2010 P Cr (PLP)

SYED ZAKIR HUSSAIN, J.

These are two Criminal Jail Appeals preferred by the appellants respectively against the common judgment dated 4-12-2009 of the learned Sessions Judge, Badin pertaining to S.C. No.32 of 2007 (F.I.R. No. 35 of 2007 of Police Station Badin under section 302/34, P.P.C.), whereby the appellants have been convicted and sentenced for the offence punishable under section 302/34, P.P.C. to suffer life imprisonment. The appellants have prayed for setting aside of the said judgment, conviction and sentence and for their acquittal from the charge of the case, on the facts and grounds mentioned in the appeals. Necessary facts are that on 26-2-2007 at 11-30 a.m. Muhammad Soomar lodged F.I.R. at Police Station Badin to the effect that his brother Uris married with one of the appellants Mst. Jana who developed illicit relations with the other appellant Mir Murtaza and such complaint was made by him to the appellant Mst. Jana and her relations. At 02-00 a.m. of the night of that very day, he heard cries which came from the house of his brother Uris and which attracted his other brothers Muhammad Ismail and Hussain and they all rushed towards the place of cries where they found in the torch light that the appellant Mir Murtaza had been throttling their brother Uris while he had been sleeping on a Cot and the other appellant Mst. Jana was found to have stood beside the culprit. Upon their cries, the appellant Mir Murtaza made his escape good. They noticed that their brother Uris had already died. He, the said Muhammad Soomar having left his aforesaid brothers and villagers over there, rushed to the Police Station to report the matter. On such report, the police having registered the aforesaid F.I.R., began to investigate the same. The appellants were finally charge-sheeted for the offence punishable under the aforesaid sections of law and the learned trial Court having tried the case, concluded that the evidence led by the prosecution sufficiently established the charge against the appellants who accordingly were convicted and sentenced by the impugned judgment on the part of the learned trial Court as stated above. The Court heard the matter on 9-7-2010 and by its short order allowed the appeals, set aside the impugned judgment and accordingly acquitted the appellants of the charge of the case in all respects for the reasons to be recorded later. The perusal of the record shows that as many as 8 witnesses were examined by the prosecution before it closed its side at trial and thereafter the learned trial Court examined the appellants under section 342, Cr.P.C. and accordingly passed the impugned findings, thereafter. Mr. Noorul Haque Qureshi, learned counsel for the appellants contended that the case of the prosecution is not established at trial owing to the insufficient and unreliable evidence and therefore, the findings of the learned trial Court that the charge against the appellants, has been established beyond shadow of any reasonable doubt is incorrect and misconceived. According to him, the presence of the three brothers at the relevant time and then their having seen the incident inactively as silent spectators is unnatural and such fact alone is sufficient to reasonably infer that they were either not present or in their presence, the incident did not take place else they would have not spared the culprit the appellant Mir Murtaza who had been found on their part, as engaged empty-handedly, in the act of killing of their brother by throttling or strangulation, and after commission of the said gruesome and torturous murder of their beloved, he the culprit, managed to escape without facing any resistance from them, and similarly, their conduct of having not reacted against the lady appellant culprit, at the relevant time, made them doubtful as to their presence and fairness against her involvement as well. Learned counsel further pointed out that there is no independent witness of neighbourhood of the deceased, who could have supported or corroborated the version of the three brothers out of them one namely, Hussain has not been produced in evidence and without any excuse, he was given up, with the result a legal inference is open to be drawn that had he been so produced, he would have not supported his brothers to the aforesaid story. The appellant Mst. Jana, is not reported to have taken any physical part in the incident and her connivance with the main culprit Mir Murtaza, in the crime in question, does not stand established simply by having spoken some words of hearsay nature about her having illicit relations with the other culprit, which ultimately resulted in the murder of the deceased with her help. The learned counsel further contended that since the said illicit relations are not established, the same are not open to be taken as grounds constituting a motive to cause death of the deceased named above in his 164, Cr.P.C. statement, Muhammad Soomar stated nothing about the admission of the crime in question as her mistake on the part of the appellant at the relevant time, whereas his brother Muhammad Ismail in his like statement made no such statement, too, yet in his evidence before the Court, he deposed "while accused Mst. Jana disclosed that mistake has been made from their side to commit the murder of deceased Uris." This state of affairs show a development and improvement created purposefully in order to furnish incriminating ground against the lady appellant. These brothers appear to have involved the lady appellant in the case of alleged murder of their brother without any material whereas the case against the involvement of the other appellant is doubtful and a single circumstance as a matter of law, which creates doubt as to the guilt of the accused to the crime he has been charged with, entitles him to acquittal as a matter of right. Learned counsel also highlighted the position of the record where the prosecution appears to have failed to prove that there was a light arrangement in the dark night of the crime in question positively with the witnesses discussed above, who claimed to have had a torch which they used from point blank distance, to see the incident. Besides, the said torch as per the memo of recovery in question, had two battery cells and was found at the relevant time in working order but in the evidence, though the torch was the case property but the same was not put specially, to the witnesses. for being identified to be the same or otherwise, in such process, and similarly, the aforesaid two battery cells, were shown neither to the Court nor to the witnesses, with the result, the torch in question, is also doubtful as ever having remained with the witnesses as alleged. According to the learned counsel, the burden of proof to the guilt of the appellants was on the shoulders of the prosecution, and it has failed to discharge the same miserably. The learned Deputy Prosecutor-General for the State argued the matter in support of the prosecution and the judgment impugned in the appeals. According to him, the evidence led by the prosecution was sufficient to hold the appellants "guilty" and the learned trial Court rightly concluded the trial, fairly held the appellants "guilty" and the conviction and sentence by way of the impugned judgment, which is thus, not open to any interference, and both the appeals on the contrary, are liable to be dismissed. I have given due consideration to the record and arguments of the learned counsel for the appellants and learned Deputy Prosecutor-General for the State. It is a fact that the evidence is mainly confined to the statements of real brothers three in number, out of whom one is the complainant and other stood to be his supporting witness who has been produced in Court while the third one has been left unexamined without any legal pretext. There is no witness from the neighbourhood of the deceased nor any independent person has been made witness either from the locality or otherwise on material aspects of the case. The arguments of the learned counsel for the appellants that the presence of the witnesses and their having remained inactive in the circumstances, makes them doubtful in point of presence or otherwise and similarly their act of having involved the widow of their own brother the deceased in the murder of her husband, without any evidence and proof also creates doubt as to their fairness in the matter. The recovery of torch is effected from the complainant who allegedly handed it over to the police, which is the only article recovered in the matter, and which too, as highlighted above, is not free from doubt. I therefore, hold that the prosecution has not established the case beyond shadow of any reasonable doubt, and the impugned findings i.e. judgment of conviction and sentence against the appellants, brought in question through these appeals, are not sustainable in law. The golden principle of law is that a chain of culprits may be let free to prevent punishment to an innocent person; a single circumstance creating doubt as to the guilt, is sufficient to acquit the accused from the charge of the case; and a single reason arising out of one's evidence, is sufficient to discard his entire evidence, are applicable in the matter very much. Consequently, the appeals are allowed, the impugned judgment is set aside and the appellants are acquitted of the charge of the case. They are in custody. They may be released forthwith, if not required in any other case. The above are the reasons for the short order 9-7-2010. H.B.T./M-135/K????????????????????????????????????????????????????????????????????????????????? Appeal allowed.