OMAR SIAL, J.---- This appeal has been preferred against a judgment dated 2-9-2014 passed by the learned Additional Sessions Judge, Kandiaro. In terms of the said judgment, the Appellant was convicted and sentenced as follows:-- a) For an offence under section 324, P.P.C: R.I. for ten years and a fine of Rs. 50,000 (or S.I. of one month more in default). b) For an offence under section 337-F(vi), P.P.C: Daman of Rs.100,000 to the heirs of the deceased. c) For an offence under section 336: Payment of arsh equal to diyat.
2. Brief facts of the prosecution case are that Assistant Sub-Inspector of Police, Ali Asghar, was on duty at the Police Station of Halani on 6-10-2012. At about 1200 hours the Appellant walked into the police station and confessed before him that he had fired at his step mother with a pistol. Ali Asghar then took the Appellant to the house of the Appellant and saw a huge gathering of men and women. The Appellant told him that he had fired at his step mother Farzana as she was a "Kari". Farzana was in an injured condition so Ali Asghar moved her to the hospital in Halani and as there was no woman medical officer there he shifted her to the hospital in Kandiaro. Ali Asghar then lodged an FIR bearing number 174 of 2012 under sections 324 and 311, P.P.C. against the Appellant. On 2-11-2012. Farzana died and hence the offence with which the Appellant was charged was converted into one under sections 302 and 311, P.P.C.
3. A charge against the Appellant was framed on 16-4-2013 to which he pleaded not guilty and claimed trial.
4. In order to prove its case the prosecution examined five witnesses. P W-1 All Asghar was the complainant. PW-2 Sikander Ali was the witness to the memos. of site inspection, arrest, recovery and inquest report. PW-3 Dr. Tasleem Masood was the doctor who examined the injured Farzana and then subsequently also conducted the postmortem. PW-4 Ali Hassan was the tapedar who prepared the site sketch. Himuddin Janwari, the judicial magistrate who declined to record the section 164, Cr.P.C. statement of Farzana was examined as a court witness.
5. The Appellant recorded his statement under section 342, C.P.C. on 10-12-2013 and pleaded his innocence. He further stated that Farzana had married his father out of her own free will and that her parents were annoyed at it. He also said that a false statement attributed to Farzana was taken, by Ali Asghar and that on 22-10-2012 Farzana went to a judicial magistrate to record her statement under section 164, Cr.P.C. but the magistrate declined to record it. He produced his father Abdul Qadir as his witness.
6. The impugned judgment was announced on 2.9.2014.
7. I have heard the learned counsel for the Appellant as well as the learned APG. I have also examined the record with their able assistance. For the sake of brevity the arguments raised by the counsel are not being reproduced her as they form part of the record. Suffice to say that the learned counsel for the Appellant has reiterated the grounds contained in the memo. of appeal whereas the learned APG has opposed the appeal and supported the reasoning in the impugned judgment. My observations are as follows.
8. The charge of pre-meditated murder under section 302, P.P.C. was not proved in trial. The State did not appeal or prefer a revision against the impugned judgment. Instead, the Appellant was sentenced for an attempt to murder under section 324, P.C.C.
9. There are two pieces of evidence upon which the learned trial court has convicted and sentenced the Appellant. One, the extra judicial confession ostensibly made by the Appellant before the police officer Ali Asghar. Two, a statement under section 161, Cr.P.C. of Farzana in which she stated that it was the Appellant who had shot her.
10. The learned trial court in the impugned judgment did not take into account the provisions Article 38 of the Qanun-e-Shahadat Order, A 1984 which provides that "no confession made to police officer shall be proved as against a person accused of any offence". The learned trial court however appears to have reached the conclusion it did of basing an extra-judicial confession as the reason for conviction by relying on Article 40 of the Order. A requirement of Article 40 is that a person should be in police custody when he reveals information that leads to a discovery of a fact.
In the current case neither was the Appellant under custody at the time he is said to have revealed to the police officer that he had fired at Farzana nor can it be said that his taking Ali Asghar to the home of the deceased (where there were many people present) to see the injured Farzana, is a situation contemplated to be a "discovery" pursuant to Article 40. The second time, the Appellant is said to have made a confession was when he was in custody and present at the scene of the incident. Again, the second situation also does not fall within the ambit of Article 40. The ostensible confession of the Appellant that he shot Farzana because she was a "Kari" is also not making any sense in the present scenario. There is no allegation that Farzana was having an affair with any body else. It appears that a stereotyped allegation without any evidence to support the same has been made by the police such a fact corrodes the evidentiary value or the testimony of the complainant and the police.
11(sic). There were admittedly many people present at the house of Farzana when the complainant reached there. The complainant admitted that he did not ask any of the people present at the scene to record their statements and that all witnesses are police officials. While there is no cavil to the proposition that in the absence of any mala fide alleged, police officers are good witnesses, in the circumstances of the case where all that the Investigating Officer had till then was an ostensible confession of the Appellant, proprietary demanded that the Investigating Officer corroborate or at least make an effort to corroborate the confession made by the Appellant. This was not done.
12. The section 161, Cr.P.C. statement of Farzana is said to have been recorded on 6-10-2012. She was admittedly discharged the same day and did not die till 2-11-2012. Her section 161, Cr.P.C. statement can therefore not be treated as a dying declaration. Farzana had made an application before the learned judicial magistrate to record her statement under section 164, Cr.P.C. on 22-10-2012 but .the learned magistrate declined to record the same on the ground that the Investigating Officer had not made the application. It was argued in trial and again in these proceedings that Farzana wanted to make a judicial statement that the police had wrongly recorded her section 161, Cr.P.C. statement. Whether this was to be the case or not could not be determined conclusively because of Farzan's death, however, it does create some doubt in the prosecution case.
13. No recovery was made by the Investigating Officer. The I E Investigation Officer found no blood on the scene of incident. The appellant is said to have led the police to the place where he allegedly had hidden the pistol with which he had fired on Farzana, however, no pistol was recovered.
14. Farzana died on 2-11-2012. The Investigating Officer wrote in the inquest report that he had received spy information that she had died and thus suspecting that she had died of the fire arm injury said to have been inflicted by the Appellant on 6-10-2012. PW-3 Dr. Tasleem Masood deposed that she could not initially confirm the reason for Farzana's death; that she sent the viscera of Farzana to the chemical lab to determine if she was poisoned; that the chemical examiners report came in the negative; hence she issued a final report stating therein that Farzana had died of a cardio-respiratory failure. It is not opined that the cardio-respiratory failure had occurred due to the injuries. The postmortem report of the doctor, in fact, is clear that the fire-arm injury wounds were healed when she examined the dead body. In her testimony she deposed that Farzana had not died due to fire-arm injuries. In such circumstances, the haste of the Investigating Officer in charging the Appellant with the murder of Farzana upon her death raises doubts about the impartiality of the Investigating Officer. None of the relatives of the deceased were cited as witnesses in the entire process.
15. The father of the Appellant clearly exonerated him in trial. Through out the process, the father had not supported the prosecution. Yet, he was produced as witness by the prosecution. His testimony being completely contrary to the prosecution claim in itself creates doubt in the prosecution case.
16. In view of the above, the prosecution failed to prove its case beyond reasonable doubt.
17. Above are the reasons for my short order of 10-5-2017 in terms of which the appeal was allowed; the Appellant acquitted of the charge(s) and ordered to be released if not required in any other case.