P L D 2018 Balochistan 102
Before Mrs. Syeda Tahira Safdar and Abdullah Baloch, JJ MUHAMMAD JAN ---Appellant
Versus
ADDITIONAL SESSION JUDGE II, QUETTA and another ---Respondents
Criminal Acquittal Appeal No.39 of 2018, decided on 19th March, 2018.
Penal Code (XLV of 1860) ---
----S.302---Criminal Procedure Code (V of 1898), S.417---Qatl -i-amd---Appeal against
acquittal ---Re -appraisal of evidence ---None had witnessed the crime directly and the
evidence was merely based upon assumption and presumption about the past conduct of
accused with the deceased ---Conviction could not be granted or maintained solely on the
basis of presumption; rather it was the duty of the prosecution to establish the charge through consistent and confidence inspiring evidence, which was lacking in the present case---
Unnatural death of the deceased, was neither supported by Medco -legal Certificate and report
of Chemical Examiner, nor by any other piece of evidence ---Prosecution, had failed to bring
on record any documentary evide nce to establish the charge against accused ---No direct
ocular testimony was on record ---Medical evidence did not support the allegations levelled
by the prosecution---Entire material, so produced by the prosecution did not connect accused
in any manner ---Prosecution case against accused being highly doubtful, Trial Court after
proper appraisal of material available on record, had rightly acquitted accused ---Minute
scrutiny of prosecution case, had justified the acquittal order passed by the Trial Court ---
Double presumption of innocence was attached to the order of acquittal ---Order of acquittal
passed by the Trial Court, was neither arbitrary, capricious, fanciful, nor contrary to the evidence brought on record--- Interference in judgment of acquittal was declared by the High
Court ---Appeal was dismissed in limine.
Nasrullah alias Nmasro v. State 2017 SCMR 724 ref.
Jameel Ramzan for Appellants.
Date of hearing: 27th February, 2018.
JUDGMENT
ABDULLAH BALOCH, J. --This judgment disposes of Criminal Acquittal Appeal
No.39 of 2018 filed by the appellant/complainant Muhammad Jan son of Dad Muhammad, against the judgement dated 10th February 2018 (hereinafter referred as, "the impugned judgment") passed by the learned Additional Sessions Judge -II, Quetta (hereinaf ter referred
as, "the trial Court"), whereby the accused/respondent No.2 Muhammad Wazir son of Muhammad Zahir, was acquitted of the charge under Section 302 P.P.C.
2. Facts of the case are that on 22nd January 2014, the appellant complainant lodged FIR
No.14/2014, at Police Station Airport, Quetta, under Section 302 P.P.C., stating therein that
about 8/9 years back his sister namely Hikmat Bibi was married with the accused -respondent
No.2 and since then the accused was in habit to beat her on petty matter, while two children
had born out of wedlock of parties i.e. Asifa 7 -years and Muhammad Asif 4- years. He further
averred that few days earlier prior to the incident his sister had come to his house and complained against the accused -respondent No.2 that the accused used to beat her, however,
she was consoled and send back to her house. It is also averred that on 22nd January 2014 at about 6- 30 p.m. he was present in his house when informed that his sister is not feeling well
and he was asked to come home. He further alleged that thereafter, his brothers namely Muhammad Zaman and Abdul Wali along with his relatives went to the house of his sister, where they found his sister dead. He further alleged that the accused used to torture his sister and he is responsi ble for her death, who (accused) had administered poison to her (deceased).
3. Pursuant to above FIR, investigation of the case was carried out by PW -7 Fayyaz
Ahmed, SI/IO, who proceeded to Civil Hospital and prepared inquest report of deceased;
visited th e place of occurrence; prepared site map and site inspection memo; recorded the
statements of witnesses under Section 161 Cr.P.C. got conducted the postmortem of the
deceased and obtained samples from the concerned doctor and sent the same to Karachi for analysis; obtained Postmortem Report; obtained NBWs of accused. PW -8 Muhammad Jaffar,
SI/2nd I.O. arrested the accused; PW -9 Naseebullah, ASI/3rd I.O., who on completion of
investigation submitted the challan before the trial Court.
4. At the trial, the pr osecution produced as many as nine (09) witnesses. The
accused/respondent was examined under Section 342 Cr.P.C. However, neither he recorded his statement on oath under Section 340(2) Cr.P.C. nor produced any witness in his defence. On conclusion of trial and hearing the arguments, the trial Court acquitted the
accused/respondent of the charge under Section 302 P.P.C., vide impugned judgement, whereafter instant Criminal Acquittal Appeal has been filed.
5. Learned counsel for the appellant contended that t he acquittal of the respondent No.2
is perverse and contrary to the material available on record; that the impugned judgement is result of mis -reading and non- reading of the material available on record; that confidence
inspiring evidence was produced by p rosecution against the respondent No.2, but the same
was wrongly discarded; that the prosecution witnesses corroborated each other on all material counts, but the same was not considered by the trial Court.
6. Heard the learned counsel for the appellant an d perused the available record. Though
the prosecution has produced nine witnesses, out of whom PW -1 to PW -5 are the private
witnesses, PW -6 is the Medical Officer, who conducted the postmortem of the deceased,
while PW -7 to PW -9 are the Investigating Offi cers of the case. Perusal of statements of PW -1
to PW -5 would reflect that none of the witnesses have witnessed the crime directly and the
evidence is merely based upon mere assumptions and presumptions about the past conduct of
the accused/respondent No.2 with the deceased.
7. The statement of PW -1 Muhammad Jan reflects that his sister Mst. Hikmat Bibi had
married with the accused about 8/9 years back and out of wedlock of parties two children namely Asifa age 7 -years and Asif age 4 years were born. He fur ther added that the accused
often used to beat the deceased on petty issues and even few days prior to the incident, his sister came to his house and complained about the misbehavior of the accused, but she was consoled and send back to her house. PW -1 fur ther brought on record that on the day of
occurrence he was informed that the deceased was not feeling well, thus he along with PW -2
to PW -5 went to the house of his sister and found her dead, whereafter she was brought to
hospital and subsequently FIR was lodged with the allegations of administering poison to the
deceased by her husband i.e. accused/ respondent.
8. PW-2 Muhammad Zaman, PW -3 Abdul Wali, PW -4 are the brothers of PW -1 as well
as of deceased lady, while PW -5 Juma Khan is the relative of compl ainant party. All the said
witnesses recorded their statements in line with each other and they levelled allegations
against the accused/respondent No.2 that he had administered poison to the deceased lady. The statements of PW -1 to PW -5 are consisting of two portions. In the first portion they
brought on record the past conduct of the accused- respondent No.2 with the deceased, who
used to beat and maltreat the deceased, while the second portion is regarding the receiving of information about the bad health, they rushed to the house of deceased and found her dead, whereafter they taken the deceased to hospital and subsequently lodged the FIR.
9. The overall scrutiny of statements of PW -1 to PW -5 would reflect that none of the
witnesses have directly witnessed the crime rather their testimony is solely based upon presumptions that the accused- respondent had administered poison to the deceased, whereas
according to settled norms of justice, no conviction can be granted or maintained solely on the basis of presumptions rather it is the incumbent duty of the prosecution to establish the charge through consistent and confidence inspiring evidence, but the same are lacking in the case in hand, thus the only evidence remains is the medical evidence.
10. According to first I.O./PW -7, on receipt of information, he rushed to hospital and
prepared inquest report in terms of Section 174 Cr.P.C., while PW -6 Dr. Ali Mardan, Police
Surgeon, conducted the postmortem of the deceased lady, perusal of which reveals that no
extern al injury was found on the dead body. During postmortem the Medical Officer
collected samples of blood, stomach contents and had sent the same to Laboratory for analysis and the analysis report was received from the laboratory in negative. Meaning thereby the prosecution has failed to establish that the deceased died due to unnatural death or she had been administered poison by her husband.
11. The main limb of arguments of the learned counsel for the appellant was that since the
death had taken place in th e house of her husband, hence the husband cannot be safely
exonerated of the charge. So far as the contention of learned counsel for the appellant is concerned, neither the unnatural death of deceased was supported by MLC and report of Chemical examiner no r by any other piece of evidence. Merely on the basis of presumption
the respondent cannot be convicted. The Hon'ble Apex Court in the case of Nasrullah alias Nasro v. State 2017 SCMR 724, held that:
"Be that as it may holding by this Court that some part of the onus lies on the accused person in such a case does not mean that the entire burden of proof shifts to the accused person in a case of this nature. It has already been clarified by this Court i n
the case of Abdul Majeed v. The State (2011 SCMR 941) that the prosecution is bound to prove its case against an accused person beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eye-witnesses and such claim of the prosecution is not established by it there the
accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that murder. In the case in hand the eye -witnesses
produced by the prosecution lived eighty kilometers away from the scene of the
crime, their stated reason for presence in the house of occurrence at the time of the
incident in issue had never been established through any independent evidence, their presence at the spot had not even been mentioned by the complainant in the FIR lodged by him and the conduct displayed by the said eye -witnesses was such that they
did not inspire confidenc e at all. " [BOLD ADDED]
12. The reappraisal of entire prosecution evidence would reflect that the prosecution has
absolutely failed to bring on record any single iota of evidence in the shape of oral or documentary evidence to establish the charge. At the first hand, the ocular testimony is not
direct rather based on presumptions, while on the other hand the medical evidence is also not supporting the allegations levelled by the prosecution. The entire material so produced by the prosecution does not conne ct the accused/respondent in any manner, hence the prosecution
case against the respondent No.2 is highly doubtful, thus the trial Court after proper appraisal of material available on record has rightly acquitted the accused/respondent No.2 of the
charge through the impugned judgement and the minute scrutiny of prosecution case has
justified the impugned acquittal order passed by the trial Court. The prosecution has
miserably failed to bring home the charge against the accused/respondent No.2, therefore, w e
see no merits in the instant case. It is a settled principle of law that double presumption of
innocence is attached to the order of acquittal and interference is unwarranted unless the
acquittal is arbitrary, capricious, fanciful or against the record. In the instant case the order of
acquittal passed by the trial Court is neither arbitrary, capricious fanciful nor contrry to the evidence brought on record, warranting interference by this Court.
For the above reasons, the appeal is dismissed in limine.
HBT/38/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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