LAHORE: “The injured witness ordinarily is not disbelieved but the circumstances of this case forced me to disbelieve the injured prosecution witness,” observes Justice Sardar Ahmad Naeem of the Lahore High Court in his detailed verdict on acquittal of Shah Hussain in Khadija Siddiqui stabbing case.
In his 12-page judgment, the judge further observes, “I am satisfied that the prosecution has failed in its duty to prove the guilt of the appellant (Hussain) beyond reasonable shadow of doubt and the benefit of the doubt is always extended in favour of the accused.”
Discussing the case of prosecution, Justice Naeem says that the injured regained her senses five days after the occurrence on May 8, 2016 and nominated the appellant but it is falsified by the woman medical officer as she stated that the injured told that a boy attacked upon her.
He states that the injured was straightaway shifted to the hospital from the place of occurrence but this fact is also belied by her medico legal certificate which reflects that both injured (Khadija and her minor sister) were medically examined by the order of the magistrate concerned before the registration of the FIR.
The judge rules that it is settled by now that injury on a witness is only indication of his presence at the spot but is not affirmative proof of his credibility and truthfulness. “It is not a universal rule that each and every word coming from the mouth of injured person is truth,” the judge adds.
“Mere presence of injuries would not stamp that he is a truthful witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness,” the judge rules.
He notes that during the investigation appellant/convict led to the recovery of “knife” from a public park (Jinnah Garden) but after five months of the occurrence and it was not blood stained as admitted by the police.
“Thus, recovery of Churri at belated stage lend no support to the prosecution,” the judge observes adding that the red-coloured helmet stated to be of the appellant was also of no help to the prosecution as one of its witnesses stated that a black coloured helmet was taken into possession from inside the car of the injured.
Moreover, no independent witness was cited by the prosecution, Justice Naeem says and adds, “The occurrence might have taken place not in the manner as described by the eyewitnesses/injured.”
“The above discussion leads to the conclusion she (Khadija) was in her senses, well oriented in time and space, thus registration of FIR against unknown accused in her presence is a question mark,” the judge observes.
He regrets that this aspect of these witnesses had escaped the notice of both the courts below resulting into miscarriage of justice.
“In view of the above, the findings of the courts below holding Shah Hussain (petitioner) guilty on the basis of above evidence called for interference in the exercise of revisional jurisdiction,” Justice Naeem rules concluding the judgement.
A judicial magistrate had on July 29, 2017 sentenced Hussain to seven-year imprisonment under section 324 (attempted murder) of Pakistan Penal Code (PPC), two-year under section 337A(i) (causing injuries), five-year under section 337A(ii), one-year under section 337F(i), three-year under section 337F(ii) and five-year under section 337F(iv).
However, a sessions court in March this year had commuted the rigorous imprisonment by two years awarded by the trial court to Hussain while setting aside the other minor penalties.
Ms Siddiqui, a law student, was attacked by Shah Hussain on May 3, 2016 near Shimla Hill where she along with driver had gone to pick her younger sister from school. Both sisters were about to get into their car when helmet wearing Hussain attacked Siddiqui with knife and stabbed her 23 times leaving her critically injured.
Civil Lines police had registered a case against Shah Hussain on charges of attempted murder. The convict is son of senior lawyer Tanvir Hashmi.
Published in Dawn, June 8th, 2018