' By judgment dated 7th February, 1995 learned Sessions Judge, Dadu in Sessions Case No,244 of 1989, appellant Riaz son of Shamasuddin Chandio has been convicted under section 302, P.P.C. And sentenced him to undergo life imprisonment and to pay fine of Rs,50,000. In case of default to suffer R.I. For two years more and also to pay compensation of Rs, one lac to the heirs of deceased Mst. Amiran under section 544-A, Cr.P.C., in default to 'suffer R.I. For six months more. Being aggrieved the appellant has filed the present appeal.
2. I have heard the arguments at length of Mr. Rasool Bux Palejo learned counsel for the appellant and Mr. Issardas learned counsel for the State. With the assistance of the learned counsel, I have gone through the record.
3. F.I.R. No,54 of 1989 was lodged in this case by complainant Muhammad Umar on 7-4-1989 at Police Station Mehar as Exh.P.1. That his wife's sister deceased Mst. Amiran was married with his relative Ali Gohar. Appellant Riaz nephew of Ali Gohar suspected Mst. Amiran to have illicit terms with Munib Ali and appellant had expressed that he would kill Mst. Amiran. On 7-4-1989 at about 11- 00 a.m. Complainant Muhammad Umar, P.W. Ali Hyder and P.W. Gul Muhammad were standing at Government ditch (pond) near their village and Mst. Amiran was washing the clothes and in their presence appellant came armed with gun from northern side and threatened them not to come as he would kill Mst. Amiran and with intention to commit murder, appellant Riaz fired straight gun shot at Mst. Amiran, who received the gunshot injuries and fell down. Complainant and P.Ws. Gave Hakal to appellant Riaz, who threatened them not to approach him, otherwise they would be killed.
Due to fear they did not go near to appellant Riaz who with gun ran away towards south. On fire report other villagers also came and they saw that deceased Mst. Amiran had gunshot injuries on her back and abdomen' and she was unconscious. The complainant then narrated the facts of the incident to -the villagers and removed the injured Mst. Amiran on the jeep of Syed Abdul Hussain Shah to Taluka Hospital, Mehar where she succumbed to her injuries. Leaving dead body of Mst.
Amiran in Taluka Hospital, Mehar complainant then went to Police Station Mehar and lodged F.I.R.
4. After completion of investigation by Investigating Officer Muhammad Bakar, A.S.I., the appellant was sent up for 'trial. Charge under section 302, P.P.C. Was framed on 7-8-1991 by the trial Court, to which appellant pleaded not guilty and claimed trial. During the trial, prosecution examined namely complainant Muhammad Umar as Exh.6, P.W. Ali Hyder as Exh.7, P.W. Gul Muhammad as Exh.8, P.W. Muhammad Uris (Mashir) as Exh.9, who produced Mashirnama of dead body of Mst.
Amiran as Exh.4, inquest report as Exh.P.5, Mashirnama of Wardat as Exh.P.6, Mashirnama of arrest of accused as Exh.P.7 and Mashirnama of recovery of gun as Exh.P.8, P.W. Dr. Wazir Ahmed as Exh.10, P.W. P.C. Corpse-bearer Mumtaz Ali as Exh.11, P.W. Allah Bachayo Chandio, Mukhtiarkar and F.C.M., Mehar as Exh.13, who produced confession as Ex.h.P.10, P.W. Head Constable Abdul Rehman as Exh.16, who was examined in place of Investigating Officer Muhammad Bakar, A.S.I., who had expired, P.W. Muhammad Ishaque Tapedar as Exh.25 was also examined.
5. Statement of appellant was recorded under section 342, Cr.P.C. As Exh.23, in which he has denied the allegations of murdering of Mst. Amiran, but has said in question No,10 that "I have been implicated in this case due to enmity and I was below 16 years at the time of incident. I will state other facts at the time of my statement on oath".
6. The appellant examined himself on oath as Exh.28 that deceased Mst. Amiran was wife of his mat2rnal-uncle Aligohar. She had illicit terms with Muhib Ali. Gull Muhammad and Ali Gohar had killed her due to that. Gull Muhammad is married to cousin of the deceased. Both Gull Muhammad and Ali Gohar were arrested by police and detained at the police station for some period. Then they were released by paying some consideration to police. He was arrested by police after about 8 days under the influence of Wadero Mahboob Ali Khan. P.W. Gul Muhammad had demanded the hand of his sister Mst.Irshad from his father who had declined to his demand, therefore, he has been got falsely implicated by the said P.W. Gull Muhammad and Ali Gohar and Wadero Mahboob Ali, who all the related inter se.
7. In support of the present appeal, Mr. Rasool Bux Palejo learned counsel for the appellant has raised following contentions:--
(a) That the prosecution has failed to prove the motive. Failure has reacted upon the validity of the prosecution story and has rendered it highly unreliable of credit in a case of a capital offence.
(b) There is violation of section 164, Cr.P.C. As the same has not been attested by the Magistrate.
(c) The ballistic report of expert be ruled out of consideration, as gun and cartridge were sent to ballistic expert after lapse of 2 years and 4 months.
(d) That the appellant was below 15 years at the time of incident, so he should have been tried under Sindh Children Act.
8. Learned counsel has cited cases-law, Habibullah and others v. The State PLD 1969 SC 127, Mazhar Mir v. State 1991 PCr.LJ 454, Gulzar and 4 others v. State 1976" PCr.LJ 419, Bhai Khan and 3 others v.
State .1988 PCr.LJ 1836, Ghulam Hussain and 2 others v. State 1980 PCr.LJ 685; Ata Muhammad and another v. State 1995 SCM R 599 and Muhammad Shafi and another v. The State PLD 1993 Lah.
345.
9. It has been noted that the incident has taken place on 7-4-1989 at 11-00 a.m. And complainant Muhammad Umar as Exh.6 has deposed that he alongwith P.Ws. Ali Hyder, Gul Muhammad and Muhammad Uris had gone to the pond near their village for taking bath for Juma prayers, and the deceased Mst. Amiran was also washing clothes nearby in the same pond. He has said that the appellant Riaz came armed with gun and fired one shot at Mst. Amiran who sustained injuries and fell down. That appellant threatened the complainant party not to come near. This witness has admitted in his cross-examination that Aligohar is his Maroot and he is alive and P.W. Ali Hyder is Masat of Aligohar and P.W. Gul Muhammad is married with the sister of Mst. Amiran. He has also admitted that appellant had declared to him 5/6 days prior to the incident that he would murder Mst. Amiran, but he did not inform the police about this, neither he informed Aligohar the husband of the deceased woman.
10. P.W. Ali Hyder in his deposition as Exh.7 and P.W. Gul Muhammad as Exh.8 have supported the complainant versions that they were standing at the pond for taking bath when appellant came armed with gun and fired at the deceased and killed her, but all the above three prosecution witnesses are silent about the motive of the murder as to why the appellant killed the deceased, but they have admitted that the witnesses are related inter se and that P.W. Muhammad Uris as.
Exh.9 Mashir in the case is also their cousin. P.W. Doctor Wazir Ahmed in his deposition as Exh.10 has said that he found two punctured type of wound on the body of the deceased Mst. Amiran one on her back as wound of entry and one contused punctured type of wound on the front of left lumber region being the wound of exit caused by a fire-arm injury and that deceased must have been fired from a distance of about 3 to 5 feet. Prosecution has also examined P.W. Allah Bachayo Chandio, Mukhtiarkar and F.C.M., Mehar as Exh.13, who had recorded the alleged confession of the appellant as Exh.P.10, but has admitted in his cross-examination as under:-- "I have not mentioned in the confession in my own hand that the accused was remanded to judicial custody. I have not appended requisite certificate under section 364, Cr.P.C. At the _end of the concession nor have I signed the 1st and fourth page of the confession. I have not mentioned in my own hand that I have disclosed to the accused that I was the First Class Magistrate. I had asked the father's name and residence of the accused, but I have not mentioned it at the first page. It is mentioned on the last page, which does not bear my signature."
11. P.W. H.C. Abdul Rehman was examined as Exh.16 as Investigating Officer Muhammad Bakar, A.S.I.
Was dead and he identified his signatures on F .I.R. As Exh .P.1, but he admitted in his cross- examination that P.W. Ali Hyder and P.W. Gul Muhammad have not stated in 161, Cr.P.C. Statements before A.S.I. Muhammad Bakar that they had gone to the pond for taking bath.
12. However, I find force in the contentions advanced on behalf of the appellant, that all the prosecution witnesses are related inter se and they have not disclosed the "motive" of the murder of deceased Mst. Amiran by the appellant and also that confession recorded by the learned Mukhtiarkar and F.C.M., Mehar of the appellant dated 16-4-1989 suffer from infirmities and the same has not been signed by the learned Magistrate nor he has appended the requisite certificate under section 364, Cr.P.C. Nor he has remanded the appellant to judicial custody after recording the alleged confession neither he has disclosed in his own handwriting that he was First Class Magistrate, which makes the confession irrelevant and is ruled out of consideration.
' It is pertinent to note that the alleged gun and cartridge recovered from the appellant on 16-4- 1989, but the same was sent to Ballistic Expert after lapse of two years and four months and that alleged gun and cartridge was not available in the Court when the Mashir P.W. Muhammad Uris was examined, which makes the report of Ballistic Expert inadmissible in evidence for sustaining the conviction of the appellant.
14. I am surprised that learned trial Court has not referred the appellant to the Civil Surgeon to ascertain his age when appellant has disclosed in his statement under section 342, Cr.P.C. That he was below 16 years of age at the time of incident, so that appellant could be tried under Sindh Children Act, 1955.
15. Mr. Issardas learned counsel for the State has very candidly conceded that appellant on the day of incident i,e, 7-4-1989 was below 15 years of age as his date of birth has shown in school leaving certificate was 8-8-1974 and the appellant should have been tried under Sindh Children Act, 1955, hence the conviction is unwarranted under the law.
16. I am not impressed by the evidence of complainant and his eyewitnesses, who are all related and have suppressed the "motive" of the murder of deceased Mst. Amiran. And that police have also not recovered any towel or loin cloths from the prosecution witnesses to corroborate the version of complainant that they were taking bath at the pond when Mst. Amiran was murdered.
Moreover it is against the Balochi tradition that male member will take bath in a public place in presence of woman-folk, which makes the presence of prosecution witnesses in the pond at the time of alleged murder of deceased Mst. Amiran, very doubtful.
17. It is not necessary under the law that there should be several circumstances to create a doubt about the prosecution case. Even one circumstance which creates a reasonable doubt is sufficient to entitle the accused u to an acquittal.
18. In view of the aforesaid contradictions and infirmities in the prosecution case, a doubt is created as to whether the appellant is guilty of charge. The benefit of doubt is given to the appellant.
19. As a result, Criminal Appeal No,4 of 1995 is allowed and the appellant is acquitted from the charge. It is directed that the appellant be released forthwith if not required in any other case.