1. AZIZULLAH M. MEMON, J.- The accused appellant Dil Rehman alias Baba Jan was tried by the Court of learned IIIrd Additional Sessions Judge Karachi West in Sessions Case No.384 of 2002 for allegedly committing offence . Under section 324, P.P.C. And vide impugned judgment dated-16th September, 2004 he has been convicted for committing offences punishable under section 384, P.P.C. And under section 337(L), P.P.C. And sentenced to suffer rigorous imprisonment for 10 years for the first offence with fine Rs.30,000, and further sentenced to suffer rigorous imprisonment for seven years for the second mentioned offence. He has filed the present appeal against the said convictions and sentences. Case against absconding accused Salamat Jan is directed to be kept on the dormant file.
2. Heard learned counsel appearing for the parties.
3. Prosecution story briefly is to the effect that injured witness Sahib Zar is brother of P.W. Muhammad Zar and sister of the appellant is married to P.W. Muhammad Zar. It is alleged that one week prior to the date of incident of this case viz. 5th June, 2001 absconding accused Salamat Jan with appellant Dil Rehman alias Baba Jan quarrelled with injured witness Sahib Zar as to why he had been residing in the house of his elder brother P.W. Muhammad Zar and demanded from him not to reside in the said house; injured Sahib Zar had come to city of Karachi for the first time and was unable to arrange for some other residence of his own hence he was residing in the house of his brother Muhammad Zar.
4. As such, during the night of incident viz. On 5th June, 2001 at about 4-00 a.m. "some body threw a plastic box upon the person of complainant Sahib Zar which was containing acid"; the said , box blew up by hitting on the head of P.W. Sahib Zar; as it was containing the acid, the same splitted on the head, face and both arms of . P.W. Sahib Zar who thereby sustained bum injuries; his nephew Jan Muhammad was also sleeping nearby on a cot who also sustained the injuries on his buttock, of the same nature; they raised cries which attracted Muhammad Zar who, on seeing the acid bum injuries on their persons immediately rushed outside the house and witnessed appellant Dil Rehman alias Baba Jan with the absconding accused running away. Naseeb Zada son of P.W.
5. Sahib Zar also reached there. Who with Muhammad Zar chased the appellant and the absconding accused; P.W. Fazal Kareem also joined them but the accused managed to escape in a grave yard.
6. Hence all the three witnesses returned back to the house of Muhammad Zar> Mohallah people also collected there; all of them arranged for motor taxi and took both the injured to Civil Hospital Karachi for medical treatment. Police officials also arrived at the said Hospital at 7-40 a.m. And recorded the statement of injured Sahib Zar. He remained admitted in the Hospital "For one year" and plastic surgery was carried out on his person for 20 times; medical certificates were issued, by the Doctor for both injured.
7. After the F.I.R. Was registered, police investigated the case, and sent up the appellant to the Court to face the trial while co-accused Salamat Jan was shown as an absconder.
8. Accused appellant pleaded not guilty to the charge and claimed to be tried.
9. In support of the case of the prosecution injured Sahib Zar, his brother Muhammad Zar, P.W.
10. Naseeb Zada, P.W. Fazal Kareem, P.W. Jan Muhammad, P.W. Sarzemane, Asip Zulfiqar Awan,' P.W.
11. Iftikhar Ahmed were examined.
12. In his statement under section 342, Cr.P.C. Appellant denied the allegations and stated that the witnesses falsely deposed against him due to their relationship with injured; he also examined himself under section 340(2), Cr.P.C. And examined his wife Mst. Taj Meena in his defence.
13. As stated above, co-accused Salamat Jan was declared as absconder while the present appellant was convicted and sentenced as detailed above.
14. It is an admitted fact that the actual incident of throwing of the acid inside the house where .P.W.
15. Sahib Zar and his nephew Jan Muhammad were sleeping was not witnessed by anybody; case of the prosecution is only to the extent that the box containing the acid material was thrown^ inside the house which hit on the head and other parts of the body of Sahib Zar, and on the person of Jan Muhammad, whereby the acid splitted on his person and that of his nephew Jan Muhammad who both sustained injuries; it is further case of the prosecution that both the injured thereby sustained injuries and raised cries which attracted Muhammad Zar, Naseeb Zada and Fazal Kareem who allegedly witnessed the appellant and the absconding accused running away; the witnesses thereby appear to have drew a presumption that accused had first thrown the box containing the acid material and then ran, to escape away. Thus, only circumstantial evidence against the appellant appears to be that he was seen while running away after having thrown away the box containing the acid-material inside the courtyard of the house, where both injured were sleeping.
16. Incident admittedly took place at about 4-00 a.m. During the night on 5th June, 2001.
17. The prosecution has alleged motive against the appellant to the effect that Sahib Zar having come to city of Karachi was residing in the house of his brother Muhammad Zar and appellant objected to his residing there for the reasons that sister of the appellant was married to Muhammad Zar and that such fact and circumstances were not being liked by the appellant.
18. Honourable Supreme Court was pleased to record the following observations in Wazeer Muhammad and another v. The State (2005 SCM R 277).
19. "7. As mentioned hereinabove no direct evidence is available against the appellants and now the question would be as to whether conviction could have been awarded on the basis of circumstantial evidence or otherwise? Before examining the said aspect of the matter it is to be noted - that . Significance, admissibility and import of circumstantial evidence was examined for the first time in case titled Tahura v. Emperor AIR 1931 Cal. 11, in the year 1931 -and the following principles were formulated which still hold the field: -
(a) The circumstances from which an inference adverse to the accused is sought /to be drawn must be proved beyond all reasonable doubt and must be clearly concerned with the fact sought to be inferred therefrom .
(b) In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis then that of his guilt.
(c) No conviction could have been awarded unless these principles are clearly established.
20. The said view also finds support from the following cases:--.
21. Bir Bahadur v. State AIR 1956 Assam 15; 6 Assam 428 1956 Cr.LJ 41; Emperor v. Naibullah AIR 1942 Cal.
22. 524; 43 Cr.LJ 860; In re Kanakasabai, AIR 1940 Mad. 1; 41 Cr.LJ 369; Shewarm v. Emperor AIR 1939 Sind 209; ILR (1940) Kar, 249; 41 Cr.LJ 28; Gahar Sheikh v. Emperor AIR
8. The question of circumstantial evidence and award of conviction has also been examined by this Court on different occasions in various cases and hhe judicial consensus seems to be that "The fundamental principle of universal application in cases dependent on circumstantial evidence, is that in order to justify the inference of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of ^explanation upon any other reasonable hypothesis than that of his guilt", Zahid Hussain v. Crown (SC) 1969 SCM R 388, Muhammad Nazir v. Mst. Sairan PLD 1970 SC 56, Fazal Elahi v. Crown PLD 1953 (PC) 214, Azim v. The State PLD 1965 SC 44. We are conscious, of the- fact that circumstantial evidence could be relied upon "where either the direct evidence was not forthcoming or had not been found satisfactory", Muhammad Arshad v. The State 1992 SCM R 1187, State v. Habib-ur- Rehman PLD 1983 . SC 286, Muhammad Aslam v. Muhammad Zafar PLD 1992 SC 1.
9. The case in hand when examined in the light of criterion as mentioned hereinabove it can be inferred safely that no convincing, forthright or reliable circumstantial evidence has come on record on the basis whereof the appellant could have been convicted and sentenced under section 302, P.P.C. The prosecution has failed miserably to substantiate the accusation by producing any cogent and concrete evidence. The appeals are resultantly accepted and the appellants namely Wazir Muhammad and Muhammad Ameer are acquitted of the charge. They shall be released forthwith if not required in any other case.
23. As stated above", apparently the two injured were sleeping in the courtyard of the house of P.W.
24. Muhammad Zar when acid was thrown on their persons who thereby respectively, suffered burn injuries, raised cries which attracted the above named three witnesses, who went running and witnessed the appellant, with absconding co-accused, running away; witnesses chased them but they managed to make good their escape in a grave-yard; there being no evidence on the point of actual throwing of the box containing the acid material inside the Court yard of the house by the appellant, the circumstantial evidence so collected against the appellant does not conclusively prove, beyond reasonable and probable doubt that the appellant actually threw the box containing acid material for the reason that on split of acid material, the burns occur "instantaneously, which make the victim of such injuries to cry abruptly; such cries having .Been made by both the injured, it is the case of the prosecution that two of the witnesses immediately rushed to the injured persons, and that on seeing such bum injuries on the persons of both injured, the witnesses ran outside, when alone the appellant was allegedly seen by them, and by one other witness while allegedly running away.
25. On the One hand, the appellant could not, in the ordinary course of the things be expected to kept standing till arrival of the witnesses, while on the other, if he could possibly be said to have still kept standing there, then also, it would not be believable that he could have escaped from the chase of the three persons (viz the prosecution witnesses).
26. The said alleged incriminating fact is not proved to be compatible with the guilt of the appellant; prosecution has failed to properly explain as to why the appellant would still choose to keep standing at the place of incident till arrival of the witnesses when he allegedly chose time of 4-00 a.m. During the night for himself to throw the acid material on the persons of the two injured; conviction could not be safely awarded against the appellant on the basis of such type of circumstantial evidence and the appellant appears to be entitled to the golden principle of benefit of doubt.
27. Under the circumstances, this criminal appeal is hereby allowed, impugned judgment as against the present appellant is set aside and he is acquitted of the charge. His bail bonds are directed to stand discharged.