1. ' This appeal has been preferred challenging the judgment passed by the learned Vth Additional Sessions Judge, Sukkur in Sessions Case No,333/87 whereby he has convicted the appellant under sections 302 and 201, P.P.C. Sentencing him to life imprisonment and imprisonment for 5 years respectively.
2. ' Briefly the facts leading to the present appeal are that on 27-7-1987 at about 10-30 a.m.
3. Complainant Soomar son of Lal Bux Mirbahar resident of Baberlo, taluka Khairpur went to lodge F.I.R. With Police ,Station Kandhra. This F.I.R. Was then taken to Police Station Rohri where a formal F.I.R. Was registered under section 154, Cr.P.C. Being Crime No,124/87 under section 302/201, P.P.C. In the F.I.R. It is alleged that the complainant is a labourer and is residing alongwith his son Hussain Bux and others family members which also included his daughter Mst. Mehnaz who was married to the accused about 8 years back and used to reside with him in Cement Factory, Rohri. This was an exchange marriage and the son of the complainant Hussain Bux was married to Mst. Lali the sister of accused. The accused had two issues from Mst. Mehnaz, namely, Zahida aged about 3 years and a son Zahid aged about 1-1/2 years. In the F.I.R. It is further stated that there was a domestic dispute between the parties and Mst. Mehnaz was residing with the complainant and that the accused had taken away his sister with him and that on 26-7-1987 the accused had come to the complainant in his own Suzuki and asked for the hand of his wife who was allowed to go with him alongwith the children. The complainant further alleged that thereafter he and his son Hussain Bux and brother Ghulam Sarwar went towards Kandhra Town on motor-cycle for some work and while they were returning on the path of Nara Canal at about 4-00 p.m. They reached near bridge of Tando Baharo near National Highway. At that time they heard cries of murder - murder and they saw Suzuki of the accused standing there and accused throttling Mst. Mehnaz and asked the complainant and others not to come near him. The accused then threw Mst. Mehnaz in the Nara Canal and went away in his Suzuki alongwith his children. Thereafter the dead body was searched for but could not be found and the F.I.R. Was lodged. The police visited the place of Vardat, prepared a Mashirnama in presence of Mashirs Kalander Bux and Rab Nawaz. The police also secured the dead body from the bank of Nara Canal on 29-7-1987 in presence of Mashirs Allandino and Yar Muhammad and arrested the accused on 30th July, 1987 in presence of Mashirs. After completing the usual investigation the case was challaned.
4. ' Charge was framed by the trial Court under sections 302 and 201, P.P.C. On 25-6-1989 to which the accused pleaded not guilty and claimed trial. The trial Court examined complainant Soomar (Exh.6), eye-witnesses Ghulam Sarwar and Hussain Bux (Exhs.9 and 15), Mashirs Kalander Bux and Allandino (Exhs.10 and 13), Medical Officer Mr. Abdul Karim (Exh.16) and the Investigating Officer Abdul Fattah (Exh.18). The accused was examined under section 342, Cr.P.C. Who denied all the allegations. He did not examine himself on oath nor examined any witness in defence though opportunity was given. The trial Court coming to the conclusion that the accused had been guilty of the alleged charges passed the judgment convicting him as above. Hence this appeal.
5. ' I have heard Mr. Muhammad Daud Baloch learned counsel for the appellant and Mr. Gul Bahar Korai Advocate appearing for the State. The trial Court in the judgment had determined the following points:--
(1) Whether Mst. Mehnaz died of unnatural death?
(2) Whether the accused committed the murder of Mst. Mehnaz?
(3) Whether the accused after having committed murder of Mst. Mehnaz threw the dead body into canal to cause the evidence of the murder disappear? ' and answering all the points in affirmative passed the above judgment.
6. ' As far as the first point is concerned the evidence on this point is that of Medical Officer who has performed the post-mortem of the dead body of Mst. Mehnaz received by him on 29-7-1987 at about 10-00 a.m. The dead body is said to have been secured at 0140 hours in the night. According to Medical Officer's report the following injuries were sustained by her on her external and internal examinations:-- "External examination: ' Muscles of neck found absent only bonykage present, cornus of hyoid bone fractured. Condition of subject---Female in putrified state about 24 years old. Muscles of face found absent and neck of muscles also absent. Hole measuring 1-1/2 c.m. Found on lower part of left side of chest. Fingers of left hand distal margin bitten by animals.
7. Internal examination: ' Skull and vertebras healthy, membrane of brain and spinal cord putrified stage, walls of thorax punctured stage, ribs healthy, pleura larynx and tracheas in putrified stage, right and left lungs shrinks and in putria stage, heart and blood vessels in putrified stage. Walls and abdomen, mouth, pharynx and oesophagus, diaphragm, stomach, pancreas, small and large intestines, liver, spleen, kidneys, bladder putrified. Organs of generations external and internal completely putrified."
8. ' According to the opinion of the Medical Officer the death was caused due to asphyxia i,e.
9. Throttling. Mr. Baloch for the appellant has however, pointed out that in the last line of cross- examination Medical Officer has stated "It is correct that there were no muscles at the neck therefore, I cannot say whether there was any throttling or not". This version of the Medical Officer itself renders his opinion as doubtful which cannot be taken as conclusive proof of the cause of death. However, even if such opinion of the Medical Officer is accepted then too the material point which requires consideration in this case is as to who is the person responsible for causing the death of the deceased Mst. Mehnaz which is covered under points Nos.2 and 3.
10. Points Nos.2 and 3.
11. ' These are inter-connected points and therefore, I take them jointly. On these points the evidence which has been brought on record is; (i) oral testimony, (ii) securing of dead body and (iii) motive.
12. ' As regards the first point the evidence on the record is that of complainant Soomar who in his evidence has stated that his daughter Mst. Mehnaz was married to accused and that they had two children out of the wedlock i,e. One daughter being 3 years of age and a son being 1-1/2 years of age. He has also deposed that his daughter has been residing with him due to some domestic dispute since last three years and during this period of three years neither the accused had visited his wife nor deceased had visited her husband. It is very surprising to note that in these circumstances how could she conceive the second child. As against this on this point P.W. Hussain Bux the brother of deceased and eye-witness states that Mst. Mehnaz was brought to their house on account of the dispute only one year back. This fact also goes to contradict contention of the complainant. The evidence of his father and son is totally inconsistent with each other in material facts. The complainant states that as soon as the accused came on 26-7-1987 asked for the return of Mst. Mehnaz he allowed her to go with him as she was willing to go with her husband. He further states that accused did not take meals though offered. Although at that time according to him P.W.
13. Hussain Bux and Ghulam Sarwar the nephew of the complainant were also present in the house. As against this P.W. Hussain Bux states that accused was offered meals, he had taken meals in the house and also that all of them had jointly taken meals together. P.W. Hussain Bux further states that Mst. Mehnaz was willing and pressing that she be permitted to go with her husband and she was allowed to do so. He also states that Syed Shabir Shah had done a Faisla and directed them to permit Mst. Mehnaz to go with her husband and that final Faisla would be done subsequently whereas the complainant states that there was no Faisla between the parties and that the parties had not approached any Nekmard for Faisla. These versions of the complainant and his son very clearly show that Mst. Mehnaz was willing to go with her husband and was allowed to do so. These two witnesses have also stated that she had been happily living with her husband and that she had no grievance or dispute with her husband. It is not understood that in such circumstances why would a husband kill his wife who is willing to live with him and has no dispute with him. Not only this but the other material points for consideration are that all the said witnesses are related inter se. P.W. Hussain Bux is son of complainant. P.W. Ghulam Sarwar who is also said to be eye-witness is nephew of complainant and a Police Constable at Police Station Kandhra where the complainant had first gone to lodge the report. It is argued by the learned counsel for the appellant that in fact it is this P.W. Ghulam Sarwar who has engineered the whole affair in order to cover up some other fact which could be possible in this case. However, there is nothing on record from either side to suggest any other motive. The other witnesses are Mashir Allandino who is brother of complainant and Mashir Kalander Bux who is caste-fellow of the complainant. However, all the witnesses have admitted that at the time of inspection of Vardat by police and securing of the dead body of Mst. Mehnaz other people had also collected there but yet the police did not choose to have any independent person to act as Mashir but selected the near relations of the complainant. This also casts a doubt over the credibility of the evidence of these witnesses. Lastly the securing of the dead body from Nara Canal could also not be proved by any independent evidence. According to police the dead body was secured from the bank of Nara Canal when it was in the water on 29-7-1987 at about 0145 hours in presence of Mashir Allandino the brother of complainant and also complainant. It is not shown as to how the police party and the Mashir and complainant happened to be at that place two days after the lodging of the F.I.R. Although it is stated by the I.O. As well as P.Ws. That divers were sent for on the first day to search for the dead body of Mst. Mehnaz but none of the said divers have been examined in the case. The I.O. Goes one step further to say that he does not even remember names of the divers. As regards the spotting of the dead body the I.O. States that he was sitting in the police vehicle on the front seat and he was the first person to see the dead body whereas P.W. Allandino the Mashir states that he was the first person who saw the dead body and pointed out the same to the police, although he states that he was sitting in the back portion of the police Mobile which is a covered vehicle and one cannot understand as to how in the dead of night he could see dead body floating on the bank of the canal when the head-lights were on the front side of the vehicle. There are some other contradictions also inasmuch as the depositions of the eye witnesses are concerned. All these facts pointed out above raise a reasonable doubt in the case of prosecution. It may be observed that it is the duty of the prosecution to prove their case beyond all reasonable doubt. It is not for the defence to disprove the case of the prosecution. All that the defence is required to do is only to create a dent in the case of prosecution and once the defence succeeds in doing so, the benefit of doubt has to go to the accused. The learned counsel has placed reliance on case-law in support of his contention that no conviction can be based on ocular testimony of interested witnesses unless it is corroborated by a very strong and independent circumstantial evidence. This is settled law and I am of the view that in the present case also there is no independent or circumstantial evidence supporting the prosecution case.
14. ' The learned counsel for the appellant has further contended that the conviction cannot be maintained under sections 302, P.P.C. And 201, P.P.C. Simultaneously as the two sections would contradict each other. In case an accused is convicted under section 302, P.P.C. It would be deemed that the evidence is available to prove the case against him and therefore, the provisions of section 201, P.P.C. Would not be applicable in the case. Be that as it may, as I have already observed above that the prosecution has failed to prove the case against the accused beyond all reasonable doubt, I am of the view that this appeal deserves to be accepted..
15. ' In this view of the matter Mr. Gul Bahar Korai the learned counsel appearing for State has candidly conceded and stated that he does not support the judgment of the trial Court. Consequently the appeal is accepted, the conviction and sentence awarded by the trial Court are set aside and the appellant is acquitted allowing him benefit of doubt. He shall be released forthwith if not required in any other case.