JUDGMENT ABDUL MAJID KHANZADA, J.- This is an appeal against the judgment passed by the Sessions Judge, Dadu, in Sessions Case No.288 of 1981, State Vs. Nek Muhammad Shah & another u/S. 302/34 P.P.C. (Crime No. 129 of 1981 of P.S. Khairpur Nathan Shah), whereby the appellants were convicted u/S. 304(2) P.P.C, and sentenced to suffer R.I. For 3 years each and each to pay a fine of Rs. 50,000/- in default thereof they have been ordered to undergo R.I. For one year each. It was further ordered that in case the fine is paid, a smp of Rst30,000/- shall be paid to Mst. Qamar-un-Nisa as compensation and the remaining shall be credited as fine.
2. On 25.5.1995 this appeal was heard and by a short order it was allowed and the appellants were acquitted for the reasons to be recorded later on, as such following are the reasons.
3. Briefly stated the facts leading to this appeal are that on 13.10.1981 one Ghulam Shah lodged report at Police Post Kakar that his daughter Mst. Qamar-un-Nisa was married with Fida Hussan Shah, the son of his brother Saleh Muhammad Shah. Fida Hussan Shah used to maltreat his daughter and on the day of incident at about 12.30 Noon while he (complainant) was having his meal in his house, all of a sudden, he heard cries of his daughter from\ the house of his brother Saleh Muhammad Shah. The complainant went there running and saw that his daughter is being belaboured by her husband Fida Hussan Shah. He intervened and enquired from Fida Hussan Shah as to what was wrong with his daughter to deserve beatings from her husband from time to time, upon which they exchanged hot words, and Fida Hussan Shah brought a hatchet from his house and hit the complainant on his head with its blunt side. Nek Muhammad Shah, the brother of Fida Hussan Shah also gave him a blow with his lathi on his back and on complainant's cries Muhammad Shah and Sultan Shah came to the wardat and rescued the complainant, whereafter the complainant was taken to Police Post where non-cognizable report was recorded. Since the complainant died in the hospital on 15.10.1981, as such a case u/S. 302/34 P.P.C, was registered against the appellants. After usual investigation the appellants were sent up to stand their trial, who were then put up for trial before the learned Sessions Judge, Dadu.
4. In support of the case, the prosecution examined 9 (nine) witnesses. The appellants denied their involvement in the murder of Ghulam Shah and both of them examined themselves as witnesses, too.
5. P.W.1 Dr. Khadim Hussan (Ex.6) is a medical officer who examined the injured and found one lacerated wound 6 cm X 2 cm X bone cut on mid parietal region and issued such Certificate (Ex.7).
P.W. 2 Taj Muhammad Shah (Ex.9) did not support the prosecution as such he was declared hostile and was cross-examined by the D.P.P. He produced mashimama of injuries on the person of Ghulam Shah (Ex.10), mashimama of Wardat (Ex. Ll), mashimama of arrest of accused Nek Muhammad Shah (Ex.12), mashimama of recovery of Danda produced by Nek Muhammad Shah (Ex.13) and mashimama of injuries of accused Fida Hussan Shah (Ex.14). P.W.3 Sultan Shah (Ex.15) who is nephew of the deceased stated that on cries of Mst. Qamar-un-Nisa and Mst, Hakim wife of Ghulam Shah, he went to the wardat and saw Ghulam Shah lying on the ground and was bleeding from his head injuries and was unconscious and he took him to Police Post Kakar where a letter for M.O., K.N. Shah was given. He further stated that neither he nor Ghulam Shah lodged F.I.R., M.O., K.N.
Shah gave treatment for about one hour and thereafter he referred the injured to Civil Hospital Larkana. At that time Ghulam Hyder, brother of injured, and his nephew Paiyal Shah reached at K.N.
Shah and they took him to Larkana, where Ghulam Shah breathed his last. P.W.4 Muhammad Usman (Ex!l6) is a Tapedar who visited the wardat on 13.11.1987 and prepared sketch (Ex.17). P.W.5 Dr. Ali Gohar is a C.M.O, in C.M.C. Hospital Larkana who conducted post-mortem on the dead body of Ghulam Shah and found one stitched lacerated wound 3" in length over left parietal region, and issued such P.M. Report (Ex.17/A). P.W.6 Mst. Qamar-un-Nisa (Ex.19) is daughter of deceased Ghulam Shah and wife of Fida Hussan Shah, who has fully supported the prosecution story. She has further disclosed that subsequent to the incident, she has obtained divorce from accused Fida Hussan. P.W.7 Malik Muhammad Khan (Ex.21) who was A.S.I, at Police Post Kakar and he had recorded the non-cognizable report in roznamcha of deceased Ghulam Shah on 13.10.1981 (Ex.21/A).
He also produced mashimama of arrest of .Accused Fida Hussan Shah (Ex.21/B) and mashimama of securing hatchet produced by accused Fida Hussan Shah (Ex.21 /C). P.W.8 Gul Muhammad (Ex.22) was S.H.O, at Police Station K.N. Shah, who incorporated the non-cognizable report into F.I.R.
(Ex.22/A) and challaned the accused persons. P.W.9 Syed Nizamuddin (Ex.23) acted as mashir of arrest of accused Fida Hussan Shah and production of hatchet by him. He did not support the same as such he was declared hostile and was cross-examined by A.P.P. Prosecution closed its side vide Statement (Ex.24). Statements of accused were recorded (Exs.25 & 26). Both accused examined themselves in their defence (Exs.27 & 28).
6. I have heard Mr. Mir Muhammad Shaikh, advocate for the appellants and Mr. Habib-ur-Rashid for the State and have gone through the entire record of the case, and reached to the conclusion that the prosecution failed to prove its case beyond any reasonable doubts and the appellants are entitled to the benefit of doubt and as such they deserve to be acquitted from the charge of murder of Ghulam Shah, for the following reasons:-
(i) This case rests only on the uncorroborated testimony of Mst. Qamar-un- Nisa. She has corroborated the incident, said to have been reported by deceased Ghulam Shah at the Police Post Kakar and was recorded as non-cognizable report. This report is not proved to have been lodged by Ghulam Shah. The P.W. Sultan Shah who is nephew of the deceased claimed to have taken the injured Ghulam Shah to Police Post Kakar, where he or the injured did not lodge any report as the injured Ghulam Shah was unconscious and only letter to M.O., K.N. Shah was given to him, upon which he took the injured to M.O., K.N. Shah where the brother and another nephew of the deceased reached there and under the advise of the Medical Officer took the injured to Civil Hospital Larkana, where he succumbed to his injury. So it is not safe to rely on the sole evidence of Mst. Qamar-un- Nisa who admittedly was cenmical to the accused persons and was the bone of contention.
(ii) It has come in evidence that the injured received two injuries i.e. One each at the hands of each accused i.e. Hatchet blow at the hands of accused Fida Hussan Shah on his forehead and other lathi blow at the hands of co-accused Nek Muhammad Shah, which fact is corroborated by the mashimama of injuries but the injury Certificate as well as P.M. Report shows only one injury on the head of the .Deceased Ghulam Shah as such the prosecution failed to establish as to whether the deceased sustained one injury or two injuries.
(iii) It has come in the evidence that the injuries of Ghulam Shah blended at the wardat but the version of the P.Ws, is belied by the mushirnama of wardat which shows no blood at the wardat.
(iv) The recovery of the weapons alleged to have been used in the commission of the offence have not been proved by the prosecution as such the said recovery and the said weapons have no value in the eye of law.
(v) That the prosecution case is not free from reasonable doubts as such in these circumstances, it shall be unsafe to maintain the judgment of the learned Sessions Judge, Dadu impugned in the above appeal, as such, giving benefit of doubts to the appellants named above, I have no option but to accept their appeal as prayed.