' MUHAMMAD MUN1R KHAN, J.-- This Criminal Appeal No, 193 of 1981 and the connected Murder Reference No,34 of 1982 arise from the judgment of learned Additional Sessions Judge, Multan whereby he, on 5-11-1981, convicted Sanwal Shah appellant aged 26 years under section 302, P.P.C.
For causing the death of Mst. Gulshan Bibi aged six years at mid-night between 6/7 by drowning her in Rana Minor Canal in Mouza Mahangay Hatti of Police Station Makhdoom Rashid and sentenced him to death and a fine of Rs,5,000 or in default thereof to further R.I. For two years.
2. On 7-12-1980, Mst. Mumtaz Mai P.W.10 appeared before Mirza Shabbir Inspector of Police Station Mumtaz Abad, Multan. She made statement Exh. P.A/1 before him. Since the place of occurrence was within the area of Police Station Makhdoom Rashid, so P.W.1 Mirza Shabbir sent statement Exh.
P.C. To Police Station, Makhdoom Rashid for the registration of case, where formal F.I.R. Exh. P.A/l was drawn up by Muhammad Rafiq Moharrar Head Constable P.W.4 at 8_30, p.m.. On 7-12-1980.
The distance between the place of occurrence and Police Station, Makhdoom Rashid, is 14 miles.
3. The prosecution case as disclosed in the F.I.R., was that Mst.Mumtaz Mai complainant had adopted Mst. Gulshan deceased. She took her from Yaqoob Mohajar and brought her up. Mst.
Gulshan was of six years in age on the eventful night when Sanwal Shah appellant came to the house of Mst. Mumtaz Mai situated in Samejabad. He is the stepbrother's son of Mumtaz Mai. He asked the complainant in harsh language to return Mst. Gulshan Mai to her parents and persuaded her to accompany him to the house of her brother Mehtab Shah in Mouza 5-Faiz. At about 10.30 p.m. Mst. Faiz Mai, Gulshan Bibi and Sanwal Shah appellant left for village 5-Faiz. They reached Rana Minor at about mid-night. There was a bridge of wood over the Canal. The appellant lifted Gulshan Bibi and took her across the Canal. He then assisted Mst. Mumtaz Mai in crossing the Canal. At this Juncture Mst. Gulshan Mai stepped towards the lap of the complainant. The appellant caught hold of Gulshan Mai and threw her in the Canal. He did not allow Mst. Mumtaz Mai to save the drowning girl. The appellant then brought Mst. Mumtaz Mai to the house of Mehtab Shah to whom she narrated the occurrence. Mehtab Shah made attempts to recover the dead body but all in vain. Thereafter Mst. Mumtaz Mai appeared before Mirza Shabbir Inspector P.W.1 Police Station, Mumtaz Abed and made her statement Exh. P.C.
4. After the registration of the case the investigation was entrusted to Khurshid Ahmad A.S.I. P.W.13 who reaching the place of occurrence on 7-12-1980, made search for the dead body. On 8-12-1980 Manzoor Ali S.I. Took over investigation from Khurshid Ahmad. He arrested the appellant. The investigation was then transferred to Abdul Ghafoor A.S.I. P.W.8. On 24-12-1980 Rana Muhammad Ishaq P.W.2 informed the A.S.I. P.W.8 that a dead body of child was lying in Rana Minor Canal near Tibba Bridge. The A.S.I. Went to that place, prepared inquest report and summoned Mst. Mumtaz Mai who identified the dead body of Mst. Gulshan Bibi. The dead body was then despatched to the mortuary.
5. On 26-1-1981 at 9 a.m. Dr. Riazud Din P.W.11 conducted post-mortem examination. He found that: "the dead body was of a well-built female child about the age of 6/7 years with protuted tongue through the mouth, orbits of eye empty. Clad in white Shalwar, red flowered shirt, gersi metallic ear-rings in left lobele, a pair of black 'shoe and 8 bangles in forearm and three in left and a 'Haar Moti' around the neck. There was plenty of mud under the clothes. Mud firmly grasp in both the hands, scalp devoid of hair and skin. There is sepnification of all the muscles of body with peeling of the skin of scalp, face and drunk. Skin of hands and feet was pealed of with nails like gloves. Central and lateral incisers of upper and lower jaw (temporarily milk intact) Slight disagreeble and nausiating smell present in the body. After removal of scalp muscles loosenes of fronto parietal and inter parietal suture observed. Abdomen was distended. Her disphargm was pushed upwards on both sides. Stomach contained about 2 ozs. Of water. Stomach also started outrifying. Splean was reduced to a liquid mass. Kidneys were also reduced to a small and putrifying mass. Her urinary bladder was. Empty. Brain was liquified however memberance were intact. Both chembers of the heart were empty."
' Instead of giving his opinion about the cause of death the Doctor sent viseras to the Chemical Examiner for the detection of poison if any. According to the Doctor the time between the death and post-mortem was 4 to 6 weeks. The chemical report Exh.P.E/1 shows that no poison was detected in viseras. It was for the first time at trial stage that the witness stated that the cause of death of Gulshan Bibi was drowning.
6. To prove its case prosecution produced as many as 13 witnesses.Mst. Mumtaz Mai P.W.10 supported the prosecution case as detailed above. She added that immediately after the occurrence Manzoor Ali P.W.9 and Fajjar Ali (not produced) had arrived at the place of occurrence to whom she had told the occurrence. In cross-examination, she stated that Mst. Gulshan Bibi was daughter of Shaukat All and was brought up by Mst. Iqbal Mai and not by her (witness). She denied to have stated in the F.I.R. That Gulshan Bibi was daughter of Yaqoob or that she was brought up by her (witness). Manzoor All P.W.9 and Mehtab Shah P.W.12 were produced as witnesses of res gestia.
They did not support the complainant. They stated that after the occurrence Mst. Mumtaz Mai complainant had told them that Gulshan Bibi had accidently fallen in the Canal. They were declared hostile and cross-examined by the prosecutor. The rest of the evidence is of formal nature.
7. When examined under section 342, Cr.P.C. The appellant denied all incriminating circumstances.
He raised plea of false implication. He did not produce any evidence in defence.
8. The learned counsel for the appellant contended that Mst. Mumtaz Mai the solitary witness is not dependable and that the possibility that Gulshan Bibi might have accidently fallen in the Canal cannot be excluded. Conversely the learned counsel for the State has supported the judgment of the trial Court.
9. We have considered the arguments advanced by the learned counsel for the parties with care.
From the statement of the facts and the details of evidence given above it is very much obvious that Mst. Mumtaz Mai complainant P.W.10 alone has supported the prosecution case. Manzoor Ali P.W.9 and Mehtab Shah P.W.12 to whom the complainant had narrated the occurrence, had not only refused to suport her but also have falsified the allegations against the appellant by stating that Mst. Mumtaz Mai had told them that Gulshan Bibi had accidently drowned in the Canal. No doubt, no particular number of witnesses are, in any case required for the proof of any fact and the Courts are concerned with the quality and not with the quantity of the evidence and conviction can be based on statement of one witness but for the safe administration of justice in the criminal cases, the precondition is that the witness should be absolutely dependable. Thus, in the case in hand the conviction might be sustained on the evidence of Mst. Mumtaz Mai if she could be held to be absolutely reliable. On careful scrutiny of her evidence in accordance with the guidelines given by the superior Courts for the appreciation of a solitary witness we find that her evidence fails to attain that high standard. In the F.I.R she stated that Gulshan Bibi was given to him by Yaqoob Mohajar and she brought her up whereas at trial stage, she not only denied to have made this statement in the F.I.R. But also 'gave a new story that Gulshan Bibi was the daughter of Shaukat and was brought up by lqbal Mai and not by her. At trial stage she also introduced two witnesses namely Manzoor All P.W.9 and Fajar Ali (not produced) as witnesses of the res gestae. Sanwal Shah appellant is son of her step-brother. In cross-examination she admitted that her relations with step-brothers were strained as they were suspecting her character. She also admitted that her family members were not on speaking terms with her for the last 18/19 years due to the suspicion of her bad character. She further stated that the appellant was suspecting that Mst. Gulshan Bibi deceased was her illigitimate daughter. H. Brother, Mehtab Shah P.W.12 stated that after the occurrence she told him that Gulshan Bibi had fallen in the Canal accidently. For all these infirmities, Mst. Mumtaz Mai P.W.10 cannot be accepted as an absolutely truthful witness. At least she is not of that standard on the conviction can be safely based without independent corroboration. We do not see any additional evidence or circumstance to corroborate her statement. In the circumstance of the case, the possibility of the accidental fall of the deceased in the Canal cannot be excluded.
10. For what has been stated above, while giving him the benefit of doubt, we acquit the appellant of the charge. He shall be released forthwith if not required in any other case.