FAHIM AHMED SIDDIQUI, J. --The appellant, through the instant Criminal Jail Appeal has assailed the conviction judgment dated 25.11.2016, passed by learned Additional Sessions Judge, Shandadpur in Sessions Case No.30 of 2010 emanating from Crime No.16 of 2010 for the offence punishable under section 302, P.P.C., registered at Police Station Shahpurchakar , District Sanghar . The impugned judgment was pronounced after finding the appellant guilty convicted for the offence under section 302(b), P.P.C. and sentenced him to death and fine of Rs.5,00,000/- [Rupees five hundred thousand only] as provided under section 544-A, Cr.P.C. to be paid to the legal heirs of deceased and in default whereof, to undergo two years Simple Imprisonment more. He was also extended benefit of section 382-B, Cr .P.C.
2. As per prosecution case, complainant Muhammad Saleem's sister namely Mst. Azizan [now deceased] was married with appellant Jamal, who had six issues It is alleged that on 26.33.2010 in the morning time, the complainant received mobile phone call that her sister Mst. Aziz was beaten by the appellant The brothers of complainant namely Imam Bux and Muhib Ali were in the marriage ceremony of one Iltaf Umrani, who went in the house of their sister Mst. Azizan and slept over there. It was 02.00 a.m night, they heard the noise in the house, On which other inmates woke-up and saw in the light of electricity that accused Jamal Khan was armed with hatchet and he caused sharp side of hatchet blow to Mst. Azizan on her forehead in order to kill her. They made hakkals on which accused fled away from the spot along with hatchet. PWs Imam Bux and Mohib Ali took injured Ms. Azizan towards Nawabshah for treatment. On such information the complainant also reach ed at Nawabshah Hospital. The doctor referred the injured to Hyderabad but in the way she succumbed to the injuries. The complainant returned back to village and informed the police: The police completed the legal formalities and post mortem was conducted.
Then the complainant approached the police and lodged the FIR.
3. The appellant was arrested on 28.03.2010; as per prosecution, the recovery of hatchet was also effected from the appellant. After usual investigation, the police has submitted Final Report before the concerned Court of Judicial Magistrate and subsequently it was sent up to the trial Court.
4. After completing all the requisite formalities, the trial-commenced and subsequent to recording the prosecution evidence and statement of accused [appellant] under section 342, Cr.P.C, the trial Court passed the impugned judgment. Nevertheless, the appellant has denied the prosecution assertion in his statement but neither he recorded his statement on oath nor preferred to examine any defense witnesses but stated that he has been involved in the instant case due to dispute over landed property .
5. We have heard the arguments from either side and perused the material available on record.
6. The learned counsel for the appellant depicted certain contradictions between different prosecution witnesses.
He specifically disputed the motive of incident and involvement of the appellant in the commission of crime. He further elaborates that the contradictions between the complainant and eye-witnesses are sufficient to say that the prosecution could not establish their case. According to him, the incident - was actually not seen by the complainant and his witnesses and they falsely implicated the appellant in order to usurp the landed property of appellant. He contended that this is a fit case for acquittal and prayed that the appellant may be acquitted from the charge.
7. On the other hand, the learned A.P.G. though admitted some contradictions are there but since the deceased was killed in the house of appellant being his wife, therefore, he is the culprit who committed the murder of deceased. She contended that though the impugned judgment does not require any interference by this Court, however , by admitting the mitigating circumstances in the case, she stated that at the most sentence may be converted into life imprisonment.
8. From what has been heard and noticed from the perusal of record, the following facts emerged.
9. It is alleged by the complainant in his deposition that he was informed on mobile phone that when his brother Imam Bux and nephew Muhib Ali went to village Haji Gul Khan Umrani for atten ding marriage ceremony of Iltaf Hussain Umrani but his brother-in-law/appellant Jamal did not permit the deceased who was his wife for attending the marriage ceremony and also beaten her. According to complainant, after atten ding, A the marriage ceremony , his brother and nephew returned back to the house of his sister [deceased] and stayed there in the night and at 02.00 a.m. [night], they saw on electric light that appellant was armed with hatchet who caused sharp side hatchet blow to his sister on her face while she was sleeping; his brother and nephew made hakkals but he succeeded to run away along with hatchet. In contra, PW Muhib Ali deposed that he along with his maternal uncle Imam Bux went to village Haji Gul Khan Umrani for attending marriage ceremony of Iltaf Hussain Umrani where he came to know that a tussle had taken place betwe en Mst. Azizan and her husband, the appe llant and according to him, after attending the marriage ceremony his maternal uncle went to the house of accused while he stayed in a marriage ceremony . He stated that on 26.03.2010 his maternal uncle Imam Bux informed him on telephone in the morning that the appellant had committed murde r of his wife Mst. Azizan by causing sharp side hatchet blows to her, thereafter , Imam Bux took away injured Mst. Azizan to Nawabshah Hospital from where she was referred to Hyderabad Hospital but in the way near Isra Hospital she succumbed to the injuries. Whereas PW Imam Bux in his evidence deposed same facts but he contradicted the evidence of PW Muhib Ali and stated that he and PW Muhib Ali both stayed in the house of appellant. From the evidence of PWs, it reflects that they are not supporting each other .
10. It is worth noting that it has come on record that the deceased had four sons of 18/19 years, 12 years, 11 years and 09/09 years ages as well as two daughters of 16 years and 15 years respectiv ely and at the D time of incident they were in the house, however , they have not been examined by the prosecution as to whether their mother was murdered at the hands of appellant. During evidence, the complainant admitted that the appellant had love and affection with his wife [deceased]. It is not believable that when their mother is killed, her offspring will remain mum even the sons and daughters of deceased remained out of the picture and they did not try to come forward to give evidence against the appellant just after the incident. The Investigating Officer also failed to record the statement of children of the deceased though some of them are majors. They should have been examined by the prosecution but it appears that the prosecution has purposely avoided to produce these important witnesses, which goes against the prosecution and supports the defense plea. If these things are kept in juxtaposition with the scenario of this case, which creates doubt in the prosecution case.
11. It is worth mentioning that the motive as stated by the complainant and witnesses is not established and the complainant also admitted the love and affection of the appellant with his wife [deceased]. The prosecution also remained failed to explain about the delay in lodging FIR and the prosecution could not explain about non- examining of the major sons and daughters of the deceased. The presence of PW Muhib Ali in the house of deceased as mentioned by the complainant is also not proved as PW Muhib Ali himself denied his presence. The witnesses are chance witnesses and they could not establish that there was marriage party in which they appeared and all the witnesses have turned about vital points in their evidence.
12. It is well settled principle of criminal administration of justice that no conviction can be awarded to an accused until and unless reliable, trustworthy and unimpeachable evidence containing no discrepancy casting some cloud over the veracity of prosecution story is adduced by the prosecution. We are of the view that in the present case, the prosecution story engulfed under the thick clouds of doubt, as such, we are of the considered view that prosecution could not establish the guilt of appellant at home without reasonab le doubt as if there is a single circumstance creating a reasonable doubt in the prosecution case, the benefit of which, noe as a matter of grace but as a right is to be extended to the accused. In this case, we have found many circumstances which II have put cloud over veracity of prosecution case, and therefore, we are not hesitant to conclude that the prosecution has not been able to prove case against the appellant beyond a shadow of doubt. Conse quently . by extended benefit of doubt to the appellant, we allow this appe al and set aside the conviction, and sente nces awarded by the trial Court to him. The appellant is acquitted. He shall be released forthwith if not required in any other custody case. These are the reasons for our short order dated 22.05.2019.
13. As a result of our above findings, the reference as provided under section 374, Cr.P.C. submitted by trial Court for confirmation of death sentence to the appellant is answered in negative.