' Ahmad son of Muhammad Ali (appellant) was tried by the learned Sessions Judge, Pakpattan Sharif for the charge under section 302, P.P.C. For causing Qatl-e-Amd of his step-daughter Irshad Bibi aged two year. After conclusion of trial vide judgment dated 31-3-1999 the learned trial Court convicted the appellant under section 302-(b), P.P.C. And sentenced him to imprisonment for life and to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, in case of defablt in payment he was to suffer further S.I. For six months. Benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. Feeling aggrieved and unsatisfied with the impugned judgment, Ahmad appellant filed the instant appeal.
3. The law was set in motion by Burhan P.W.1 who appeared before Muhammad Ashraf, S-I/S . H .0.
P. W . 10 on 4-10-1997 when the latter was present at Adda Noorpur at about 6-30 p.m. And stated before him that he was an agriculturalist and ex-councillor. On 3-10-1997 an announcement was made from the mosque of the village that Irshad Bibi aged 2 years daughter of Mst. Salma Bibi (wife of the appellant) was missing and hearing that the complainant alongwith his brother Ameer and one Shameer went to the house of Mst. Irshad Bibi who informed the complainant that she had married with the appellant about three months ago and at the time of marriage Mst. Irshad Bibi who was born of an earlier wedlock was in her custody. She also stated that on 3-10-1997 at about 8-00 p.m. Irshad Bibi had gone with Ahmad appellant husband of Mst. Salma Bibi but when Ahmad returned to the house Irshad Bibi was not with him and on her asking he stated that he had sent Irshad Bibi home and showed his surprise that she had not reached the house. Thereafter, announcement was made through speaker of the mosque and search was launched for the missing child. It is further stated that on 4-10-1997 while searching for Irshad Bibi the complainant entered in the sugarcane field belonging to the appellant and discovered that in the centre of the field under a Shahtoot tree the earth had been freshly dug. On probe they, saw that the dead body of a child about two years of age was lying there. It is further stated that meanwhile Salma Bibi also reached the spot and stated that the dead body was of her daughter who was taken away by her husband (appellant). The statement of P.W. I was recorded at Adda Noorpur and the same is Exh.PA on the basis of which formal F.I.R. Exh.PA/1 No,277 of 1997 was registered under sections 302/201, P.P.C. With Police Station Malka Hans, District Pakpattan Sharif.
4. After registration of case P.W.10 Muhammad Ashraf reached the place of occurrence; sent the body of deceased for post-mortem; recorded statements of P.Ws. And prepared site-plan. The appellant was arrested in this case on 12-10-1997 and 17-10-1997 he led to the recovery of Khurpa P- 3 which was lying in the sugarcane field and the same was taken into possession vide Exh.PJ.
5. After conclusion of the investigation the appellant was sent up for trial. He denied the charge and claimed trial which commenced. During the trial the prosecution examined ten witnesses in support of its case. P.W.5 stated about last-seen evidence, P.W.9 Dr. Muhammad Younas Rana stated about medical evidence, P.W.10 stated about registration of case and investigation, P. W.1 supported the version given in the F.I.R. And P.Ws. 2 and 3 'stated' that they knew nothing about the occurrence. The rest of the witnesses were formal in nature.
6. After closure of the prosecution evidence statement of the appellant was recorded under section 342, Cr.P.C. Who denied the allegations levelled against him and showed suspicion that there was a possioility that Salma Bibi, P.W.5 herself might have murdered the child as the ,parentage of child was not known and the co-villagers taunted Mst. Salma about that. The appellant did not produce any defence evidence and declined to appear as a witness in accordance with the provisions of section 340(2), Cr.P.C.
7. The learned counsel for the appellant has stated that there is no incriminating evidence available against the appellant and, therefore, he deserves acquittal. On the other hand the learned counsel appearing on behalf of the State defended the impugned judgment and stated that the appellant has taken the life of a child and deserves the sentence awarded to him.
8. I have heard the learned counsel for the parties and have gone through the whole evidence, impugned judgment and the record of the case. Admittedly, nobody had seen the occurrence. The case of the prosecution was based only on circumstantial evidence. P. W.1 complainant stated only about the discovery of the dead body of Mst. Irshad Bibi while P. Ws. 2 and 3 stated that they had not seen the occurrence. It was only Mst. Salma Bibi P.W.5 who stated that the deceased had been taken by the appellant and, therefore, provided the evidence that the deceased was last-seen in the company of the appellant. This witness admitted that the appellant used to love the deceased and also used to provide for her expenses. She did not utter a word as to why the appellant should take life of the child. In fact, none of the witnesses has stated any word relating to motive against the appellant. P.W.5 also admitted that the villagers used to rebuke her and insult her by asking the parentage of Mst. Irshad Bibi deceased and in the same breath she has admitted that the appellant had never taunted her on that score. In other words no reason has been advanced by the prosecution as to why the appellant should indulge in commission of such a heinous crime. So far as medical evidence is concerned it does not advance the case of prosecution against the appellant at all. As according to P.W.9 Dr. Muhammad Younas Rana he did not find any injury on the person of the deceased. Similarly, no injury has been mentioned on the person of the deceased in the inquest report prepared by P.W.10 Exh.PF. P.W.10 also admitted that the dead body of Irshad Bibi was lying in a ditch when he reached there. The possibility, that the deceased who was a child of two years stumbled into the ditch and received some internal injury causing of her death, cannot be ruled out. As P.W.9 Dr. Muhammad Younas Rana stated that the cause of death was asphyxia, no mark of violence was present on the body of the deceased and it was only after receipt of report of Histopathologyst Exh.PJ which disclosed that hyoid bone of the deceastd was fractured. So far as recovery of Khurpa is concerned, it can hardly be termed as an incriminating evidence. Firstly, it was lying in the field of sugarcane and its presence there is quite natural.
Secondly, it was not used for commission of any offence and no injury was caused to the deceased with the Khurpa. The evidence of last-seen given by Mst. Salma P.W.5 is not supported by any other incriminating evidence and in these circumstances it would not be safe to convict the appellant on the basis of evidence of last-seen alone.
9. The upshot of the above discussion is that the prosecution has failed to prove its case against the appellant beyond doubt. Therefore, I allow this appeal and acquit the appellant of all the charges. He shall be released from jail forthwith if not required in any other criminal case.
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