' MUHAMMAD AFZAL SOOMRO, J.---The present appeal is directed against the judgment dated 5-8- 2002 passed by learned First Additional Sessions Judge, Malir, Karachi in Sessions Case No,298 of 1998 under sections 324, 302, 109 and 34, P.P.C. Registered at Steel Town Police Station, Karachi, whereby the appellant was convicted and sentenced to suffer R.I. For three years and to pay a fine of Rs,5,000 and in default thereof to further undergo R.I. For three months. Benefit of section 382-B, Cr.P.C. Was also extended, to the appellant.
2. The brief facts of the prosecution case, as enunciated by the complainant in the F.I.R. Are as under:-- "Mst. Farkhunda Jabeen lodged a complaint on 24-8-1998 at about 12-40 p.m. She elucidates that she resides with her husband Gulzar Ahmed along with her two children, at above mentioned address at Gulshan-e-Hadeed. Her husband is employee in Pakistan Steel Mills. On 24-8-1998 her husband Gulzar Muhammad informed her on telephone at about 10-30 a.m. That due to his full time duty he is unable to come at his place, and he directed the complainant to go to the house of her mother. She remained waiting for her maidservant, who at about 11-00 a.m. Arrived at house and she completed the household work at about 11-45 a.m. When she reached at 12-00 noon at her mother's place, bearing No,A1172, Gulshan-e-Hadeed" and noticed that; her two brothers namely Farukh, Jamal, aged about 23 years and Shah Rukh Jamal, aged about 18/19 years were sustaining bullet injuries on their chest were lying in pool of blood, her mother sustained injuries on her arm and was weeping. Complainant enquired from her mother, who informed her that on 24-8-1998 accused Gulab and one another boy with identifiable face, duly armed, entered into the house and said that they would teach her a lesson for excesses done by her against Gulzar Muhammad and she would remember for life. Both the accused fired shots their pistols. Farukh Jaral and Shah Rukh Jamal, sustained bullet injuries and fell down, while leaving accused also fired on her and she also sustained injuries on her left-hand elbow. Accused persons attempted to commit the murder of her mother but she was saved. The motive behind the murder to the extent that her husband Gulzar Muhammad disclosed that accused Gulab being son-in-law and his uncle brought him at the house, but Gulab had an evil eye against the complainant and she restrained him whereupon she issued threats to him. On the, day of incident accused Gulzar Muhammad as per planning called her through telephone, but due to absence of her maid servant she, went to the house of her mother, but fortunately she was saved. Accused Gulab Ali along with his associate had committed murder 'of her brothers and caused injuries to her mother with intention to kill her. Hence; this case has been registered under sections 324, 302, 109 and 34, P.P.C."
3. After usual investigation, the police arrested the appellant and challaned him along with absconding accused in the Court of law.
4. On 31-5-2000, a charge under sections 302, 109, 34, P.P.C. Was framed against 'the appellant and absconding accused Gulab Ali alias Teddy, but they did not plead guilty.
5. In support of the case, prosecution examined eight witnesses, P.W.1 was complainant. Mst.
Farkhunda Jabeen. The fact of the matter is that she gave the same details of the incident as disclosed by her in the F.I.R. Which are mentioned above. She further added that the accused Gulab Ali has committed the murder of her brothers while the accused Gulzar Muhammad was on his job at the time of incident. But she did not witness the incident. The story was narrated to her by her mother. She stated in her cross-examination that the incident was seen by P.W.4, Iftikhar and P.W.5 Arshad. P.W.2, Razia Begum gave out the same details of the incident and supported the prosecution case except that her sons were killed by accused Fakir Muhammad and Gulab Ali by shooting on them through their pistols. P.W.3 A.S.-I., Mehboob Ellahi, posted at Steel Town Police Station, when the incident took place, who also supported the prosecution case. P.W.4, Iftikhar Ali and P.W.5, Arshad stated that they heard an uproar regarding murder being taken place. They went to the place of incident where they found that the dead body of deceased Farrukh Jamal is lying on the spot and later on dead body of deceased Shah Rukh Jamal was also brought there.
They did not see anybody committing murder P.W.6, Abdul Haq. Abdullah and P.W.8 Dr. Liaquat Ali supported the case of the prosecution.
6. The appellant in his statement recorded under section 342, Cr.P.C. Denied all the prosecution allegations and claimed innocence. He did not examine himself on Oath.
7. After considering the material available on record and hearing the parties counsel, the learned trial Judge convicted the appellant, as mentioned above under the impugned judgment.
8. I have heard the appellant in person, learned State counsel and perused the record of this case very carefully.
9. It has been contended by the appellant that he is innocent and has been falsely implicated by the police. There is no eye-witness to the occurrence, which can show that he has committed an alleged offence and the prosecution has completely failed to produce any material evidence against the appellant. Even the complainant in her statement recorded by the learned trial Judge stated that the appellant was on his duty at the time of incident. Complainant in her cross- examination has further disclosed that the names of Iftikhar and Arshad, who were present at the scene of offence, but after poring over statements against Iftikhar and Arshad, they elucidate that they were not present at the time when the incident took place.
10. On the other hand, learned State counsel has conceded the above contradictions in the statement of complainant and P. Ws. Iftikhar and Arshad.
11. I have given due consideration to the arguments of the appellant, State counsel and perused the evidence with the assistance of learned State counsel.
12. On 28-9-2005, when the matter was heard in Court, complainant, appeared in person and has submitted an application under section 561-A, Cr.P.C. Along with affidavit stating therein that the appellant is her husband and due to some misunderstanding and at the instigation of police officials she was forced to act as complainant in the matter being implicated by the appellant in the matter. She further stated in her supporting affidavit that she did not depose anything against her husband and the appellant was on his duty at the time of offence. She has further stated that due to the said misunderstanding the appellant was badly shocked and mentally disturbed, therefore, he did not refer an appeal within prescribed time and the delay has been caused, due to his ill-health.
13. I have examined the statements of complainant, prosecution witnesses and particularly statements of P.W.4, Iftikhar and P.W.5 Arshad, who are alleged to have been present at the time of incident. From their evidence it has not been proved that the appellant Gulzar Muhammad has committed the said offence and/or was present at the scene of incident.
14. In the present case, prosecution has failed to prove the case against the appellant. No other overact has been assigned to him, therefore, he is entitled for benefit of doubt.
15. In view of the above facts and circumstances, the delay in filing of this appeal is condoned and the same is admitted. Accordingly, the appeal is allowed and the conviction and sentence awarded to . The appellant under impugned judgment are set aside and the appellant is acquitted.