1. ' KHAWAJA NAVEED AHMED, J.---The present appellant Muhammad Hayat alias Liaquat was charged along with co-accused Shamim aunty by the III Additional Sessions Judge, Karachi on 4th February, 2002.
2. The charge against the present appellant is that he along with Shamim aunty on the night of 19- 20-21/09/2000 at mid-night had cut male organ along with both the testicles of deceased Shaheen with sharp-edged weapon in the house, constructed on Plot No,1090/1089 S.I.T.E. A Karachi.
3. Deceased Shaheen had died due to the said operation thereafter with the help of other co- accused, who are not named in the charge sheet, these two persons had allegedly buried the dead body in a vacant plot. The court had charged them for committing the offence punishable under sections 302, 201, 34, P.P.C.
4. ' The brief facts of the prosecution case are that A.S.-I. Syed Anwar Hussain of Police Station Saeedabad had lodged F.I.R. No,220 of 2000 at Police Station Saeedabad on 21-9-2000 at 17-30 hours under sections 302, 34, 201, P.P.C. Stating therein that on that day, one informant Noor Muhammad had informed him on telephone that in Sector No,9C, Zeenat Market, on open plot one dead body was buried. Police along with MLO Dr. Iftikhar and SDM of the area, SDPO and SHO Saeedabad reached there and when police dug up the place, on the pointation of informant Noor Muhammad, one human body wrapped in rilly (rug) was recovered. The dead body was wearing ladies shalwar kamiz, colour green with white and black print, having long hair on her head like woman and his male organ and testicles were missing and there was dressing which had blood on it. On the same plot there was another place, which was looking to be freshly dug.. The police dug that place also and recovered male organ along with testicles from the said place.
5. ' Police had further come to know that 3/4 eunuchs at the house of Muhammad Hayat along with deceased had performed operation of deceased Shaheen who had died, however, these people after burying the deceased ran away. The police had arrested accused Muhammad Hayat alias Liaquat, who is Guru of all the eunuchs and living in Sector 9C. Police had also arrested accused Shamim aunty.
6. ' Accused Shamim aunty is stated to have died in jail about four years ago, while accused Zafar Hayat was declared absconder in this case by the trial Court when framing the charge.
7. ' The accused Muhammad Hayat alias Liaquat had pleaded not guilty to the charge and had claimed trial.
8. ' The prosecution had examined P.W.1, A.S.-I. Muhammad Mushtaq as Exh.7, he had produced mashirnama of arrest of Muhammad Hayat alias Liaquat and Farzana alias Shahid as Exh.8. P.W.2 S.I.P Syed Anwar. Hussain Bukhari. He had lodged F.I.R. And has produced F.I.R. As Exh.9. He is also witness of recovery of dead body. Proceedings under section 174,Cr.P.C. Were carried out in his presence. He has produced mashirnama of recovery of dead body as well as male organ as Exh.10.
9. He has also produced inquest report as Exh.11 and F.I.R. As Exh.12.
10. ' P.W. Mst. Musarrat has not named accused Shamim aunty and Muhamamd Hayat alias Liaquat and others. She has further stated that one other person was also arrested and was released under section 169, Cr.P.C. P.W. Mst. Musarrat was declared hostile by the prosecution as she had disowned her statement under section 164, Cr.P.C. Recorded by the Magistrate. She has produced the same as Exh.16. She has stated that she did not know if accused persons had conducted any operation of any person. In cross-examination she has stated that: "It would be incorrect to say that thereafter accused Liaquat disclosed to me that the person whose operation was conducted by him died and had never informed me that deceased was buried by them according to their custom."
11. ' Now this witness did not corroborate the statement of P.W. Syed Anwar Hussain who had stated that Mst. Musarrat had informed me regarding commission of offence by the present appellant Muhammad Hayat alias Liaquat. Mst. Musarrat had denied all suggestions made to her and in spite of her cross-examination by the prosecution no material had come forward from her statement to connect the present appellant with the commission of offence.
12. ' P.W.4 Abida, she has also been declared hostile, as he has not implicated the present appellant with the crime. P.W.5 Shaukat Hayat has also been declared hostile and nothing came out from his cross-examination. P.W.6 Noor Muhammad has also not supported the prosecution case. P.W.8 Razia has also not implicated the present appellant with the commission of crime. P.W.9 Muhammad Akhtar, Police Constable is mashir of recovery of raiser allegedly used in the crime. The case of the prosecution is that razor was produced to the police by accused Muhammad Hayat alias Liaquat. The witness was cross-examined and he stated that: "It is a fact that razor commonly available in the market".
13. ' Learned counsel for the appellant has stated that razor was neither blood-stained nor it was sent to the Chemical Examiner for examination and report. It has no evidentiary value.
14. ' P.W.10 HC Muhammad Akram has stated that appellant Muhammad Hayat alias Liaquat had shown him the place of murder and burial of deceased Shaheen. The prosecution has also produced photographs wherein the present appellant Muhammad Hayat alias Liaquat has been shown pointing out the place of burial. P.W.11 Sub-Inspector Muhammad Hussain has conducted investigation of the case.
15. ' P.W.12, Dr. Iftikhar Ahmed Memon had conducted post-mortem of deceased Shaheen. The prosecution had closed its side.
16. ' The statement of appellant Muhammad Hayat alias Liaquat was recorded under section 342, Cr.P.C. Wherein he has denied the allegations.
17. ' I have heard Mr.Ali Nawaz Channa, learned counsel for the appellant, Mr. Muhammad Iqbal Kalhoro, learned Addl. Prosecution General and Mr. Muhammad Bux, learned counsel for State.
18. ' Mr. Ali Nawaz Channa, learned counsel for the appellant has argued that this is a case of no evidence as there is no eye-witness in this case. The dead body was recovered by the police at the instance of informant Noor Muhammad. Noor Muhammad is not the eye-witness of the incident or of burial of dead body or male organ and testicles. He has not said anything against the present appellant Muhammad Hayat alias Liaquat. Most of witnesses have been declared hostile and were cross-examined by the learned Prosecutor and during the cross-examination nothing incriminating has come out against the present appellant Muhammad Hayat alias Liaquat. He has further argued that only evidence produced by the prosecution against the present appellant is that, he had pointed the place of incident as well as the place of burial of deceased and place of burial of male organ and testicles. The learned counsel for the appellant has argued that it is an admitted position that all the places were in the knowledge of police prior to arrest of the present appellant. He has further argued that in such a situation there is no evidentiary value of pointation of the appellant of the places of incident and it cannot be used against him, in order to connect him with the alleged crime. In support of his contentions, he has relied upon the case reported in 1993 PCr.LJ 168 Zulfiqar v. The State 1991 PCr.LJ 2110 Haji Khan and 2 others v. The State and 1983 MLD 1567 Makhan Singh v. The State (sic).
19. ' In Makhan Singh's case, the Hon'ble Supreme Court of India has observed that recovery of articles and dead body by Investigating Officer, after getting information about the dead bodies being buried in field before the accused made statement leading to the recovery, on the basis of such recovery exclusive knowledge to accused of bodies being buried cannot be attributed on him and section 27 of Evidence Act is not attracted against the accused. This section is equivalent to Article 40 of our Qanun-e-Shahadat.
20. ' Mr. Muhammad Iqbal Kalhoro, learned Additional Prosecutor General has quoted very strong circumstantial evidence against the accused. The deceased was eunuch and had been visiting the present appellant and other co-accused. He has stated that fact of operation of deceased has been confirmed by the recovery of male organ and testicles. He has stated that since the witnesses were from the community of appellant, as such their turning hostile against the prosecution in support of the present appellant is a natural phenomenan.
21. ' Mr. Muhammad Bux, learned counsel for the State has adopted the arguments of Mr. Muhammad Iqbal Kalhoro and has contended that the judgment of the trial Court is correct and the sentence and conviction may be upheld.
22. ' I have heard the learned counsel for the parties and have perused the entire evidence read in Court.
23. ' As far as death of deceased Shaheen (eunuch ) was in unnatural way. This point has been proved by fact that dead body as well as male organ and testicles of the deceased were recovered. Now the main question before me is that who has committed murder of deceased Shaheen. One thing, which has come into light is that the offence had not been committed intentionally. The deceased must have volunteered for the operation, which I am told during the argument. It is common in this community and they also have expertise in conducting such operations.
24. During the course of arguments the appellant was present in custody and this court had gathered all information from the appellant regarding culture, living, behaviour and custom of the eunuchs.
25. The appellant though had been insistently denying having committed the offence, has voluntarily assisted the court in giving information about culture of eunuchs and practice of such operation being conducted by guru. Muhammad Hayat alias Liaquat has stated that he is not the Guru and as such is not involved in conducting operations.
26. ' The perusal of record shows that this is the case of no evidence against the present appellant. Not a single witness has implicated him with the commission of alleged offence. The piece of evidence used against the appellant is pointation of place of commission of crime and recovery of dead body, male organ and testicles. In the light of authorities produced by the learned counsel for the appellant I am convinced that section 27 of the Evidence Act and Article 41 of Qanun-e-Shahadat are attracted, as this piece of evidence which was already in the knowledge of police party and general public prior to the pointation of the present appellant cannot be used against the appellant. Consequently, I hold that this is a case of no evidence against the appellant.
27. ' By a short order dated 21-8-2008, I have allowed the appeal and acquitted the appellant. His sentence and conviction was set aside and appellant Muhammad Hayat alias Liaquat was directed to be released