' IJAZ AHMAD CHAUDHRY, J.--- This Criminal Appeal No,64-J of 2004 has been filed by Mst. Bushra Bibi from jail against the judgment, dated 25-3-2004 passed by the learned Sessions Judge, Gujrat, whereby she had been convicted under section 308, P.P.C. For committing the willful murder of Muhammad Rafique (her husband) and sentenced to pay Diyat amount of Rs,2,70,000 to the legal heirs of the deceased and in addition to the punishment of Diyat she was also sentenced to imprisonment for 14 years' R.I. The benefit of section 382-B, Cr.P.C. Has also been given to the appellant-convict.
2. The occurrence in the present case according to the prosecution had taken place on 9-6-2003 at 12-30 night at Mohallah Qasba Lalamusa, within the area of Police Station City Lalamusa, District Gujrat and the statement (Exh.P.C./1) of the complainant Muhammad Ashiq (P.W.6) was recorded under section 154, Cr.P.C. By Muhammad Aslam S.-I. (P.W.9) on the same day on the basis of which formal F.I.R. (Exh.P.C.) was drafted at the Police Station Lalamusa by Basharat Ahmad, A.S.-I. (P.W.3) at 3-10 p.m. On the same day. -3. The brief facts as narrated in the F.I.R. (Exh.P.C.) by the complainant Muhammad Ashiq (P.W.6) real brother of the deceased are that he along with his brother Muhammad Rafique (deceased) used to deal in the business of sweets at Gujjar Khan. On 8-6-2003, the complainant along with his brother (deceased) came from Gujjar Khan to his house at Lalamusa and slept there. On the same night at 12-30 all of a sudden on hearing shrieks, he woke up and went to the room of his deceased brother, who was vomiting and on the query of the complainant while showing severe pain in his abdomen told the complainant that his wife Mst. Bushra Bibi (appellant) had administered him poisoned water in a glass and after drinking the same, his condition became precarious. Then the complainant summoned his nephew Azhar Iqbal (P.W.7) who was residing nearby and on hearing his noise Zafar Iqbal (given up P.W.) had also attracted there. In their presence, Muhammad Rafique (deceased) uttered that his wife Mst. Bushra Bibi (appellant) had administered poisoned water to him in a glass. According to the complainant then the deceased in such a condition was brought in a private Hospital at Lalamusa, where at 5-00 a.m. He breathed his last. The complainant further claimed that Mst. Khalida Bibi co-accused had abetted the appellant to commit this occurrence.
4. The motive behind the occurrence was alleged that both the deceased and the appellant used to quarrel with each other.
5. After recording the statement of Muhammad Ashiq, complainant (P.W.6), Muhammad Aslam, S.- I./Investigating Officer (P.W.9) went to the spot, inspected the dead body of the deceased prepared the inquest report (Exh. P. F.) injury statement (Exh.P.C.) and thereafter submitted an application (Exh.P.H.) for conducting the post-mortem examination of the deceased. He also deputed Zaheer, Head Constable No,1299 and Muazam Ali, Constable No,180 for getting the post-mortem examination of the deceased conducted in the T.H.Q. Hospital Kharian. Thereafter he prepared rough site plan (Exh.P.J.) of the place of occurrence and recorded the statements of witnesses under section 161, Cr.P.C. After the post-mortem examination of the deceased, he received the report (Exh.P.E.), last-worn clothes and sealed phial along with dead body, and took the same into possession vide recovery memo. Exh.P.B. On 11-6-2003 Investigating Officer arrested Mst. Bushra Bibi (appellant) and Mst. Khalida Parveen (acquitted accused), got their physical remand and after conducting the investigation, sent them in the judicial lock-up.
6. After the completion of the investigation, report under section 173, Cr.P.C. Was submitted in the Court. Then copies of the documents required under section 265, Cr.P.C. Were supplied to the appellant and the co-accused, the charge was framed which was denied by them and they claimed to be tried. The prosecution in order to prove its case produced as many as nine witnesses. The medical evidence had been furnished by Dr. Naveed Iqbal, Medical Officer, T.H.Q.
Hospital Kharian (PW.6), and the evidence of dying declaration had been provided by Muhammad Ashiq, complainant (P.W.6) and Azhar Iqbal (PW.7); while the investigation had been conducted by Muhammad Aslam, S.-I. (P.W.9). However, the remaining witnesses are of formal nature and need not to be discussed here.
7. After the close of the prosecution evidence, the appellant along with the acquitted accused in their statements recorded under section 342, Cr.P.C. Denied the allegations on facts and professed their innocence. To a question that "why this case against you and why the P.Ws. Have deposed against you?" Mst. Bushra Bibi (appellant) made the reply, which is reproduced as under:--- "I was married with the deceased in 1984 and out of wedlock one female child namely Maria Tabassum and one male child-namely Temoor Rafique have been born. Maria Tabassam is aged about 19 years and Temoor Rafique is aged about 18 years. We were living cordially as husband and wife. The P.Ws. Bore a grudge against myself and my husband. They want to expel us from our house. My deceased husband used to live with the complainant at Gujjar Khan and he used to come to house seldom. The complainant and P.Ws. After registration of the case have expelled my daughter and son from our house. They are now residing with their maternal-uncle i.e. My brother.
Our house has been sold by the complainant and P.Ws. It was ancestral property and it had fallen into the shares of my, deceased husband privately but the complainant took undue advantage of the death of the deceased and got lodged a false case against me in order to usurp the property."
' The appellant did not opt to make statement under section 340(2), Cr.P.C. And also denied to produce any evidence in her defence. The learned trial Court after hearing the arguments of both the parties had passed the impugned judgment of conviction and sentence, which is being assailed through the instant appeal.
8. The learned counsel for the appellant contends that it was a case of no ocular account and both of the complainant (P.W.6) and his nephew Azhar Iqbal (P.W.7) were not truthful and deposed against the appellant with mala fide intention only to usurp the property left by the deceased husband of the appellant; that at the most both of them were chance witnesses, but they failed to give any plausible explanation of their presence at the spot; that nothing was recovered from the possession of the appellant and the prosecution has failed to produce sufficient evidence to connect the appellant with the alleged crime beyond any shadow of doubt.
9. On the other hand, the learned State Counsel has opposed this appeal on the ground that both the P.Ws. Had no enmity with the appellant to falsely implicate the appellant in the murder case of her husband and the medical evidence fully supported the version of the P.Ws. That the death of the deceased had occurred due to administering poison.
10. I have heard the arguments advanced by learned counsel for the parties and perused the record with due care and caution.
11. The prosecution case rested upon the evidence of dying declaration only furnished by Muhammad Ashiq (P.W.6) brother of the deceased and Azhar Iqbal (P.W.7) their nephew. No doubt both the said P.Ws. Are closely related inter se and with the deceased, but for this reason alone they cannot be termed as interested witnesses unless they are proved otherwise. Admittedly, both the ,P.Ws. Were not residents of the house where the occurrence had allegedly taken place. As such at the most they were chance witnesses and required to give plausible explanation for their presence at the spot during odd hours of night. According to Muhammad Ashiq, complainant (P.W.6) real brother of the deceased, on the night of occurrence, he had slept in the house of the deceased. At about 12-30 night from a separate room after hearing shrieks of the deceased he rushed towards the room of the deceased, where he saw him vomiting, who on asking of the complainant, told that he was feeling severe pain in his stomach and that his wife Mst. Bushra Bibi (appellant) had administered poison to him in a glass of water. Then the complainant summoned Azhar Iqbal (P.W.7) and Zafar Iqbal (given up P.W.), who came there immediately. The deceased reiterated the same story to them. Admittedly, the complainant and the deceased were real brothers and dealing in business of sweets jointly at Gujjar Khan, situate at a distance of 70/60 miles from the place of incident i.e. Lalamusa. It has been admitted by the complainant that he and the deceased used to live at Gujjar Khan jointly and visited their houses at Lalamusa after 20/25 days in routine. The complainant was a married person having three daughters and his elder daughter was about 5 years of age. The mother of the complainant was also residing with him. On the other hand the appellant and her two children (son and daughter both grown up) were residing in the house along with the deceased. It is borne out that no other male member was residing in the house of the complainant, which was situated at a distance of 14 houses from the house of the deceased in a different street. So the story narrated by the complainant, that he had slept in the house of the deceased does not seem plausible. It is not acceptable that the complainant would have preferred to sleep in the house of the deceased instead of going to his own house, which was at a short distance and there was no male member. So the complainant failed to show any sufficient reason for being present at the spot during the midnight. When the presence of P.W.6 could not be established at the spot. The story narrated by the complainant that he had also summoned Azhar Iqbal (PW.7) who also reached at the spot and heard dying declaration of the deceased has fallen down automatically.
12. To show their presence at the spot both P.Ws.6 and 7 further claimed that the deceased in such a condition had been taken to the private hospital where he died in the morning at 5-00 a.m. It is admitted fact that during the whole investigation the doctor who had allegedly treated the deceased was not interrogated by the Investigating Officer nor he was produced during the trial.
Even the name of the said doctor was not disclosed by both the P.Ws.6 and 7 during the whole evidence. It is strange that it was a police case and how a private doctor could have taken the risk to handle such a case. It is also not understandable that why the deceased had not been taken to a Government hospital, where he could be medically examined and the same would provide support to the version of P.Ws.6. And 7 that they had removed the deceased from the spot to the hospital after having been administered poison when he was alive and they were capable of hearing his dying declaration. Even the Investigating Officer had not taken into possession any glass through which the poison was administered to the deceased and the vomiting material was also not collected from the spot for analysis. There is no evidence available on the record to give support to the presence of the P.Ws.6 and 7 at the spot.
13. It is notable that the deceased had been married with appellant in the year 1984 and two children namely Marriyam daughter aged about 17/18 years and Temoor aged about 15/16 years were born out of their wedlock who both were residing in the same house. If such an occurrence had taken place, they would have also heard shriek of their father and seen their mother while administering poison to their father.
' They would be natural witnesses, but they had not been even joined in the investigation by Investigating Officer. The complainant (P.W.6) also failed to disclose that why he had not informed about the present occurrence to the children of the deceased, who were residing in the same house and why he had preferred to bring his another nephew, who was residing at a considerable distance from the place of occurrence in a D house adjacent to the house of the complainant, but he had not informed his mother and that of the deceased to inform that some what working had happened with his deceased son. It appears that the entire story was concocted later on. This view further finds support from the factum that both the P.Ws. Had allegedly come to know about the occurrence about 12-30 midnight and the deceased also died at 5-00 a.m., but the matter was reported to the police at 3-00 p.m. Without any explanation. Such a delay in the registration of the F.I.R. Leads to an inference that it was an unseen occurrence and the P.Ws. Were summoned later on and they were introduced as such being close relatives of the deceased.
14. The motive behind this occurrence was alleged that both the appellant and deceased were on quarrelling terms. The prosecution had failed to produce any direct evidence to prove the motive.##TSE# Only P.W.6 deposed about the said motive, but admittedly he was not residing with the deceased in his house and was residing in a separate house with his family. P.W.6 had not given the stance, when both the deceased and appellant had quarreled with each other and their relations had become so worst that the appellant would have preferred to kill her husband, who was father of her two young children after 19 years of their wedded life. It is also strange that if both the appellant and the deceased were on strained relations, how the former had succeeded in administering poison to him through water in a glass and she had chosen the time when real brother of the deceased was also sleeping in the same house.
16. Now I come to the defence plea that to usurp the house left by the deceased the appellant had been implicated in the present case. Although no evidence has been produced to substantiate the said plea, but I have observed that it has come in the prosecution evidence that after the death of their father both the children are residing with their maternal-uncle. As such it cannot be said that the defence plea was without any basis, but the same is.Bqrne out from the record.
' For the foregoing discussion, I am satisfied that the prosecution had miserably failed to bring home guilt to appellant beyond any shadow of doubt. Hence this criminal appeal is accepted the impugned judgment of conviction and sentence is set aside and Mst. Bushra Bibi (appellant) is acquitted of the charge of Qatl-i-Amd of her husband Muhammad Rafique (deceased), The appellant shall be discharged from the liability of surety bonds.