GHULAM SARWAR KORAI, J. Since all three Appeals are directed against the Judgment dated 22-4- 2010 passed by the Court of learned IVth Additional Sessions Judge, Karachi (West), whereby appellants were convicted for the offence punishable under section 302/34, P.P.C. and sentence them to undergo for twenty five years' Rigorous Imprisonment. They were also directed to pay an amount of Rs,200,000 each to the legal heirs of the deceased as Qisas. In case of default in payment of Qisas, they shall suffer more six months' rigorous Imprisonment. They were extended benefit of section 382-B, Cr.P.C., therefore, I would like to dispose of these three appeals with common Judgment.
2. Facts of the case are that on 16-8-2002, staff of Grand Mission School, Sector 11-E, Orangi Town, Karachi feel obnoxious smell in the building and on checking a dead body of healthy young man namely Muhammad Shakeel found in a room of the school. Parents of the deceased and police were informed. On their arrival the dead body was identified as Muhammad Shakeel alias Kashif by his father Abdul Salam Qureshi then he lodged the F.I.R. stating therein that on 13-8-2002 at about 7-00 p.m. the deceased left the house and did not return,
3. After registration of the F.I.R and after completing the investigation, challan was filed.
4. The case was entrusted to the Court of learned IVth Additional Sessions Judge, Karachi (West).
On 7-6-2003 copies were supplied to the appellants at Exh.6 and on 9-7-2003 charge was framed against them vide Exh.7 in which they pleaded not guilty and claimed trial. Their pleas were recorded vide Exhs.8, 9, 10 and 11 respectively.
5. In order to prove the case, prosecution examined P.W.1 Rukhsana at Exh.18, P.W.2 Abdul Salam complainant at Exh.19, he produced the memo. of superdiginama of dead body , statement under section 154 Cr.P.C. , memo. of arrest of accused persons, memo. of personal search vide Exhs.19/A to 19/D respectively, P.W.3 Muhammad Asif Qureshi was examined at Exh.20, he produced his statement under section 164, Cr.P.C. at Exh.20/A, P.W.4 SIP Ali Muhammad duty officer of P.S. was examined at Exh.21, he produced F.I.R. No,230 of 2002 of Police Station Orangi Town, at Exh.21/A, P.W.5 Muhammad Nadeem was examined vide Exh.22, he produced certain documents vide Exhs.22/ A to 22/C. P.W. Mustaqeem was given up by the prosecution vide statement Exh.23. MLO Dr. Nisar Ali Shah was examined at Exh.24, he produced medico legal certificate of the deceased vide Exh.24/A, P.W. Muhammad Jawaid was examined at Exh.25, P.W. Hameedullah Khan Niazi was examined at Exh.26, he produced sketch of place of incident and letter to Doctor, mashirnama of recovery of knife vide Exhs.26/A to 26/D respectively. P.W. Muhammad Azeem Khan was examined at Exh.27, he produced Roznamcha entry vide Exh.27/A. Thereafter side of the prosecution was closed by the learned ADPP vide his statement dated 21-5-2009 at Exh.28.
6. Statements under section 342, Cr.P.C. of the appellants were recorded vide Exhs.29 to 32 respectively. All the allegations denied by the appellants levelled against them but neither they were examined themselves on oath nor led any evidence in their defence.
7. After completing the trial, learned trial Court framed the following points for determination:-- Point No,1 Whether deceased Muhammad Shakeel son of Abdul Salam died an unnatural death?
Point No,2 Whether on 16th August 2002, at Grand Mission School, Sector 11-E, Orangi Town, Karachi present accused persons murdered deceased by dagger?
Point No,3 What offence, if any, has been committed by present accused persons?
8. Heard Messrs Zahir Hussain Baladi, Nasir Mehmood advocates and Muhammad Farooq advocates for the appellants and Mr. Muntazir Mehdi, A .P .-G. for the State.
9. Learned Counsel for the appellants contended that appellants are innocent and they have committed no offence as alleged by the prosecution. Incident is unseen one as deceased left his house on 13-8-2002 at about 7-00 p.m. and was not returned at his house. On 16-8-2002 staff of Grand Mission School, Sector 11-E, Orangi Town, Karachi feel obnoxious smell in the building and on checking a dead body of healthy young man namely Muhammad Shakeel was found in a room of the school. He was identified by his father Abdul Salam and after registration of the F.I.R. appellants were arrested without any material collected by the prosecution against them. Learned Counsel for the appellants further contended that the evidence of the prosecution witnesses examined by the prosecution is immaterial as none of them is eye witness even there is no confessional statement of the appellants. They further contended that statement under section 164, Cr.P.C. was recorded by the learned Judicial Magistrate but he was not examined by the trial Court and lastly they contended that knife recovered at the instance of the appellant Imran was not proved against him therefore they prayed for acquittal of the appellants.
10. Mr. Muntazir Mehdi, learned A.P.-G. for the State opposed the appeals on the ground that a young boy lost his life and appellants are responsible for his murder, therefore they are not entitled for any relief and he prayed for dismissal of the appeals.
11. I have perused the file and evidence of the P.Ws.
12. P.W, Rukhsana Bano, she is one of the Witness of the incident. She deposed that on 12-8-2002 she went to the house of accused Uzma for keys of the school for opening at 7-15 a.m. as she maid servant of the School. She was informed by appellant Uzma that one boy came at her School, insist her to take Karli Jheel visit but she refused. She further deposed that on 13-3-2002 she opened the School while at about 10-30 a.m. appellant Uzma informed. other teachers that at night time deceased Shakeel came at her house and asked her for keeping his bag. as he wants to go to Sukkur but brother of accused Uzma refused to keep the bag of the boy Shakeel. She further deposed that on 14-8-2002 she went to open the school, none was present in the School. She saw blood spot in the Courtyard of the School. Accused Uzma came there, on enquiry about the blood, she informed Rukhsana that at night time she was doing fibre painting and her finger was injured due to broken of glass, her finger wrapped with Sunnyplast then spot was washed by her, On 16-8- 2002 when she opened the school, accused Uzma also arrived there. She further deposed that she and accused Uzma felt bad smell, therefore, they both went to up-stair and found dead body of Shakeel in the room of school, immediately they came down and informed police and also Sir Jawaid owner of the School. Rabbani Bhaee Head Master of the School and other people were gathered there. This witness was lengthy cross examined.
13. P.W. Abdul Salam, father of the deceased Shakeel and complainant of the case was examined.
He deposed that appellants Imran, Sufiyan and Amjad on 13-8-2002 came at his house, called his son Shakeel. They went away, thereafter Shakeel did not return back, therefore, on the next" day he made enquiry in this respect, went to the house of the accused persons but they had shown ignorance about his son then on 15-8-2002 he reported the matter to police about missing of Shakeel. On 16-8-2002 mob of people were present at the school and then he came to know about dead body of a young boy was lying there. He rushed towards the scene and found the dead body of his son. He also deposed that he was called by the police.at. Police Station just to identify the persons, who had taken away his son, where he was shown Imran, Sufiyan, Amjad and Uzma. He identified the three appellants except Uzma,. who had taken away his son from his house. In his cross-examination he deposed that, appellants Imran, Sufiyan and Amjad came at his house at 7- 00 p.m. and called his deceased son. He further deposed that on 16-8-2002 after recovery of dead body and post mortem F.I.R. in this case was registered. He further admitted that he do not know the contents of the F.I.R. but he had given the name of Sufiyan, Amjad and Imran being culprits of this crime. He further deposed that he had given the names of the accused persons except female accused Uzma.. He admitted that no witness has come forward to him or attend police to claim to have seen murder of his son with his own eyes by the hands of all the above appellants. He further deposed that appellants Imran, Sufiyan and Amjad were friends of his son Shakeel and were on . visiting terms while appellant Uzma is teacher of his deceased son Shakeel and he had no enmity with the appellants. He further deposed that it would be correct to say that lie had suspected accused persons except appellant Uzma being murderer of his son as they had come' at his house and called his son, who went along with them and except above, he has no other proof that appellants have murdered his deceased son.
14.Third witness is Muhammad Asif, who is brother of deceased Shakeel. He deposed that on 13- 8-2002 in between 8.p.m. appellants Imran, Sufiyan and Amjad came at his house, called his brother Shakeel, as they were his close friends and went away but not returned back, while he enquired about missing of his deceased brother came to know that all the above named persons had gone to picnic point. He admitted in his cross-examination that there was no enmity in between deceased Shakeel with the appellants. He admitted in his cross-examination that his statement under section 161, Cr.P.C. was recorded .by the police on 1-10-2002 and prior to this, his statement was not recorded by the police. He further admitted that lie was not the eyewitness of his deceased brother therefore he cannot say that his brother had been murdered by appellants Imran, Sufiyan, Amjad and Mst. Uzma. He lastly admitted in his cross-examination that it would be incorrect to suggest that they have falsely implicated the accused persons on suspicion as these were suspected as killer of his deceased brother Shakeel.
15.P.W. Ali Muhammad was Police Officer, who received the statement of the complainant under section 154, Cr.P.C. through PC Malik Waseem which was recorded by S.-I. Azeem and on such basis he registered the F.I.R. on 16-8-2002 and handed over to Inspector Hameedullah Niazi for investigation.
16. P.W. Nisar Ali Shah, MLO , who conducted the postmortem of deceased Shakeel on 16-8-2002, according to his opinion death was occurred about 3 days back to the date of examination of the dead body.
17. P.W. Muhammad Jawaid, who deposed that lie do not know about the incident and he is not eye-witness of the incident. Appellants were not seen by him and he lastly deposed that on 16-8- 2002- appellants Uzma and Maid servant of the school namely Aapa Rukhsana informed him that bad smell was coming from the 1st floor of the school.
18.P.W. Hameedullah Khan Niazi Inspector deposed that he was SIO of police station Orangi town.
On 16-8-2002 he was: informed on his Mobile Phone by SIP Shoukat Hayat that time he was' present in a Grand Mission School, Orangi Town, Karachi and in a room on the Ist floor of the school a dead body of male young bpy is lying. On the same day at about 3-15 p.m.. Ali Muhammad of Police Station Orangi Town Karachi gave him FIR. along with statement of the complainant Abdul Salam, therefore, he went to the place of incident, prepared sketch of the .place of incident and met with legal heirs of the, deceased. On enquiry statements of Abdul Salam and Mustageem were recorded then went to the house of Muhammad Jawaid owner of the school, who informed 'him that keys of the School were lying with the appellant Uzma therefore he went to the house of the appellant Uzma and found her disturbed and her right hand finger was injured. On enquiry she could not satisfactorily explain as to how her finger was injured, therefore, Muhammad Jawaid and appellant Uzma were brought at Police Station. During interrogation appellant Uzma informed police officer that on 13-8-2002 she was colouring the banners of her school, when two young boys came at her school. Out of them one was Shakeel alias Kashif, they both remained her students.
She further informed to the police officer that boys asked her to give them keys of the school gate and its rooms to which she refused therefore they inflicted her fingers with chhuri and got some written from her on white paper and left the school by directing her not to disclose anything to anyone and then she went to her house. This police officer further deposed that appellant Uzma further informed him that on 14-8-2002 was Holiday, she went to MLO Qatar Hospital, Orangi Town, Karachi for examination of her right hand and treatment. On 19-8-2002 police officer went to the house of the complainant thereafter on 20-8-2002 this police officer along with other police personnel's accompanied with complainant Abdul Salam and his son Nadeem went to the house of the accused persons. They arrested the appellants Imran, Sufiyan and Amjad, prepared such mashirnama and brought them at Police Station and on the next day, appellants were sent to jail custody by learned Judicial Magistrate before whom they were produced for physical remand. He recorded the statement of appellant Uzma under section 164, Cr.P.C. During interrogation appellant Imran confessed the commission of the crime before this police officer and become ready to lead him to the place where he had kept the weapon/dagger used in the commission of offence. At his instance police officer recovered the dagger from the water gutter near the school, prepared such mashirnama in presence of Sajid Mehmood and HC Fazlur Rahman and separate F.I.R. under section 13-E of Arms Ordinance was registered against the accused Imran and after completing the investigation, challan was filed. He admitted in his cross-examination that according to the investigation carried out by him appellants Amjad and Uzma have no concern with the commission of the offence.
19.P.W.9 is Muhammad Azeem Khan. He was police officer and was posted at Police Station Orangi Town, Karachi. On 16-8-2002 at about 9-30 he was informed by Mustaqeem on telephone about the dead body lying in the room of 1st floor of the school. He made such entry in the Roznamacha, vide No,9 and call A.S.-I. Liaquat Hayyat who was performing his duty at APC. This police officer also informed the S.H.O. then proceeded to the place of incident along with A.S:-I.
Liaquat Hayyat and found many people of the locality were gathered there, near room of the 1st floor of the School where dead body of a male was lying and bad smell was coming. Informant Mustaqeem was also present there, so also Nadeem alias Guddu son of Abdul Salam, who identified the dead body of deceased as Shakeel alias Kashif. Formalities were completed at the place of incident. Dead body was shifted to Abbassi Shaheed Hospital Karachi for postmortem through letter to MLO. On the same day he received medical certificate from MLO about the cause of death and postmortem report and handed over the dead body to Abdul Salami. Recorded his statement under section 154,' Cr.P.C. in which he did not nominate any accused by name thereafter he came to know that F.I.R. was registered and given to Hameedullah Niazi for investigation. He was last witness and thereafter side of the prosecution was closed.
20. The statements under section 342, Cr.P.C. of the appellants were recorded. They denied the allegation, claimed innocence but neither examined themselves on oath nor led any evidence in their defence.
21. Evidence against appellants Sufiyan, Imran and Amjad is only that on 13-8-2002 at about 7 p.m. they came at the house of the deceased, called him and went away along with him. The offence was not seen by any of all above named witnesses. Admittedly, death of deceased Shakeel is unnatural confirmed by the Medical officer by deposing that he was murdered about 3 days back from the date of examination of dead body viz 16-8-2002. So far recovery of dagger on the pointation of accused Imran is concerned, it was recovered from water gutter, near the school then it will not connect the appellant automatically without any corroboration of the material evidence, if the appellants have confessed their guilt before the Investigating Officer then it was necessary for him to produce them before the Magistrate for recording their confessional statements but it was not done. The complainant party admitted themselves in their evidence that there is no enmity in between them and appellants even there is no motive against the appellants for commission of the offence. There is no evidence against the appellant Usma except the evidence of Mst.Rukhsana, who deposed that finger of appellant. Uzma was cut and was wrapped with Sunniplast, she informed her that her finger was cut being broken of glass at the time when she was painting, even this piece of evidence is not sufficient to connect her in the commission of offence. The complainant party also in their depositions deposed that they are suspecting the appellants Sufiyan, Imran and Amjad as killer of deceased Shakeel, this piece of evidence is also not sufficient to establish the guilt of the appellants. It is settled principle of law that single circumstances is sufficient to extend benefit to the accused but in the present case there are number of circumstances from which appellants are to be benefited. Unnatural death of the deceased confirmed in medical evidence by itself and without more cannot throw any light on the identity of the appellants, in this respect reliance is placed in the case of Ch.Barkat Ali v. Major Karam Elahi Zia 1992 SCM R 1047, therefore, I am of the view that the case of the prosecution is highly doubtful against the appellants and prosecution failed to establish its case beyond any reasonable doubt, therefore, these appeals were allowed and appellants were acquitted vide short Judgment dated 23-1-2011 and these are the reasons of the same.