JAMSHED AHMED KHAN Versus State

ABDUL RASOOL MEMON, J.--- Appellant Jamshed Ahmed Khan was tried for an offence under section 302, P.P.C. and vide judgment dated 16.05.2013 was convicted and sentenced to suffer imprisonment for life. He was also ordered to pay compensation of Rs.100,000/- (One lac) to the L.Rs of deceased Mst. Fouzia Amber, in default thereof to undergo S.I for six (06) months.

2. The prosecution case, in a nutshell, is that on 07.02.2010 appellant/accused himself appeared at PS before duty officer SIP Muzaffar Ahmed and mentioned him the facts of incident that when he was out of his house and gone to his friend at Punjab Colony, his brother informed him through telephone that his wife has expired due to sustaining bullet shot injury and when reached at home saw his wife Fouzia lying in the pool of blood in the room where .9-mm pistol was also found lying near her. SIP Muzaffar Ahmed after recording information of the incident in D.D went to the place of incident, found Mst. Fouzia Amber having blood on her body lying dead on the floor of store room attached with her room. On checking, it was found that deceased had received a bullet shot wound on right side temple which went through and through. A .9-mm pistol bearing No. TVA-0137 MCO-5904 was also found alongside neck shoulder of deceased in which one bullet was found loaded in chamber and nine (09) in magazine. One live bullet was also found lying near the foot of deceased on the slab. Besides that, one empty shelf was seen lying behind the head of the deceased and another near the chest. He also found bullet marks on the southern side in northern wall of said room. On wardat one Sikka/fired bullet of brown colour was also lying in blood near the face of deceased and one Sikka/fired bullet behind the neck inside the store room, which all were secured by him. In the meanwhile, brothers of deceased, namely Farrukh Anwar and Amir Naushad also arrived there and in their presence memo. of inspection of dead body was prepared. The elder brother of deceased, namely, Ansar Ahmed Khan also arrived there and disclosed that his sister had not committed suicide but she was murdered by her husband as he had illicit relations with one Samina on which deceased was annoyed and in order to get rid of her, accused committed her murder. After that accused was arrested on spot. SIP Muzaffar also prepared sketch of .9 mm pistol, fired and live bullet so also magazine and referred the dead body for postmortem examination. After obtaining the cause of death, he prepared inquest report and got her washed hands and obtained same water for analysis purpose so also obtained finger prints. Thereafter, recorded statement of complainant Ansar Ahmed under section 154, Cr.P.C., wherein he stated that deceased was married with accused in 2003, she gave birth to one son and daughter, and that since accused had illicit relations with one Samina living in Punjab colony, oftenly quarrel used to take place between the couple, on the fateful day accused had beaten the deceased, she made such complaint to him on telephone.

3. On completion of usual investigation, appellant/accused was sent up to face trial for charge of murder under section 302, P.P.C. to which he pleaded not guilty and claimed trial. The prosecution in order to prove accusation against appellant produced as many as eight witnesses and three court witnesses. The appellant in his statement under section 342, Cr.P.C. denied the charge, pleaded innocence and claimed his false implication in the case. He did not examine himself on oath in disproof of allegations as required under section 340(2), Cr.P.C. He, however, examined two DWs Abdul Hameed and Babar Khan in his defence.

4. Upon conclusion of trial, learned trial Court found the appellant/accused guilty of causing murder of Fouzia Amber and convicted him vide impugned judgment hence this appeal.

5. Learned counsel for accused contended that nobody had seen the accused while committing the murder of deceased; that the complainant is real brother of deceased and admittedly reached at the place of wardat after the incident and has made lot of improvements in his statement before the trial court, thus, his evidence is not reliable; that though prosecution could not establish the presence of accused at the time of incident even then learned trial court convicted the appellant; that the motive set-up by complainant could not be proved through independent and trustworthy; that initial medical report was managed by the prosecution and that the prosecution case is not free from doubt. In support of his contention he has placed reliance on the cases reported in 1. 1993 SCMR 550, 2. 2006 SCMR 1139, 3. 1995 SCMR 1345, 4. 2007 SCMR 1825, 5. 1992 SCMR 2047, 6. 2010 PCr.LJ 979, 7. 2007 MLD 1203, 8. 2006 PCr.LJ 1082,

9. PLD 2005 Kar. 232, 10. 1973 PCr.LJ 802, 11. 2012 YLR 510, 12. 2011 YLR 2338, 13. 2009 YLR 1938, 14. 2009 YLR 1425, 15. 2009 YLR 1500 and 16. 2007 YLR 2142.

6. Learned advocate appearing for complainant argued that accused being employee of police department tactfully distorted the facts of incident; that he was supported by police officials during the investigation; that police with mala fide intention examined two brothers of accused, namely, Ghulam Asghar Khan and Shahid Ahmed Khan so also one Mst. Sameena with whom the accused Jamshed had illicit relations, to prove his absence at the time of incident from his house; that the story made by accused about suicidal death of deceased is false and fabricated; that there are three contradictory medical reports; that as per expert report no finger print was visible or available on the pistol used in the commission of crime, the person after committing suicide could not rub it but it could be rubbed by another person there was no one but the accused who did it to hide his crime; that empty shells were recovered from place of incident and two bullet marks were found on different walls of the room, which clearly shows sign of two fires whereas deceased had sustained only one firearm injury, it indicates that not deceased but the person other than her actually made firing upon her and that deceased being pregnant of twelve (12) weeks and mother of two children could not be believed to have committed suicide. In support of his contention he has placed reliance on the cases reported in (1) 2003 PCr.LJ 638, (2) 2007 PCr.LJ 84, (3) 2003 SCMR 68, (4) 1992 PCr.LJ 1387, (5) 1982 SCMR 910, (6) 2003 SCMR 344 and (7) 1990 SCMR 326.

7. I have given my patience hearing to the arguments advanced at bar and have gone through the impugned judgment as well as the evidence so far brought on record. Undeniably, it was an un-witnessed incident and the prosecution case rested on circumstantial evidence. It is settled law that in absence of ocular evidence conviction can be recorded on circumstantial evidence provided no link of chain is found missing and all circumstances must lead to the guilt of accused and if a single link of the chain is missing, the circumstantial evidence could not be relied upon, every link it the case, like this, should be proved through cogent and convincing evidence and if not, then no conviction could be maintained or awarded to an accused. It is an admitted fact on record that complainant Ansar Ahmed reached at the place of incident after the death of deceased. He has deposed that on the day of incident he was present in the house of his mother when it was 10-45 a.m. his sister deceased Fouzia Amber made a call on mobile phone of her sister Zobia, which was received by him, she made a complaint of her husband (accused) and called him to talk with the family of her husband to mend his behavior, she further told him that her husband was present in the home at that time and he felt that someone snatched her phone then it was dropped. He.further deposed that on the same day at about 12.00 or 12.30 p.m. his wife was informed on telephone about the death of deceased by the accused. It may be mentioned here that complainant in his FIR/statement under section 154, Cr.P.C. recorded in the hospital, did not mention if on the day of alleged incident in morning, deceased had made any sort of complaint to him or he was informed by her about presence of accused in the home at about 10.45 am. It indicates that complainant in his statement before court has tried to strengthen the prosecution case by improving his version, which cast serious doubts on credibility of his evidence regarding his contact with deceased prior to the incident, thus, his evidence to that extent is not believable, reliance is placed on case Akhtar Ali and others v. The State (2008 SCMR 6) in which august Supreme Court of Pakistan has observed at page 12 as under:-

"It is also settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. See Hadi Bakhsh's case PLD 1963 Kar. 805".

8. P.W.5.Aamir Naushad, he is also brother of deceased, claimed himself to have arrived at place of incident along with complainant and acted as mashir, in his presence police inspected the dead body and prepared memo of inspection of dead body (Ex.13/B). Surprisingly, this PW Aamir Naushad has not said a single word about the strained relationship of deceased and accused or even he has not said if deceased had made any contact with his sister Zobia or complainant or made any complaint to them about the ill behavior of accused with her. Not only that but he has also not said if deceased was annoyed with accused on his illicit relation with one Samina, as such, the version of complainant is not supported by his own brother Aamir Naushad.

9. Medical evidence was furnished by PW No.7 Dr. Fareeda, who conducted postmortem examination of deceased Fouzia Amber and from external examination found the following injuries on her person.

1. Lacerated punctured wound over right side of forehead in front of right ear about 5 C.M x.3 C.M Margin are inverted (Wound of Entry).

2. Lacerated punctured wound over left side of head about 3 C.M X 3 C.M. Brain matter extruded outside. Wound of exit.

3. Bruise over dorsum of left hand about 1.5 C.M into diameter. Cause of death was given Neuroginic shock leading to cardio pulmonary failure due to acute head injury by fire arm projectile.

10. Dr. Fareeda has further deposed that on the letter of Police Surgeon she issued clarification vide her letter produced at Ex.10/C wherein she changed the seat of injuries Nos.1 and 2 vice versa from left to right and right to left.

11. Now I take up the evidence of PW.I SIP Muzaffar Ahmed Khan, who was the first person, reached on the spot after receipt of information from accused about the death of deceased. This PW SIP Muzaffar has deposed that when he reached at the place of incident found the dead body of deceased lying in pool of blood on the ground of store room attached with bed room on left shoulder. He inspected the dead body, in the meanwhile brothers of deceased, namely, Farrukh Anwar and Aamir Naushad reached there and attested the memo of inspection of dead body. He further stated that a .9 mm pistol was also found lying on back side of her shoulder. On checking, it was found loaded with 9 rounds in magazine and one in chamber. He also secured one live cartridge (as per sketch on memo of arrest and recovery it was shown live bullet) from the slab of store room and two sikas one in silver colour lying behind the rack inside the store room and the other is brown colour found lying in the blood near the face of deceased, besides that he also recovered two empties from place of incident at that time elder brother of deceased, namely, Ansar Ahmed (complainant) also arrived there and disclosed that accused has committed her murder due to his illicit relations with one lady Samina. He arrested the accused in his presence and that of P.C. Noor Khan under a mashirnama and prepared sketch of pistol, empties, live bullet and fired bullets (Ex. 03/C). Then he referred the dead body for postmortem examination and after receiving cause of death and completing legal proceedings, obtained finger prints of deceased and got washed her hands, took water separately for chemical examination to ascertain if particle of pistol was available on her finger or not. Thereafter, he recorded 154, Cr.P.C. statement of complainant (Ex.3/1). He produced recovered property at Article A/1 to A/4. In cross-examination he denied to have recorded 154, Cr.P.C. statement of complainant on the basis of retorted facts.

12. The evidence of P.C. Noor Ahmed Khan is on the same line of SIP Muzaffar as he was present with him at PS when accused Jamshed had appeared at PS and reported the matter and thereafter he also came along with said SIP Muzaffar at place of incident and acted as mashir of arrest of accused and recovery of weapon etc.

13. Of-course, it is usually found that in case of suicidal death the weapon is firmly clutched in the working hand of deceased with index figure fixed curved tight on trigger due to cadaveric spasm but in the case in hand as per evidence of above witnesses, the pistol was found lying on the back side of her shoulder. Under Q.4.45 Section IV at page 4.84 in Parikh's Text book of Medical Jurisprudence and Toxicology for Court room Revised Edition 2013, it has been defined that "it is, occasionally compatible with suicide to find the weapon at some distance or even washed and put away but it is more frequently found lying by the side of deceased than grasped in the hand."

14. In view of above from recovery of weapon/pistol by the side of deceased no inference can be drawn that it could not have been used by the deceased herself, even the contention of complainant's Advocate regarding non-availability of finger print on pistol, is also replied that its washing out is also possible in such like cases; otherwise the report of ballistic expert is clear that the crime empties recovered from the place of incident were found to have been used in the pistol recovered along the side of deceased. It is worth to be noted that in the report of Assistant Inspector General of Police Forensic Division Sindh Karachi produced (Ex.15/A) it is clearly mentioned that gun powder residue was found present in the water taken from left hand of deceased. It shows that left hand of deceased was used for making fire. This report also seeks corroboration from the medical evidence.

15. The initial medical report/autopsy notes of WMO was disputing as much as she could not properly explained the description and position etc of the injuries sustained by the deceased. Consequently, a board was got constituted and after about one month of her death, again postmortem of deceased was conducted by the board of doctors. One of the members of board Dr. Qarrar Ahmed Abbassi Senior MLO Civil Hospital Karachi was examined as Court witness, he produced the postmortem report conducted by board at Ex. 14/A. Relevant findings of the board regarding injuries sustained by deceased are reproduced here under:-

Injury No.1 circular wound of 1cm in diameter over (L) tempal in anterior half with beveling of the inner plate present along with Blackening of margins, multiple radiating star shaped fractures of temporo parietal, zygenitic and occipital bones on (L) side with fracture of the base of the skull as wound of Entry.

Injury No.2 Irregular shaped wound of size 5 cm x 4.5 cm in (R). Temporoparietal reigon with beveling of the outer plate, no blackening multiple radiating fractures of (A) temporoparietal, occipital and zygenitic bones with flakes of bony places outside the wound as wound of Exit (In scalp hairs).

16. The above finding of medical board are comprehensive and reliabie, which clearly defined the injury in proper position and declared the findings of WMO Dr. Fareeda as incorrect and erroneous. As per prosecution case .9 M.M. pistol was used in the murder of deceased. In committing suicide fire shot is made contact with body surface that could cause entry wound at the size of width of the barrel of weapon as is defined under Q. 418 of section VI at page 4.34 in Parikh's Text Book of Medical Jurisprudence and Toxicology for Court room Revised Edition 2013. The size of entry wound as found above by the board of doctors matches with the weapon/pistol allegedly used in the case. It is natural phenomenon that at the time of attack on life and only human being but even an animal make struggle and try to save his/its life but in the medical reports no mark of struggle or any defensive wound was found on the person of dead body. Not only that but also the evidence of SIP Muzaffar, first Investigation Officer and memo of inspection of place of incident do not show struggle or dragging mark of deceased or any blood stained on walls or the place other than the place where deceased was found lying dead, which clearly indicates no movement of the deceased either before or after her death, as such, the medical evidence produced in the case does not suggest alternate evidence of causing murder other than the deceased herself.

17. About presence of accused in his home at the time of incident, it is stated by PW No.04 Naheed Ashraf that she was present in her home in Manzoor colony when at about 11/12 noon children informed her that they heard bullet shot fire, she went to window of her home and saw three elder brothers of accused, namely, Qadir, Asghar and Shahid talking with each other, after few minutes she was informed by children that the incident had taken place in the home of accused Jamshed, she also found a crowd of people at there, thereafter, she started going to the house of accused, in the meantime CHEEPA Ambulance and police mobile came over there. She further saw that accused Jamshed was taking out stature from Ambulance, on her asking, he replied desperately (BUS BAAJIKYA HUWA KUCH BHI NAHI HOA). She further stated that she went to the house of brother of accused Qadir, who is living infront of the acused but his family was not found present in the home and while returning to her house she saw brothers of deceased going to the house of accused.

18. Prosecution has also examined PW No. 08 Samina Sajid. According to her, she calls accused as BHAI and on the day of incident he was present in her house from 10.30 a.m. to 12.30 noon where he received call from his brother Shahid, thereafter, he immediately went to his home and about 12.45 noon she was informed by him about committing suicide by his wife. Per learned counsel for complainant police in order to oblige the accused has examined Mst. Samina Sajid just to favour him otherwise she was the lady with whom accused had illicit relations and she was the motive behind the incident, hence she has given obliging statement in his favour. If this contention is accepted and the evidence of this witness Samina Sajid is excluded from consideration even then prosecution has miserably failed to establish the presence of accused in his home at the time of incident as nowhere PW Mst. Naheed Ashraf has stated if she had seen the accused while coming from his house immediately after hearing the fire shot but her evidence is very simple that she was informed about the fire shot report by her children and at the time of incident she was present in her house and not at the place of incident. No other evidence on this point is produced by the prosecution.

19. PW No.06 SI Raja Khalid Bhatti is I/O of the case, he inspected the place of incident secured clothes of deceased, recorded statements of the complainant and witnesses and on completion of investigation submitted challan of the case against the accused in the Court of law. He produced letters addressed to FSL and Chemical Examiner.

20. The evidence of Court witness Inspector Nazakat Ali is also of a formal nature. He has simply produced the report of Forensic Division in connection with analysis of hands washed water of deceased. As mentioned here-in- above the report of Forensic Division reflects that the water of left hand of deceased contained gun powder.

21. Court witness Inspector Sajjad Ali was examined at Ex.15. He was entrusted case for further investigation, in recourse thereof he sought clarification from Woman Medical Officer Dr. Fareeda regarding discrepancies appeared in the post modem report, visited the place of incident recorded statements of witnesses, exhumation of dead body was made in his presence by the board of doctors under the supervision of Magistrate. He. prepared memo. of grave of the deceased on the pointation of complainant, memo. of inspection of dead body and police report about the death of deceased, which he produced at Ex.15/D to 15/E. After conducting re-postmortem examination the samples collected by the board of doctors handed over to him in sealed condition, which he sent to the Chemical Examiner. He collected reports from laboratory of finger prints, pistol empties and water taken from the hands of deceased. He submitted report that deceased had committed suicide and recommended for disposal of case under "C" class, which was approved by SSP concerned vide letter at Ex.15/J.

22. As it has been discussed hereinabove, there are completely broken links of chain to connect the accused in the commission of murder of deceased as prosecution has failed to establish the presence of accused with deceased at the time of alieged incident and that medical evidence has also not suggested that it was not suicidal death, therefore, accused would be entitled to benefit of doubt.

23. With profound respect the citations relied upon by the learned counsel for the complainant being based on different facts, have no relevant application so far tacts and circumstances of this case are concerned.

24. It is settled principle that for giving benefit of doubt to accused it is not necessary that there should be many circumstances creating doubt, if a single circumstance creates reasonable doubt in the mind of prudent person about the guilt of the accused then the accused is entitled to such benefit not as a matter of grace but as a matter of right ( Tariq Pervaiz v. The State (1995 SCMR 1345)).

25. In view of the above discusion and settled principle of law, I am of the opinion that the prosecution has failed to prove the case against the accused beyond any reasonable doubt. Accordingly, the appeal is hereby allowed, impugned judgment dated 16.05.2013 is set aside and the appellant is acquitted by extending benefit of doubt. The appellant may be released forthwith if not required in any case.

MH/J-6/Sindh Appeal allowed.