1. ' ZAFAR AHMED KHAN SHERWANI, J.-- Through this appeal the appellants named above have impugned the judgment, dated 19-7-2008, passed by the learned 1st Additional Sessions Judge, Malir whereby they have been convicted and sentenced under section 302, P.P.C. To suffer imprisonment for life and pay fine of Rs,50,000, in case of non-payment of fine, they were required to undergo S.I. For six months more, with the benefit of section 382-B, Cr.P.C.
2. ' I have heard the learned counsel for the appellants and the learned State Counsel and also perused the record with their assistance.
3. ' The brief facts of the case of the prosecution are that on 17-9-2006 at about 12 noon complainant Ahmed Khan resident of R-76, Gali No,7, Zafar Town, Landhi Karachi, lodged an F.T.R. With regard to murder of his daughter Mst. Pahari Bibi aged about 18/19 years, by the present appellants, who are father and son inter se. In the F.I.R. It was alleged that about 6/7 years back the deceased was married to appellant No,2 and in exchange his sister was married to, his son. About four days prior to the incident i.e. On 13-9-2006 at about 9 a.m. He had received a telephone call from the appellant No,1 who asked him to send his daughter to his house because the appellant No,2 was not feeling well and he was taking him to the hospital, so that she may look after her mother. The complainant declined to do so on the ground that his son was also sick. On this, the appellant No,1 asked him to take back his daughter, deceased Pahari Begum, because she had not proved herself as an obedient woman and to leave his daughter at his house. On this he proceeded towards the house of appellant No,1 along with one Nazeer Khan. At some distance the appellant No,1 met them in a taxi. He was crying, therefore, they went back to their house along with him, where he informed that his daughter Mst. Pahari Bibi had committed suicide by hanging herself with the help of a "Dopatta" from a ceiling fan: Receiving this information he became unconscious. Afterwards on the basis of private enquiry he came to know that in fact she had not committed suicide but was murdered by both the appellants.
4. ' With regard to the incident, dated 13-9-2006 A.S.-I. Sultan Qureshi Exh.4 (page 17 of the paper book), deposed that on the said date he was on duty at P.S. Nasirabad of Police Station Bin Qasim, when the real uncle of the deceased Pahari Begum naniely Abdul Ghafoor came at the P.S. And informed that his niece had committed suicide. On receiving this information, he along with Abdul Ghafoor went to the place of incident. He inspected the room where he saw that the dead body of the deceased lying, covered with a cloth. One iron box of two feet height was lying straight under the ceiling fan, a Dopatta which was cut into two pieces and a knife were also lying there. He inspected the dead body and prepared a memo. Exh.4/A under section 174, Cr.P.C. Which was attested by the said Abdul Ghafoor and one of his relatives. He also prepared a memo. Of place of the incident in presence of the same witnesses, which is Exh.4/B and seized all the incriminating articles as mentioned above including the ceiling fan, vide memo. Exh.4/C and shifted the dead body to the J.P.M.C. For post-mortem and report. At the hospital post-mortem was conducted by a Woman Medical Officer, Dr. Farida. She delivered him three sealed bottles and one slide for forwarding the same to the Chemical Analyzer. The dead body was then handed over to the complainant Abdul Ghafoor for the funeral.
5. ' The W.M.L.O. Dr. Farida found the following four injuries on the body of the deceased:---
(1) Ligature mark over neck. High up with knot over left side 15 c.m. x 1.5 c.m.
(2) Abraded contusion mark over center of neck 5 c.m. x 1 c.m.
(3) Contusion over right side of neck 1 c.m. In diameter.
(4) Abraded contusion over right side of middle of mandible 1 c.m. In diameter.
6. "Internal examination"
7. "Head "
8. ' No any mark of injury seen.
9. "Neck"
10. ' Tissues underlying the injured area found congested. No fracture of hyoid bone found.
11. ' She opined that the cause of death was asphyxia leading to cardio pulmonary failure due to construction of neck by soft and flexible object. In her first opinion about the cause of death she opined as under:--- "As per Chemical Examiner's report R-7764/65 dated 23-11-2006 received on 28-11-2006 17" poisonous substance tested found negative. Human sperms detected in high vagent surob.
12. "Final cause of death"
13. ' As per Chemical Examiner's report R-7764/65 dated 23-11-2006 received on 2811-2006 17" poisonous substance found negative. Hence cause of death is asphyxia leading to cardio pulmonary failure due to construction of neck by soft and flexible object, which is more likely to be homicide. As human sperms are detected. Hence she is subjected to sexual intercourse."
14. ' Any how after the registration of the present F.I.R. The case took a new turn and the police again visited the place of the incident on 17-9-2006 and prepared a fresh memo. Of the place of incident, and arrested the appellants on 19-9-2006, vide memo. Exh.5/B, prepared by Sub-Inspector Muhammad Jahfer. After the usual investigation the case was challaned by S.-I. Ali Ahmed Halipota.
15. ' At the inception of the trial both the appellants denied the formal charge against them, therefore, the prosecution examined the complainant Ahmed Khan at Exh.3, his brother Abdul Ghafoor at Exh.5 and Woman Medical Officer Dr. Farida at Exh.4. The Police Officers who remained connected with the investigation of the case at different stages including A.S.-I. Ali Asghar (who had recorded the F.I.R. Vide Exh.8). Sub-Inspector Ahmed Ali (who had challaned the appellant vide statement Exh.9) and Sub-Inspector Muhammad Jahfer (who had conducted the investigation after registration of the F.I.R. Vide Exh.10) were also examined.
16. ' Both the appellants denied the evidence produced on record against them and claimed to be innocent vide statements under section 342, Cr.P.C. Exhs.12 and 13. They also examined Dr. Captain Farhat Hussain Mirza, Associate Professor Forensic, University of Heath Sciences, one of the members of Special Medical Boards, constituted by the Government to verify medico-legal report issued by the woman Medico-Legal Officer, Dr. Farida. He deposed that Board had turned down the opinion of Dr. Farida with regard to cause of death given by her and held that it was a suicidal hanging and not homicidal hanging. He produced the report of the Medical Board. The appellants however, declined to examine themselves under section 340(2), Cr.P.C. The learned trial Court after hearing the learned counsel for the parties, convicted the appellants and sentenced them as aforesaid mentioned.
17. ' During the course of the arguments the learned counsel for the appellant vehemently argued that this is a case of no evidence, but still the appellants have been convicted and sentenced to life imprisonment by learned trial Court on the basis of conjectures and surmises therefore, the impugned judgment of conviction and sentence is fit to be set aside and since prosecution has failed to prove its case against them beyond reasonable doubt therefore, they are entitled to be acquitted.
18. ' The learned A.A.-G. Submitted that since there was no reasons as to why the deceased would commit suicide and the fact that there was a dispute between the deceased and her in-laws, therefore, she was murdered by them hence the appeal is devoid of any merit and fit to be dismissed.
19. ' I have carefully considered the above arguments, in the light of the record.
20. On careful reappraisal of the evidence produced by the prosecution not a single bit of tangible evidence could be found in support of the charge against the appellants connecting them with the commission of the offence. The complainant, who is father of the deceased, who was the only star- witness of the prosecution has simply deposed that after receiving the information about the death of his late daughter he became unconscious, therefore, he did not even see the face of the deceased and even did not attend the funeral ceremony. He has admitted that initially he did not want to lodge the F.I.R. Against the appellants though the police had been pursuing him to do so, however, A when he received information through some women of the family that at the time of giving bath to the deceased certain injuries were seen on different parts of her body, including a black spot and cut on her neck and fracture of her head, therefore, he lodged the F.I.R. The above statement was not supported with any direct evidence including those women who were said to have seen the said alleged injuries. In these circumstances the hearsay evidence of the complainant could not prove the charge of homicidal hanging of the deceased by the appellants.
21. Similarly the medical evidence of Dr. Farida was superseded by full fledge medical board, the member of which was examined by the appellants in their defence. As per report of Medical Board the death of the deceased was a case of suicide and not homicide.
22. ' On the basis of such inadmissible evidence under the Qanun-e-Shahadat there was no justification to record the finding of conviction by the learned trial Court against the appellants for the murder of the deceased but unfortunately the learned trial Court in flagrant violation of basic law on admissibility of evidence, convicted them and sentenced to imprisonment for life, hence the conviction and sentence was untenable, therefore, vide short order, dated 10-9-2008 both the appellants were acquitted setting aside the impugned judgment, with the direction to release both of them from the jail, if they were not required in any other case.
23. ' Above are the reasons for the short order.