Appellants Mst. Salma Bibi and Mst. Asifa Bibi were tried by the learned Judge Anti-Terrorism Court- II, Gujranwala (in the case vide FIR No, 132 dated 25.6.2002 under Section 302/34 PPC, Police Station Daska, District Sialkot), registered for the murders of Zafar Shah and Surriya. Vide judgment dated 28.5.2003, the appellants were convicted and sentenced as under:--
(i) APPELLANT MST. SALMA BIBI: Imprisonment for life under Section 302(b) PPC as Tazir and imprisonment for life under Section 7(a) of the Anti-Terrorism Act, 1997. The sentences were directed to run concurrently with benefit of Section 382-B Cr.P.C. She was further directed to pay a sum of rupees one lac as compensation to be paid to the legal heirs of each deceased under Section 544-A Cr.P.C. in default whereof to further undergo six months SI;
(ii) MST. ASIFA BIBI APPELLANT: Imprisonment for life under Section 302(b) PPC and sum of rupees one lac as compensation to be paid to the legal heirs of Mst. Surriya Bibi deceased in default whereof to further undergo six months SI. She was also awarded imprisonment for life under Section 7(a) of the Anti Terrorism Act. 1997 with a further direction to run the sentences concurrently coupled with the benefit of the provision of Section 382-B Cr.P.C.
(iii)
2. The prosecution story as given in Eh.PG lodged by Muhammad Ilyas on 25.6.2002 at 6.20 p.m., briefly stated is that he is resident of Village Moma Khurd; that his sister Mst. Surriya Bibi was married with Muhammad Sharif son of Muhammad Din 24/25 years ago from which wedlock three daughters were born; that Mst. Surriya Bibi got Talaq from the said Muhammad Sharif 10/12 years before and handed over the said daughters to him; that thereafter she contracted second marriage with Zafar Shah from which wedlock too two sons and one daughter were born; that Mst.
Salma Bibi was the youngest daughter of his sister from her first husband who was residing with her mother for the last 3/4 years whereas Mst. Asifa Guriya daughter of Muhammad Rafique was serving as maid servant and Tanveer Hussain, who is "Bhanja" of the complainant was working as Driver of the car of Mst. Surriya Bibi; that on 24.6.2002, at the evening time, complainant alongwith his "Behnoi" Muhammad Ishaque had come to see his sister; that the complainant, Muhammad Ishaq, Tanveer Hussain, Zafar Shah and Mst. Surriya Bibi were talking while sitting upon cots on the roof of second story; that Mst. Salma Bibi and Mst. Asifa Bibi also came there and sat with them; that during the conversation Mst. Salma Bibi asked to Zafar Shah and Mst. Surriya Bibi that they had become reason of the insult for them and during this Mst. Asifa Bibi stated that today they would teach lesson to them whereupon Mst. Salma Bibi took out pistol from the "Naifa" of her Shalwar and one after the other fired at Zafar Shah which hit upon his head; that Mst. Surriya Bibi tried to intervene but Mst. Asifa Bibi caught hold of her into her "Japha" and then Mst. Salina Bibi fired upon at Mst. Surriya Bibi which hit on her head and that Zafar Shah and Mst. Surriya Bibi fell down and succumbed to the injuries. The motive behind the occurrence was that a few minutes before Zafar Shah and Mst. Surriya Bibi exchanged hot words with them. So, due to that Mst. Salma Bibi and Mst.
Asifa Bibi had committed murder of Zafar Shah and Mst. Surriya Bibi by firing. Since Mst. Salma Bibi was armed with pistol so due to fear they could not go near them and the accused succeeded to fled away from the spot. The occurrence was seen by the complainant, Muhammad Ishaq and Tanveer Hussain as stated by the prosecution.
3. The investigation of the case was carried out by Muhammad Hanif SI who, having received information about the occurrence, reached at the spot, recorded statement of the complainant as Exh.PG, prepared injury statement of Zafar. Shah deceased as Exh.PJ, Inquest Report as Exh.PL, Injury Statement of Mst, Surriya Bibi as Exh.PL, Inquest. Report as Exh.PM, rough site-plan as Exh.PN, blood stained earth as Exh.PA and Exh.PB, took into, possession one empty cartridge of 30 bore pistol as Exh.PG, after postmortem examination last worn cloths of the deceased were taken into possession as Exh.PE, on 27.6.2003 Mst. Salma Bibi accused led to the recovery' of pistol, (P-5) and alive cartridges (P-7) secured through Exh.PF, got prepared the site-plan from the Draftsman as Exh.PD and PD/1 and got conducted medical examination from the Civil Hospital. Having completed legal formalities, the accused were challaned to face trial before the learned Court of competent jurisdiction.
4. During the course of trial prosecution examined eleven witnesses to prove its case.
5. The accused when examined under Section 342 Cr.P.C. denied the prosecution case and attributed false implication.
6. Learned counsel for both the appellants, in support of this appeal, submits that it was an un- witnessed occurrence; that the FIR was recorded after due deliberations and consultations; that Muhammad. Ilyas complainant was murdered, therefore, he was not produced by the prosecution to support the prosecution case; that 'Muhammad Ishaque (PW-1) is a close relative of the deceased; that he is not the resident of the vicinity where the occurrence took place; that the report of the Forensic 'Science Expert is manoeuvred one; that the recovery of pistol has been plated on the appellants; that there is conflict between the ocular account and the medical evidence and that Tanveer was not produced during the course of trial.
7. While advancing his submissions, learned counsel for Mst. Asifa appellant contends that the role attributed to her is that she took Mst. Surriya deceased in her Japha and then appellant Mst. Salma fired at the deceased. According to the learned counsel, it is improbable. Having concluded their submissions, learned counsel for both the appellants submit that the appellants, in the afore- referred circumstances, are entitled to acquittal as the case against them is full of concoctions, deliberations, consultations and contradiction between the statements of the prosecution witnesses.
8. Learned counsel for the State, while defending the impugned judgment of conviction passed against the appellants, submits that the appellants are named in the FIR; that a specific role has been assigned to each of the appellants; that they are involved in a double murder case; that the ocular account has been corroborated by the medical evidence and that the impugned judgment of conviction is a well reasoned judgment which does not call for interference.'
9. I have heard learned counsel for the parties, have gone through the evidence with their able assistance and have also given anxious consideration to their respective submissions made at the bar.
10. The occurrence in this case had taken place on 24.6.2002 at 10/11 p.m., the matter was reported to the police on 25.6.2002 at 5.30 p.m., the formal FIR was recorded at 6.20 a.m. while distance of the Police Station from the place of occurrence is eighteen kilometers. There are three eyewitnesses of the occurrence including the complainant Muhammad Ilyas who was real brother of Mst. Surriya deceased. He could not be produced during the trial because he was murdered. Tanveer was given up by the prosecution. So there is only left the sole testimony of Muhammad Ishaque(PW-1) who is brother-in-law of Mst. Surriya Bibi(Behnoi). He is not the resident of the vicinity and hails from a place fifteen miles away from the place of occurrence. Moreover, according to the said witness Mst. Salma Bibi fired 2 shots on Zafar deceased which hit on his head.
Dr. Muhammad Azam conducted the Post-mortem Examination on the dead body of Zafar deceased on 25.6.2002 and found only one injury. So there is clear conflict between the medical evidence and the ocular account because there is one entry wound and the other is exit wound.
Later on, when he was called by the police he went to the spot and mentioned the same in his statement recorded under Section 161 Cr.P.C. Mst Asifa Bibi appellant was servant of Zafar Shah deceased. Her role was that she held the deceased Mst. Surriya' Bibi, in her "Japha" when Mst.
Salina fired at her. This is an improbable story. The possibility, in these circumstances, could have been that Mst. Asif could also receive an injury on her person. So her role is also unnatural, and improbable. Crime empty was recovered from the spot on 25.6.2002, recovery was affected on 27.6.2002 but both these articles were sent to the Forensic Science Expert on 9.7.2002, therefore, the possibility of the crime empty having been fired by the said pistol later on, cannot be ruled out. This fact creates doubts on the version of the .prosecution story. Presence of PW Ishaque at the place of occurrence is not probable one.
11. Having looked the case from every angle I am of the considered view that the case against both the appellants is a doubtful one benefit of which must go to the accused/appellants. Resultantly, this appeal is allowed, the impugned judgment is set-aside and both the appellants are acquitted from the case. Mst. Asifa Bibi is on bail. She shall be discharged from her surety/bail bonds. Mst.
Salma Bibi is behind the bar. She shall be released forth-with if not required to be detained in any other case.