' KHAWAJA MUHAMMAD SHARIF, J.---This judgment shall dispose of Criminal Appeal No,1441 of 2000 (Mst. Kausar Bibi v. The State), Criminal Appeal No,1442 of 2000 (Abdullah v. The State) and Murder Reference No,730 of 2000 as they arise out of the same judgment dated 11-10-2000 passed by the learned Additional Sessions Judge, Okara, whereby, having tried both the appellants (in the case registered vide F.I.R. No,127 of 1997 under section 302/34, P.P.C. Police Station Mandi Ahmad Abad, District Okara), they were convicted under section 302/34 P.P.C. And sentenced to death each with a fine of Rs,50,000 each under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased in default whereof to further undergo six months imprisonment each.
2. The prosecution story, as per statement of complainant Muhammad Ramzan (P.W.9), briefly stated is that eight/nine months before the occurrence, Nazar Muhammad (his deceased father) contracted Nikah with Mst. Kausar Bibi daughter of Maham Ali; that the deceased was owner of land measuring six Acres; that Mst. Kausar demanded from the deceased to transfer his land to her to which the deceased refused; that the deceased also constructed a house for Mst. Kausar Bibi; that the complainant is having two brothers and one sister and they are cultivators by profession; that Abdul Sattar P.W. Came to the complainant for the ' purchase of fertilizers; that they remained there for some time; that as the deceased was sick, therefore, the complainant went to see him; that Abdul Sattar P.W. Also accompanied him to see the deceased; that on the way when they reached near the Baithak, Fazal Muhammad P.W. Also accompanied them for the purpose; that they reached the house of the deceased at midnight and observed that an electric bulb was on in the courtyard of the house; that when they entered the house, they saw that Mst. Kausar Bibi accused was getting hold of the legs of the deceased and Abdullah accused was giving hatchet blows, which landed on the chin and neck of the deceased; that the complainant and witnesses tried to catch hold of Abdullah and Mst. Kausar Bibi accused but Abdullah accused threatened them with hatchet and being afraid of their lives, they could not do so; that in the meanwhile, accused Mst. Kausar Bibi and Abdullah fled away and that Allah Ditta accused picked up something from the foot side of the cot of the deceased which was probably Chhurri and fled away from the place of occurrence. The deceased succumbed to the injuries at the spot. The motive, as per F.I.R., is that both the accused had committed the murder of the deceased father of the complainant due to greed of property because they wanted to get the land transferred in their names to which the deceased refused.
3. After having completed legal formalities and having completed investigation of the case, the police submitted challan against the accused to face trial before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined 11 witnesses including the doctor and the Investigating Officer.
4. The accused, when examined under section 342, Cr.P.C. Denied the prosecution case and attributed involvement to false implication and claimed trial.
5. Learned counsel for the appellant Mst. Kausar Bibi, in support of Criminal Appeal No,1441 of 2000, submits that she has falsely been implicated in the case; that it was on un-witnessed occurrence; that no connection whatsoever has been mentioned by the prosecution between the appellant Mst. Kausar and co-convict Abdullah (appellant) rather they were inimical towards each other; that the role of the appellant has also not been proved by the Medical evidence; that material contradictions have been made by the eyewitnesses before the learned trial Court; that the story given by the complainant in the F.I.R. And before the learned trial Court is different one; that the conviction and sentence awarded to the appellant is against the weight of evidence on record; that the judgment of conviction has been passed on surmises and conjectures; that the prosecution has failed to prove its case against the appellant beyond an iota of doubt and that, in the afore-referred circumstances, after having accepted the appeal, appellant be acquitted from the case.
' Learned counsel for appellant Abdullah (in Criminal Appeal No,1142 of 2000) contends that the motive is not attributed to the appellant; that the source of light has not been mentioned in the site-plan prepared by the Investigating Officer and the draftsman; that the reason given by the complainant for going to see his ailing father, along with the other prosecution witnesses, at such a late hours of the night, is not plausible; that the complainant stated during the cross-examination that he reached the Police Station alone at 4-00 a.m. But the F.I.R. Was recorded at 7-00 a.m.; that according to P.W.6 Muhammad Ismail both the appellants were arrested on the same day while according to the police record they were arrested on 22-6-1997; that according to the same P.W.
Hatchet was recovered on the pointation of all the three accused persons i.e, including the present two appellants and acquitted accused Allah Ditta while the Investigating Officer stated that the hatchet was recovered on the pointation of appellant Abdullah; that there is contradiction between the statements of Riaz Hussain FC (P.W.7) and Ahmad Khan/I.O. (P. W .11) i.e, Riaz has stated that both started from Police Station towards the place of occurrence after getting information of the same while according to Ahmad Khan he was going to District Courts when he received information about the occurrence; that it was an un-witnessed occurrence and that as no case is made out against the appellant, he deserves acquittal from the case.
6. On the other hand, learned counsel for the State submits that the prosecution case is full of contradictions as the prosecution witnesses made dishonest improvements to fit in the case against the accused; that the prosecution witnesses are chance witnesses; that the hatchet was recovered from the place of Allah Ditta and on the pointation of the co-accused and that in such- like circumstances he would not defend the impugned judgment of conviction.
' While, arguing case, on behalf of the complainant and while defending the impugned judgment of conviction, learned counsel for the complainant argues that the ocular account is corroborated by the medical evidence; that all the eye-witnesses are independent witnesses of the occurrence which took place in the house of appellant Mst. Kausar Bibi and onus heavily lies---on her to explain as to why the murder had taken place and who committed the murder of her husband; that it is a case of promptly lodged F.I.R.; that there were no deliberations and concoctions on the part of the prosecution; that the source of light has been mentioned in the F.I.R. i.e, the "bulb"; that Mst. Kausar appellant, who is step mother of the complainant, had motive to kill the deceased; that the eye-witnesses and recovery witnesses are residents of the same locality; that no question of false implication or false identification arises in this case; that the eye-witnesses have proved their presence at the place of occurrence, therefore, they are the natural witnesses of the incident; that the testimony of the prosecution witnesses cannot be discarded only for the reason that they are closely related to the deceased; that Fazal Muhammad (P.W.10) is next neighbour of the house where the occurrence took place; that appellant Mst. Kausar is thirty years of age whereas she has given her age as 50 years in her statement recorded under section 342, Cr.P.C. Which was not a correct one; that she had married twice prior to her marriage with the deceased; that the prosecution has proved the case against the appellants and that their appeals are liable to be dismissed.
7. We have heard learned counsel for the parties, have gone through the evidence with their able assistance and have also given anxious consideration to the submission made by the respective parties at the bar.
8. Occurrence in this case took place on the night between 15th/16th June, 1997 at 12-30 a.m. The distance between the police station and the place of occurrence is 9 Kilometers. The matter was reported to the police at 7-00 a.m. In all three accused were mentioned in the F.I.R. Including the present two appellants and the acquitted accused Allah Ditta. One eye-witness was given-up by the prosecution. In the F.I.R., complainant had stated that he went to the house of his father to see him at 12-30 midnight but before the learned trial Court he stated that he had gone to see his father and to purchase the fertilizers. It is repellent to common sense and against the thoughts of a man of normal prudence that a son, who is a resident of nearby place, would go to see his father at such an odd hour of the night. It is also not believable that the complainant would go to purchase the fertilizers at the such late hours of the night. More over dishonest improvements were made by the complainant before the learned trial Court in his examination-inchief to which he was dully confronted during trial. All these improvements and exaggerations, in our view, were made to fit in the prosecution case so that his presence at the spot could be established.
' There is yet another aspect of the matter. No relationship has been mentioned between both the appellants. Neither it was stated in the F.I.R. Nor during the trial that both of them had developed illicit relations with each other and murdered the deceased to remove him from their way. No reason is coming forth on the record to show that why they joined hands with each other to kill the deceased. No motive has been attributed to appellant Abdullah either.
' A careful scrutiny of the evidence shows that the complainant had stated that he went to the police station alone and lodged the F.I.R. At 4-00 a.m. But the F.I.R. Was recorded at 7-00 a.m. At the police station.
' The role of Mst. Kausar Bibi appellant is also not corroborated from the medical evidence because there are no contusions or abrasions on the legs of the deceased. Complainant had also stated in the F.I.R. That he had information that Mst. Kausar Bibi was going to give some poison to the deceased and he had gone there to save the life of the deceased from the hands of Mst. Kausar Bibi but, shockingly, no poison was detected from the viscera of the deceased during the post- mortem examination. One can easily believe that the said 'reason is neither plausible nor believable.
' The most crucial aspect of this case is that both the eye-witnesses are chance witnesses.
Muhammad Ramzan (P.W.9) is the real son of the deceased. His bias against the appellant Mst.
Kausar Bibi was a natural one. P.W.10 is Fazal Muhammad. He is real brother of deceased Nazar Muhammad. No plausible reason has come on record to prove their presence at the place of occurrence. Since they have failed to prove their presence at the spot, therefore, their testimony is neither trustworthy nor confidence inspiring. This Court holds so.
' Abdul Sattar was also cited by the prosecution as an eye-witness of the occurrence. He was given up by the prosecution for the reason that had he appeared then enmity and other factors could have easily been brought on record by the learned defence counsel. The interesting factor involved in this case is that Abdullah appellant is also inimical towards Mst. Kausar appellant for the reason that prior to her marriage with Nazar Muhammad, she was married to Muhammad Yar who was closely related to the said Abdullah. Muhammad Yar abducted girl and wanted to get permission from Kausar to marry with the said girl but she refused whereupon she was divorced by him. It is unbelievable that a blood relation of Muhammad Yar (like Abdullah appellant) would join hands with Mst. Kausar Bibi appellant. It has also come on record that the said Abdul Sattar had abducted the niece of Mst. Kausar Bibi whereupon the said abductee Haleema got a case registered against him. Even otherwise, Mst. Kausar appellant, in her statement recorded under section 242, Cr.P.C., denied her presence at the place of occurrence on the fateful night and stated that she was present at her mother's house because she was ill and she went there to see her ailing mother. If her absence from the house is not believed, for the sake of arguments, even them, in the absence of any strong corroborated evidence, she cannot be connected with the alleged commission of the offence. More so, possibility of her false implication in the case cannot be ruled out for the reason that she had no issue and after the death of Nazar Muhammad and her incarceration, deceased's inheritance would definitely go to the complainant.
9. After having adjudged the case from every angle and having sifted grain from the chaff, this Court is of the considered view that the prosecution has failed to prove its case against both the appellants beyond a shadow of doubt to sustain conviction because it is cardinal principle of criminal dispensation of justice that the prosecution has to prove its case Against the accused persons to the hilt through unimpeachable sources and if any dent is caused to it, then its benefit must go the accused and more so that if the prosecution fails to discharge the said onus then it cannot Qerive benefits from the defence pleas. In this case, firstly, the prosecution case, as discussed above, is full of contradictions and exaggerations, secondly, the prosecution witnesses are closely related to the deceased inter se, thirdly, they have failed to prove their presence at the spot, fourthly, the factum of recovery is also doubtful and, lastly, that in such-like circumstances it would not be in the safe administration of justice to sustain conviction of the appellants on such an unreliable, exaggerated and concocted evidence. It is settled by now that while dealing with a criminal case, the approach of the Court should always be dynamic. Resultantly, Criminal Appeal No,1441 of 2000 (Mst. Kausar Bibi v. The State) and Criminal Appeal No,1442 of 2000 (Abdullah v. The State) are allowed, the impugned judgment of conviction is set aside and both the appellants are acquitted from the case. They shall be released forthwith if not required to be detained in any other case. Death sentence awarded by the learned trial Court is Not Confirmed and Murder Reference No,730 of 2000 is answered in the Negative.