1. ' MRS. QAISER IQBAL, J.--- Being dissatisfied with the judgment, dated 13-12-2003 passed by the learned IVth Additional District and Sessions Judge, Karachi West in Crime No,53 of 1996, under section 302/34, P.P.C. Registered at Police Station Saeedabad, 'Karachi whereby the appellant was convicted to suffer R.I. For life imprisonment and to pay fine of Rs,50,000 to the children of the deceased. In case of default to suffer R.I. For one year. Benefit of section 382-B, Cr.P.C. Was also extended. The co-accused Mst. Tehmeena was also convicted, she proceeded to file a criminal appeal before this Court, which was later compromised, she was acquitted from the charges levelled against her.
2. ' Succinctly the facts leading to the filing of this appeal is that on 9-4-1996 the complainant Nawab Khan lodged a report to the effect that on 27-3-1996 his sister's husband Iqbal Hussain sent a letter to him that Muhammad Basheer had died in Central Hospital, Rawalpindi. The complainant proceeded to his house, which was found locked. He then went to the son of Muhammad Basheer namely Ghulam Shabbir, who is a police constable and posted at Saeedabad Police Station. The letter was shown to him to which he replied that he was not aware of the same as his father has contracted a second marriage with Mst. Tehmeena. Both of them proceeded to his sister namely Mukhtar Bibi and brother-in-law Muhammad Razzak residing at Chakwal. They enquired the wife of Muhammad Basheer as well as the present appellant about deceased Muhammad Basheer. They went to the Central Hospital, Rawalpindi where they found that Muhammad Basheer was not available. On further enquiry, the appellant and Mst. Tehmeena admitted that they had killed Muhammad Basheer on 12-3-1996 and after burying his dead body in Plot No,629, proceeded to Chakwal.
3. ' On the basis of above report, the investigation was conducted in the matter, arrested the accused persons and brought them from Chakwal to Karachi. After exhumation of the dead body, post- mortem was conducted all over the dead body, it was revealed that the deceased was given sleeping pills by co-accused Mst. Tehmeena and she gave an iron rod to the appellant, who caused rod blows on the head of the deceased and then they strangulated him.
4. ' It is alleged that ditch was dug in the courtyard in the house after burying the dead body floor was cemented; both the accused persons then fled away to Chakwal at their parents' house. The motive behind the murder, as disclosed by the accused persons was that during his stay in the house of deceased, the appellant had developed illicit relations with co-accused Mst. Tehmeena.
5. ' Investigation was conducted; appellant was charged to face the trial At the trial, the charge was framed and read over to the accused persons to which they pleaded not guilty and claimed to be tried.
6. ' The prosecution, in order to establish the charge, produced P.W.1 Nawab Khan as Exh.13, P.W.2, Haji Fazal-e-Rabi as Exh.14, P.W.3 Ghulam Shabbir as Exh.20, P.W.4 Raheem Iqbal as Exh.23, P.W.5 Dr. Abdul Sattar as Exh.24, P.W.6, Dr. Hamid Jailani as Exh.26, P.W.7 Muhammad Nawaz Minhas as Exh.29, P.W.8 Muhammad Ishaque as Exh.37, P.W.9 Chaudhry Anwar Ali as Exh.38 and P.W.10 Shariq Ahmed as Exh.41. Prosecution closed its side through Exh.43.
7. ' Statement of the appellant under section 342, Cr.P.C. Was recorded to which he denied to have committed the charged offence, examined himself on oath and filed a written statement, which was taken on record.
8. ' Upon examination of the record, learned Judge came to the conclusion that the appellant as well as the co-accused Mst. Tehmeena had committed the charged offence and the appellant was punished as stated above, therefore, he has proceeded to file the present appeal.
9. ' Mr. Muhammad Farooq, learned counsel appearing on behalf of the appellant, in respect of unnatural death of deceased Muhammad Basheer, relied upon testimony of complainant Nawab Khan and Ghulam Shabbir,. Brother and son of the deceased respectively. Both of them were residing in Baldia Town, Karachi. Both of them had reached to the place of incident comprising of house of the deceased and found that the floor of the house was cemented. On 13-4-1996 on the permission of S.D.M., in the presence of police and the doctor, the dead body was, exhumed after digging of pith and iron rod was also secured. Doctor Abdul Sattar also present on the spot; conducted the post-mortem after exhumation of dead body and found an injury of 10 c.m. x 5 c.m. x cavity deep on the right parietal occipital region of the skull, as indicated in the postmortem report as Exh.25. This factum was confirmed by P.W.6; Dr. Hamid Jailani, a Member of the Board constituted for post-mortem of the dead body and confirmed the cause of death. The defence, in rebuttal, did not cross-examine both the doctors, therefore, cause of death is unchallenged and unrebutted, which manifestly shows that deceased Muhammad Basheer met unnatural death.
10. ' After dealing with the cause of death, now I proceed to consider the point raised with regard to the death of deceased Muhammad Basheer occurred due to an injury with iron rod and strangulation with a piece of cloth on the fateful day in his own house. Prosecution in support thereof has examined complainant Nawab Khan, his statement is hearsay, as he was neither a resident of the house where the incident had taken place nor he was aware of the whereabouts of the deceased, when he received a letter after thorough enquiry he proceeded to Chakwal along with P.W. Ghulam Shabbir came to know about involvement of deceased's wife along with the present appellant in the commission of his murder.
11. ' From the statement of Ghulam Shabbir, son of the deceased, it transpired that deceased had contracted a second marriage with Mst. Tehmeena and the appellant was his nephew as well as of his wife. His testimony was also hearsay, as he came to know about missing of the deceased from his uncle complainant Nawab Khan; both of them proceeded to Chakwal. He was present on the spot when locked house of the deceased was digging, the dead body of deceased was exhumed and the alleged crime weapon iron rod was secured. In the cross-examination, he told that his deceased father had two wives. From the first wife he had three daughters and one son. After the death of his first wife, deceased contracted marriage with Mst. Tehmeena in 1978. While P.W.
12. Ghulam Shabbir was married in 1988, resided with his father only for one year and due to shortage of space and the fact that the house was transferred by the deceased in the name of his step- brother namely Abid, he became annoyed and started residing separately.
13. ' It is specifically denied that there used to be any quarrel between deceased as well as his wife. It is interesting to note that P.W. Ghulam Shabbir had lastly seen his father one month prior to the incident. Similarly, testimony of P.W. Ashiq Hussain is not weighed with sanctity although he had received a letter regarding hospitalization of deceased in Rawalpindi, yet he could not produce the said letter. Although this fact was mentioned in his statement recorded by the police under section 161, Cr .P . C .
14. ' The prosecution, in order to support the guilt of appellant, relied upon the testimony of P.W., Haji Fazal-e-Rabi, as an elder person and social worker of the locality, who had also pointed out the place of incident (Exh.14-A). The appellant as well as co-accused were not present on the spot, when the dead body was exhumed. P.W.4 Raheem Iqbal, who is a neighbour of deceased, admitted in the cross-examination that at the time of recovery of the dead body, the appellant and the co- accused were not present. The appellant and the co-accused in their statements under section 342, Cr.P.C., denied to have committed the charged offence, pleaded their innocence.
15. ' Learned, counsel for the appellant, while reviewing the prosecution evidence, contended that the appellant is behind the bars for the last 12 years, he did not commit the charged offence. The prosecution evidence, in respect of proving the guilt of the appellant, is not consistent, cannot be relied upon for awarding the sentence in a case of capital charge. The circumstantial evidence, brought on record by the prosecution, does not lead to the conclusion that each chain of the incident is linked with other to prove the guilt of the appellant. So far as the extra-judicial confession about confess of crime before prosecution witnesses Nawab Khan, Ghulam Shabbir and Ashiq Hussain are not free from doubt. The appellant and co-accused Mst. Tehmeena had allegedly confessed their guilt before them at Chakwal after they stayed at Chakwal for 17 days.
16. The extra-judicial confession is not substantive piece of evidence unless corroborated by another strong piece of evidence. Although at the time of exhumation of dead body, one iron rod was also secured yet role attributed for causing the alleged strike of iron rod was also attributed to the co- accused Mst. Tehmeena. The role attributed to the appellant is of strangulation of the deceased with co-accused, for which no evidence has been adduced even two doctors examined by the prosecution are silent on the issue of strangulation. The search of the appellant and the co- accused by the P. Ws. Nawab Khan, Ghulam Shabbir was subsequent corollary on account of missing of the deceased from his house. The evidence led by the prosecution comprises of hearsay evidence, which cannot be treated as cogent evidence. The question of last-seen evidence carried weight depending on the very degree of possibility of the facts and circumstances of each case.
17. ' The defence version if kept in juxtaposition to the prosecution case, it seems that the deceased's son an employee of the police force was annoyed on the second marriage of the deceased with Mst. Tehmeena, so also deprived him of his heirship rights, house was gifted to his step-brother Abid from Mst. Tehmeena. So also the deceased's brother complainant Nawab Khan had developed a personal grudge against the appellant. There are so many unnatural stances, which could not be overlooked. If the appellant along with co-accused Mst. Tehmeena had broken the cemented floor the neighbours were bound to notice some noise but the deceased's son and the brother had broken the lock of the house and entered the house of the deceased.
18. ' Perusal of the evidence on record, I am of the view that the prosecution evidence is not consistent, circumstantial evidence, does not lead to one inference that the appellant was responsible for the commission of murder of the deceased so far as the _question of strangulation of the deceased arises there is not even iota of evidence to suggest the same even the doctors are silent on the issue, only conclusion, which could be derived is that the deceased had sustained one injury over his right parietal occipital region of the skull caused by a weapon like iron rod. No role in the given circumstances could be attributed to the appellant that he was responsible for the commission of murder of the deceased. The motive in the present case is shrouded in mystery. The defence version as explained above, reached to the conclusion that there could be another opinion which could be found by the Investigating Officer for the commission of crime.
19. ' The ultimate conclusion in the above facts and circumstances is that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. It is well-settled law that even one ground creating dent in the prosecution is sufficient to draw its inference.
20. ' In view of the above facts and circumstances, the impugned judgment is not sustainable in law, hereby set aside. The appellant is directed to set free if not required in any other custody case.
21. ' These are the reasons for a short order, dated 10-10-200 whereby the appellant was acquitted from the charge levelled against him.