' HASNAT AHMAD KHAN, J.--- Talib Hussain and Murid Hussain appellants were tried by the learned Sessions Judge Rajanpur in case F.I.R. No,214, dated 7-10-1997 registered under section 302/34, P.P.C. With Police Station Muhammad Pur, District Rajanpur for having committed Qatl-e-Amd of Mst. Jamila Bibi, their step-mother. However, when the trial was at final stage, some of the legal heirs of the deceased entered into a compromise with the accused persons and waived their right of Qisas. Therefore, the learned Sessions Judge vide judgment, dated 16-7-2003 convicted the appellants under section 311, P.P.C. And sentenced them to suffer 10 years' R.I. Each with a direction to pay the amount of Diyat to the legal heirs of the deceased as per Sharia.
2. Being aggrieved of the impugned judgment, Talib Hussain and Murid Hussain appellants have filed Criminal Appeal No,629 of 2003 whereas Allah Ditta complainant, a brother of Mst. Jamila Bibi deceased as approached this Court through Criminal Revision No,353 of 2003 seeking enhancement of the sentence awarded to the appellants. Said criminal revision petition came up for hearing before this Court on 28-10-2003 for the first time but it appears that learned counsel for the petitioner did not press for its admission but asked for hearing of the same along with main appeal. Consequently, both the matters i.e. Appeal as well as revision are being disposed of together through this single judgment.
3. It is pertinent to mention here that initially Rapt No,20, dated 9-8-1997 at 10-10 a.m. Was recorded at Police Station Muhammad Pur on the statement of Hazoor Bukhsh father of Mst. Jamila deceased who stated therein that on the fateful day he was present at his home when his grandson, namely, Abdul Hameed informed him regarding unnatural death of his mother Mst.
Jamila On receipt of said information, Hazoor Bukhsh went to the house of his maternal cousin Haji Muhammad from where he along with his son Allah Ditta proceeded towards the house of Abdul Majeed. There they were informed by Talib Hussain appellant and Mst. Shamim Bibi that at 10-00 a.m. Mst. Jamila (deceased) was removing cow-dung when a cow ran over her and resultantly she got injured. She was given medical treatment by Dr. Abdul Aziz who also injected Mst. Jamila (deceased) but she gave into the injuries. Hazoor Bukhsh further stated that funeral proceedings were in the offing when he had come to the police station to inform about the incident. On his statement the above mentioned "Rapt" was recorded, which is Exh.P.H.
4. Munawar Ahmad, S.-I. (P.W.17) was posted as S.H.O. At Police Station Muhammad Pur on 9-8- 1997. He initiated proceedings under section 174, Cr.P.C. On the statement of Hazoor Bukhsh. He reached the spot and prepared the rough site plan. He also prepared the injury statement and inquest report (Exh.P.D./1) of the dead body and sent the same to the Mortuary for autopsy under the escort of Muhammad Ajmal C.No,357/C. He also recorded statements under section 161, Cr.P.C.
Of the persons present at the spot.
5. Lady Dr. Zarina Aftab (P.W.2) was posted as W.M.O. D.H.Q. Hospital, Rajanpur on 10-8-1997. On the same day she conducted postmortem examination on the dead body of Mst. Jamila Bibi. The said lady doctor found froathy discharge from the nose and mouth of the deceased slightly stained with blood. Pupils were dilated. There were whitish patches within the oral cavity. The doctor did not find bruise or any sign of violence on the dead body. She obtained veseras of the dead body and handed over the same to Muhammad Ajmal Constable in sealed jars for onward transmission to the Chemical Examiner for detection of cause of death of the deceased. As per report of the Chemical Examiner Punjab, Lahore, poison belonging to the tranquillizer group was detected in the veseras and on the basis of the said report the doctor opined that the death had occurred due to poisoning with some tranquillizer (Exh.P.E./1). The said lady doctor had also taken vaginal swabs of the dead body and according to the report of the Chemical Examiner Multan the said swabs were stained with semen.
6. On 7-10-1997 Allah Ditta brother of Mst Jamila deceased made an application to the D.S.P. For registration of a case alleging therein that Mst. Jamila had not died due to an accident with the cow rather she had been administered poison by Talib Hussain and Murid Hussain at the instigation and active connivance of their father Abdul Majeed which fact was verified by the post- mortem report of Mst. Jamila deceased which was positive to the said extent. Basing on this application (Exh.P.G.) F.I.R. (Exh.P.G./1) was registered at the police station on 7-10-1997.
7. After registration of the F.I.R. Munawar Ahmad S.-I./S.H.O.
' (P.W.17) received the file of the case and started investigation. He recorded the statements of the P.Ws. Under section 161, Cr.P.C. By reaching the place of occurrence on 8-10-1997 and on 9-10-1997.
On 7-12-1997, he arrested Talib Hussain accused. He completed the investigation, prepared the report under section 173, Cr.P.C. And submitted incomplete challan on 10-12-1997.
8. On the commencement of the trial, charge under section 302/34, P.P.C. Was framed against the appellants to which they denied and claimed trial.
9. At the trial the prosecution produced as many as 17 witnesses to prove the charge against the appellants.
10. Statements of Murid Hussain and Talib Hussain appellants were recorded under section 342, Cr.P.C. When questioned that why has this case been filed against him and why have the P.Ws.
Deposed against him, Murid Hussain appellant replied as under:-- "P.Ws. Are closely related to each other except Massu, P.W. Who is a criminal man and is involved in so many criminal cases and he under the pressure of the police made a false statement against us. Prior to this alleged occurrence, my sister Mst. Shamim was forcibly abducted by Rab Nawaz and Khadim Hussain both sons of Muhammad Nawaz and thereafter on 20-7-1997 a criminal case was got registered against them by my mother Mst. Sehat vide F.I.R. No,133 of 1997 dated 21-7-1997 under sections 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. Faiz Muhammad P.W. Is married to a daughter of Muhammad Nawaz. Rab Nawaz and Khadim Hussain are sons of said Muhammad Nawaz. Prior to this alleged occurrence, Murid Hussain, my co- accused, married Mst. Sughran a daughter of Muhammad Nawaz in exchange of that marriage my sister was given in Nikah to said Rab Nawaz and at the time of Nikah of Mst. Shamim she was minor.
Murid Hussain, my brother co-accused, due -to some domestic differences divorced said Mst.
Sughran and my sister Mst. Shamim filed a suit in the Court of Judge, Family Court, Jampur for jactitation of marriage and at the time of this alleged occurrence, the said family suit was pending in the above said Court and ultimately, it was decreed in favour of my sister Mst. Shamim. Haji Muhammad P.W. Married to a daughter of said Muhammad Nawaz so the complainant party of this case wanted to put a pressure on us to compromise in the above said abduction case of my sister. The case was decided by the learned Additional Sessions Judge, Jampur and the accused in that case were convicted. Moreover, on 10-10-1993, four Nikahs were performed between the parties. The detail of Nikahs is as under:--
(i) Mst. Sughran daughter of Muhammad Nawaz married to Murid Hussain my co-accused.
(ii) Mst. Zariita daughter of said Muhammad Nawaz married to me and in exchange of the above said two marriages.
(iii) Nikah of Mst. Shamim was performed with Rab Nawaz son of Muhammad Nawaz.
(iv) My another sister Mst. Kalsoom was given in Nikah of Sadiq Hussain son of Muhammad Nawaz.
' I am quite an innocent person and has been falsely involved in this case."
11. Talib Hussain appellant adopted the version of his co-accused Murid Hussain.
12. Learned counsel for the appellants has contended that the prosecution has miserably failed to prove its case beyond the shadow of doubt, that there was no immediate motive for the murder of the deceased; that the prosecution evidence is not trustworthy and one tainted piece of evidence cannot corroborate the other tainted piece of evidence; that extra-judicial confession has been disbelieved by the learned trial Court; that the medical evidence has failed to render any assistance to the prosecution; that the prosecution evidence is mainly based upon statements of P.W.6 and P.W.7 who cannot be termed as natural witnesses and their evidence is full of contradictions and improvements; that the prosecution has tried to improve its case step by step; that Hazoor Bakhsh, father of Mst. Jamila deceased was given up by the prosecution as having been won-over by the defence that itself shows that the prosecution case is totally false and frivolous. Lastly he has contended that case being full of doubts, the appellants are entitled to be acquitted of the charge.
13. On the other hand the learned counsel for the complainant has supported the impugned judgment. He has contended that the prosecution has proved its case beyond any shadow of doubt. As far as his revision is concerned he has contended that case being of partial compromise the appellant was illegally convicted and sentenced under section 311, P.P.C. In support of his contention he has placed reliance upon Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and another 1997 SCM R 1307 and Bashir Ahmad v. State 2004 SCM R 236. He has further contended that though the evidence of extra-judicial confession has been disbelieved by the trial Court yet there was sufficient evidence on the record to maintain the conviction of the appellant.
He adds that conviction can be maintained even on the basis of a solitary statement of the witness if it is corroborated by other evidence coming from unimpeachable source. In this regard he has relied upon Muhammad Shafique v. State 2004 PCr.LJ 1706, Nazir Ahmad v. State 2006 PCr.LJ 1684 and Dildar Hussain v. Muhammad Afzal alias Chhala PLD 2004 SC 633.
14. After hearing the parties and going through the record very minutely with the able assistance of the learned counsel for the parties I have observed that originally the prosecution did not come forward with the allegation of murder of Mst. Jamila Bibi and initially a Rapt was lodged at 10-10 a.m. On 9-8-1997 with Police Station Muhammad Pur at the instance of Hazoor Bakhsh, father of the deceased with the assertion that his daughter namely Jamila Bibi reportedly received injuries being run over by a cow, due to which doctor namely Abdul Aziz injected some medicine but Jamila Bibi could not survive and died at 12-00 a.m. On 9-8-1997. According to Hazoor Bakhsh he had received the said information through Abdul Hameed who is the son of the deceased. He went on narrating that at the time of funeral proceedings somebody advised him to intimate the police regarding the unnatural death of Jamila Bibi. He further narrated to the police that there was no doubt regarding the accidental death of the deceased. On the basis of said Rapt, the autopsy on the corpse of Jamila Bibi was conducted. Prosecution story took a turn on 7-10-1997, as Allah Ditta, brother of the deceased got the case registered on the basis of application Exh.P.G. Against both the appellants as well as their father Abdul Majeed with the allegation that both the appellants had administered some sort of poison to the deceased who was their step-mother. The basis of said allegation was stated to be the alleged extra-judicial confession of the appellants made before Sardar son of Nabi Bakhsh and Faiz Muhammad alias Saidi P.W.8 and P.W.9 respectively. The motive of the occurrence was stated to be that Mst. Jamila Bibi, step-mother of the appellants used to quarrel with Sehat Mai, their real mother. It would be pertinent to point out here that in the said application (Exh.P.G.) no direct evidence of administration of poison by the appellants had been mentioned.
15. During the trial prosecution relied upon medical evidence, motive, evidence of extra-judicial confession and ocular testimony provided by P.W.6 and P.W.7. As far as the motive of the occurrence is concerned it has been observed that no immediate cause of murder was mentioned by the complainant in his application Exh.P.G. In said application he simply stated that his sister used to quarrel with Mst. Sehat Mai i.e. The first wife of her husband and the appellants being her step-sons used to hate her. Therefore, no implicit reliance can be placed upon the evidence regarding motive.
17. As far as the evidence of extra-judicial confession which was provided by the prosecution through Sardar P.W.8 and Faiz Muhammad P.W.9 is concerned, it is observed that though they were named in the F.I.R. But they were disbelieved by the learned trial Court and after going through the findings of the learned trial Court I have come to the conclusion that the evidence of said witnesses was rightly disbelieved by the learned trial Court. The prosecution had further tried to improve its case by relying upon the evidence of Abdul Ghafoor P.W.12 and Muhammad Afzal P.W.13 who also claimed that the appellants had made extra-judicial confession before them. Again their evidence was justly discredited by the learned trial Court. After discarding said evidence, the learned trial Court proceeded to convict the appellants on the basis of ocular evidence and medical evidence.
18. Ocular evidence has been furnished through Mst. Razia alias Zarina P.W.6 and Mst. Shamim P.W.7. Their evidence cannot be believed for more than one reasons. Firstly their evidence does not appeal to reason inasmuch as had they been the eye-witnesses of administration of poison at the hands of the appellants they would have certainly and immediately brought said fact to the notice of the complainant who is brother of the deceased or Allah Ditta, father of the deceased, who had lodged the Rapt at 10-10 a.m. On the day of occurrence. Said Rapat was lodged after the delay of more than ten hours of the death of the deceased, yet till then he had not been told about said material fact; secondly in the F.I.R. Which was lodged with a delay of about a month of the occurrence no reference had been made regarding the occurrence having been seen by the said witnesses. It appears that the Investigating Officer manipulated said evidence afterwards with the connivance of the complainant. Though it was shown that the statements of said witnesses under section 161, Cr.P.C. Were recorded on the day of occurrence yet the F.I.R. Did not contain their names as eyewitnesses.
19. Mst. Razia, P.W.6 and Mst. Shamim P.W.7 being not the inmates of the house where the occurrence allegedly took place, cannot be termed as natural witnesses and their statements further show that they were chance witnesses. Natural witness of the occurrence could be Abdul Hamid, the real son of the deceased who had immediately informed his grandfather regarding the accidental death of his mother. Prosecution had withheld said witness. Both the alleged eye- witnesses claimed to have seen the occurrence at 1-1/2 Peharwela which also does not fit into the scheme of the things. Even otherwise their evidence is quite unnatural and contradictory to each other. Mst. Razia P.W.6 who is real cousin of the deceased deposed in the cross-examination that after taking the tablets deceased could not talk and became unconscious. During the cross- examination firstly she claimed that after a short while of said occurrence she left the place of occurrence but thereafter she took a somersault, claiming that she was present in the house of Mst. Jamila deceased who had died in her presence. Had she been present at the time of occurrence she would have certainly narrated the story to the brother and father of the deceased who in turn would have straightaway lodged the F.I.R. Against the appellants. The other witness namely Mst. Shamim P.W.7 is also closely related to the deceased has contradicted the other witnesses on material aspects. During cross-examination she admitted that she did not apprise of the family members of the house regarding administration of poison to the deceased. She further deposed that she had heard, regaiding the death of the deceased after half an hour of the occurrence.
20. It is true that conviction can be based upon the evidence of solitary witness. But it is equally true that Court has to see intrinsic value of the statement of each eye-witness and conviction can only be passed if the eye-witnesses are found to be trustworthy and natural but in the present case both the eye-witnesses are not believable and it appears that their evidence has been created by the Investigating Officer with the collaboration of the complainant. There is another important reason to disbelieve the ocular portion i.e. The father of the deceased who had originally got the "Rapt" registered with the police station was not produced by the prosecution rather he was dropped as having been won-over by the defence. Being real father of the deceased the allegation of being won-over by the accused does not appeal to reasons rather it shows that he was not 'ready to give false evidence against the accused/ appellants.
21. The evidence of the complainant, who also appeared as P.W. Cannot be relied upon as admittedly he is not the eye-witness, furthermore one tainted evidence cannot be corroborate another piece of evidence. There is yet another factor to disbelieve the prosecution i.e. That neither any recovery of incriminating material was effected at the instance of the appellants nor it was proved by the prosecution as to where from the poison was procured or purchased by the appellants. The medical evidence provided by Lady Doctor Mst. Zarina P.W.2 and the reports of Chemical Examiner are also not so much helpful to the prosecution inasmuch as according to the report of Chemical Examiner, poison belonged to the tranquillizer group but the tranquillizer group has not been specified. Moreover, according to the doctor the probable time between injury and death was 1 to 2 hours while the eye-witnesses have claimed that the deceased died just after the administration of poisonous pills/tablets by the appellants. During the cross-examination the lady doctor admitted that taking in of excessive dose of The medicine or expired medicine could also be probable cause of the death of the deceased. Keeping this admission into consideration benefit of doubt could easily be given to the accused/appellants specially when according to the original Rapt some medicines were injected by a doctor to the deceased.
22. The epitome of the discussion made above leads me to obvious conclusion that the prosecution' has remained totally unsuccessful to prove -its case against the appellants. They are entitled to be given the benefit of doubt, hence conviction and sentence awarded to the appellants is not sustainable and consequently both the appellants are acquitted of the charge. They are also on bail, their bail bonds stand discharged.
23. In view of findings recorded in the appeal filed by the appellants there is no point in admitting the Criminal Revision No,353 of 2003 filed by the complainant, to regular hearing at this stage and consequently same is dismissed.