1. ORDER S. ZAKIR HUSSAIN, J.---This criminal appeal is preferred against the judgment dated 5-8- 2009, passed by the learned 1st Additional Sessions Judge, Karachi (East), convicting and sentencing the appellant under section 302/34, P.P.C. To suffer life imprisonment 'with fine of Rs.50,000-00 and paying compensation of Rs.1,00,000-00 to the legal heirs of the deceased and in default whereof, to suffer R.I. For six months together with benefit of section 382-B, Cr.P.C., praying for setting aside the same and acquitting the appellants from the charge of the case, on the facts and grounds mentioned therein.
2. This Court heard the matter and by its short order disposed of the appeal,' whereby the conviction and sentence to the appellant, stand converted Into that of section 324/34, P.P.C. To the extent of the already undergone term thereof, on their part, hence, with their immediate release in the matter, for the reasons to be recorded later on.
3. Briefly, the facts show that this is a case of intentional murder by 100% burning said to have taken place at the hands of four persons, (tried in the case together), by the use of kerosene oil and that of lit match stick, against the deceased Salim on the given date, time and place, as reported against. No postmortem examination took place in the matter, and hence, the cause of death could not medically appear to be so declared while there appears a medical certificate produced in evidence not by the doctor but I.O. Showing that the death took place in .The burn ward of the Civil Hospital, on the given date, due to 100% burning. Yet, as stared above, no doctor has been examined in the matter to establish such medical aspect. The prosecution charge sheeted only two namely, Asif Ali and Nadim as exclusively responsible for the commission of the said murder.
4. The Sessions Judge, concerned however, included two namely Anwar-ul-Haque and his were Feroza in whose house the incident had taken place. Charge was framed, to which they pleaded 'not guilty'. The prosecution led evidence of the deceased's brother namely, Amin, Mst. Chand Bibi, Mst. Naima., Investigation Officer, Muhammad Farooque and Ali Muhammad and others. There appears an admitted position that the deceased stood burnt and was deposited in the Ziauddin hospital where he got some treatment and thereafter, he was shifted to in Civil Hospital, where he passed 4/5 days under treatment, and died. 'The F.I.R. Is based on the deceased's statement recorded under section 154, Cr.P.C, in the hospital by the I.O. With no endorsement from the hospital authorities that the same was recorded in the hospital, in their presence and in the senses of the deceased etc. The learned A.P.-G. Admits the legal position that the cause of death is no where proved throughout the case due to lack of ' Medical evidence and the certificates produced by the I.O. To such effect carries no legal effect, particularly in absence of the postmortem examination report and that of the medical officer, who issued the aforesaid certificate and could not appear in court to give corroborative or supporting evidence thereagainst. The other B evidence, which has come through statement of the private witnesses Mst. Naima and Chand Bibi who are declared hostile, establishes that the deceased stood burnt, but how and at whose hand?, not disclosed by them.
5. Thus, as per the learned counsel for the appellant, there is a doubt in ocular account, as to who caused the incident or who are actual culprits. The aforesaid statement under section 154, Cr.P.C.
6. On which, the police registered the F.I.R., was recorded by the I.O. Who produced the same along with the F.I.R. And his well corroborative statement, which stands supported by the corroborative statement of the witness Amin the brother of the deceased to the effect that his brother before his death, , gave statement to the I.O., and simultaneously, disclosed to him, that he i.e. The deceased, was burnt and received , burn injuries on the part of the culprits Asif Ali and Naveed. If it is assumed that the death occurred owing to negligence of the hospital or the people who were responsible to take care of the injured at the relevant time and or in other words, the possibility that the said death of the deceased would not have taken place if he had been given proper attention and care at the relevant time, can hardly be ruled out in the circumstances, yet the case of attempt to murder cannot be disputed as having stood established beyond shadow of any reasonable doubt, which involves punishment upto 10 years maximum. Needless to mention that owing to lack of medical evidence as to injuries and cause of death of the deceased as pin pointed above, the charge of murder under section, 302/34 P.P.C. Is not proved beyond shadow of any reasonable doubt, and the prosecution has miserably failed to discharge its respective burden thereagainst, rather the investigation carried out in the matter, seems to be an unfair and dishonest one for the simple reason that the I.O. And the M.L.O. Concerned must have subjected the body of the deceased to have undergone the process of the postmortem examination for the purpose of establishing the death being unnatural (as an outcome of burn injuries as reported against), which though appears to have taken place in the instant case owing to serious burn injuries (of course, with no involvement of negligence or carelessness in handling the injured in the intervening period either on the part of the Ziaduddin Hospital, Civil Hospital or the persons responsible to take care of the matter from medical view point or otherwise), yet requires to be established at trial for which, such procedural requirement was a must, whereas the absence of such material is a serious lapse, which carry an adverse effect to the aspect relating thereto, and the benefit whereof, goes to the appellant so much that they can hardly be convicted under section 302, P.P .C. By having stood held guilty to the charge of the offence thereagainst, as a matter of law and equity specially when there appears no motive attached with the appellant to cause the murder of the deceased, and the learned trial. Court acquitted the co-accused in whose house, the incident of giving burn injuries to the deceased by the appellants, is said to have taken place. The evidence, is not of first degree in nature as carrying lapses of serious nature, and hence, the same can serve as mitigating circumstances for lesser punishment. Consequently, the conviction awarded and the sentence passed under section 302, P.P.C. Are converted into section 324, P.P.C. In the interest of justice, with the result, the appellants shall accordingly be deemed to have stood convicted under section 324, P.P.C. And sentenced thereunder, to suffer R.I. For the period they have already undergone in the matter, which comes to seven years and more than four months, from the date of their respective arrest i.e. 4-5-2003. The impugned judgment stands modified and the appeal in hand, disposed of in the above terms accordingly The appellants are in jail. They shall stand released forthwith, if not required in any other case.
7. The above are the reasons of the aforesaid short order.