1. ' MRS. YASMIN ABBASEY, J.--- This criminal appeal has been preferred against the judgment dated 30-6-2004 whereby appellant Allah Dad and Bashir Ahmed were convicted for life imprisonment for the offence under section 302(b), P.P.C. With benefit of section 382-B, Cr.P.C.
2. ' Case of prosecution is that on 10-8-2000 Mst. Najma widow of late Muhammad Sharif in her 154, Cr.P.C. Statement deposed that on 9-8-2000 at 9-30 p.m. Her son-in-law Allah Dad came at his house and informed that on his return from job he found Mst. Saima lying dead on the floor of his room. On this information she went to her daughter's house alongwith her sons and son-in-law and found her daughter lying dead on floor.
3. ' According to complainant behaviour of his son-in-law was not good with her daughter and he used to abused her. It is stated that on 8-8-2000 she has gone to her daughter's house Mst. Saima.
4. Appellant No,2 Bashir Ahmed also had a stay in her house for the last about four days. She complains that her brother-in-law appellant No,2 instigated her husband against her and at the instance of his brother Mst. Saima's husband Allah Dad quarrelled which him. As such she suspected that his son-in-law Allah Dad along with his brother had committed murder of her daughter by strangulating her throat. On the basis of this statement case was registered.
5. ' Subsequent thereto on 1-3-2001 a direct complaint was also filed by Mst. Najma alleging that Investigating Officer S.-I. Ali Hassan, accused No,1 and 2 and Manager Jabees Hotel Malik Khaliq belongs to the same District Khushab Punjab therefore, instead of investigating the case Investigating Officer is collecting evidence adversely against the deceased. Such statement has been repeated by her in para.20 of the Direct Complaint. It is further alleged that not only the investigation officer was ignoring to collect material evidence but he was also extending threats of dire consequences to Mst. Razia Sultana who had lastly seen the culprits in the house of deceased on the day of incident. It was because of dishonest investigation said to be conducted by the Investigating Officer complainant had filed direct complaint.
6. ' Preliminary enquiry was held. In the meanwhile it was reported to the learned trial Court that police had also submitted challan against both the appellants and the matter is pending for adjudication before the Court therefore, trial of both Session Case as well as direct Complaint was ordered to be proceeded jointly and direct complaint was treated as leading case.
7. ' Charge was framed on 2-2-2002. Prosecution examined in all seven witnesses viz., Mst. Najma, Muhammad Ibrahim, Kamran Ali, Fareed Anwar Qazi, Muhammad Mithal, Dr. Kausar Parveen and Ali Ahmed Shaikh.
8. ' Accused examined themselves under section 342, Cr.P.C. And have also produced evidence in defence of Bashir Hassan and Feroz.
9. ' It is argued by learned counsel for appellants that they have been falsely implicated in the matter, no ocular evidence is against them. Circumstantial evidence is of fake nature and no reliance can be placed on it as it has no corroboratory evidence. Mere on suspension appellant have been implicated in the matter. No recovery or any incriminating articles used in the commission of offence has been recovered neither from the place of incident nor from the possession of appellant. Evidence has been misread and misappreciated by the learned trial Court. There are lots of material contradictions in the statements of prosecution witnesses, hence the conviction order passed against them is illegal and they may be acquitted.
10. ' For proper adjudication of the matter, I have gone through the evidence produced by prosecution.
11. Out of eight witnesses the material witnesses are complainant Mst. Najma and Inspector Ali Ahmed Sheikh, who has conducted investigation of the case. According to complainant after receiving intimation of murder of her daughter through her son-in-law Allah Dad she along with her sons and sister Mst. Razia Sultana went to Allah Dad's house in the same taxi brought by appellant No, 1 .
12. According to complainant in the way she dropped from the taxi in order to bring lady Dr. Shaista for check-up of deceased. According to her when she reached at the place of incident she found her daughter lying on ground her hands were on the back and legs were followed under the body.
13. There was a ligature mark of strangulation on her neck, blood was oozing from her mouth and nose, which appears to have been cleaned before her arrival. There were signs of maltreatment on her chest and face. Blood was found on the floor as well as finger-prints with blood was found on the wall. As to who informed to police it is stated by her that his son Imran Ali went to inform the police. He intimated the incident to police officer in police mobile standing in nearby area.
14. ' This statement of complainant is contrary to what has been stated by Inspector Ali Ahmed Sheikh.
15. According to him appellant Allah Dad informed him about the murder and on his information he went at the place of incident, secured blood-stained pieces of clothes and one sleeping suit of Allah Dad, which was wet. Mashirnama of recovery was prepared at the spot. As per contents of mashirnama of site inspection and recovery of bloodstained clothes of deceased and accused, clothes were sealed at the spot. Whereas according to complainant clothes were not sealed on 9- 8-2000 when they were secured.
16. ' So far the scene of place of incident as detailed by complainant, except the contents of mashirnamas, which though could not be understood, being illegible, somehow supports complainant's statement about cleaning of place of incident, but the author of Exh. 1/F memo of place of incident is silent in this regard. Furthermore, he has denied to see any blood-stained finger prints on the wall at place of incident.
17. ' Besides above contradiction, it is pointed out by learned counsel for appellants that the malicious act of Investigating Officer is apparent from the fact that although F.I.R. Was registered on 10-8- 2000 but in the memo of recovery prepared on 9-8-2000 number of F.I.R. Has been written therein in advance and no reason of the same has been given by learned State counsel, which is sufficient proof of preplanned involvement of appellants in the present case.
18. ' It is also pertinent to note that as per prosecution case the blood-stained clothes of deceased were secured on the very day of incident but as per chemical examiner's reported they were received in their office on 25-8-2000 with delay of about 16 days by letter dated 21-8-2000. Again no reason of this delay has been explained either by the Investigating Officer or by learned counsel for the State. Such delay of sending articles so late has been condemned by this Court as well as by apex Court. Furthermore according to complainant certain finger-prints with blood were also found on the wall therefore, chemical analyzer was called. As per complainant she had also taken snaps of the foot prints found at the place of incident but neither the report of the Chemical Analyzer who has obtained finger-prints stained with blood on the wall has been produced, nor she has been produced in Court. However, Exh. 1/S stated to be the snaps of foot prints has been produced, but nothing is on record that whether during investigation, same were got confirmed to be any of the two appellants. Additionally this statement of complainant does not find support from the statement of Investigating Officer, who has categorically denied to had seen any mark of blood stain finger prints or foot prints at the time of inspection.
19. ' Doubt further appears when again difference is found in the statement of complainant and the memo of inspection and recovery of articles if read together.
20. ' As per contents of memo, blood stained clothes of deceased as well of appellant No,1 in wet condition were recovered on the very first day whereas in his application dated 20-9-2000 addressed to I.G. Sindh it is stated that when she was taking the dowry articles of her deceased daughter she found blood-stained suit of Allah Dad consisting of one Shalwar and one Bushirt, which he used to wear at night time on the hanger behind the door.
21. ' Whereas one blood-stained cloth was found under the sofa and clothes of Mst. Saima were also found duly wrapped but inspite of passing five days these clothes were not sealed by Ali Hassan Shaikh.
22. ' Here it cannot be overlooked that inspite of admission of the Investigating Officer that the place of incident is situated in a thickly populated area but no a single witness of locality was called to witness the incident. All the prosecution witnesses are relatives and police officials. According to Investigating Officer he had tried to call Mohallah people to become witness of the incident but all of them refused. No reason has been assigned by the Investigating Officer that inspite of their presence at the place of incident if they had refused to be witness whether any notice was served by him on them under clause-5 of section 103, Cr.P.C. Or not.
23. ' P.W. Mst. Najma, P.W. Muhammad Ibrahim, and P.W. Kamran Ali in their statements had tried to implicate appellant No,1 Allah Dad in the commission of offence also because of his suspected acts after murder of Mst. Saima. It is stated by P.W. Muhammad Ibrahim that when postmortem of deceased was being conducted accused Allah Dad told that nothing would be achieved by the postmortem so he suspected that he is involved in the crime, whereas according to P.Ws. Kamran Ali when after receiving intimation of murder he along with Allah Dad went to his house, he found the door locked which was opened by the appellant but again it was found bolted from inside therefore, accused Allah Dad asked him to jump in the house from the neighboring house. He did so and thereafter, all the persons entered in the house. According to him when he asked Allah Dad as to how he entered in the house while the same was bolted from inside he informed that he had gone through ventilator and again came out from ventilator, this conduct of him suspected him.
24. Again on enquiry of his brother he told that he has left to Punjab but later on he was arrested from Karachi. And that after return of dead body from hospital, he was preserving it again and again. All these acts of appellant No,1 had suspected them, but this statement of P.W. Kamran Ali does not find support from any other witnesses, nor the opinions formed by above P.Ws. Gives a definite conclusion of complication of appellant No,1 in commission of offence.
25. ' Again a contradiction is appearing in the statement of Mst. Najma and Mst. Razia Sultana her sister. According to complainant while proceeding from her house to the place of incident she dropped in the way to call the doctor. Whereas in her 161, Cr.P.C. Statement different version has been taken by her that she along with his two sons and Allah Dad went to the place of incident and then doctor was called. Whereas according to Mst. Razia Sultana when they were proceeding to the place of incident in the way her elder sister Mst Najma enquired, from Allah Dad whether he had informed the incident to any Mohallah people or called any doctor, he replied in negative therefore, before reaching to place of incident she Mst. Razia Sultana and her sister Mst. Najma got down from the taxi to call doctor. Then along with doctor, they came to the place of incident.
26. ' In the same way arrest of appellants also appears to be suspected from the statements produced. According to prosecution case appellant No,1 himself came to intimate complainant.
27. Thereafter all the time he was present along with her, even when police came. He also identified dead body in hospital before postmortem. At the time of recording 154, Cr.P.C. Statement of complainant Allah Dad was present there. Under these circumstances, it is unbelievable that when the complainant in her 154, Cr.P.C. Statement has categorically alleged appellant No,1 and his brother as culprit who had committed murder of her daughter why he was not taken in custody at the very moment. Showing his arrest at different place in the memo when continuously he was along with complainant and investigating team is a fact which is unacceptable. Further contents of this memo of arrest prepared on 10-8-2000 have been contradicted by P.W. HC Muhammad Mithal who is also mashir of memo of arrest. According to him accused was arrested from house and such mashirnama was prepared at the place of incident where from the accused was arrested; According to HC Mithal after receiving intimation when he along with S.-I. Ali Hassan Shaikh and PC Mumtaz went at the place of incident he found one person sitting near the dead body along with a child and that person was husband of deceased. In his cross examination also he stood on his first statement that appellant No,1 was arrested from his house and that besides accused Allah Dad and his daughter no other person was available there. This statement of HC Muhammad Mithal again found contradictory to the statement of Investigating Officer, who has deposed that "on 10- 8-2000 while I was busy in investigating the matter, received information that accused Allah Dad is available at bus stop of Bhitai Colony so he went there, I arrested him in presence of mashirs HC Muhammad Mithal and PC Mumtaz Hussain". This contradictory statement of Investigating Officer and one of the mashir of memo of arrest reflects that this document was not prepared at the time of arrest of the accused but at later stage. In the same way appellant No,2 Bashir according to defence witness Feroz, on 9-7-2000 was on his duty from 8-30 a.m. To 9-00 p.m. According to him he was arrested on 10-7-2000 from his house but the date of arrest as appearing in his statement seems to be a typographical mistake because question of arrest in July, 2000 a month prior to the incident without registration of any case does not arise. However, even if, it is taken as 15-8-2000 then again one of the mashirs Muhammad Ibrahim in his statement on oath has denied the arrest of appellant Bashir in his presence and this statement of him has not been controverted in his cross examination. So far the next mashir Kamran Ali is concerned it is stated that accused Bashir was arrested by police however, in cross-examination he has voluntarily deposed that police had obtained his signature on a blank paper and he was not arrested in his presence.
28. ' Pointing out all these contradictions learned counsel for appellants has relied upon 2008 SCM R 336 (Yasmin alias Ghulam Mustafa v. The State), wherein it is observed that:-- " It is well-settled that suspicion however strong it may be, by itself cannot take place of proof. This view receives support from the following reported judgments:---
(i) Bhugdomal Gangaram and others v. State of Gujarat 1984. PSC 640 (sic), (ii) State of U.P. v.
29. Krishna Gopal and another 1988 MLD 1501 (sic) and (iii) Vijant Kumar and others v. State through Chief Ehtesab Commission, Islamabad and others PLD 2003 SC 56.
30. It is also an established principle of the administration of criminal justice that conviction cannot be based on any other type of evidence however, convincing it may be, unless direct or substantive evidence is available. Even, guilt of an accused cannot be based merely on high probabilities that may be inferred from evidence in a particular case. In this view we are fortified by the following reported judgments:--
(i) Muhammad Luqman v. The State PLD 1970 SC 10, (ii) Muhammad Noor v. Member-I, Board of Revenue, Balochistan and others 1991 SCM R 463 and (iii) Qalb-eAbbas alias Nehola v. The State 1997 SCM R 290."
31. In view of above discussion, I found that prosecution has not been able to establish the guilt against the appellants. Lots of discrepancies are appearing in C statements of prosecution witnesses. They are contrary to each other, documents prepared during investigation also appear to be suspected.
32. In view of foregoing reasons, I hereby acquit both the appellants from the charge levelled against them, they may be released forthwith if not required in any other custody matter.