1. SYED ZAKJR HUSSAIN, J. These are two Criminal Jail Appeals preferred by the appellants respectively against the common judgment dated 25-7-2006 of the learned 1st Additional Sessions Judge, Hyderabad pertaining to S.C. No,408 of 1997 (F.I.R. No,24/1997 of Police Station Saeedabad, under sec tions 302, 109 and 34, P.P.C.), whereby the appellants have been convicted and sentenced under section 302(b), P.P.C. read with section 109, P.P.C., to suffer life imprisonment, and to pay fine of Rs,50,000 each to be paid to the legal heirs of the deceased as diyat, in default whereof, to suffer R.I for six months more, with benefit of section 382-B, Cr.P.C. The appellants have prayed for setting aside of the said judgment, conviction and sentence, and for their acquittal from the charge of the case, on the facts and grounds mentioned in the appeals.
2. The necessary facts are that the complainant reported to the police at Police Station Saeedabad on 7-6-1997 at 9-00 a.m. that on 5-6-1997 he had visited his brother Manzoor Ali, who resided in the village Mehar Shah, along with his family consisting of his wife namely, Mst. Noor Jehan and her mother Mst. Zainab the appellant, and stayed that night over there, and when he was asleep at 4- 00 a.m. he heard commotion coming from his 'brother's room and soon thereafter his wife Mst.
3. Noor Jehan emerged out of her room and then they both saw that the appellant Kamil Shah already known to them, armed with Revolver made fire shot at the instigation of Mst. Zainab, the other appellant, at the said Manzoor Ali, who suffered such fire arm injury, below to the right side ear, and died instantaneously. The culprits put them i,e, the said witnesses, in confinement, in a room and then they put the dead body in jute bag, and dragged it away towards outside that room (of incident) and thereafter, the witnesses heard the appellant Kamil Shah as saying that he had been going to dispose of the dead body. On the , next day, when the complainant and Mst.
4. Noor Jehan, tried to open the door, and they came out therefrom and that when they both had left that house promptly, the complainant having left the lady witness in the house of his relative Nabi Bux, left for his relative Yaseen who could not be found present, and on the following day the complainant visited his village again and narrated the incident to one Dawood and another namely, Uris, and then on the advice of Dawood, he lodged the report. On such report the police registered the F.I.R. of the case against the nominated persons, the appellants, and having completed the investigation, which include the proceedings of recovery of dead body, blood- stained material, visit to place of wardat, arrest of suspects, 'recovery of crime weapon and observing all required formalities submitted the charge sheet of the case, in the Court of law for-- the purpose of trial, for the offence punishable under sections 302, 109, 34, P.P.C. The learned trial Court framed the charge against the appellants for the offence punishable under the aforesaid sections of law, to which they pleaded 'not guilty' and claimed trial. The prosecution led evidence which includes as many as 8 witnesses and closed the side thereafter. The learned trial 'Court then examined the appellants under section 342, Cr.P.C, who denied the charge, allegations and evidence., declined to give their statements on oath, and led no evidence in defence as well. The trial Court having heard the matter concluded the trial by way of the judgment impugned in these appeals, whereby the appellants were held 'guilty' of the offence they were charged with, beyond shadow of any reasonable doubt, and they were convicted and sentenced under the aforesaid sections of law as stated above.
5. The Court heard the' matter on 3-8-2010 and by its short order allowed the appeals, set aside the impugned judgment and accordingly acquitted the appellants of the charge of the case, for the reasons to be recorded later.
6. The prosecution evidence mainly, consists of two witnesses including the complainant and Mst.
7. Noor Jehan. The other evidence is of circumstantial nature, which relate to the proceedings as to recovery of the dead body from a nearby coal godown, on the pointation of the complainant, on 7- 6-1997 at 1000 hours under a memo prepared there and then to such effect before the attesting witnesses/ mashirs nathely, Manthar and Arab, inspection of place of wardat on 7-6-1997 at 0945 hours under its relevant memo before same mashirs, arrest of the appellants on 11-6-1997 at 0845 hours at Bus stand Keheja Shakh, before same mashirs, and recovery of crime weapon in presence of the complainant and that of the male appellant etc. The recovery of dead body and that of the blood-stained articles from different place, on pointation of the complainant, is hardly reliable and the same can hardly be useful for entailing conviction by use thereof as incriminating material against the appellants as the same, itself, does not establish that the appellants are 'guilty' to the offence they have been charged with. Similarly, the recovery of crime weapon i,e, Revolver in presence of the complainant and that of the appellant from a place not belonging to the appellant Kamil Shah, alone, is not of much worth from the prosecution view point, for no conviction can be based thereupon, particularly, when the said weapon was left unsealed and unsent along with 11 live bullets and one empty cartridge of .32 bore, to the Ballistic Expert, to verify if the same was in a working order and ever used, and so also to know if the said empty has any nexus therewith? and most particularly, when the said weapon belonged to the father of the complainant, who had the licence therefor, and such licence holder has not been picked up as witness or suspect, and there is no explanation as to why his licensed weapon, came in possession, of the appellant Kamil Shah. Similarly, the owner of the said coal go down wherefrom, the recovery of the said dead body and blood-stained articles, did stand effected, was not picked up as witness. The arrest of the appellants is dated 11-6-1997 and the said recovery of crime weapon, is effected after a delay of 7 days, which too, is left unexplained. There is no confession of the appellants in any manner whatsoever. The said material as already pointed out, is of no use, whereas the evidence of the complainant, is doubtful in the circumstances of the case, particularly, when he delayed the lodging of the F.I.R. without any excuse, and his having gone to his relative in a different village twice for giving information of the incident, after having shifted the witness Mst. Noor Jehan to the house of his another relative namely, Nabi Bux in the same village, and there is no explanation as to why he did not approach the police and the people in the neighbourhood, in the first instance, as a matter of immediate probable reaction in a case of like nature, and why he did shift the, lady Mst. Noor Jehan from her own house to the house of his relative when being widow of the deceased and resident of the house, in which the deceased died, she was supposed to have remained in its occupation, while having so shifted. She knowingly left none behind to look after the affairs of thereafter, and to possess and furnish knowledge as to her whereabouts etc. as well. The statements of these witnesses to the effect that they saw the incident of killing of the deceased at the hand of the appellant Kamil Shah by use of firearm weapon referred to above, and that they had seen the injury of deceased as well, and they saw that the appellants had covered the dead body in a Jute bag and then dragged it away, and took the same out of the house, and that then they heard the male appellant having said (to other appellant) that he would be going to dispose the dead body of, are not free from doubt, for a variety of reasons, which include the reasons already mentioned above and so also that the memo of incident of place of wardat shows no article as blood-stained, found from such place and its surroundings, which is not possible as the medical certificate shows that the deceased suffered one entry wound in the forehead, and one exit wound at the back of left side of skull, which means that he was fired and got thereby a through and through bullet injury, and in such state of affairs, the blood which must have oozed out, must have spread over the place where the deceased got injured, and its surroundings as well, with spontaneous flow, and since no such blood spot and blood-stained thing or article or the place, is found at the relevant time of the inspection of the place of wardat, the same leads the Court reasonably, to draw an inference that the said place of offence was not the place of incident and that the alleged murder took place at some other place, and as an outcome of such inference, the statements of the said eye-witnesses on this score, alone become doubtful and not trustworthy, while they as already discussed above, are not confidence inspiring. Their evidence, need corroboration while the other material also needs corroboration, and there is no independent corroboration for these two sets of evidence at all and therefore, the same remain unsupported by any independent corroborative piece of evidence. As rightly pointed out by the learned counsel for the appellants, the learned trial Court has seriously erred to have carried out no proper appraisal and appreciation of the evidence and erroneously having believed the same, held the appellants 'guilty' beyond shadow of any reasonable doubt, while there was no positive evidence against each of them and therefore, the impugned judgment is not sustainable.
8. The learned Assistant Prosecutor-General Sindh for the State being helpless, also reluctantly conceded the above position of the case.
9. Consequently, the appeals are allowed, the impugned judgment is set aside and the appellants are acquitted of the charge of the case. They are in custody. They may be released forthwith, if not required in any other case.
10. The above are the reasons for the short order 3-8-2010. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.