1. ' ARSHAD NOOR KHAN, J.---By this appeal, the appellant has challenged his conviction and sentence recorded by the learned V Additional Sessions Judge Karachi-South in Sessions Case No. 958 of 1997. The State v. Muhammad Ayoob in Crime No. 139 of 1997 under section 302, P.P.0 of PS Mahmoodabad Karachi whereby he has been sentenced to suffer life imprisonment and fine of Rs.
2. 50,000 which shall be paid to the legal heirs of the deceased as compensation under section 544, Cr.P.C. With benefit of section 382-B, Cr.P.C.
3. ' The case of the prosecution as per F.I.R. Is that the daughter of the complainant Juma son of Ladha alias Ludho namely, Amina was married with the accused Muhammad Ayoob son of Sumar, who was residing at Hyderi Village. After the marriage he did not keep his daughter happy and started torturing her. Three months prior to the incident, his daughter Amina Naz came to his house and started residing with him. His son-in-law, namely, accused Ayoob so many times visited his house for return of his wife but his wife (Amina) was not inclined to join him and put a condition not take dwelling house at Chanesar Village near the house of her parents.. It is further stated in the F.I.R. That on 25-5-1997, the accused obtained house on rent in Chanesar Village near the house of the complainant and at about 10-00 p.m he took his wife Amina to his newly obtained house. It is further stated in the F.I.R. That on the following morning at about 6-30 a.m. Mohalla people informed him that smoke was emanating from the house of his daughter Amina, as such he rushed to her house and saw that the corpse of his daughter Amina was lying in the courtyard of her house and her throat was chopped with chhuri and blood was profusely oozing from her throat and the household articles kept in the room were lying ablazed and his son-in-law, Ayoob was missing. It is further stated in the F.I.R. That P.W. Siraj Ahmed and P.W. Hussain, milk seller, and other Mohalla people informed him that at about 2-00 a.m they heart the exchange of harsh conversation in between Amina and Ayoob and thereafter they saw the accused Ayoob decamping from there and in the Gali bloodstained Chhuri was also lying. As such his son-in-law Ayoob on the motive of obtaining house near the house of her parents and because of enmity has slaughtered the deceased and set on fire the household articles. The statement of the complainant under section 154, Cr.P.C. Was recorded and incorporated in F.I.R. Book. The accused was arrested on 27-5-1997 and after usual investigation challan against him was sent in Court to stand trial. The case was then entrusted to the learned lower Court, who, after compliance of section 265-C, Cr.P.C.
4. Vide Exh.1, framed the charge against the accused on 21-8-1997 vide Exh.2 to which he pleaded not guilty and claimed trial vide plea Exh.3.
5. ' After framing the charge, the prosecution examined P. W.1 Juma son of Ladha vide Exh.7 who produced inspection memo. Of corpse vide Exh.8 and statement under section 154, Cr.P.C. Vide Exh.9 Mashirnama of arrest of the accused vide Exh.10 list of articles vide Exh.11 P.W.2 Ghulam Ali son of Juma vide Exh.12 P.W.3 Muhammad Islam son of Muhammad Tufail vide Exh.13,who produced the inquest report of the deceased vide Exh.14 P.W.4 Abdul Majeed son of Muhammad Achar vide Exh.16, P.W.5 Siraj Ahmed son of Jamal Din vide Exh.18, P.W.6 Dr. Rohina Hassan, WMLO vide Exh.19 who produced letter addressed to her vide Exh.19/A autopsy report of the deceased vide Exh.19/B and final medical certificate vide Exh.19/C, P.W.7 Shahid Bashir,Inspector vide Exh.20, who produced copy of F.I.R. Vide Exh.20/A rough sketch of place of incident vide Exh.20/B, Rozanmcha entry No.39 vide Exh.20/C receipt of the corpse vide Exh.20/D,letter containing the cause of death recorded by the MLO vide Exh.20/E, letter vide Exh.20/f AND ROZNAMCHA ENTRY VIDE Exs. 20/G and 20/H, P.W.8 Dildar Hussain Shah, SIP vide Exh.21, who produced the letter, dated 8-6-1997 vide Exh. 21/A. The prosecution gave up P.W. Muhammad Hussain vide Exh.15. The NBWs for service on P.W. Dr. Murshida I. Khatim, P.W. Siraj Ahmed and P.W. Shahid Bashir were issued, which were returned duly unexecuted, thereafter WMLO and P.W. Siraj Ahmed had been examined, whereas P.W. Shahid Bashir was retired from service and shifted to his native place at Punjab, where he reportedly died vide statement of process server Muhammad Rasheed SIP Vide Exh.17. The prosecution closed its side vide statement Exh.22.
6. ' The statement of accused Muhammad Ayoob was recorded under section 342 (1), Cr.P.C. Vide Exh.23, wherein he denied to have committed the present offence and has stated that he has been impleaded falsely, as such he is innocent.. He examined himself as (D.W.3) on oath vide Exh.26. He also examined D.W.1 Allah Bachayo son of Muhammad Suleman vide Exh.24 and D.W.2 Suleman son of Sumar vide Exh.25 in his defence.
7. ' The learned trial Court after appraisal of whole evidence available on record was pleased to convict the accused, as stated above hence this appeal.
8. ' I have heard Mr. Nazir Hussain Sajan Allana, learned counsel for the appellant, and Mr. Muhammad Bux Awan, learned counsel for the State.
9. ' The learned counsel for the appellant vehemently contended that there is no ocular evidence available on record to connect the accused in the present crime and that P.W. Siraj Ahmed and P.W. Hussain milk seller, have not supported the case of the prosecution and even P.W. Hussain milk seller, was given up by the prosecution, but the learned trial Court without appreciating the evidence available on record convicted the accused. He further contended that no recovery of the crime weapon has been alleged at the instance of the accused and that at the time of incident, the accused had gone in deep sea for fishing and on his arrival from deep sea, he has been arrested and involved in the present case because of enmity with the complainant. According to him neither ocular evidence, nor circumstantial evidence is available on record to connect the accused in the present crime and the learned lower Court simply convicted the accused on the assumption and presumption that after the incident, the accused absconded from the place of incident, as such he was guilty conscience and, therefore, he was convicted by the learned lower Court. Which is against the evidence available on record, as such the judgment passed by the learned lower Court could not be sustained and the accused may be acquitted from the charge.
10. ' Mr. Muhammad Bux Awan, the learned counsel for the State, vehemently opposed the submissions advanced by the learned counsel for the appellant and contended that the absconsion of the accused from the place of incident shows that he was guilty conscience, who, after committing the murder of his wife, fled away from the spot and the complainant and P.W.
11. Siraj Ahmed fully implicated him in the present crime as such the learned trial Court rightly convicted the accused and the judgment passed by the learned lower Court need no interference.
12. ' I have considered the arguments advanced on behalf of the parties and have gone through the entire evidence available on record.
13. ' The complainant Juma in his statement under section 154 Cr.P.C., Exh.9 has clearly stated that P.W.
14. Siraj Ahmed and P.W. Hussain milk seller, heard the disputed conversation in between his daughter Mst. Amina Naz and accused Ayoob and thereafter both these P.Ws. Saw the accused decamping from there. He has also stated the same fact in his statement before the learned trial Court, whereas P.W. Siraj Ahmed, who is said to be the eyewitness of the incident has entirely deposed differently before the learned lower Court. In his statement before the learned lower Court P.W.5 Siraj Ahmed deposed that on 26-5-1997, he was present at his house situated at Chanesar Goth. In night time he was sleeping along with his family members. He further stated that his wife woke up early in the morning and informed him that something has been happened in the neighbouring house and smoke was emanating out from the neighbouring house. On such information he went outside and saw that so many persons were present there and on seeing the father of the deceased, he inquired from him about the matter, who informed him- that his daughter has been killed by her husband. The said evidence of P.W. Siraj Ahmed shows that when he came out from his house he saw that the complainant was already present there from whom he inquired the matter, who informed him about the murder of his daughter, which evidence is entirely different from the evidence of P.W.1 Juma, who deposed before the learned lower Court that P.W. Siraj Ahmed informed him about the disputed talks in between his daughter and the accused and had seen the accused decamping from there. P.W. Muhammad Hussain, whose name is mentioned in the F.I.R as eye-witness, has been given up by the prosecution, as such there is no corroboration to the statement of P.W. Muhammad Hussain incorporated in the F.I.R. Apart from the evidence of complainant, P.W. Siraj Ahmed and P.W. Muhammad Hussain, who has been given up, no direct evidence is available on record. The evidence of P.W.1 Juma and P.W.5 Siraj Ahmed is therefore materially conflicting with each other and adversely reflect on the case of prosecution and renders their evidence shaky and doubtful.
15. ' The evidence of remaining witnesses is either hearsay or indirect of the occurrence. P.W.2 Ghulam Ali who is the son of complainant is the witness of inspection memo. Of place of incident and recovery of crime weapon vide Mashirnama Exh.8 and Mashir of arrest of accused vide Mashirnama Exh.10. P.W.3 Muhammad Islam ASIP simply-incorporated the statement of complainant under section 154, Cr P.0 in F.I.R. Book and inspected the corpse of deceased and prepared inspection memo. Of corpse and inquest report and recovery of Chhuri. P.W.4 Abdul Majeed only saw the corpse duly covered with cloth. The evidence of all these witnesses in any way does not implicate the accused in the present crime.
16. ' All the witnesses have deposed about the murder of the deceased but no one claimed to have seen the incident. The learned lower Court has also observed that no witness has seen the occurrence still the learned lower Court has recorded the finding of guilt of the accused on the basis of assumption and presumption that the accused was missing from the date of incident, which is sufficient to involve him in the present crime. The findings of the learned lower Court are usefully quoted hereinbelow for the sake of convenience:-- "Incident took place inside the house of accused who is husband of deceased Mst. Amina. P.W.
17. Hussain and Siraj had listened the voice of quarrelling of the deceased and the accused coming out of their house at 2-00 a.m. So also they had seen the accused running away, though P.W.
18. Muhammad Hussain not examine(' during trial and P.W. Siraj also not supported his earlier statement but it reveals that murder of Mst. Amina took place it the house of accused which is not denied and abscondence of accused from his house and recovery of crime weapon viz. Chhurri shows the involvement of accused. It is true that P.W. Jumma and Ghulam Ali are near relatives of the deceased, but they had no special motive to falsely implicate the accused leaving out of the real culprit. Their testimonies have been simply corroborated by the recovery of crime weapon viz. Chhurri."
19. ' The findings of the learned trial Court seems to be self-explanatory as no evidence to connect the accused in the crime was found available, yet he has been held responsible for the alleged offence.
20. ' Even the prosecution has not alleged the recovery of bloodstained chhuri at the instance of the accused as according to the evidence of P.W.1 Juma and his son P.W.2 Ghulam Ali, the chhuri was lying there, whereas in Mashirnama of recovery Exh.8, it is stated that chhuri was secured lying in Gali at the time of inspection of place of incident on 26-5-1997, whereas the accused was arrested on 27-5-1997 at 3-00 p.m., as such the corroborative piece of evidence about recovery of chhuri at the instance of the accused is also missing miserably.
21. P.W. Shahid Bashir Inspector, who partly conducted the investigation in his statement before the learned lower Court deposed that he arrested the accused on 27-5-1997 and during the course of investigation the accused disclosed that he committed the murder of his wife due to her questionable character. The said extra-judicial confession of the accused though not relied upon by the learned lower Court for conviction of the accused, is inadmissible in evidence in view of Article 39 of the Qanun-e- Shandat Order, 1984. Even otherwise in case if such extra judicial confession was made by the accused during the course of investigation, it was incumbent upon the Investigating Officer to get his confessional statement recorded before the competent Magistrate.
22. After appraisal of the whole evidence available on record it has begn established that not a single piece of evidence to connect the accused in the present crime is available on record to convict him in the offence of murder of his wife and his conviction has been based on surmises and conjectures because of alleged absconsion of the accused from the place of incident which solely could not be used as sufficient B evidence to hold him guilty in the commission of offence of murder of his wife. When all these evidences were confronted to the learned counsel for the State, he had nothing to say except his emphasis that the absconsion of the accused after the incident shows his guilty conscience, otherwise he had no reason to escape from the place of incident, but as discussed above in criminal administration of justice the conviction of the accused could not be based on surmises and conjectures and prosecution is duty bound to establish its case against the accused by leading cogent convincing and plausible evidence free from all hypothesis which, as discussed above, is miserably lacking. The case of prosecution, against the accused is highly doubtful and he is entitled to the benefit of doubt, as a matter of right and not as a matter of grace.
23. ' For the foregoing reasons, I find that the conviction and sentence awarded to the accused by the learned lower Court was not legal and proper and could not be sustained. The appeal was allowed in the morning by a short order, which is reproduced herein below for the sake of convenience:-- "For the reasons, to be recorded later on, the appeal is allowed. The judgment passed by the learned trial Court, dated 12-12-2006 is set aside and the appellant is acquitted from the charge.
24. The appellant may be released forthwith if not required in any other case."
25. ' The above are the reasons of the short order ' MA 86/2007 is disposed of in the light of the observations made above.