Full Judgment Text & Judicial Ruling

2022 P Cr. L J Note 51 [Sindh (Larkana Bench)] Before Muhammad Saleem Jessar, J ZAHIR ALI---Appellant Versus The STATE---Respondent Criminal Appeal No. S-22 of 2017, decided on 27th February, 2019. (a) Penal Code (XLV of 1860)--- ----Ss. 324, 337-J & 34---Attempt to commit qatl-i-amd, hurt by poison, common intention---Appreciation of evidence---Benefit of doubt---Allegation against accused was that he gave poison to his wife in food---Record showed that not a single witness produced by the prosecution had stated that he/she had seen the accused while mixing insecticide in the food of the victim---No effort was made to take any sample of the food which was consumed by the victim immediately before her condition worsened---No other family member had any problem with food made in the house---Record transpired that there were numerous contradictions in the evidence of the prosecution witnesses which clearly created doubt in the prosecution case---Complainant alleged that the victim was given insecticide in food and thus an attempt was made on her life, while the appellant denied the same and stated that the victim had taken some Diazepam (relaxant) tablets---Medical Officer, who, first checked the victim stated that she had taken "Diazepam (relaxant) tablets"---Victim was given first aid by said Medical Officer and opined that victim had taken 2-4 diazepam (relaxant) tablets, however, it was denied by the victim that she was examined by the said Medical Officer---Said Medical Officer was an independent witness, therefore, there was no reason to doubt his deposition without any corroboration---Opinion of said Medical Officer that the victim had taken 2-4 diazepam tablets was corroborated by Lady Medical Officer as she had confirmed that if a person had taken diazepam tablets his condition would be similar to that of the victim---Complainant stated in her evidence that she finished the whole meal brought for her dinner and had not felt any suspected/foul smell from the food---Insecticides had a very foul smell and it was almost unbearable---Insecticides were not such strong poisons that only a drop of the same would be enough to kill a person---Complainant and his son had stated that neither they had seen the food which was eaten by the victim nor they had seen the plates in which she took her dinner---No proof was available that poison was given to victim in her food by the appellant---Record showed that victim was brought to hospital and she was given first aid and her stomach was washed---On the next day samples of victim's stomach, blood and urine were secured and were sent for laboratory examination---No explanation was furnished as to why the samples were taken on the next day and why the same were not taken on the day she was brought to hospital---Circumstances established that the prosecution had not been able to prove by cogent evidence that any insecticide was mixed in the food of the victim by the appellant---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court. (b) Penal Code (XLV of 1860)--- ----Ss. 324, 337-J & 34---Attempt to commit qatl-i-amd, hurt by poison, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of witnesses---Effect---Allegation against the accused was that he gave poison to his wife in food---Record showed that the complainant stated that he asked his daughter/victim at the house of her husband about her health and she stated that she was poisoned by her husband and his relatives---However, the evidence of victim completely belied the complainant as she stated that she was unconscious at her house and regained conscious at the hospital where she informed her mother that she was poisoned by her husband and his relatives---Circumstances showed that there was clear and material contradiction in the evidence of two prosecution witnesses---Complainant and his son/witness had stated that the victim was vomiting blood, however, victim did not say in her deposition at all that she was vomiting blood---Lady Medical Officer only said that victim was brought to her and she was vomiting---Lady Medical Officer did not say that she was vomiting blood---Such was a clear contradiction as one set of witnesses said that the victim was vomiting blood while the other did not say so---Record transpired that there was also contradiction between the evidence of complainant and victim with regard to presence of accused at the time of incident---Lady Medical Officer stated in her examination-in-chief that she secured samples on the next day for laboratory examination including stomach sample, blood and urine---Lady Medical Officer, in cross-examination, stated that samples of vomiting were not secured---Later, said Lady Medical Officer stated that she received four samples which were mentioned in her report that she received such samples from male Medical Officer---Contradiction existed as to who collected samples and when---Since Male Medical Officer was not examined, therefore, it could not be confirmed whether he collected such samples or not---Prosecution had not been able to prove by cogent evidence that any insecticide was mixed in the food of the victim by the appellant---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court. (c) Criminal trial--- ----Motive---Scope---Motive was not sine qua non for proving offence---Absence of motive was also no ground to doubt the truth of prosecution case. 2005 YLR 465 rel. Syed Aijaz Ali Shah for Appellant. Aitbar Ali Bullo, D.P.G. for the State. Complainant in person. Date of hearing: 4th February, 2019. JUDGMENT MUHAMMAD SALEEM JESSAR, J.---Through instant criminal appeal, the appellant has assailed judgment dated 22.7.2017, passed by III-Additional Sessions Judge, Shikarpur in Sessions Case No. 620/2016, whereby the appellant Zahir Ali son of Zakir Ali Hajano was convicted under section 265-H(2), Cr.P.C. and sentenced under section 324, P.P.C. to undergo R.I. for five years and was also to pay fine of Rs.100000/- (One Lac Rupees Only) and in case of failure to pay the fine, to further suffer S.I. for one year. Co-accused Fida Hussain son of Ghulam Akbar and Mushtaq Ahmed son of Muhammad Ramzan, were; however, acquitted under section 265-H(1), Cr.P.C. 2. Facts of the case, as narrated by the complainant and incorporated in the FIR, are that on 08.09.2016, he received information at about 2000/2015 hours from the house of his daughter Mst.Gulnaz that her family members had given her poison in her food. The complainant along with his wife and son Sadam went to her house at Allahabad Colony. They observed that Mst. Gulnaz was vomiting blood and she was writhing in pain. When they asked her about her condition she replied that her husband Zahir, Mushtaque Ahmed and Fida Hussain had poisoned her. Then they took Mst. Gulnaz to RBUT hospital Shikarpur for treatment. Complainant's son Sadam went to Stuart Ganj Police Station and brought a letter for medical treatment. Then he secured the order from the court and got lodged the FIR. 3. The case was marked to ASI Iqbal Ahmed Noon for investigation, who after usual investigation, submitted final report in compliance of section 173, Cr.P.C. and preferred challan. Police papers were supplied to the accused at Ex.1, thereafter, charge was framed against the accused at Ex. 2 to which they pleaded not guilty and claimed to be tried vide their pleas recorded at Exs. 3 to 5. 4. To prove the charge, the prosecution examined PW-1/Complainant Sultan Ahmed at Ex.6. He produced FIR and order dated 28-09-2016 at Ex.06/A and Ex.06/B. Prosecution also examined PW-2/Mst. Gulnaz, at Ex.07 and also examined PW-3/Saddam Hussain at Ex.08. He produced letter of PS along with memo of site inspection at Ex.08/A and Ex.08/B. Prosecution also examined PW-4/Dr. Farah Naz at Ex.10. She produced provisional medical certificate, letter issued by PS Stuart Ganj, first aid report, laboratory report, and final medical certificate at Ex.10/A to Ex.10/H. PW-05/IO/ASI Iqbal Ahmed was examined at Ex.11 and finally P.W-6/author of FIR, ASI Ali Hassan Shah, was examined at Ex.12. Thereafter, prosecution side was closed vide order at Ex.13. 5. After conclusion of prosecution evidence, the appellant was examined under 342, Cr.P.C. at Ex.14, who denied the prosecution story. According to the accused/appellant. Zahir Ali Hajano, he was innocent and has been entrapped in this false case due to matrimonial dispute with his wife. However, he did not examine himself on Oath nor produced any witness in his defense. 6. Thereafter, the learned trial Court framed two points for determination, and after hearing the learned counsel for the parties, convicted and sentenced the appellant as above and acquitted the other two-accused as named above. Hence, instant appeal by the convicted accused/appellant Zahir Ali Hajano. 7. I have heard learned counsel for the appellant and learned DPG for the State as well as the complainant who appeared in person. 8. Syed Eijaz Ali Shah, learned counsel appearing on behalf of the accused/appellant, argued that there is no eye-witness of incident including the victim Gulnaz, as none has seen the appellant mixing poison in the food of victim, no motive for the attempt to murder is alleged, admittedly two accused persons namely Fida Hussain and Mushtaque Ahmed have been acquitted of the charge on the same set of evidence. He next submitted that complainant is not an eye-witness of the incident and further that version of the complainant has been belied by the victim Gulnaz. It was also argued that nothing incriminating has been recovered from the appellant or his home. He contended that the learned trial Court has wrongly appreciated the evidence on record and, as such, the impugned Judgment suffers from non-reading and misreading of the evidence. Learned counsel also submitted that even in the FIR no person has been nominated to mix the poison in the food of the victim Mst. Gulnaz. He also submitted that all the witnesses are related inter se and there is also admitted dispute between the spouses. He further argued that defense got examined DW-1 Dr. Fayaz Ahmed, who was an independent witness, and according to his evidence the victim herself disclosed that she had taken diazepam tablets. Dr. Farah Naz also admitted that symptoms might be similar if patient had taken diazepam tablets. He prayed that the impugned judgment may be set aside and the appellant may be acquitted. 9. Learned DPG along with the complainant vehemently opposed the appeal and submitted that prosecution has proved its case beyond a shadow of doubt as all PWs have supported the prosecution case and their deposition was consistent, whereas, medical evidence also corroborates the version of the prosecution inasmuch as insecticide poison was detected in the victim, namely, Mst. Gulnaz, which is not available in life saving drugs including diazepam tablet as defense is taken by the accused. He contended that oral evidence is fully supported by documentary evidence and the victim has specifically implicated the appellant. Hence, learned DPG prayed, that instant criminal appeal may be dismissed and the conviction and sentence may be maintained. The learned DPG submitted that minor contradiction in the evidence cannot vitiate the entire evidence deduced by the prosecution. The complainant also fully supported the impugned judgment and stated that the appellant has tried to deprive his daughter Gulnaz of her life. 10. The allegation against the appellant is that he gave poison to his wife Mst. Gulnaz in food. However, not a single witness produced by the prosecution has stated that he/she saw the appellant while mixing insecticide in the food of the victim Gulnaz. The onus would be on the prosecution to prove that the appellant first arranged/bought the insecticide and then mixed the same in the food of the victim Gulnaz. In this case no effort was made to take any sample of the food which was consumed by the victim Gulnaz immediately before her condition worsened. In our culture, particularly, in villages entire women folk usually take their dinner together, therefore, it is also a question to be answered as to why no other member of the family suffered the same consequences. As per deposition of the complainant, Sultan Ahmed, who is father of the victim Gulnaz, he inquired from his daughter about her condition and she replied "...my husband Zahir, Mushtaque and Fida Hussain had poisoned me in food." Despite the clear information given by the victim Gulnaz to her father that she has been poisoned by her husband in food, no effort was made to secure the food or the plate in which she took her dinner for chemical examination. Thus, there has been no proof to establish that any poisoned food was given to the victim Gulnaz by her husband or anybody else. One cannot lose sight of the fact that there is no possibility that the food was brought from the kitchen by the appellant or any other male member of the family and the food must be brought by some women of the house, and most probably, by Mst. Gulnaz herself. Therefore, it is not clear as to at which stage or time the food was poisoned by the appellant. There is no possibility that the entire pot in which the food was cooked for the whole family was poisoned as in that case each family member would have suffered the same fate. Therefore, there is doubt as to how the poison entered the body of the victim Gulnaz. Therefore, in view of the fact that there is no evidence on record to indicate as to who mixed poison in the food of Mst. Gul Naz, it can be safely held that the prosecution has not been able to prove the appellant has mixed poison in the food of the victim Gulnaz. 11. Apart from the above, there are numerous contradictions in the evidence of the prosecution witnesses which clearly create doubt in the prosecution case. In this regard reference may be made to the deposition of PW-1, the complainant, who states as under: "We observed that my daughter was vomiting by blood and she was writhing. We asked her about her condition and she replied that my husband Zahir, Mushtaque Ahmed and Fida Hussain had poisoned me in food." 12. However, PW-2, Mst. Gulnaz, the victim, in her deposition stated as under: "... I became partly unconscious that I could only hear but could not speak. After that my mother and my brother came at my husband's house and they enquired from family members regarding my conditions they replied that all is satisfactory but I was not in good conscious as vomiting was continue. My mother brought me to hospital at rikshaw. I received first aid from hospital and became conscious good to disclose the facts to them..." 13. From the evidence of PW-1 - the complainant, it transpires that he asked his daughter at the house of her husband about her health and she stated that she was poisoned by her husband Zahir, Mushtaque and Fida Hussain. However, the evidence of his daughter, the victim - Mst. Gulnaz, completely belies the complainant as she states that she was unconscious at her home and regained conscious at the hospital where she informed her mother that she was poisoned by her husband and his relatives. She states that at the home, her mother enquired from family members regarding her condition. She does not say that her father enquired from her about her health at home or that she informed her father that her husband Zahir Ali, Mushtaque and Fida Hussain have poisoned her. This is a clear and material contradiction in the evidence of two prosecution witnesses. 14. Although both the complainant and his son Sadam, (PW-1 and PW-3 respectively), have stated that the victim Gulnaz was vomiting blood, however, victim Gulnaz did not say in her deposition at all that she was vomiting blood. Even PW-4, Dr. Farah Naz, only said that Mst. Gulnaz was brought to her at 2315 hours on 08.09.2016 and she was vomiting. She does not say that she was vomiting blood. Thus, this is also a clear contradiction as one set of witnesses say that the victim was vomiting blood while the other did not say so. 15. There is also contradiction between the evidence of PW-1 and PW-2 with regard to presence of Zahir Ali at the time of incident. PW-1 state that appellant Zahir Ali was not present at home, while PW-2, stated that appellant Zahir Ali was present at home. 16. PW-4, Dr. Farah Naz states in her examination in chief that she secured samples on the next day for laboratory examination including stomach sample, blood and urine, while in her cross-examination she states that "It is correct that samples of vomiting were not secured." Then she states "I received four samples which I mentioned in my report, I received such samples from Dr. Khadim Hussain." Thus, there is a clear contradiction as to who collected samples and when. Since Dr. Khadim Bhatti was not examined therefore it cannot be confirmed whether he collected such samples or not. 17. Apart from the above contradictions, there are two versions of the incident. It is alleged by the complainant that the victim was given insecticide in food and thus an attempt was made on her life, while the appellant denies the same and states that the victim Gulnaz has taken some Diazepam tablets. 18. The victim was first checked by Dr. Fayyaz Ahmed, who was examined by the appellant in his defence at Exh.18 (page 57 of the paper book). He stated that when he was returning from Isha prayer one baby girl came to him and asked him to go to her house as her sister-in-law was not well. Dr. Fayyaz Ahmed went to her house and examined the victim Gulnaz and found that she was drowsy, pulse was low and blood pressure was also low. On the query made by the said doctor, the victim Gulnaz stated that she has taken Diazepam tablets. She was given first aid by Dr. Fayyaz Ahmed. He stated that according to his opinion, the victim has taken 2 - 4 diazepam tablets. However, it was denied by the victim that she was examined by Dr. Fayyaz. Since, Dr. Fayyaz Ahmed is an independent witness, therefore, there is no reason to doubt his deposition without any corroboration; however, to be on the safe side, it would be advisable to see whether there is any corroboration in support of his deposition. 19. The victim was next checked by Dr. Farah Naz, who was examined by prosecution as PW-4 at Exh.10 (page 25 of paper book). She stated in her deposition that on examination of the victim Gulnaz she was found vomiting and was semi-conscious (i.e. drowsy). She also checked blood pressure of the victim Gulnaz and stated that it was low (as stated by Dr. Fayyaz Ahmed). In her cross-examination, she stated "It is correct to suggest that if a person takes diazepam tablets the result will be very similar to present case." Thus, the opinion of Dr. Fayyaz Ahmed, that the victim Gulnaz has taken 2-4 diazepam tablets is corroborated by Dr. Farah Naz (PW-4) as she has confirmed that if a person takes diazepam tablets his condition will be similar to that of the victim Gulnaz. 20. In this regard reference may also be made to the deposition of the victim Gulnaz (PW-2 at page 15 of the paper book), wherein she stated that she finished the whole meal brought for her dinner and had not felt any suspected/foul smell from the food. It is not a secret that insecticides have a very foul smell and it is almost unbearable. It may also be noted that insecticides are not such strong poisons that only a drop of the same is enough to kill a person. Therefore, if it is presumed that insecticide was mixed in the food of the victim Gulnaz in such a quantity which would cause death of an adult person, then the question will arise: why she did not feel the bad smell of the insecticide, particularly when she allegedly heard her husband telling his family members to bring some poison or other injurious thing. PW-1, the complainant Sultan Ahmed and PW-3 Saddam Hussain, both have stated that neither they saw the food which was eaten by the victim Gulnaz nor they saw the plate in which she took her dinner. Therefore, there is no proof that poison was given to Mst. Gulnaz in her food by the appellant. 21. All the above facts and circumstances suggest that the prosecution has not been able to prove by cogent evidence that any insecticide was mixed in the food of the victim Gulnaz by the appellant. 22. The learned trial Court, while evaluating the evidence deduced by PW-Dr. Farah Naz and DW-Dr. Fayyaz Ahmed, has observed as under: "It is not understandable for me that I have rely on either of the evidence i.e Fayaz Ahmed defense witness or Dr. Farah Naz WMO who had duly examined victim in RBUT hospital Shikarpur, hence, in my opinion evidence of Dr. Farah Naz supported with circumstantial evidence that victim was examined by her, samples were secured and were sent to chemical laboratory and report was received which is available at Ex.10/H and very much supporting the evidence of Dr. Farah Naz, hence. I rely upon the evidence of Dr. Farah Naz by declaring that Dr. Fayaz Ahmed had misused his position and managed the medical certificate to favour the accused, hence, I hereby direct DHO Shikarpur to restrain him from working as medical officer and I also direct PMDC Islamabad for taking action against him, besides that I hereby order that show-cause be issued against him as he has managed such fictitious medical certificate and misused his powers besides that, he falsely deposed the facts to favour the accused Zahir Ali under section 193, P.P.C. to submit his reply within (07) days from the date of receiving, in failure thereof it shall be assumed that he has nothing to say in his reply." 23. It is regrettable that the trial Court has ventured too far while evaluating the evidence of the above two doctors and was careless in taking such drastic action in haste against Dr. Fayyaz Ahmed. The trial Court has observed in the impugned judgment [para 19] that "Dr. Fayaz Ahmed had misused his position and managed the medical certificate to favour the accused", which is incorrect for the reason that no medical certificate was issued by Dr. Fayyaz Ahmed and, therefore, he did not misuse his authority/position in any way. Dr. Fayyaz Ahmed stated that he examined the victim Gulnaz after Isha prayer and found her drowsy and the victim Gulnaz was confronted with the slip of the doctor which is not a medical certificate and carries the names of the medicine(s) prescribed by a doctor for his patient. In para 18 of the impugned judgment also it has been observed "From bare reading of the medical certificate issued by him shows the prescription given by him to the victim or the tablets at the top of the Exh.7/A have been crossed and again some syrups have been prescribed which are never been disclosed by him during evidence before this Court..." Once again it seems that the trial Court has mixed up prescription with certificate because both are totally different things. Certificate issued by a doctor to a patient does not contain names of the medicines prescribed by him. It is also worth mentioning that Ex.7/A, referred to above, is not available in the paper book. Ex. 7 is the deposition of PW-2 Mst. Gulnaz while Ex. 8 is deposition of PW-3, Saddam Hussain. In between these two documents there is no other document. However, in the cross-examination of PW-2, Mst. Gulnaz, it is noted that "witness confronted with a slip of Dr. Fayyaz Ahmed which is taken on record at Exh.01/D). However, even this exhibit (Exh. 01/D) is also not available on record. Therefore, the first step of the trial Court towards evaluation of the evidence of Dr. Fayyaz Ahmed was in the wrong direction and, therefore, caused miscarriage of justice. 24. According to the opinion of Dr. Fayyaz Ahmed, the victim Gulnaz has taken 2 - 4 tablets of diazepam. This statement of Dr. Fayyaz Ahmed has been corroborated by Dr. Farah Naz in her deposition wherein she stated "It is correct to suggest that if a person takes diazepam tablets the result will be very similar to present case." Thus, there is nothing on record to show Dr. Fayyaz Ahmed had falsely deposed in favour of the appellant Zahir Ali and that the opinion of Dr. Fayyaz Ahmed that the victim Gulnaz has taken 2-4 diazepam tablets, was wrong or that he willfully lied before the Court on oath. Even otherwise, it was only an opinion based on physical examination of the patient and was not based on some laboratory tests. So far as the chemical examiner's report is concerned, it is very much doubtful for the reasons discussed above. 25. Although the victim, Mst. Gulnaz has denied that Dr. Fayyaz Ahmed has examined her. However, the veracity of the deposition of victim Gulnaz is tarnished by her statement that "...my husband was at home all day on the date of incident and he was gossiping with his family members…

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