1. Appellants were tried by the Court of learned VIth Additional Sessions Judge Karachi East in Sessions Case No, 212/2002 and, through the impugned judgment dated 26th January, 2006, were found guilty for committing offence under Section 302(b) P.P.C. read with Section 34 P.P.C. and stand sentenced to suffer imprisonment for life as Tazir with benefit under Section 382(b) Cr.P.C.
2. Heard learned counsel Hor the parties.
3. Prosecution story briefly is to the effect that complainant Waris lodged FIR at Police Station Korangi on 4th. April, 2002 at 1944 hours, stating that he was residing at the address shown by him in the FIR with his parents, brother and sister; he was serving as a security guard in a company. On 3rd April, 2002 he received telephonic information at 11.00 p.m. whereby his sister P.Ws. Mst Nazia informed him that his mother Mst. Veero (accused and neighbour namely Guloo (Accused) both committed murder of his father namely Sardar Masih, by placing the pillow on his mouth and nose and also by strangulating him from his neck. Further that his mother appellant Mst. Veero got herself injured by asking accused/appellant Guloo to inflict an injury on her person "so that she may get herself saved from committing the murder of her own husband" she further informed the complainant that appellant Veero (her mother asked the children and Mst. Nazia not to disclose the said incident to anybody else, and then by removing the rope from the "charpai" deceased Sardar was taken towards roof through a ladder, and was made to hang, in a manner to give an impression that he committed suicide. The complainant further stated in the FIR that Mst. Nazia informed him further that both the appellants were no illicit terms with each other, and the deceased was suspecting them for the same; further, both the appellants wanted to continue with such illicit terms and therefore, the deceased was done to death by them.
4. After the said FIR was registered by the police officials investigation was carried out. On completion of the same, both appellants were sent upto the Court to face the trial. The trial Court framed the charge against the appellants on 11th May, 2004 to which both pleaded not guilty. In support of the case of the prosecution, P.W. Salamat Masih, Nadeem Ahmed Khan Head Constable, Medical Officer Doctor Muhammad Yahiya. Bashir Masih, Nazeer Masih, Mst. Nazia and Sub-Inspector Saeed Ghani were examined. In their respective 342 Cr.P.C. statements, both appellants denied the allegations and pleaded innocence. Appellant Mst. Veero @ Bashiran examined hereself under Section 340(2) Cr.P.C. in denial of the evidence of the prosecution; she deposed that P.W. Nazeer Masih, and all other relatives of her deceased husband Sardar Masih used to interfere in their domestic affairs, and used to instigate deceased Sardar Masih and her children, whereby the deceased often gave beatings to her and went on abusing her ever now and then. She further deposed that on the day of the incident, she had gone out of the house for the purpose of making purchases in the market, and on her return back to the home she found her children namely Nazia, Faisal and Soha missing from the house, and that on her inquiry, her husband Sardar Masih told, her that the children had gone with Nazeer to his house, against which she objected as to why deceased had permitted the children to be taken away by Nazeer, which gave rise to a dispute in between her and her deceased husband.
5. She further deposed that they went to sleep during the night after taking the meals and, all of a sudden, she was attacked and was thereby seriously injured; she went unconscious and found herself having been admitted in the hospital on regaining of the senses by her. She alleged that deceased had a motive to cause her murder, whereafter he himself committed suicide. She denied of having any illicit terms with the co-appellant at any time, and further deposed that P.W. Nazeer Masih concocted a false story to that effect; further that he was having full control over the children specially her daughter Mst. Nazia, and made her to depose falsely against her (the appellants) as tutored to her by P.W. Nazeer.
6. As stated above, learned trial Court found the accused/appellants guilty for committing the murder of Sardar Masih and convicted and sentenced them; hence this appeal.
7. Learned counsel for the appellants has argued that complainant Waris is not examined by the prosecution nor the FIR (got registered at his instance) was ever produced in the evidence through him, so as to prove it contents; further that the FIR having not been proved, the very basis of the case of the prosecution lost its foundation and no reliance could be proceed on the evidence, otherwise produced by the prosecution. Learned counsel further deposed that the narration of the alleged incident as given in the FIR is contradictory with the deposition of P.W. Mst. Nazia inasmuch as in her deposition Mst. Nazia deposed my mother caught hold of legs of my father and Waris put the pillow on his face and my mother accused Mst. Veero was saying that she will kill my father'.
8. She further deposed "thereafter my brother Waris took out churri and stabbed my mother and also threw her inside room". Thus, according to learned counsel for the appellants, the allegations against appellants are not clear enough.
9. Learned counsel further referred to the deposition of Medical Officer Dr. Muhammad Yahiya who deposed to the effect that after examining the dead body of Sardar Masih, he arrived at a conclusion that cause of his death was cardio respiratory arrest as a result of axphyxia due to hanging and further that the Medical Officer has not deposed anywhere in his deposition as to whether the deceased died of suffocation, and that such aspect of the case belies the story of the prosecution that the appellants placed pillow on the mouth and nose (face) of the deceased thereby causing suffocation to him as a result whereof deceased Sardar Masih died.
10. It appears that the prosecution also relied upon 161 Cr.P.C. statement of P.W. Mst. Nazia which was not recorded by the Investigation Officer from VIIth Judicial Magistrate Karachi East, and wherein she specifically stated that both the appellants allegedly put the pillow on the face of deceased Sardar Masih (viz. on his mouth as well as on his nose), which caused his death, (Whereafter his body was made to hang, so as to give an impression that deceased committed suicide).
11. Thus, the basic cause of the death of the deceased should have been suffocation, which as stated above has not been certified by the Medical Officer to be the cause of his death.
12. It is a settled principle of law that even if a single dent is found available in the case of the prosecution, giving rise to a reasonable doubt, the accused are to be awarded benefit thereof.
13. The case of the prosecution is not free from reasonable doubt; as stated above, the cause of the death of the deceased is not clear, viz., whether he died of suffocation or of hanging and also that the deposition of the only material witness namely Mst. Nazia is contradictory with the other material available on the record of the case.
14. Appellants appear to be entitled to the benefit of doubt. This appeal is hereby allowed accordingly; impugned judgment passed by the trial Court is set aside and appellants are acquitted of the charge. They shall be released forthwith if not required in any other custody case.