1. ' ABDUL WAHEED SIDDIQUI, J.--- Appellant has assailed judgment, dated 28-9-1996 passed by the Additional Sessions Judge, Multan whereby he has been convicted under section 308, P.P.C. For having murdered his minor daughter and has been sentenced to R.I. For 14 years as Tazeer. Benefit of section 382-B, Cr.P.C. Has also been extended.
2. Succinctly, the prosecution story is that first informer Muhammad Fazal (P.W.6) appeared at Police Station Saddar, Multan on 2-12-1994 at 9-45 a.m. Accompanied by appellant Moulvi Muhammad Mushtaq, Haji Muhammad Shafi (P.W.4) and Pir Bakhsh (P.W.5) and reported an odd occurrence during the night falling between 22/23 of November, 1994 which report was reduced to writing by Tariq Malik (P.W.10) S.-I. As F.I.R. (Exh.P.J.). Relevant portion of this F.I.R. Reads:-- {{URDU TEXT}} {{URDU TEXT}} ' Having lodged F.I.R, and having arrested the appellant, investigation was carried. On the pointation of appellant, the dead body was recovered from his room, an inquest report was prepared, post-mortem was arranged. In the challan, through the following wording, another offence committed under section 10(3) of the Zina (Enforcement of Hudood) Ordinance, 1979 hereafter referred to as the said Ordinance, was added against the appellant. {{URDU TEXT}} ' The appellant was charged under section 10(3) of the said Ordinance and section 302, P.P.C. To which he did not plead guilty. In its support, prosecution examined ten witnesses, appellant examined himself on oath under section 340 (2), Cr.P.C. And one defence witness.
3. We have heard the counsel for the appellant and State. Contentions of the counsel for the appellant are that this is an unseen offence of the alleged commission of forcible incest on a minor daughter and subsequent murder by a married father of religious background with alleged two self-annihilating motives and the entire story appears to be most unnatural and designed with a purpose to commit judicial murder of the appellant; that alleged extra judicial confession of the appellant is not corroborated by strong evidence to energise a weak type of evidence to the extent of a confession beyond any reasonable doubt, that Haji Muhammad Shafi (P.W.4) and Pir Baldish (P.W.5) are appearing as witnesses of extra-judicial confession as well as all the recoveries on the pointation of appellant whereas enmity is proved against them; that the prosecution has itself advanced two versions of the story which are contradicting each other; that Altaf Hussain (P.W.9) has shattered the story of the prosecution in toto; that there is violation of the mandates of section 103, Cr.P.C.; that no test of the virility of the appellant was carried. The counsel for State has supported the impugned judgment.
4. At the outset, we have noticed that the first informer Muhammad Fazal (P.W.6) and two star- witnesses of the prosecution Haji Muhammad Shafi (P.W.4) and Pir Bakhsh (P.W.5) are the persons before whom first version of the reason for murdering his own minor daughter of 10/11 years of age was allegedly confessed by the appellant and they are the witnesses who are admittedly neither such spiritual or social figures before whom heinous crimes are sometimes confessed under wrong notions nor are they in special relationship with the appellant like blood relationship, commercial dealings, social intimacies, religious father-nities. Muhammad Shafi (P.W.4) is admitting during Cross :-- "I am cultivator by profession. I have my landed property at Basti Durana. I cannot tell the Khasra No, or Square No, of my property. It is incorrect to suggest that I have no property in this village....
2. Accused had no terms/Buradri or Lain Dain with us ... I cannot give any reason as to why accused came to us for handing over him to police."
3. ' Pir Bakhsh (P.W.5) is admitting during cross:-- "Haji Muhammad Shaffi and Fazal are my close relatives. Haji Fazal is my cousin while Shaffi is my brother-in-law. ... It is correct that a case was registered against us for the abduction and Zina of Amiran Bibi."
4. ' The alleged first version is coming from the mouth of Muhammad Fazal (P.W.6) during his examination-in-chief:-- "Maulvi Mushtaq said that he had committed the murder of her daughter aged about 11/12 years by strangulating her neck. He also told that he buried the dead body in his residential room. He told that her daughter was not Pardah-observing despite his repeated asking, that is why he killed her."
5. ' In contrast to this, Pir Bakhsh (P.W.5) is deposing:- "My first statement that accused Mushtaq told Haji Fazal about the commission of Zina and murder of her daughter at the place of recovery is not correct."
6. ' In case first reason of murder i,e, non-observance of Purdah by a minor girl is considered to be true, then the natural over all set up of the mental condition of the appellant shall be that of a person having very obstinate and obscurous notions about religion, a zealot of first degree. If so, then the question which naturally arises is as to why such a zealot should at all confess before persons who were themselves, admittedly, involved into cases of abduction and rape. Second question which arises is that why should an appellant of such a mental set-up somersault subsequently and confess while being in custody that the real cause of murder was rape committed by him on a minor daughter and seeing blood got scared, dug a pit and buried the dead body. All this set-up of the story of prosecution appears to be, prima facie, a rare oddity and with mysteries and for proving it the strongest possible corroborations are needed especially when extra judicial confession in custody cannot be proved against the accused under the provisions of Article 39 of Qanun-e-Shahadat, 1984 and then the extra-judicial confession out of custody is the evidence which needs strong corroborations.
5. It stands proved through the evidence of Dr. Syed Raza Mohyuddin (P.W.1) who conducted the post-mortem of the body of Samina Bibi that death was caused by asphyxia. He also found a light pink colour piece of cloth tightly wrapped around her mouth and face. No blood seems to have been detected from this piece of cloth. Since the time between death and post-mortem has been declared to be 10 days, the entire body was in an advanced condition of decomposition. Vagina was found dilated, hymn was absent and vaginal opening was admitting three fingers. Vaginal swa bs were taken and sent to Chemical Examiner for detection of semen. The report of Chemical Examiner (Exh.P.B.) in this regard is in negative. To a suggestion, this witness (P.W.1) has replied, "Semen can be detected from a dead body for 10/15 days". All other factors apart, at least semen should have been detected, but it is not so. How then in these circumstances we can believe following pieces of evidence from Investigation Officer and other witnesses. Tariq Malik (P.W.10), S.-I.
7. And Investigation Officer, is replying during cross:-- "It is correct that first statement recorded in F.I.R. Was found false during investigation. Volunteered, in fact, after recovery of the dead body accused Moulvi Mushtaq made another confessional statement before P.Ws. Which was also recorded by me under section 161, Cr.P.C. And the facts narrated in the second confessional statement were concealed by making first confessional statement before the P.Ws. It is correct that second statement was made by the accused when he was in police custody."
8. ' The challan is indicative about the second confessional statement giving a different reason for murder being commission of rape made before witnesses Haji Muhammad Shafi (P.W.4) and Pir Bakhsh (P.W.5). P.W.4 has deposed in this regard:-- "In my presence and in the presence of Haji Pir Bakhsh, accused Musthaq also told Haji Fazal that he had committed Zina-bil-Jabr with ' Mst. Samina and after that committed her murder. As my conscious pricked me so I confessed the guilt before you."
9. ' But the same witness is contradicting himself while deposing: Accused came to us at the Dera of Fazal and thereafter he made no statement before us".
10. ' In conflict of both these witnesses, Pir Bakhsh (P.W.5) is deposing:-- "Accused Mushtaq also told Haji Fazal in our presence that he had committed Zina-bil-Jabr with her daughter and also committed her murder."
11. ' The challan and other P.Ws. Are not showing presence of Fazal (P.W.6) at the time of second confession in custody. Fazal himself is silent about it during his entire deposition.
12. ' All these contradictions, being substantial in nature, are creating cracks in the story of prosecution. Crumbling of this story becomes evident when we look into another factum. Once rape not proved and correctly concluded so by the Court below, the question arises that if at all blood was going to be detected, it should have been detected from that piece of cloth with which the mouth and face of the dead body were tightly wrapped. Death is declared to be due to asphyxia, but the blood-stained earth was allegedly recovered from the room where burial place of the victim was. Tariq Malik (P.W.10) is deposing:-- "On the pointation of the accused dead body of Samina was got recovered underneath the ground after digging the earth. From the said room I took the blood-stained earth which was made into a sealed parcel and was taken into possession vide memo. Exh.P. The memo. Was attested by Muhammad Shaffi and Pir Bakhsh P.Ws."
13. ' Exh.P.F. Is the memo. Of recovery of blood-stained earth from inside the pit in which dead body was buried and is signed by Haji Muhammad Shaffi (P.W.4) and Pir Bakhsh (P.W.5). It reads:-- {{URDU TEXT}} ' The report of Chemical Examiner about this article per Exh.P.P. Is that it is stained with human blood. Another memo. Of recovery as proved by the same two star-witnesses is Exh.P.H. Which speaks of the recovery of a bloodstained Shalwar and shirt from the body of the deceased after post-mortem on 2-12-1994 to which staining of blood no reference is made by the doctor who conducted the post-mortem and deposed as P.W.1. About the last-worn clothes, he is deposing:-- "After post-mortem I handed over the dead body alongwith last-worn clothes, post-mortem report and envelopes containing the swa bs etc. To the constable concerned."
14. As established earlier, death by asphyxia had occurred and no blood was detected by the doctor either from the cloth used for causing asphyxiation nor from the last-worn clothes of the deceased wherefrom then this blood-stained earth and Shalwar and shirt are emerging? According to the established principles of medical jurisprudence; in cases of death of asphyxia, fluids stained with blood can be detected from nasal and mouth area and the cloth wrapped in that area might be found shocked with blood. Parikh in his Textbook of Medical Jurisprudence and Toxicology (Medical Publications, Bombay 1982 pp.181 183) is writing:-- "Three Stages of Asphyxia: ' Typically, three pathological stages are seen in deaths from asphyxia. These are (1) inspiratory dyspnoea, (2) expiratory dyspnoea and convulsions, and (3) exhuastion and stoppage of respiratiory movements.
15. ' Inspiratory dyspanoea: This stage is characterised by sings of physiological reaction to the decreasing oxygen saturation of the blood. Breathing becomes rapid, deep and laboured, and extraordinary muscles of respiration are brought into play. In consequence, blood pressure rises and pulse is accelerated. The patient is restless, bears an axious look; and may complain of heaviness in head and ringing in the ears. He appears blue in the face and also, especially in the infants, in the hands and finger nails.
16. ' Expiratory dyspnoea: This stage is due to lack of oxygen, retention of carbon dioxide, and stagnation of deoxygenated blood in veins and capillaries. As a result, breathing becomes more laboured and spasmodic; there is clouding of consciousness; convulsions may ensue; and sphincters may relax. The face and hands are deeply congested and cyanosed; there is exudation of fluid, even blood-stained, in the mouth and lungs; the tongue is protruded and may be bitten or indented by the teeth; and the eye balls appear prominent. The convulsive contraction of certain groups of muscles may merge into cadaveric spasm, as in drowning, and this accounts for clenched hands seen in violent asphyxial deaths.
17. ' Exhaustion and stoppage of respiratory movements: In this stage, there is paralysis of the respiratory centre. Loss of consciousness is complete.
18. ' Respirations become infrequent shallow and gasping. They become slower and slower until death ensues. The blood pressure falls, the pulse is barely perceptible, the muscles become flaccid, the reflexes are lost, and pupils widely dilated. Terminal vomitting is common and there may be incontinence of urine and feaces. The heart may continue to beat for 10 to 15 or even 20 minutes after respirations have ceased. However, recovery from this phase is rare and only partial, owing to permanent damage to brain by relatively prolonged cerebral anoxia...
19. ' Autopsy Appearances: ' Post-mortem findings in deaths from asphyxia are characterised by (1) intense venous congestion and cyanosis with pronounced lividity, (2) petechial haemorrhage (taridieu spots) and (3) cardiac dilatation.
20. ' The following description represents a brief account of the signs common to all forms of asphyxial deaths. These features vary according to the mechanism of the form of asphyxia in each case but their presence is essential to diagnose death from asphyxia. The variations and additional features are described at appropriate places. Externally, the face is swollen, cyanosed and marked with petechial haemorrhages. The eye-balls appear prominent due to congestion, conjunctivae are injected, subconjunctival haemorrhages present, and pupils dilated. The lips, ears, and finger nails are deeply cyanosed and the veins of the neck are prominent. Blood-stained froth oozes from the mouth and nostrils. The tongue is swollen, and sometimes bruised and bitten. The hands may be clenched. The genitals are turgescent and semen may have been vioded. Sphincters are relaxed and there may have been incontinence of urine and faeces. Post-mortem lividity is well-developed and purple in colour."
21. In the present case, external autopsy appearance is not indicating existence of blood-stained froth having oozed from the mouth and nostrils. Consequently, then the entire evidence based on extra- judicial confession is not corroborated by the medical evidence and this phenomenon appears to indicate the crumbing of the story of prosecution.
5. Now we reach a position where the contention of appellant about violence of the mandates created by section 103(1), Cr.P.C. Appears to be correct in toto. Section 103(1), Cr.P.C. Reads:-- "Search to be made in presence of witnesses.--- (1) Before making a search under this Chapter, the Officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do.
22. ' Tariq Malik (P.W.10), the Investigation Officer is deposing:-- "From the said room I took the blood-stained earth which was made into a sealed parcel and was taken into possession vide memo. Exh.P. The memo. Was attested by Muhammad Shaffi and Pir Bakhsh P.Ws. Moulvi Mushtaq accused while in police custody also led to the recovery of Kassi P.1 from the room of his house lying in the North/Western corner which was also taken into possession vide memo. Exh.P.G. The memo. Was attested by Muhammad Shaffi and Pir Bakhsh P.Ws. After post-mortem examination Riaz Constable produced before me the last-worn clothes of the deceased Shalwar P.2, Qameez P.3 (both blood-stained) and another cloth P.4 alongwith two sealed envelopes and two Dubbaz all sealed which I took into possession vide memo. Exh.P.H.
23. Memo. Was attested by the P.Ws. And same is in my hand and bears my signatures."
24. ' This Exh.P.H. Is also found to have been witnessed and signed by the same star-witnesses before whom it is alleged that contradictory extra-judicial confessions were made by the appellant. P.W.10 is admitting during cross that Basti Shor Kot where the place of recovery of the dead body etc. Is situated, consists of about 400/500 houses. Muhammad Shaffi (P.W.4) is admitting that at the time of proceedings at the spot of recovery of dead body etc. Twenty to twenty-five persons of Shorkot were present whereas Pir Bakhsh (P.W.5) is admitting the presence of 100 to 200 persons at the time of recovery.
25. ' It is mysterious then that in spite of availability of a sufficient number of the respectable inhabitants of locality only those two persons are appearing as recovery witnesses whose respectability is dubious as discussed earlier and then they are related inter se and are related to Muhammad Fazal (P.W.6) the complainant as well. This relationship is admitted by Pir Bakhsh (P.W.5) in the following words: "Haji Muhammad Shaffi and Fazal are my close relations. Haji Fazal is my cousin while Shaffi is my brother-in-law". This piece of deposition is indicative that the two star- witnesses and the complainant himself i,e, P.W.4, P.W.5 and P.W.6 are not independent.
26. We are, therefore, of the considered view that the search has not been carried on in accordance with the mandatory provisions of section 103, Cr.P.C. And all the recoveries witnessed by Muhammad Shafi (P.W.4) and Pir Bakhsh (P.W.5) are highly dubious.
6. The only witness who could have come forward as an independent witness of prosecution was Altaf Hussain (P.W.9). He is a real brother of the appellant and according to site plan (Exh.P.M.) his house is exactly adjacent with that house of the appellant in which offence is said to have been committed. This witness has completely demolished the story of prosecution. He is deposing:-- "I had seen the dead body of Samina deceased at Nishtar Hospital at the time of post-mortem for the first time. It is correct that inquest report Exh.P.D. Was got signed by the police at police station.
27. It is incorrect that we all the four brothers Mushtaq, Ghulam Yasin, Irshad and I myself live jointly. .. It is correct that police never visited the house of Mushtaq and all the proceedings were completed at the police station. It is correct that dead body of Samina was not recovered from the house of Moulvi Mushtaq accused. It is correct that Mushtaq suspected Muhammad Fazal, Muhammad Shaffi and Malik Pir Bakhsh etc. To have murdered his daughter. It is correct that myself, Abid P.W.
28. And Moulvi Mushtaq were called from our house to the police station. We were then sent to identify the dead body of Samina at hospital while Moulvi Mushtaq was asked to stay at the police station to complete proceedings for registration of F.I.R."
29. ' He was declared hostile by D.D.A. But cross on him was not allowed by the trial Court because according to its opinion this witness had supported the prosecution in his examination-in-chief. We do not agree with this opinion of the trial Court. The examination-in-chief of this witness reads:-- "Samina deceased was my niece. I identified her dead body at the time of inquest report and post- mortem examination. Inquest report Exh.P.D. Bears my signatures Exh.P.D./2. After post-mortem examination police handed over to me the dead body of Samina deceased through receipt Exh.P.N.
30. Which also bears my signatures."
31. ' We have seen original of Exh.P.D. Which is an inquest report and runs in four pages. Exh.P.D./2 shown in original as Exh.P.D./II bears the signature of this witness which has been admitted by him. '
32. During cross he has clearly mentioned that this signature was obtained by him at police station.
33. Column No,4 at page No,1 of Exh.P.D. Is about the names of those who have identified the dead body. The name of this witness is appearing in this column as one of the two witnesses who had identified the dead body. Another witness Abid Hussain son of Qadir Bakhsh has neither appeared as a witness nor his name is appearing in the calendar of witnesses in the challan. This page is not signed by anyone, and contains details about the dead body but is of non-incriminating nature.
34. Page 2 is again non-incriminating except column 24 which is a rough map of the house of appellant with a note by Tariq (P.W.10) S.-I. Police Station Saddar, Multan alongwith his signature indicating the place where the dead body was buried. Neither it contains the signature of any of the witnesses of inquest report nor is it appearing in the same hand and ink to the bare-eye. Page 3 is the repetition of the story of prosecution as per challan and is not signed. Page 4 is the continuation of page 3 for two lines and contains at the final end Exh.P.D./II with admitted signature of this witness and which piece has been given weight by the trial Court. It appears to us that only page 1 of Exh.P.D. Was shown to this witness and was asked to sign on page 4 hoodwinked to be page 2 and was told to sign as a witness of identification of the dead body. This is where this witness is leading to as he has deposed that he identified the dead body at the police station. In view of this situation, we hold, and indeed in the special circumstances of this case, that the signature obtained by this witness was only for identification of dead body. All else thrown in his neck is a falsity.
7. We have noted following contradictions among the P.Ws. Which are substantial in nature and are reaching the roots of the story of prosecution in the circumstances of the case:
(i) Pir Bakhsh (P.W.5) is deposing:- ' It is correct that Pir Abid Hussain brother-in-law of accused Mushtaq contested the election against Muhammad Aslam my relative. It is correct that Moulvi Mushtaq supported the Abid Hussain whereas we worked for Muhammad Aslam."
35. ' Muhammad Fazal (P.W.6), complainant, is deposing:-- "I do not remember if in the previous election Abid Hussain and Muhammad Aslam contested election in the said Ward."
(ii) P.W.6, the complainant, is deposing:-- "I do not know if a criminal case was registered against Pir Bakhsh Ahmad Yar, Haji Ranjha, Langana etc. For the abduction of Amiran Bibi wherein accused sided with the complainant party."
36. ' In contrast, Pir Bakhsh (P.W.5) is admitting: "It is correct that a case was registered against us for the abduction and Zina of Amiran Bibi."
(iii) Muhammad Shaffi (P.W.4) is claiming that he has landed property at Basti Durana. Falsifying him, Muhammad Fazal (P.W.6) is deposing that Muhammad Shaffi has no agricultural land in village Durana.
(iv) P.W.4 is deposing: "Accused had no terms/Buradari or Lain DaM with us." P.W.6 is deposing: "We have dealings (Buradari) with the family of accused."
(v) P.W.6 is deposing: "Muhammad Shaffi and Pir Bakhsh did not come to my house so often."
37. ' P.W.5 is deposing: "It was almost our routine to get together at the house of Fazal."
(vi) Pir Bakhsh, P.W.5 is deposing that accused Mushtaque told Haji Fazal, the complainant about commission of Zina-bil-Jabr with his daughter at the place of recovery, whereas Fazal (P.W.6) is not admitting his presence at the place of recovery. He is deposing, ' from police station, I came back to my house and did not accompany the police to the place of recovery. P.W.5 has taken somersault during cross and has deposed, 'when we alongwith police came to place of recovery, Fazal P.W. Was not with us."
(vii) Muhammad Shaffi (P.W.4) is deposing: "Dead body was disentered by brother of the accused. I do not know he was either Arshad or Yasin."
38. ' Pir Bakhsh (P.W.5) is deposing "The accused was handcuffed at the time of recovery of dead body. The earth was dug by Yasin."
39. ' Tariq Malik (P.W.10) is contradicting both while deposing: "The Khadda was dug by Mushtaq accused himself and his only one hand was chained at that time."
8. The contention that there exist strong reasons of animus with the complainant party against appellant is based on certain admissions by the star- witnesses. Pir Bakhsh (P.W.5) has admitted that appellant supported Pir Abid Hussain, his brother-in-law, in elections contested against Muhammad Aslam, relative of the complainant party. He has also admitted the registration of a case of abduction and Zina of Amiran Bibi against the coniplainant party. Haji Muhammad Shaffi (P.W.4) has also admitted the contestant candidates in previous elections of local bodies being relatives of the complainant party and the appellant. He has shown his ignorance about an admitted fact of Amiran Bibi's abduction and rape by the complainant party. About the immediate raison d'etre for acting against appellant namely suspision of Samina Bibi's kidnapping and murder against the complainant party has been denied. But the appellant and his defence witness are firm on this point and the prosecution has not been able to dislodge them during cross. Fazal Hussain (D.W.1) is deposing:-- "Moulvi Mushtaq was Imam Masjid at Basti Lungana then he shifted to Basti Shor Kot as Imam Masjid and he used to teach the Qur'an to boys and girls here. Fazal, Shaffi Pir Bakhsh are of bad character. Brother- in-law of Moulvi Mushtaq contested the election against the relative of Fazal, Shaffi and Pir Bakhsh. The name of other candidate was Muhammad Aslam. One Mst. Amiran was abducted by Pir Bakhsh etc. And Moulvi Mushtaq helped the relatives/brothers of Amiran and appeared against the Pir Bakhsh etc. In the investigation. The present case has been made due to that enmity against Moulvi Mushtaq. I alongwith Moulvi Mushtaq went to Police Station Saddar to lodge complaint against Pir Bakhsh etc. For abduction of Mst. Samina but police did not record the F.I.R. We got information that dead body of Mst. Samina is at the Police Station. I alongwith Moulvi Mushtaq and other 20/15 persons reached the police station. Altaf and Abid were sent alongwith the dead body for the post-mortem exammaion while Moulvi Mushtaq was arrested. All the relatives of the accused protested that false case has been taken up against the accused. I alongwith other relatives submitted application to the S.P., D.I.-G. But no action was taken. Police never came to the house of Moulvi Musthaq nor dead body was ever recovered from his house. All the proceedings were completed at the police station by the police."
40. ' During cross a suggestion has been made to this witness that the complainant party was not involved in the case of abduction of Mst. Amiran Bibi whereas one of the star-witnesses has admitted this fact as discussed above.
41. ' Appellant himself appearing as his own witness of defence has clarified the position in the following words on oath:-- "Mst. Samina deceased was my daughter. Eleven days before the registration of the case she was missing. I suspected Muhammad Fazal, Muhammad Shaffi and Pir Bakhsh that they have abducted my daughter. I reported to the police that my daughter is missing and I suspect that abovesaid persons had abducted her. Announcement was also made on loudspeaker in the mosque of the Basti and was also searched on various places. After 10/11 days I got the information that dead body of my daughter is present at the police station. I alongwith 20/25 persons of my relative went to the police station. ... P.Ws. Muhammad Fazal, Shaffi and Pir Bakhsh were inimical due to previous election in which my brother-in-law contested the election against close relative of Fazal etc. Prior to this Pir Bakhsh and other abducted Mst. Amiran Bibi and committed Zina-bil-Jabr with her. Her brother Bashir lodged complaint against them and I helped Bashir Ahmad in that case. I never made any confessional statement before these P.Ws."
42. ' During cross he has deposed that he had made application for the registration of the case of abduction of his daughter at the police station and was informed that it was entered in the Roznamcha. He has admitted that he did not have the photo copy of the said application. The learned State Counsel has tried in vain to pursuade us that the entire version of the defence is an afterthought for which no documentary proof has been submitted. Be it as it may be, but the set principles of safe dispensation of justice are that the prosecution has to prove its case beyond reasonable doubt. As discussed in earlier parts of this judgment, the prosecution has failed to establish this case beyond reasonable doubts.
9. The upshot of the discussion is that for the reasons discussed above, the impugned judgment is set aside. Appeal is granted. Appellant be released if not wanted in any other case.