1. ' ABDUL RAHIM KAZI, J.--- The facts relevant for the purpose of this case are that on 30-3-1987 at 00-10 hours S.I. Ali Yar Khan of Liaquatabad Police Station, Karachi lodged Report No,144/87 as under:-- "According to copy of Report No,89 at 19-15 hours, on 29-3-1987 Roznamcha of Police Station Liaquatabad, Karachi written by Assistant Operator of Police Station which informed and wrote from Police Control that by telephonic message Dr. Iqbal Ahmed, M.L.O. Abbasi Shaheed Hospital informed that one unknown person has been brought by Edhi Ambulance, Van No, Ex-3776 from near the Sindhi Hotel in injured and unconscious position whose M.L. No, is 1522/87, therefore, one Police Officer be sent for proceeding, therefore, copy of report handed over to S.I. All Yar Khan."
2. ' On the basis of this report the S.I. All Yar Khan reached Abbasi Shaheed Hospital for inspection and recorded his further proceedings as under:- "I, S.I. All Yar Khan reached at Abbasi Shaheed Hospital for inspection and requested for knowing the name, residence and condition of injured from M.L.O. M.L.O. Shahab wrote/informed that the injured is unconscious and lying in operation theatre and is unable for giving in statement, and informed verbally that deep injuries and excessible bleeding he is very serious. Awaited more time but injured was in operation theatre. I received Rs,165.30 and two bullets/blade from the M.L.O.
3. Recovered from the injured personal search/pocket. On the return, reached at place of occurrence, Qasimabad, Liaquatabad, for investigation. During the investigation came to know that place of incident is opposite Shamim Boys Secondary School, Qasimabad, Liaquatabad where dry blood in more quantity pool of dried blood in the Pacca Gali, therefore, at the pointation of eyewitnesses Anwar Hussain son of Haji Ahmed Hussain prepared memo. Of inspection of place of Wardat in the presence of one Muhammad Saleem son of Muhammad Yasin, Muhammad Anwar Hussain son of Muhammad Ali and recovered blood-stained earth in the possession of police and sealed in the packet of Insaf Tobacco. By the statement of witnesses and investigation came to know that the injured Muhammad Jamil Qureshi demanded for payment of Rs,300 from Abdul Hameed. By the same way they quarrelled to each other and on 29-3-1987 at 17-30 hours Abdul Hameed gave blows with Chhuri upon the person of Muhammad Jameel Qureshi at opposite Shamim Boys Secondary School Qasimabad, Liaquatabad, Karachi for killing him and injuries to Jamil Qureshi, who was brought to Abbasi Shaheed Hospital by Edhi Trust who is under treatment at M.L.
4. No,1522/87, therefore, case registered against the accused Abdul Hameed to commit under section 307, P.P.C. And I, S.I. Became busy in investigation."
5. ' The police thereafter having completed the investigation arrested the present accused from Cantonment Police Station, Karachi in presence of Mashirs Muhammad Saleem and Akbar and put up the challan.
6. ' The charge was framed on 19-10-1988 under section 302, P.P.C. To which the accused pleaded not guilty and claimed trial.
7. ' The prosecution in order to support their case examined P.W.1 Muhammad Arif (Exh.5), P.W.2 Anwar Hussain (Exh.6), P.W.3 Mashir ' Muhammad Saleem (Exh.7), P.W.4 Muhammad Anwar, another Mashir (Exh.10), P.W.5 All Yar Khan, the complainant and Investigating Officer (Exh.11), P.W.6 Dr. Muhammad Iqbal (Exh.14), P.W.7 Dr. Shafi Muhammad and P.W.8 S.M. Saleem Jafri the Office Incharge of Medico-Legal Section of Abbasi Shaheed Hospital. The prosecution then closed their side. Statement of accused was recorded under section 342, Cr.P.C. Wherein he denied all the allegations. He examined two witnesses in defence i,e, D.W.1 Muhammad Yousuf and D.W.2 Noor Muhammad and then closed his defence. He did not examine himself on oath though opportunity given.
8. ' On the basis of this evidence, the trial Court settled following points for determination:--
(1) Whether an unnatural death of the victim/deceased Muhammad Jamil Qureshi had taken place on 7-4-1987 in the Intensive Care Unit of Abbasi Shaheed Hospital, Karachi in consequence of the Chhuri injuries caused to him on 29-3-1987 at 5-30 p.m. At the time when he was available in the Gali opposite to the Shamim Boys Secondary School, C-1 Area, Qasimabad, Liaquatabad, Karachi?
(2) Whether sufficient, convincing and reliable evidence has been brought by the prosecution on the record of this Court to connect the accused Abdul Hameed son of Abdul Aziz with the aforesaid unnatural death of the victim Muhammad Jamil Qureshi?
9. ' Finding both the points in affirmative, the trial Court was pleased to convict the accused and sentenced him to death and also to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the heirs of the deceased victim.
10. ' We have heard the learned counsel for the appellant and learned State Counsel. As regards the first point, the learned counsel for the appellant has not challenged the findings of the trial Court on this point as far as the question of the deceased having suffered unnatural death on account of injuries caused to him is concerned. However, he has contested that the cause of death determined by the trial Court is not in consonance with the medical evidence. The learned Sessions Judge in his judgment while dealing with this point has held that "I am alive to the fact that infliction of incised injury No,6 which was on scapular region situated very near to abdomen must have reasonably confused P.W.2 who at the time of infliction thereof was at a distance from the victim". The learned trial Court held that this injury on scapular region to be the cause of death. A reference to the evidence of Dr. Muhammad Iqbal, who has examined the injured when he was brought to the hospital shows that he has produced the certificate regarding his injuries which show that the injured was received by him at 6-30 p.m. On 29-3-1987 and had six injuries of which one was at thigh post, second at forearm, third at right thumb, fourth at the back of left ear below pinna, fifth at left upper arm and sixth at scapular region.
11. ' According to the certificate issued by Dr. Haider, R.M.O. (Exh.25) the conditions leading directly to the death of deceased are cardio respiratory failure due to or as consequence of the head injury.
12. Now all the six injuries mentioned in the earlier Certificate issued by Dr. Muhammad Iqbal, none of the injuries is shown to have been sustained on the head of the deceased except for one on the back of left ear. Injury No,6 as shown in this Certificate is the one sustained on left scapular region.
13. Scapular means, triangular shoulder bone which certainly has nothing to do with the head of the person. In these circumstances, the learned trial Court has wrongly assumed that the cause of death was this injury No,6.
14. ' As regards the second point is concerned, the learned counsel for the appellant has vehemently argued that the findings of the trial Court are based on inference and surmises and not on substantive evidence. According to the learned counsel, the only evidence which has been relied upon by the trial Court is P.W.2 Anwar Hussain. This witness in his deposition has stated that he knew the parties; and that on the date of incident at 5-30 p.m. He was standing outside his house when he saw the accused and the deceased quarreling over a money transaction and he further saw that accused caused knife blow to deceased in his abdomen, who fell down and died at the Wardat. In cross-examination, he has stated that in the year 1988 (which is before his giving evidence in Court) he had met with an accident and received head injuries. He states that he does not remember the date on which he met with the said accident. He also admits that he has forgotten some of the points given by him at the time when his statement was recorded. This is the only independent witness which has been relied upon by the trial Court. The above circumstances show that this witness after having head accident received some head injuries and obviously it is because of this reason that his memory had been affected. It is very surprising to note that he can give the exact date and time when this incident took place but he cannot give the date when he had met with an accident. The version of this witness is also belied by medical evidence which does not show any injury having been received by the deceased in the abdomen. This evidence of witness, therefore, cannot be safe to be relied upon unless corrioborated by other independent and trustworthy evidence. The trial Court has relied on presumption as far as evidence of this witness is concerned. It may also he observed that according to Investigating Officer he had received the information after the incident had taken place whereafter he had gone to the hospital, giving a letter to the Medical Officer for permission to examine the injured/deceased but he was not allowed to do so as the injured at that time was in operation theatre and was not in a condition to give statement. The Investigating Officer in his evidence has stated that he waited for considerable long time in the hospital and thereafter he came away and then through the help of the driver of Edhi Ambulance he visited the place of Wardat. The evidence of Dr. Muhammad Iqbal shows that injured was received at the hospital at 6-30 p.m. On that date. Obviously, the Investigating Officer has reached the hospital after 6-30 p.m. And then waited there for considerable time, thereafter he came back to police station and would have taken some time to trace the driver of Edhi Ambulance and visited the place of Wardat, where he prepared the Mashirnama and obtained the signatures of Mashirs Muhammad Saleem and Muhammad Anwar. As against this, the said star- witness of the prosecution P.W. Anwar Hussain states that the police came to Wardat after one hour of the incident, which shows that the time of visit of Investigating Officer to the Wardat should be about 6-30 p.m. Whereas the above facts are inconsistent with this contention. Not only this but both the Mashirs i,e, Muhammad Saleem and Muhammad Anwar who are examined as P.W.3 and P.W.4 (Exhs.7 and 10) have not supported the Mashirnama of Wardat and according to their evidence police had obtained their signatures on the same at police station where they signed out of fear of police. Both of them have stated that they were detained at police station and were under the threats of the police. In these circumstances, the Mashirnama of Wardat does not stand proved. Not only this but in view of this deposition of the witness even the evidence of Investigating Officer which has been relied upon by the trial Court in this respect is rendered doubtful. Also it may be observed that according to P.W. Anwar Hussain, the deceased had died at the Wardat while according to the medical evidence he died on 7-4-1987. Even the recovery of the said Chhuri does not stand proved. The Chhuri which is said to be the weapon used by the accused was secured in presence of Mashirs but the Mashirs have not supported which renders the recovery also doubtful.
15. For the same reasons, the very arrest and search of the accused is also doubtful, as the Mashirs do not support the said Mashirnama. There is another law in the case of the prosecution inasmuch as the other independent witness which could have been examined in the case, namely, the driver of Edhi Ambulance has not been examined. It may also be noted that according to the report of Chemical Analyser (Exh.13) the said Chhuri was stained with human blood and also the earth secured by the police from the Wardat. This certificate further shows that the said blood stain belongs to group "0" whereas the medical report of the deceased does not show as to what was his blood group, as according to medical evidence his post-mortem was not performed but the Investigation Officer in his examination-in-chief has stated that the dead body was handed over to the heirs of the deceased after the post-mortem was performed. The trial Court has connected the present accused with the commission of the offence on the basis of the fact that he was arrested from the Cantonment Police Station on 30-3-1987 and was examined by Dr. Shall Muhammad, he had two lacerated wounds, one on his left limb 4 c.m. And the other on right side of left cheek.
16. According to Dr. Shafi Muhammad, he had examined the accused on 31-3-1987 at 5-00 a.m. In his opinion, the Medical Officer states that the injuries appeared to have been caused within 24 hours of the production of accused before him, which implies the time of having sustained these injuries by the accused not before 5-00 a.m. On 30-3-1987, whereas the alleged fight had taken place on 29-3-1987 at 5-30 p.m. On this score also the medical evidence is inconsistent with the case of the prosecution. The learned trial Court has relied on the admission of the accused in his statement recorded under section 342, Cr.P.C. To the effect that he had an injury on his thumb to connect him with the commission of the alleged offence. Now there is a difference between thumb and limb which fact has been ignored by the trial Court. Even the Mashirs of arrest, Muhammad Saleem and Akbar of whom Muhammad Saleem was examined has not supported the arrest of the accused.
17. ' In light of the above discussion, we are of the view that the prosecution has failed to prove the case against the appellant beyond all reasonable doubt. It may be observed that the burden is not on the accused to disprove the case of the prosecution but it is for the prosecution to prove the case against the accused beyond all reasonable doubt. All that an accused is required to do is to create a doubt in the case of the prosecution and once he succeeds in doing so, he is entitled to benefit of doubt.
18. ' Accordingly, giving benefit of doubt to the appellant, we allow this appeal, set aside the conviction and sentence awarded by the trial Court and acquit him. Consequently the reference for confirmation of death is declined.
19. ' Above are the reasons for the short order announced by us on 13-1-1993.