2009 PLP 1808 (YLR)

MUHAMMAD IQBAL MAHAR, J.

The appellant being aggrieved and dissatisfied with the judgment dated 29-8-2007, passed by learned Ist Additional Sessions Judge, Badin, whereby the respondents 1 to 4 have been acquittal under section 265-H(i), Cr.P.C. from the charge of murder of deceased Abdul Rahim, has preferred this acquittal appeal. Succinctly the prosecution case as per F.I.R. lodged by complainant is that on 22-7-1999 at 11-00 night he, Abdul Karim his father Hakeem Ishaque, Noor Muhammad Lakho, Abdul Rasool Lakho, his brother Muhammad Yakoob Lakho and Ghulam Muhammad Korejo were present at his house when Mst. Rehana daughter of Karim Bux Lakho, Mst. Arbab Khatoon wife of Karim Bux Lakho came there and asked them that Abdul Rahim son of Muhammad Ishaque Lakho had come to their house and after talking with Karim Bux and Ibrahim in the house he stood up to return to his house but he became unconscious and fell down on the ground and received injury on his head. On this information of Mst. Rehana, Mst. Arbab, complainant, Noor Muhammad Lakho, Muhammad Yakoob and Ghulam Muhammad Korejo went to the house of Karim Bux and found Abdul Rahim lying on the ground and Karim Bux was bending over him. On inquiry Karim Bux and Ibrahim told them above story. The complainant party saw that Abdul Rahim had expired. Thereafter they believed the words of Ibrahim, Karim Bux and ladies of their house and they brought dead body of Abdul Rahim to their house. After some days, Ibrahim vacated the house and started living at Hyderabad with his brother Karim Bux. After some days Noor Muhammad came to his father Hakim Ishaque and asked him that due to the dispute over a plot he had been threatened on telephone by Ibrahim Lakho that if he would take over the possession of his plot then it would not be better for him, and he would be killed by Muhammad Ibrahim just as he killed Abdul Rahim by hatchet blows. On this information from Noor Muhammad, his father Muhammad Ishaque called his brother Yakoob and sent him to Hyderabad at the house of Ibrahim for confirmation whereupon his brother Muhammad Yakoob came back and told that Ibrahim confessed before him that he (Ibrahim) at the instigation of Karim Bux had murdered Abdul Rahim due to the dispute over the house. A mistake has happened, settlement would be made and fine etc., would be paid. His brother Yakoob came back and narrated the facts to him, his father Muhammad Ishaque and Noor Muhammad Lakho. Thereafter, Ibrahim and Karim Bux Lakho kept them on hopes of compromise regarding the settlement but' nothing was done. After approaching superior officers, the complainant lodged complaint that Ibrahim son of Ismail Lakho on instigation of his brother Karim Bux called his brother Abdul Rahim to his house and murdered him by inflicting hatchet blows at about 10-30 p.m. on the night of 22-7-1999. The police after completing investigation and codal formalities, submitted the challan against the respondents/accused 2,4 and 5 whereas the respondent No.3 was not arrested and remained fugitive. The charge was framed against the respondents 2, 4 and 5 to which they pleaded not guilty and claimed to be tried. During the trial the prosecution examined the complainant P.Ws. Muhammad Ishaque, Muhammad Yakoob, Noor Muhammad, Sain Dino, Khuda Bux, Rahim Bux, Medical Officer Dr. Afzal Memon, Dr. Afzal Manna, Tappedar Muhammad Moosa, Muhammad Farooq, Ghulam Muhammad Korajo, Ali Raza and Ghulam Qadir, and closed its side. The statements of the accused were recorded under section 342, Cr.P.C. wherein they denied the case of prosecution against them. However, they did not examine themselves on oath nor led any evidence in their defence. Learned trial Court after considering the evidence and hearing the parties acquitted the respondents as mentioned above under the impugned judgment. We have heard Mr. Noor-ul-Haq Qureshi, learned counsel for the appellant and perused the evidence of the prosecution witnesses very carefully. Mr. Noor-ul-Haq Qureshi, learned counsel for the appellant/complainant argued that the prosecution proved the guilt of the respondents by ocular as well as medical evidence and there is strong circumstantial evidence available on the record. He next argued that at the time of cross-examination the learned counsel for respondents did not suggest the denial of the offence which means the respondents have admitted the guilt of offence. Learned counsel lastly argued that the impugned judgment suffers from misreading and legal and factual infirmities and prayed for setting aside the same. On the other hand Mr. Muhammad Azeem Panhwar, learned State counsel stated that there is no illegality and infirmity in the impugned judgment and prosecution has failed to prove its case against the respondents and has supported the impugned judgment and further submitted that the accused persons have rightly been acquitted by the learned trial Court. From the perusal of record it appears that the incident of this case occurred on 22-7-1999 but complainant lodged F.I.R. on 16-11-1999 after about four months and there is no proper explanation which shows that the F.I.R. was registered after consultation. Further-more this is unseen incident as none has seen the deceased while sustaining injury. The version of respondents Nos. 2 to 5 is that deceased Abdul Rahim fell down and sustained injury on head and died. It is pertinent to mention here that after the death of Abdul Rahim respondents 4 and 5 went to the house of complainant and informed them about the episode. The complainant party went to place of incident where they found respondents Nos.2 and 3 present. Not only this but it has come on record that after that the respondent attended funeral ceremony of deceased Abdul Rahim. This shows that they were not involved in the murder otherwise they must have left the place of incident before the arrival of complainant party. The evidence against the respondents is extra-judicial confession before interested persons that after third day of incident respondent No.2 along with 50/60 persons went to the complainant and admitted that he and deceased Abdul Rahim exchanged harsh words and the former caused injury, therefore, they may be excused. It is settled principle of law that joint extra-judicial confession is inadmissible in evidence. So far recovery of blood-stained iron rod is concerned the same was recovered in 'presence of interested witnesses but same was not sent to the Chemical Examiner and nor any report was produced. Apart from that there are material contradictions in between the depositions of P.Ws, which create doubt. Furthermore there is double presumption of innocence of the respondents. (i) Every person is presumed to be innocent until he is proved otherwise. (ii) The respondents 2 to 5 have been proved innocent and they have been acquitted by trial Court. It is settled law that the burden lies upon prosecution to prove its case beyond any shadow of doubt. The same cannot be shifted to respondents that since they have not denied which means that they have admitted the evidence. Although the record shows that whole the incident has been denied by respondents 2 to 5 before trial Court at the time of cross-examination in their statements under section 342, Cr.P.C. In the light of above discussion we conclude that the judgment of trial Court does not suffer from any infirmity and we see no merit in this appeal which is dismissed in limine. These are reasons for our short order dated 9-4-2009. N.H.Q./A-79/K Appeal dismissed.