1996 P Cr (PLP)

6. This case rests on the ocular evidence of P.W. Muhammad Buxial and Younas real brothers of deceased Mst. Siyani. The F.I.R. is delayed about 18 hours though the prosecution has tried to explain in the sense that Buxial had gone to inform his father at Jamshoro and brought him from Jamshoro. These two witnesses are the real brothers are examined by the police on 22-6-1989 though the incident took place on 19-6-1989 even their 164, Cr.P.C. statements were recorded on I-7-1989. The ocular evidence of two brothers is not supported by any independent evidence nor is corroborated. There are material contradictions between the evidence of the Medical Officer and ocular evidence when they entered the house of the accused they see him giving the fists and kicks blow but, the Medical Officer has not supported this version. According to Medical Officer Dr. Mazhar Ali Khoso who has found on external examination of the deceased the following injuries:- (1) A contusion 8 c.m. x 2 c.m. on back of neck. (2) A contusion 3 c.m. x 1-1/2 c.m. on left lumber region. (3) A contusion 3 c.m. x 1-1/2 c.m. on right lumber region. On internal examination of the dead body he found the following damages. There were laceration of spinal cord and dislocation and fractures of first and second upper cervical vertebrae, corresponding to injury No.1. All other organs were normal and healthy. Stomach of the deceased contained semi digested food.

7. According to doctor the cause of death is due to injury No.

1. According to him the injury was caused by hard and blunt substance such as Lathi. According to Mashir the accused was arrested on the same day but according to Mashirnama and according to evidence of the Investigating Officer the accused was arrested on 22-6-1989. Admittedly the house is surrounded by a big village and admittedly there are houses of Ismail Abro, Ali Sher and others but none of them have been examined. There are material contradictions on the evidence of two eye-witnesses namely Buxial and Younas. Learned counsel for the appellant .has argued that learned Judge has erred by not specifying as to under what provision of section 302, P.P.C. he has convicted the accused as according to him the accused is only liable to Diyat as he has a daughter of two years as such he has relied on a case Khalil-uz-Zaman v. The Supreme Appellate Court, Lahore and others reported in PLD 1994 SC 885, in which it was held as under:-- "

S 302

Constitution of Pakistan (1973), Art. 184(3)

Qatl-i- Amd

Punishment

Section 306(6), P.P.C. clearly laying down that Qatl-i-Amd committed by the husband of his wife leaving behind child/children not liable to Qisas

Punishment therefore, specifically provided under 5.308, P.P.C.

The same not providing for death penalty

Held that: The Courts derive authority to punish the accused from the State

If the Statute did not provide death penalty for the offence then obviously the Court would have no jurisdiction to award the same and as such the conviction and sentence of the petitioner recorded under S.302, P.P.C. was corum non judice

The case remitted to the High Court for fresh decision. " He has also relied on case Muhammad Yaqoob v. The State reported in 1982 PCr.LJ 335 in which it was held as under:-- "

S. 302

Benefit of doubt

Ocular testimony not corroborated by independent evidence and incident being a midnight affair, identity of accused found doubtful

Delay in lodging F.I.R. not satisfactorily explained

Accused given benefit of doubt and acquitted in circumstances

He has also relied on a case Muhammad Afzal v. Aminual Haq and another reported in 1982 PCr.LJ 340. " He has also relied on a case Ghulam Raza and 2 others v. The State reported in 1974 PCr.LJ 95 in which it was held as under:

Ss. 366 & 452

Abduction

First Information Report lodged with delay of 18 hours after deliberation

Possibility of false inculpation of accused not excluded." He has also relied on a case Muhammad Hassan and another v. The State reported in 1982 PCr.LJ 888 as under:-- "S. 302

Evidence, appreciation of

Benefit of doubt

Ocular testimony not corroborated by independent evidence and recovery of incriminating articles found doubtful

Prosecution, held, failed to establish guilt of accused beyond reasonable doubt

Accused given benefit of doubt and acquitted. "

8. Learned State Counsel has supported the conviction. According to him two eye-witnesses have supported the prosecution case, delay has already been explained, no enmity has been proved to implicate the accused, and the Mashir is of the same village. According to him fists and kicks blows are also hard and blunt.

9. This case rests on the testimony of the two brothers of the deceased who are admittedly interested witnesses. There is delay in lodging the F.I.R. of about 18 hours though the village is admittedly thickly populated and according to Mashir there are about 2 to 3 hundred houses in the village but none of the witnesses has been cited or examined nor there is any evidence that the people of the village gathered at the scene of offence and were examined by the police. The Mashir has been examined but he has not supported the prosecution case. On the other hand he has stated that the accused was arrested on the same day i.e. on 19-6-1989 while the Mashirnama of the arrest shows that he was arrested on 22-6-1989. I fail to understand as to why the accused was not arrested even when the F.I.R. was lodged. There is nothing on record to show that the accused had absconded. The accused has examined two D.Ws. who have supported the version of the accused that at the time of incident he was watching T.V. in their house and one boy had come to inform that his wife is serious. The medical evidence belies the evidence of eye-witnesses as according to the medical evidence injury No.1 on neck was sufficient to cause death and that injury is caused by the hard substance like Lathi and not by the fist and kick blows. The other Mashir has not been examined. The prosecution case is not free from reasonable doubt and it is well-settled law that even the slightest dent caused in the prosecution theory, the benefit always goes to the accused. It will be unsafe to maintain the judgment of the learned Sessions Judge, Dadu as such I have given benefit of doubt to tile appellant named above and I have no option, but to accept this appeal as prayed. N.H.Q./M-38/K Appeal accepted.