' MUNIB AHMED KHAN, J.---This appeal has been filed against the judgment dated 30-4-2008, passed by the learned IVth Additional Sessions Judge, Karachi (West) in S.C. No, 371 of 2006 on the basis of F.I.R. No,185 of 2006 under section 302, P.P.C. The learned trial Judge by virtue of his judgment found the appellant guilty of the said charge and sentenced her to suffer R.I. For life imprisonment and fine of Rs,50,000 as compensation for legal heirs of the deceased Mullazim Hussain and in case of failure of payment whereof, to further undergo S.I. For one year, however, the benefit of section 382-B, Cr.P.C. Is extended to the appellant.
2. Learned counsel for the appellant, at the very outset, has pointed out F.I.R. Of the case available at page 45 of the paper book and stated that this F.I.R. Is not proper as same has not been recorded in terms of Criminal Procedure Code and is contrary to Section 154, Cr.P.C. He has submitted that the case is registered by State through S.I. Faqeer Dad but the F.I.R. Has been signed by one Zabta Khan. He has further submitted that the name of this person i.e, Zabta Khan appears in the record in a different ways. He has pointed out that the incident is stated to be of 26-5-2006 while F.I.R. Has been lodged on 31-5-2006. He has further submitted that learned trial Court has not gone through the evidence recorded and the judgment is result of mis-appreciation and non- appreciation of facts and law. He has further pointed out that before registration of the F.I.R. One A.S.-I. Ghulam Sarwar of P.S. Mominabad took up the case and conducted proceedings under section 174, Cr.P.C. He also conducted as Investigating Officer of the case and after recording statements under section 161, Cr.P.C. Of the witnesses including the accused, he disposed of the matter with the observation that no cognizable case was made out against the accused but thereafter another Police Station Jacson took up the matter and recorded F.I.R. On 31-5-2006, wherein, the lady has been involved and case proceeded on the basis of same factual position, which was recorded by earlier Investigating Officer Ghulam Sarwar. He further submits that the appellant's presence at the place of incident has been very much suspected, which, the accused herself has not denied as she remained with the deceased from the place of incident to the hospital, wherefrom, she phoned to other relatives of the deceased, who came to the hospital and -acknowledged the dead body while the brothers of the deceased were not inclined to lodge a report or pursue the matter after realizing the factual position. He further submits that the involvement of the appellant is only on the basis that she, one time phoned to the complainant Zabta Khan that incident may not be disclosed to any body and secondly, she disclosed her two names one Maqsooda and another, Sughra, therefore, the police doubted her: Learned counsel submits that the lady was afraid of the situation, therefore, the police doubted her. He argued that she may have some understanding or relation with the deceased person and for the concealment of that she might have disclosed her different names as well as relation with the deceased before the police and relatives of the deceased but that attitude of the appellant cannot be considered as an evidence to involve her in the death of deceased. He has further pointed out memo. Of inspection and stated that in the room where the acid was allegedly thrown there was nothing but a carpet and bicycle with grass cutting scissors and that the burns on the deceased's body show that he had burnt marks on the head, face both on posterior body and on the front which show that either the acid was dropped from the top or deceased himself committed some mistake. He has stated that the piece of carpet, taken into custody by the police, was a material evidence to show as- to whether the acid was thrown from a distance or was dropped over the head, but that piece of carpet has never been produced in the evidence, although as per police record it was taken into custody, learned counsel has further pointed out that from the evidence of the witnesses it appears that Zabta Khan and another person talked with the deceased while he was in the injured condition but he never disclosed the name of the appellant as an accused person and that the deceased survived about 21 hours after the incident but during that entire period the lady was with him and deceased did not object her presence while in his statement to Zabta Khan he simply said that he has been burnt by acid but after reaching at hospital he was not in a position to give any statement. He has submitted that it was the accused lady, who intimated all the persons to come to Hospital, while she remained there, otherwise, it would not be difficult for her to escape from the scene as in the vicinity of the house she was totally unknown and even the landlord Zabta Khan has no acquaintance with her or has knowledge about her whereabouts. He has further submitted that,she herself immediately rang to the landlord about the incident and thereafter arranged vehicle to take the deceased to the hospital. He pointed, out statements of the witnesses to show that witnesses are not certain as to whether the person was taken in a Suzuki or in a Taxi therefore, they cannot be trustworthy and that immediately after reaching of the deceased to the hospital Doctor has taken care of him and in the MLC he has opined that burn's marks may be due to bursting of an acid bottle. He has further pointed out that the burn's marks of acid, if thrown from a distance, can be different than the marks caused by a close distance and keeping in view all this, the Doctor has given his opinion in the MLC that the cause of death could be due to bursting of acid bottle. He has submitted that the only approach of the police to conclude that the appellant is guilty of offence because of alleged CD, which is stated to have been made from conversation with the complainant on phone but that CD was never sent for expert's opinion nor even the statement contained in the CD, discloses that the appellant has committed a murder of the deceased. He has submitted that all the statements made by the appellant lady and her behaviour, during the case, is nothing but a result of fear as she was frightened after the incident while she has some friendly relations with the deceased, therefore, she tried her best to help the deceased till the time of his death and since she has no relation with the deceased, therefore, she disclosed the police that she is a wife while to the relatives at hospital she disclosed them to be adopted sister.
3. On the other hand Mr. Saleem Akhter, learned Additional Prosecutor General has concentrated upon the point raised by the learned counsel and despite his efforts was not in a position to controvert the factual position. He could not reply to the query by the Court as to how this F.I.R. Has been legalized, which has been made by the State through it but has been signed by Zabta Khan (wrongly named as Sanabat Khan) nor he is in a position to justify as to why the piece of the carpet, recovered and taken into possession by the police, has not been produced during the course of the trial. Anyhow, he has submitted that from the arguments of the learned counsel for the appellant and documents pointed out even it is proved that lady has misrepresented and if any case is not made out under section 302, P.P.C. Then she can be punished under section 417, P.P.C. While in terms of section 237, Cr.P.C. He was not in a position to justify as to why investigation was conducted twicely, firstly by Ghulam Sarwar of Police Station Mominabad and secondly by another Investigating Officer Muhammad Saleem of Police Station Jackson.
4. After hearing the learned counsel and perusing the record, it appears that A the appellant has been proceeded under section 302, P.P.C. For Qatl-e-Amdand for that purpose required proof has been provided under section 302, P.P.C. In the instant case section 302(b), P.P.C. Has been applied, which requires the quantum of evidence as provided, under section 17 of the Qanun-e-Shahadat and since it is not a financial matter, therefore, section 17(b) would be applicable which provides that testimony of one man or two women is required. In the instant case, there is no ocular evidence and the only lady, who could be presumed to be available at the scene, has been made an accused. The circumstantial evidence, in the shape of carpet, is missing from the proceeding while the allegation of causing death by way of throwing acid is doubted by the Doctor itself as recorded in MLC that the injuries can be due to burst of acid bottle as there were injuries on every side of the body of the deceased including top of his head, posterior of body and different sides of his body. The evidence of the witnesses as well as so-called complainant Zabta Khan does not tally with each other as very prominent difference in respect to the kind of Vehicle is apparent there. It has also been noted that immediately after the incident, the appellant herself called the landlord and relatives of the deceased without any fear that the deceased will disclose her name. The conduct of the appellant shows that her efforts were to save the life of the deceased after the incident, otherwise, she would not have immediately called the landlord and relatives of the deceased while at the initial stage, the deceased was in a position to talk but no where in the police record he has involved the appellant in any way and was apparently comfortable in the association of the lady, who remained with him and took him to hospital and thereafter called all his relatives, therefore, the involvement of appellant in the crime finds no support from evidence. The trial Court has not considered all the above-discussed factual and legal position.
5. Anyhow, it appears from the record that she has personated by disclosing her identity as at some occasions she has disclosed her name Maqsooda and somewhere as Sughra, therefore, she can be punished under section 417, P.P.C. And action can be taken under that section while section 237, Cr.P.C. Provides that if a person is charged for one offence and thereafter it appears from the evidence that he has committed a different offence then he may be convicted for the later offence.
Section 417, P.P.C. Provides a sentence for one year only while the appellant has already served a sentence of two years as she is in jail from 2-6-2006, therefore, while convicting her under section 416, P.P.C. Imprisonment of one year benefit of section 382-B, Cr.P.C. Is given to her with the direction that her imprisonment under section 416, punishment whereof is provided under section 417, P.P.C., is to be counted from the date of her arrest.
6. In the above situation, appellant be given benefit of doubt; as required evidence to brand her a murderer is not available, hence, she is acquitted from the charge levelled against her under section 302, C P.P.C. While the sentence under section 417, P.P.C. Has already been served by the appellant. She may be released forthwith, if not required in any other case.
' With the above observation, this appeal is disposed of.