2013 M L D 490
[Balochistan]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
THE STATE thr ough Public Prosecutor -General ---Appellant
Versus
Mula KALIMULLAH ---Respondent
Criminal Acquittal Appeal No.294 of 2010, decided on 14th November, 2012.
(a) Penal Code (XLV of 1860) ---
----S.302 ---Criminal Procedure Code (V of 1898), S.417 ---Qatl-e-amd---Appeal against
acquittal, dismissal of ---Appreciation of evidence ---Unseen occurrence ---Interested and
inimical prosecution witnesses ---Contradicting statements of prosecution witnesses ---Medical
evidence negating ocular account ---Effect ---Allegat ion against accused was that he beat his
deceased -wife brutally, which resulted in internal injuries and her pregnancy was also
aborted ---Trial Court acquitted the accused ---Validity ---Alleged occurrence was unseen and
there was no eye -witness of the occur rence ---Prosecution witnesses were closely related with
the complainant and the deceased ---Said witnesses were interested and inimical witnesses
inter se towards the accused and tried to improve their version by making dishonest
improvements ---Prosecution witnesses contradicted each other on material points ---
Allegation against accused of causing internal injuries to his deceased -wife was not proved as
she was not examined in support of the prosecution case ---Cause of death of deceased
negated the ocular ac count ---Medical evidence showed that deceased had history of abdomen
pain, vomiting with blood and diarrhea, and cause of her death was determined as failure of
kidney as well as multiple infection in the blood ---Evidence of Lady Medical Officer
revealed t hat no external abrasion, bruises or wound was found on the body of deceased
except scratching of hair on the center of her scalp, and that she was severally anemic ---Hair
of deceased that had been allegedly scratched off from her scalp were not sent to Fo rensic
Science Laboratory, so they were of no consequence ---Prosecution failed to prove its case
against the accused ---Appeal against acquittal of accused was dismissed in circumstances.
(b) Criminal Procedure Code (V of 1898) ---
----S. 417 ---Appeal a gainst acquittal ---Presumption of innocence ---Scope ---After acquittal,
accused earned double presumption of innocence, which could only be interfered with if the
(acquittal) order on the face of it appeared to be perverse, arbitrary or illegal.
Attiq Ah med Khan, Additional Prosecutor General for the State.
Date of hearing: 15th October, 2012.
ORDER
GHULAM MUSTAFA MENGAL, J. ---This Criminal acquittal appeal has been
filed by the State through Public Prosecutor General Balochistan against the order dated 3rd
June, 2010 passed by learned Additional Sessions Judge, Pishin, whereby accused/respondent
Mulla Kalimullah son of Abdul Sattar charged by offence under section 302, P.P.C., was
acquitted.
Briefly, the facts of the prosecution's case as discl osed in the F.1.R. No.42 of 2009 are
that on 24th December, 2009 complainant Pai Din lodged a report with S.H.O. Police Station,
Huramzai. Pishin, alleging therein that his daughter Mst. Bibi Jamila was married with
accused/respondent, who few days back b ruttally beaten Mst. Bibi Jamila and forced her to
leave the house thereafter she was taken to Civil Hospital, Pishin where -after she was shifted
to Civil Hospital, Quetta, where she died between the night of 10th and 11th November 2009
at 4-00 a.m. and due to the internal injuries she aborted her pregnancy.
3. After usual investigation, challan against the accused was sent to the trial Court where
charge under section 302 P.P.C. against the accused was framed on 2nd March, 2010 to
which he pleaded not guilty and claimed trial. After framing the charge, the prosecution
examined P.W.1, who produced his application as Exh.P/1 -A. Dr. Hayatullah, Medical Legal
Officer, Civil Hospital, Quetta, appeared before the trial Court as P.W.2 and deposed that on
5th November, 2009 deceased Mst. Jamila was brought to Civil Hospital, Quetta with
referring chit having the history of abdomen pain, vomiting with blood and diarrhea ( )
and pale and sick, during treatment she died and cause of death was determined a s Renal
Parenchymacal disease and sepsis (failure of kidney as well as multiple infections in blood).
He produced death certificate as Exh.P/2 -A. Dr. Mumtaz Anwar, Lady Medical Officer,
D.H.Q. Civil Hospital, Pishin appeared as P.W.3 and deposed that on 20 th October, 2009 she
was posted as Lady Medical Officer, at D.H.Q. Hospital, Pishin on the said date at about 1.00
a.m. Bibi Jamila was brought by Police Official Huramzai for medical check -up. Bibi Jamila
was medically examined and found that she was 24 w eeks pregnant and complaining labor
pain. On external examination no abrasion, bruises or wound were found on her body but
only scratching of hair on the center of scalp. On per vaginal examination she was not in
active phase of labor. She was severely ane mic patient. After examination she referred her to
Civil Hospital, Quetta. She produced certificate Exh.P/3 -A. Abdul Jabbar appeared as P.W.4
who deposed that on 15th October, 2009 accused Kalimullah brought Mst. Bibi Jamila to
their house, she was taken t o Dr. Naseem. He further deposed that on 17th October, 2009 we
took Mst. Bibi Jamila to Civil Hospital, where she born a child and we brought Bibi Jamila to
our house. On 27th October, 2009 the child died and we informed the accused about the death
of the child and dead body was handed over to the uncle of accused for purpose of burial.
Mst. Jamila remained admitted in Hospital for six days. P.W.5, Nida Muhammad deposed
that on 29th October, 2009 his Uncle Pai Din rang a telephone to him and asked him to co me
Civil Hospital, Pishin, who told him that on 15th October, 2009 after beating Mst. Jamila
brought her to Killi Dab Khanezai. Thereafter, he went to Mst. Bibi Jamila who was admitted
in the Ward. On his inquiry she told him that her husband had scratched her hairs of head and
she sustained injuries at her chest. She had deficiency of blood, therefore, he gave her blood
and after 6/7 days she was shifted to Civil Hospital Quetta for further treatment. He further
deposed that on 11th November 2009 Pai Din i nformed him on phone that Mst. Jamila had
died at 4 -50 or 5 -00 a.m. He produced recovery memo; Exh.P/5 -A and hairs of deceased as
Art. P/1. P.W.6 Sardar Muhammad deposed that, he along with complainant Pai Din resides
in Killi Shaikhanzai, who is my brothe r in law. On 15th October, 2009 Abdul Jabbar
informed him on phone that, Mullah Kalimullah brought Mst. Bibi Jamila in their house
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