' RUSTAM ALI MALIK, J.---Through this judgment we intend to dispose of Criminal Appeal No. 409 of 2000 as well as Murder Reference No.117 of 2000, both of which have arisen out of the judgment, dated 7-3-2000 passed by the learned Addl. Sessions Judge, Lahore, whereby the appellant Mst.
Rubina @ Teena was convicted under section 302(b), P.P.C. And awarded death sentence. Vide the same judgment, Mst. Shahida Parveen, the co-accused of the appellant was acquitted of the charge under section 302/34, P.P.C., while another co-accused of the appellant namely Shafiq @ Teendi was convicted under section 201, P.P.C. And sentenced to R.I. For two years and a fine of Rs.5,000. It was directed that in case of non-payment of fine, he will undergo S.-I. For six months.
2. The case against the accused is based on F.I.R. No. 498/98 registered on 13-9-1998 in Police Station Tibbi City, Lahore. The formal F:I.R. Exh. PA/1 was registered on the statement Exh.PA of Muhammad Shafiq complainant/P.W.1 wherein he had stated that he was working with Ilyas Jewellers in Main Bazar, Mozang and that he and his elder brother Muhammad Rafiq who was married and had four children were living together. For the last 5/6 years, his brother Rafiq had been visiting Mst. Rubina @ Teena, resident of House No. 2183/A Fort Road, Shahi Mohallah, Lahore.
On the day of occurrence i.e. On 13-9-1998 around 9-30 a.m. They along with his paternal cousin Muhammad Shafiq, Muhammad Fayyaz and Muhammad Jafar were sitting in the Bazar when there was a phone call received at the shop of Fayyaz P.W. And which was attended to by Muhammad Rafique, the brother of the complainant. Rafique told them that it was a telephone call from Mst. Rubina @ Teena. Then he i.e. Rafique borrowed motorcycle No.LOY-2178 from Naveed Afzaal and proceeded to the house of Mst. Rubina @ Teena in Shahi Mohallah. About 45 minutes later, there was again a telephone call received at the shop of Muhammad Fayyaz and by which they were informed that Mst. Rubina @ Teena, the wife of Muhammad Rafique had committed suicide. On receiving the said information, the complainant along with Muhammad Fayyaz, Naveed Afzaal and Muhammad Jafar reached the House No.2183/A, Fort Road, Shahi Mohallah, Lahore.
When they climbed to the upper storey of the house, there was lying inside the residential room, the dead-body of Muhammad Rafique on a bed, smeared in blood. A.30 bore loaded pistol belonging to his brother was also lying near the dead-body. The complainant suspected that Mst. Rubina @ Teena in connivance with Mst. Shahida Parveen, the land lady of the house had committed Qatl-i- amd of his brother.
3. In the F.I.R. It was also stated that Muhammad Rafique deceased, the brother of the complainant, used to visit the house of Mst. Rubina @ Teena and Mst. Shahida Parveen had threatened him a number of times to get him murdered. It was thus requested by him through his application submitted to the police that a case be registered against the accused.
4. As a result of investigation, the three accused namely Mst. Rubina @ Teena, Mst. Shahida Parveen and Shafiq @ Teendi were challaned in this case. All three of them were formally charged by the learned Addl. Sessions Judge, Lahore on 29-5-1999 and to which they pleaded not guilty.
While the charge against Mst. Rubina @ Teena and Mst. Shahida Parveen was under section 302/34, P.P.C. Muhammad Shafiq was charged under section 201, P.P.C. All the three accused pleaded not guilty and the prosecution was asked to produce its evidence.
5. In this case as many as 14 P.Ws. Were examined by the prosecution. Of them, P.W.14 is Abdul Shakoor, S.-I. Who on 13-9-1998 was posted at Police Station Tibbi City and on the application Exh.PA of Muhammad. Shafiq complainant had recorded formal F.I.R. Exh.PA/1 and had thereafter proceeded to the place of occurrence and had taken formal steps in connection with the investigation of the case such as collection of blood with the help of cotton swabs, taking into possession the crime empty P3 and pistol .30 bore P4, preparation of inquest report and injury statement, recording of statements of P.Ws. Under section 161, Cr.P.C., dispatching the dead-body to the mortuary for postmortem examination and getting prepared the site plans Exh. PK and Exh.PK/1 from the Draftsman. He conducted raids for the arrest of the accused persons. On 22-9- 1998, he was transferred from the Police Mation.
6. P.W.10 Muhammad Khurram Riaz, Inspector was posted as Inspector/S.H.O. At Police Station Tibbi City when he took over the investigation on this case. On 22-10-1998 he arrested Mst. Rubina Teena and Muhammad Shafiq accused in this case and directed Irshad Baig, S.-I. To get the statement of Muhammad Shafiq recorded under section 164, Cr.P.C. After investigation, he challaned the accused in this case.
7. P.W.6 is Dr. Abdul Hameed, Demonstrator Forensic Medicine Department King Edward Medical College Lahore, who had conducted the postmortem examination on the dead-body of the deceased on 14-9-1998 at 10-00 a.m. He had noted two injuries on the dead-body of the deceased as under:-- (1-A)A lacerated wound measuring 1 x 0.9 c.m. With inverted margins, blackening, tattooing along with burning of soft tissue and stinging of hair was present. The wound was present 1 c.m. Left to the mid-line of upper lip.
(1-B)A lacerated wound with everted margins 1 x 1 c.m. Was present 1 c.m. Right to the mid-line of neck and 9.5 c.m. Below occipital protuberance and 4 c.m. Above nape of neck.
' In his opinion all the injuries on the dead-body were ante-mortem and caused by fire-arm from a close length. In his opinion, the cause of death in this case was damage to spinal cord under injury No.1, leading to coma and death; and that the said injury was sufficient to cause death in ordinary course of nature. According to him, the probable time that elapsed between injuries and death was within a few minutes and between death and postmortem examination was from j2 to 36 hours.
Copy of the postmortem report is Exh. PC while Exh.PC/1 and Exh.PC/2 are the pictorial diagrams of the injuries.
8. In this case, P.W.1 Muhammad Shafiq, complainant and brother of the deceased deposed on the same lines as indicated in the F.I.R. P.W.2 Fayyaz Ali, P.W.3 Muhammad Fayyaz and P.W.4 Naveed Afzaal also deposed to the same effect, supporting the statement of P.W.1 regarding the occurrence.
9. P.W.13 is Muhammad Arshad, Officer on Special Duty, Civil Secretariat, who at the relevant time was posted as Magistrate 1st Class and on 22-10-1998 on the basis of the application Exh. P/L had recorded the statement under section 164, Cr.P.C. Of Shafiq @ Teendi accused which is Exh.P.M.
10. On 9-2-2000, the learned prosecutor tendered in evidence the report of chemical examiner Exh.
PQ, report of Serologist Exh.PQ/1 and report of Forensic Science Laboratory Exh.P.R. And closed the case for the prosecution.
11. On the conclusion of the prosecution evidence, the statements of the accused were recorded under section 161, Cr.P.C. In her statement under section 342, Cr.P.C. Mst. Rubina @ Teena accused denied all the incriminating circumstances. In answer to the question as to why this case against her and why the P.Ws. Had deposed against her, she replied that all the P.Ws. Were related to the deceased and the complainant is the real brother of the deceased and as such all the witnesses were interested witnesses and that the case was registered against her because of her intimacy with the deceased which was disliked by his wife, brother and other relatives. None of the accused however made statement on oath under section 340(2), Cr.P.C., nor any of them produced any evidence in defence.
12. On the conclusion of trial, the learned trial Court vide the impugned judgment convicted and sentenced Mst. Rubina @ Teena accused as aforesaid under section 302(b), P.P.C. And sentenced her to death while Muhammad Shafiq was convicted under section 201, P.P.C. And awarded two years R.I. And a fine of Rs.5,000. Their third co-accused namely Shahida Parveen was, however, acquitted of the charge under section 302/34, P.P.C. Aggrieved of her conviction and sentence as aforesaid, Mst. Rubina @ Teena has filed this appeal (Criminal Appeal No. 409 of 2000). The learned trial Court has also sent a reference (Murder Reference No.117/2000) for confirmation of the sentence of death awarded to Mst. Rubina @ Teena by the learned trial Court.
13. The learned counsel for the appellant has argued that the impugned judgment is against law and evidence on record and while convicting the appellant, the learned trial Court had not applied its judicial mind to the facts of the case; that it was in fact a case of suicide and not of Qatl-i-Amd; that statements of prosecution witnesses were self-contradictory, discrepant and not worthy of any credence; that the prosecution had miserably failed to bring home guilt to the accused and had failed to prove its case against Mst. Rubina @ Teena accused/ appellant beyond reasonable doubt; that the impugned judgment is based on merely presumptions and conjectures and the capital punishment was awarded to the appellant without there being any incriminating evidence on record and hence the conviction recorded by the learned trial Court as well as the sentence awarded to the appellant is liable to be set aside.
14. On the other hand, the learned counsel for the State has supported the judgment of the learned trial Court and has argued that sufficient evidence has been furnished by the P. Ws. 1 to 4 to lead to the conclusion that it was Mst. Rubina @ Teena who had committed Qatl-iAmd of the deceased; that the medical evidence fully supports the conclusion that it was a case of Qatl-i-Amd and not of suicide; that the statement under section 164, Cr.P.C. Which is Exh. P.M. And was recorded by the Magistrate i.e. By P.W.13, fully establishes the prosecution story and the aforesaid evidence is further corroborated by the report of Forensic Science Laboratory Exh.PR and the reports of Chemical Examiner and Serologist which are Exh.P.Q. And Exh.PQ/1 respectively. He has requested that the judgment of the learned trial Court be upheld and sentence of death awarded to Mst. Rubina @ Teena appellant by the learned trial Court be confirmed.
15. We have carefully considered the arguments from both sides and have also perused the record.
16. Admittedly, there is no eye-witness account of the occurrence in this case. P.W.1 Muhammad Shafiq complainant does not claim to have witnessed the occurrence. Same is the position of P.W.2, P.W.3 and P.W.4. On reaching the place of occurrence, the said prosecution witnesses had only seen the dead-body of the deceased lying on the bed, smeared in blood. P.W.1 in the course of the cross-examination denied a suggestion that Mst. Rubina @ Teena was the wife of his deceased brother Muhammad Rafique had claimed that she was in fact his "keep", without any Nikah. He stated that he was not on visiting terms with Mst. Rubina @ Teena, nor she had ever visited him.
During the course of cross-examination, he also stated that his brother was carrying arms with him while leaving for the house of Mst. Rubina @ Teena as because of having enemies, he used to carry arms with him. He admitted in the course of cross-examination that occurrence had not taken place in his presence. As mentioned above, the same is the position of P.W.2 Fayyaz Ali, P.W.3 Muhammad Fayyaz and P.W.4 Naveed Afzaal, none of whom claims to have witnessed the occurrence. P.W.13 is the Magistrate who had recorded the statement Exh.P.M. Of Shafiq @ Teendi under section 164, Cr.P.C. However, even in the said statement Exh.P.M. Shafiq @ Teendi accused does not claim to have witnessed the occurrence. Therein, he only claims that at the instance of Mst. Rubina @ Teena, he had put the pistol in the hands of the deceased after cleansing the same with a piece of cloth and that he had done so only in order to change the nature of evidence in this case. He does not claim in the said statement that he had seen Mst. Rubina @ 'Teena firing at the deceased. In his statement under section 342, Cr.P.C., the said accused namely Shafiq @ Teendi in answer to the question as to why this case against him and why the P.Ws. Had deposed against him replied that as he had put the pistol in the hands of Muhammad Rafique deceased on the direction of Mst. Rubina @ Teena, Mst. Shahida Parveen had later on pointed out his name and he was got arrested by. Mst. Rubina @ Teena and he had got recorded his statement before the Magistrate, therefore this case was registered against him as well and that no P.Ws. Had deposed against him. In answer to the question No.6, he replied as below:-- "It is incorrect that in order to exonerate Mst. Rubina @ Teena in this case I on her instruction removed her finger prints from the pistol. In fact about four days prior to the occurrence Mst.
Rubina the accused, in my presence, told Mst. Shahida the other co-accused that Rafiq, deceased in this case gave her beating and that she would kill him , upon which Mst. Shahida accused directed her to do so. On the day of occurrence while Muhammad Rafiq deceased in this case had come to Rubina, she asked me to fetch curd and when I returned with `Lassi' and entered the room I saw Mst. Shahida standing in front of me while Mst. Rubina accused was sitting on the upper legs of Rafiq with a pistol in her hand and in my presence she shot at him. Thereafter, she directed me, after removing her finger prints on the said pistol herself to put the said pistol in the hands of deceased Muhammad Rafiq failing which she would kill me as well and to remain quiet. I do not know what happened to me at that time. However, I put the pistol in the hands of the deceased."
' The above reply of Shafiq @ Teendi accused is clearly in conflict with his statement Exh.PM which was recorded under section 164, Cr.P.C. And wherein he had not claimed that he had seen Mst.
Rubina @ Teena accused sitting on the legs of Rafique with a pistol in her hand or that in his presence she had shot him. In any way, the statement of an accused person under section 342, Cr.P.C. Can be hardly used to convict his co-accused. In cross-examination, the Doctor i.e. P.W.6 who had conducted the postmortem examination on the dead-body of the deceased stated that the range of fire in this case was within 6 inches and he cannot comment regarding the suicidal nature (of the occurrence). However, he stated that the possibility of suicide could not be ruled out.
17. Admittedly, in his case there is no eye-witness account of the occurrence. There is no evidence in the form of extra-judicial confession and no evidence of law seen. There is only the evidence regarding the receipt of a telephone call and which also does not appear to be a direct evidence.
Even though in the course of investigation, the appellant might have been found liable for the occurrence, yet the finding of the Investigating Officer cannot be made the basis of conviction if during the trial, sufficient evidence is not produced by the prosecution to connect the accused with the offence. In this case, as mentioned above, there is hardly any convincing evidence on record to connect Mst. Rubina @ Teena accused with the offence. The mere fact that the dead-body of the deceased was found from her house is not enough to connect her with the offence as there is no denying the fact that she was having close intimacy with the deceased and was carrying on with him, although there does not appear to be any evidence that she was actually his wife. But admittedly, the deceased had been visiting her for the last 5/6 years and even according to the prosecution story, on the day of occurrence, he had gone to her house after receiving telephone call from her. The conviction on capital award cannot be recorded merely on the basis of presumptions. The prosecution evidence in this case is replete with inconsistencies and contradictions and is not worthy of reliance.
18. In view of what has been stated above, the conviction recorded against the appellant and the sentence awarded to her by the learned trial Court vide the impugned judgment cannot be legally sustained. Hence, this appeal is accepted and the conviction recorded against the appellant and also the sentence awarded to her by the learned trial Court vide the impugned judgment is set aside by extending to her the benefit of doubt. In consequence, the appellant is acquitted of the charge. If not required in connection with any other criminal case, she be set at liberty forthwith.
19. Sentence of death awarded to Mst. Rubina @ Teena by the learned trial Court is NOT CONFIRMED.
20. Murder Reference is answered in the NEGATIVE. 'n .