot---Said assertion had revealed that he had not seen accused inside the room---Statement of said child witness, in circumstances, had become highly doubtful and was not truth inspiring---Testimony of minor witness was not corroborated by a single piece of evidence---Medical evidence, recoveries from the spot, recovery of weapon of offence, site plan and arrest of accused, did not furnish the required support---No link existed in the chain of prosecution evidence, which had contradicted each other on material points---No recovery had been effected from the spot, but was proved to have been planted to strengthen the prosecution case---Investigating Officer and the complainant, were also not consistent on the point of alleged recoveries of blood-stained earth, empty shell and pistol---Only the death of the wife of accused by a firearm in his house was not itself, sufficient to establish the guilt of accused, however, death in the house, could be a circumstance to be taken into account along with other prosecution evidence---Prosecution had failed to bring single positive evidence against accused---Motive alleged by the complainant in the F.I.R. was not substantiated by any evidence---Case against accused, being pregnant with serious doubts, accused was entitled to benefit of doubt---In absence of any positive prosecution evidence, accused could not be convicted on presumption--- Conviction and sentence awarded to accused were set aside, he was acquitted and set free, in

circumstances.

(b)Qanun-e-Shahadat (10 of 1984)---

----Art. 3---Evidence of child witness---Conviction on statement of child witness---Conviction could be recorded on the sole testimony of a child, provided the same had been consistently corroborated by circumstantial evidence---Great care and caution was to be observed during examination of a child witness, particularly in case of major punishment.

Ulfat Hussain v. The State 2010 SCMR 247 and The State through Advocate-General Sindh v. Farman Hussain and others PLD 1995 SC 1 rel.

(c)Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---In absence of any direct or substantial evidence, the conviction of a person could not be sustained merely on account of his failure to explain the murder of his wife in his house.

Abdul Majeed v. The State 2011 SCMR 941 rel.

(d)Criminal trial---

----Benefit of doubt---Significance---Prosecution was to prove its case against accused beyond any reasonable doubt; and if any doubt was found in the prosecution case, accused would be held entitled to the benefit thereof---If any element of doubt existed with regard to the guilt of accused, benefit of the same must be extended to him---Rule of benefit of doubt was initially a rule of prudence, which could not be ignored, while dispensing justice in accordance with law; rule was based on a famous maxim 'it was better that ten guilty persons be acquitted rather than one innocent person be convicted"---For acquittal of accused in an offence, howso heinous same could be, only a single doubt in the prosecution evidence was sufficient---Said principle occupied a pivotal place in Islamic law.

Saying of Holy Prophet, PBUH; Ayub Maseh v. The State PLD 2002 SC 1048 and Khalid Mehmood and others v. The State 2011 SCMR 664 rel.

Arif Awan (Pauper Counsel) for Appellant.

Ahmed Farooq A.A.-G. for the State.

Date of hearing: 5th November, 2012.

JUDGMENT

ROOH-UL-AMIN KHAN, J.---The appellant, Umer Zaman, through the instant appeal has challenged his conviction and sentence recorded by the learned Additional Sessions Judge- III, Bannu vide judgment dated 23-1-2010, whereby he has been convicted under section 302(b), P.P.C. and sentenced to undergo for life imprisonment, along with fine of Rs.50,000 or in default of payment of fine, he shall further suffer simple imprisonment for six months.

2.The prosecution case is that Gul Rasool Khan, P.W.9, reported the matter at mortuary room, of Civil Hospital, Bannu to Wali Ayaz Khan, ASI, that on the night between 15/16 June, 2008, he along with. his other inmates were present in his house, where Sudais Khan, aged about 9/10 years, came to his village and told him that his mother (sister of complainant) namely, Mst. Umerzad Bibi has been murdered by appellant Umar Zaman (Husband of the deceased), by firing at her inside the room of his house. He along with his other brothers went to the house of their sister, where they found her dead. Before their arrival Umar Zaman had been caught hold by the co-villagers and had been locked in a Hujra of the village. The complainant charged the appellant for murder of his sister in pursuance of which case F.I.R. No. 120, dated 16-6-2008, was registered under section 302, P.P.C., at Police Station Basia Khel.

3.After completion of investigation challan was submitted against him and he was put to face the trial. Appellant was formally charge-sheeted to which he did not plead guilty and claimed trial. The prosecution in order to substantiate the charge against the appellant produced and examined 10 witnesses. The brief of prosecution evidence is a sunder:--

(i)Wali Ayaz, ASI appeared as P.W.1, who recorded the statement of Gul Rasool (P.W.9) in mortuary room of DHQ, Hospital, Bannu. He prepared injury sheet and inquest report of deceased and sent the dead-body of deceased for PM examination under the escort of constable Aurangzeb No. 470. While sent the Murasila to the Police Station through constable Shah Bakhtiar No. 1891 for registration of the case. From mortuary room of DHQ Hospital, Bannu, he proceeded to the spot, where appellant was handed over to him by the co-villagers, who had already captured him. He admitted this fact that when the dead-body was brought to the mortuary room, he was not present there, but on getting information, he proceeded to the hospital. Aurangzeb FC, No. 470, was examined as P.W.2, who escorted dead-body along with injury sheet and inquest report to the Doctor for PM examination and after PM examination, the doctor handed over him PM papers along with blood-stained belongings of deceased, which he handed over to the I.O. P.W.3, Lady Doctor Fahmida Aman, MO, Women and Children Hospital, Bannu conducted autopsy of deceased on 16-6-2008 at about 9-00 a.m. She found an entry wound size 1/4" x 1/4" just in front of chest slightly towards right side from the center and corresponding exit wound just at the lower edge of right scapula, size 1/2" x 1/2". She stated that the deceased died due to injury to main major vessel and excessive blood loss. According to her report, the weapon of offence, as per information furnished by the local police, was firearm. She further stated that the injuries mentioned by her in PM report could not be inflicted through knife etc. P.W.4, Shah Bakhtiar No.1891, brought murasila from hospital to the Police Station for registration of F.I.R. While P.W.5, Aman Rasool identified the deceased being his sister. Mehrullah IHC, Police Station Town Ship Bannu recorded his statement as P.W.6. According to him in his presence the I.O. took into his possession blood-stained earth from the place of deceased, one empty shell of .30 bore and one .30 bore pistol along with an empty magazine produced by Wali Ayaz ASI. He is also marginal witness to the recovery memo, vide which the I.O. took into possession one Qamiz of red colour brought by constable Aurangzeb, from the Hospital. He disclosed that when he reached the spot many other people and police contingents

were present there; that at the time of recovery of pistol from the accused, he was not present on the spot and similarly he has not seen the accused having pistol in his possession. He stated that he has not observed any blood, present on the bed or not. The Investigation Officer Naimatullah recorded his statement as P.W.7. He stated that on receipt of copy of F.I.R., he proceeded to the spot and prepared site plan on the instance of Gul Rasool, complainant. During spot inspection he secured blood-stained earth from the place of deceased and one empty shell of .30 bore from the spot. He also took into possession .30 bore pistol along with an empty magazine, produced by Wali Ayaz ASI. He has also taken into possession the blood-stained clothes of the deceased, through recovery memo. According to him, he has sent the blood-stained garments, empty shell and pistol to the FSL for chemical analysis. During cross-examination, he admitted that when he reached the spot the complainant was not present there. He also admitted that Wali Ayaz ASI has recovered the pistol from the accused, prior to his arrival. He further admitted that there was no eye-witness in the instant case; that the occurrence was unseen, being committed at night time; that presence of accused has not been shown inside the room of the house. The son of appellant and deceased namely, Sudais Khan, appeared as prosecution witness, whose statement was recorded as P.W.8. He stated that on the day of occurrence, his mother was brought by his father from the house of his maternal uncle and inside the house, she was injured by his father with a Chhuri. After getting the injury his mother sent him to bring some medicine for her. When he brought medicine and reached in the veranda of the house, he heard fire shot inside the room; on entering the room, he saw his mother lying on the cot in injured condition and after some time, she succumbed to her injuries. Thereafter he informed the co-villagers. On the following morning his maternal uncle handed over his father to the local police. In cross-examination, he stated that his mother was stabbed in her belly at night time; that at the time of firing he was present in the veranda of his house; that it was 11/12 p.m., (2300/2400 hours), when he heard fire shot. He admitted that he informed the co-villagers after about half an hour of the occurrence, and when the co-villagers reached the spot, his father had already gone out side of the house. He also admitted that when he entered the room his mother was in unconscious condition and was unable to talk. Gul Rasool recorded his statement as P.W.9, who narrated the same story, as mentioned in the F.I.R. However, he added that in his presence, the I.O. took into possession blood-stained earth from the place of deceased and one empty shell of .30 bore. During his cross- examination he stated that in his presence nothing has been recovered by the police from the spot.

(ii)After completion of prosecution evidence, appellant was examined under section 342, Cr.P.C., wherein he professed his innocence. However, he neither appeared as his own witness under section 340(2), Cr.P.C., nor produced his defence. The learned trial Court, after hearing the arguments of the parties convicted and sentenced the appellant as mentioned in the first Para. Hence this appeal.

4.Learned counsel for appellant contended that occurrence has taken place in pitch dark of night; that no one has seen the occurrence and from the statement of P.W.8, it is evident that at the time of occurrence, he was not present on the spot and he has not seen the occurrence. Post mortem report has belied the F.I.R. and not supporting the prosecution case. According to the site plan the deceased and appellant have been shown at Point No.2, and Point No.3, respectively. Both the points are situated in veranda, outside the room, while blood-stained earth has been recovered from the place A, situated inside the room. He argued that there are material contradictions in the statements of prosecution witnesses; that the case has been planted against the appellant by P.W.9, brother of deceased for ulterior motive.

5.Learned A.A.-G. in support of the judgment contended that the occurrence has taken place inside the house of the appellant, where the presence of P.W.8, Sudais is natural; that the son of appellant has deposed against him and prosecution has succeeded to bring home guilt to the appellant, beyond any shadow of doubt.

6.We have heard arguments of learned counsel for the parties and perused the record with their valuable assistance.

7.Record reveals that on the night between 15/16 June, 2008, Mst. Umerzada Bibi was done to death in residential room of her house, situated at Kotka Feroz, regarding which her brother Gul Rasool resident of Koti Saadat reported the matter to Wali Ayaz ASI, at postmortem room of DHQ, Hospital, Bannu. Perusal of the record would show that the murder of deceased Mst. Umerzada Bibi has not been witnessed by any person. According to the complainant he was informed by his nephew Sudais Khan (son of appellant) at Koti Saadat village. When he was present in his house along with his other inmates. The prosecution has not cited a single witness regarding information to Gul Rasool, despite the fact that he was allegedly informed by Sudais Khan in presence of other family members. According to prosecution case the P.W. Sudais was aged about 9/10 years at the time of occurrence. He visited all alone from a village namely Kotka Feroz to the house of his maternal uncle Gul Rasool situated at Koti Saadat almost at the distance of about 1 K.M and that too in the midnight particularly leaving his mother in dead condition at his house. The travelling of minor boy in the pitch dark of night from one village to another is not appealing to prudent mind of a person.

8.The learned trial Court recorded the statement of child Sudais without any step to judge the level of his intelligence, maturity and capacity of understanding under Article 3 of Qanun-e-- Shahadat Order 1984. In the present case the deposition of child (P.W.8) clearly stipulates that in fact he was not present in the house, at the relevant time and has not seen the occurrence.

9.According to the statement of above said P.W., on the day of occurrence, his father stabbed his mother in her belly and on sustaining injury the deceased sent him for bringing some medicine for her. He went and brought medicine to his house and when reached the veranda of his house, heard fire shot from inside the room. When he entered the room, he saw his mother lying on cot in injured condition; not capable of talking, thus he informed his co-villagers. The prosecution have not brought an iota of evidence to the effect that:--

(1)Whether any medicine shop is available in the village Kotka Feroz or nearby the village?

(2)What kind of medicine he had brought for his mother?

(3)Whether any medicine was recovered or produced by P.W.8, before the Investigation Officer?

The above said unanswered questions create serious doubts in the prosecution case and indicate that minor child Sudais is not the eye-witness of the occurrence and he is not telling the truth. According to his version his mother was stabbed by his father through Chhuri in her belly, but the medical evidence reveals that deceased has died due to single fire-arm inquiry on her chest. The inquiry sheet and inquest report are also silent about stabbed wound.

10.P.W.8, has not shown the presence of his father inside the room. According to him when he entered the room he saw his mother lying on the cot in injured condition and after some time she succumbed to her injuries at the spot. His above assertion reveals that he has not seen the

father inside the room nor noticed him coming out from the room, after the alleged fire shot. The another major discrepancy in the statement of this witness is that he informed the co-villagers about the incident, but has never stated that he had gone to village Koti Saadat and informed his maternal uncle about occurrence. If he has not informed P.W.9, then how complainant Gul Rasool reported the matter to P.W.1, Wali Ayaz ASI at Mortuary room of DHQ Hospital Bannu?

11.In view of the above discussed statement of the child witness Sudais, we found that his deposition has become highly doubtful and not truth inspiring. No doubt conviction can be recorded on the sole testimony of a child, provided the same has been consistently corroborated by circumstantial evidence. In the case of "Ulfat Hussain v. The State" (2010 SCMR 247) the august Supreme Court observed as under:--

"We would like to observe that though in principle conviction can be based upon the testimony of an intelligent and understanding child witness yet the Courts have generally preferred to adopt the settled principle of prudence and the rule of care attached to the sole testimony of a child witness despite child's intelligent disposition. We may however, reiterate that the measure of prudence or the level of care would depend upon facts of each case."

It is also a well-settled proposition of law that during examination of a child witness, particularly in case of major punishment, great care and caution to be observed. In the case of "The State through Advocate-General Sindh v. Farman Hussain and others" (PLD 1995 SC 1), the apex Court was pleased to hold in the following words:--

"Evidence of child witness is a delicate matter and normally it is not safe to rely upon it unless corroborated as rule of prudence. Great care is to be taken that in the evidence of child element of coaching is not involved. Evidence of child came up for examination before Division Bench of the High Court in the case of Amir Khan and others v. The State PLD 1985 Lah. 18 in which after consideration of the relevant case-law on the subject, Abdul Shakurul Salam, J. (as he then was) as author of the judgment observed that "children are a most untrustworthy class of witnesses, for, when of tender age, as our common experience teaches us, they often mistake dreams for reality, repeat glibly as of their own knowledge what they have heard from others and are greatly influenced by fear of punishment, by hope of reward and the desire of notoriety." In any case the rule of prudence requires that the testimony of child witness should not be relied upon unless it is corroborated by some evidence on the record."

In the instant case we searched the file from cover to cover but did not find a single evidence to corroborate the testimony of child P.W.8. Medical evidence, recoveries from the spot, recovery of weapon of offence, site plan and arrest of appellant do not furnish the required support.

12.We have no doubt in our mind that this child was introduced as an eyewitness by the complainant or investigation as the occurrence had taken place in the odd hours of night and the prosecution was not equipped with evidence against the appellant.

13.There is no link in the chain of prosecution evidence and have contradicted each other on material points. According to I.O. he effected the recovery of blood stained earth; empty shell of .30 bore and pistol .30 bore produced by Wali Ayaz ASI, in presence of P.W.9. Complainant Gul Rasool (P.W.9), in his cross-examination categorically stated that in his presence nothing has

been recovered by the police from the spot, which shows that in fact no recovery has been effected from the spot and the same have been planted to strengthen the prosecution case. Another major contradiction in the prosecution case is regarding site plan. P.W.7, Naimatullah I.O. has stated that he prepared the site plan on the instance of Gul Rasool complainant, but when Gul Rasool was examined; he stated in unequivocal words that the site plan was pointed out by his nephew Sudais Khan to the I.O. The I.O. and the complainant are also not consistent on the point of alleged recoveries of blood-stained earth empty shell and pistol.

14.Coming to the alleged recovery of .30 bore pistol, suffice it to say that the alleged pistol has been produced by P.W.1, Wali Ayaz Khan ASI to the I.O. According to the I.O. Wali Ayaz ASI has recovered the pistol from the appellant at the time of his arrest, but the statement of Wali Ayaz ASI is totally silent about the alleged recovery of pistol. However, in cross-examination he stated that pistol was handed over to him by the villager of accused, but astonishingly neither the person, who has handed over the alleged pistol to Wali Ayaz ASI, has been examined nor his identity has been disclosed.

15.Only the death of the wife of accused by a fire-arm in his house itself is not sufficient to establish the guilt of the appellant. Her death in the house may be a circumstance to be taken into account along with other prosecution evidence. The presence of accused in the house at the time of occurrence has also not been established by the prosecution. The prosecution has failed to bring single positive evidence against the accused.

16.It is by now, settled law that in absence of any direct or substantial circumstantial evidence the conviction of a person cannot be sustained merely on account of his failure to explain the murder of his wife in his house. In this respect reliance may be placed on the case titled "Abdul Majeed v. The State" (2011 SCMR 941).

17.So far as the motive advanced by the complainant is concerned, we could not find a single instance from the prosecution evidence that the relations between the appellant and his wife were so strained, which culminated into homicide of Mst. Umarzada Bibi. The real son of the appellant has not uttered a single word to the effect that the relationship between his mother and father has ever remained strained. Besides, record reveals that the appellant and deceased has remained in wedlock for a long period having nine children, out of whom six daughters have already been married, while one daughter and two sons were still residing with them. None of the daughters has come forward to disclose that the deceased and appellant were not on good terms, thus the motive alleged by the complainant in the F.I.R. was not substantiated by any evidence.

18.It is necessary for the prosecution to prove its case against the accused beyond any reasonable doubts and if there found any doubt in prosecution case the accused shall be held entitled to the benefit of doubt thereof. It is also settled principle of criminal administration of justice, that if there be an element of doubt, as to the guilt of accused, it must be extended to him. The golden rule of benefit of doubt is initially a rule of prudence, which cannot be ignored, while dispensing justice in accordance with law. It is based on a famous maxim, it is better that 10 guilty persons be acquitted rather than one innocent person be convicted. For acquittal of accused in an offence, howso heinous it may be, only a single doubt in the prosecution evidence is sufficient. It will not out of place, to mention here that in the Islamic law above said principle occupies a pivotal place as evident from the following saying of Holy Prophet, PBUH, that mistake of Qazi in releasing a criminal is better than his mistake in punishing an innocent. In support of above discussion reference may be made to case titled "Ayub Maseh v. The State" (PLD 2002 SC 1048) and "Khalid Mehmood and others v. The State" (2011 SCMR 664).

19.The instant case, as discussed in preceding Paras, is pregnant with serious doubts and the appellant is entitled to the benefit of doubt thereof.

20.In view of the above discussion, in absence of any positive prosecution evidence, the appellant cannot be convicted on presumptions, that since the murder of his wife has taken place in his house. The conviction and sentence of appellant on this single circumstance cannot be sustained under the law. Hence, on acceptance of this criminal appeal sentence and fine awarded to the appellant by the learned Sessions Judge, is set aside and he is acquitted of the charges. As a consequence whereof, he shall be set free forthwith, if not required in any other case.

HBT/409/P Appeal accepted.