1. ' MUHAMMAD IQBAL MAHAR, J.-Through this acquittal appeal, the appellant/cOmplainant has challenged the judgment dated 12-6-2008 passed by learned 3rd Additional Sessions Judge, Hyderabad in Sessions Case No,70/2001 culminating from F.I.R, bearing Crime No,05/2001, Police Station G.O.R. Colony, Hyderabad under section 302, 34, P.P.C, acquitting the respondents Nos.l and 2 under section 265-H Cr.P.C, by extending benefit of doubt. The prosecution story in nutshell is that appellant/complainant Kanji, his mother Sukhan, wife Anila Kumari, maternal cousin Doulat and Mukesh live together. On 27-1-2001, complainant leaving his wife and mother in the house left for Mehran University of Engineering and Technology as he was Lecturer there. Doulat and Mukesh also went to Qasimabad. On the same day at about 30 a.m., the appellant received telephonic message to reach at house as there is emergency. He went there and found his mother lying murdered on the ground and her neck was separated from the body. His wife informed him that she woke up 10-00 a.m. And she went to the room of her mother-in-law, she found her dead, lying on the ground and blood was oozing out of her neck. She rushed to the house of a neighbours Akbar Ali Shah and narrated the facts of him and requested him to inform the complainant through telephone. On acquiring Knowledge, the complainant informed his brother-in-law Dr. Raj Kumar. In the meantime, Doulat and Mukesh Kumar arrived there and leaving them over the dead body, complainant went to police station where he lodged F.I.R. The police after completing usual investigation and codal formalities challaned the respondents Nos.l and 2 in the Court of law.
2. ' The charge was framed against the respondents Nos.l and 2 to which they pleaded not guilty and claimed trial of the case.
3. ' In order to prove its case, the prosecution examined P.W. Dr. Sabira, complainant Khanji, P.Ws.
4. Santosh Anand, Doulat Ram, Mukesh Kumar, Kewal, Abdul Majeed, Investigating Officer Aftab Ahmed, Muhammad Asif and then leamed D.D.P.P, closed side of the prosecution. On application under section 540, Cr.P.C, filed by the D.D.P.P., Tapedear Syed Muhammad Naeem Shah was examined and again side of the prosecution was closed by the D.D.P.P.
5. ' The statements of respondents Nos.l and 2 were recorded in terms of section 342 Cr.P.C, wherein they claimed their innocence. However, neither they examined themselves on oath nor led any defence.
6. The learned trial Court after taking into consideration the evidence and hearing the parties, acquitted the respondents Nos. l and 2 under the impugned judgment in the manner stated above.
7. ' We have heard Syed Jawaid I.. Bukhari Advocate for the appellant/ complainant, Syed Madad Ali Shah, Advocate for the respondents Nos.l and 2 and Mr. Muhammad Az:eem Panhwar, State Counsel, and have perused the evidence of prosecution witnesses very carefully.
8. Learned counsel for the appellants/ complainant argued that prosecution examined as many as 10 witnesses, who have supported the prosecution case. He further argued that statement under section 164, Cr.P.C, of P.W. Santosh Anand was recorded and he implicated respondent No,l in the commission of murder of deceased Sukhan. He also emphasized upon the confessional statement of respondent No,2. Learned counsel submitted that Medical Officer Dr. Sabira, who conducted post-mortem of the deceased, has fully supported the version of the complainant. He lastly submitted that the learned trial Court has not considered the evidence produced by the prosecution and committed illegality while passing judgment, which is impugned through this appeal. On the other hand, the learned counsel for the respondents Nos.l and 2 and leamed counsel appearing for the State opposed to the admission of this appeal by supporting the impugned judgment.
9. We have given due consideration to the submission of learned counsel for the respective parties and have gone through the record. A perusal of record shows that this is an un witnessed incident as none of the complainant party has seen any person committing murder of deceased Sukhan because neither the complainant nor the prosecution witnesses were present at the place of incident at the time of occurrence.
10. ' So far the contention of learned counsel for the appellant/complainant that P.W. Santosh Anand has witnessed the incident and in his statement under section 164, Cr.P.C, has implicated the respondent No,l is concerned, we have gone through the evidence of P.W Santosh Anand, in which he has stated that "this incident has taken place about a year ago. In those days I was residing at my uncle's house Dr. Dilpit. On that day at about 9-00 a.m. Ramesh came to me and he told me .That he wants to get his brother's transfer from Model School to Tando Jan Muhammad and he asked me to accompany with him to old campus. On that day I had to go Patromage Training Institute Latifabad. Then we came on motorcycle to Model School from Model School, he took me to Patromage Training School Latifabad about 10-00 a.m. He left me there and went away. Then I returned to my house and on the next day I came to know through newspaper that mother of Prof. Khanji has been murdered at her house. On 21-1-2001 police took me. My eyes were closed therefore I cannot say that at what Police Station I was detained. They tortured me. On the third or second day my father was also taken to Police Station. The Police repeatedly tortured me. The Police also insulted my father. Then they took me to Court and they tutired the statement which I stated before the Court". It is crystal clear that this witness has not supported the prosecution case.
11. ' So far as 164, Cr.P.C, statement of respondent No,2 Mst. Anila Kumari is concerned, we would like to say that at the time of incident she was pregnant and after six days of the incident, she gave birth to a baby. In such situation it is absolutely unbelievable that she was seen by the deceased in objectionable position with the respondent No,l for ten (10) minutes and further more record does not reveal as to how respondent No,2 was made accused in the case.
12. ' In his statements, recorded in terms of section 342 Cr.P.C, the respondent No,l denied the allegations and stated that he was arrested on 18-2-2001 and was maltreated by the police and when he was produced before the Magistrate for remand, he complained to the Magistrate for his maltreatment, who referred him to L.M.C.H. Hyderabad, where he was examined by the Medical Officer and was found sustaining six injuries. He produced attested copy of medical certificate but the injuries on the body of respondent No,l have not been explained by the prosecution.
13. ' Apart from the above, there are material contradictions in the depositions of prosecution witnesses, which create doubts and that the Chhuri, allegedly recovered from the respondent No,2, too was not blood-stained.
14. ' For what has been discussed above, we conclude that there is no misreading of evidence produced by the prosecution nor impugned judgment suffers from any infirmity and the learned trial Court has rightly acquitted the respondents Nos.l and 2 by giving them benefit of doubt.
15. ' We do not find any merits in this appeal, which was accordingly dismissed in limine along with the listed-application by our short order dated 16-4-2009.