' ASIF SAEED KHAN KHOSA, J.~ Mst. Tasleem Bibi appellant and her husband namely Mujeeb-ur- Rehman appellant were convicted for an offence under sections 302(b)/34, P.P.C. Vide judgment dated 21-1-2002 rendered by the learned Additional Sessions Judge, Faisalabad and were sentenced to imprisonment for life each and to pay a sum of Rs,50,000 each to the heirs of Akhtar Saleem deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months each. The benefit under section 382-B, Cr.P.C. Was extended to the appellants. Through the same judgment the learned trial Court had acquitted the appellants co-accused namely Mehmood Ahmad and Mehboob-ur- Rehman. Mst.
Tasleem Bibi appellant has challenged her conviction and sentence before this Court through Criminal Appeal No,90-J of 2002 whereas Mujeeb-ur-Rehman appellant has preferred Criminal Appeal No,91-J of 2002 in that regard. I have heard both these appeals together and I propose to decide the same together through the present consolidated judgment.
2. According to the prosecution's allegations the present appellants had committed the murder of Akhtar Saleem deceased at 2-00 a.m. During the night between 3/4-9-2000 in a house taken on rent by Akhtar Saleem deceased in Chak No, 102, Burj Mandi, District Faisalabad and in respect of the said murder F.I.R. No,648 was lodged by the deceased's brother namely Muhammad Arshid complainant at Police Station Chak Jhumra, District Faisalabad at 7-15 a.m. On 4-9-2000 for an offence under section 302, P.P.C. Read with section 34, P.P.C. According to the F.I.R. Mst. Tasleem Bibi appeallant had held the legs of Akhtar Saleem deceased and Mujeeb-ur-Rehman appellant had put a cloth on the mouth and nose of the deceased and had pressed the same with his hands ensuring loss of breath by the deceased and his resultant death. The motive set up in the F.I.R. Was that the appellants wanted to usurp some money belonging to the deceased. The alleged occurrence had statedly been seen by Muhammad Arshid complainant and his brother namely Muhammad Akram. After completion of investigation a challan was submitted before the learned trial Court against the appellants and their two coaccused and upon completion of the trial the learned trial Court acquitted the appellants co-accused, but after finding the prosecution's case against the appellants to have been proved beyond reasonable doubt, convicted and sentenced the appellants as mentioned and detailed above. Hence, the present appeals before this Court.
3. A I have heard the learned counsel for the parties and have gone through the record of this case with their assistance. The main arguments of the learned counsel for the appellants has been that the eyewitnesses produced by the prosecution before the learned trial Court were related, interested and chance witnesses whose presence with the deceased at the time of the alleged occurrence was quite unbelievable and they had also failed to receive independent corroboration or support from any source. Thus, according to the learned counsel for the appellants, the prosecution had failed to prove its case against the appellants beyond reasonable doubt. As against that the learned counsel for the State has maintained that the prosecution had succeeded in establishing the appellants guilt to the hilt and, therefore, their convictions and sentences recorded by the learned trial Court do not warrant any interference by this Court.
4. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightaway been observed that Akhtar Saleem deceased was an old man of 70/72 years of age, he was issueless and he happened to be the elder brother of both the eye- witnesses produced by the prosecution i.e, Muhammad Arshid complainant (P.W.4) and Muhammad Akram (P.W.5). It is available on the record that Akhtar Saleem deceased did not enjoy good or cordial relations with both the said brothers with whom he was locked in civil litigation over property and he had also lodged and F.I.R. Against Muhammad Akram (P.W.5) for launching a murderous assault upon him. In that admitted backdrop of strained relatiohs with the said brothers/eye- witnesses Akhtar Saleem deceased had shifted his residence away from the said brothers/eye-witnesses and had started living with the present appellants, who were related to him through his deceased wife, in a rented house in a different district. The record of this case further shows that Muhammad Arshid complainant (PiW.4) and Muhammad Akram (P.W.5) were opposed to the deceased's living with the present appellants. They were, thus, not only related Witnesses but were also interested witnesses. As if this were not enough both the said witnesses were also chance witnesses whose stated reason for being available with the deceased at the time of the alleged occurrence had never been established before the learned trial Court. Both the pid witnesses resided at Lahore whereas Akhtar Saleem deceased was living in a village in District Faisalabad at the time of the alleged occurrence. The reason advanced by both the eye-witnesses for going to the place of residence of the deceased at the fateful occasion was that they had come to know that the deceased and the appellants had withdrawn some money from a Bank raising suspicion in the minds of the said witnesses and prompting them to go and see the deceased but that reason had never been established before the learned trial Court through any independent evidence whatsoever. The background of strained relations between these witnesses and the deceased makes it quite doubtful that they would have gone to see the deceased on such a pretext. Even otherwise both the appellants were admittedly empty-handed during the alleged occurrence and, thus, failure on the part of the eye-witnesses to intervene for the purpose of saving the deceased makes the doubts about the claimed presence of these witnesses worst confounded.
5. The motive set up by the prosecution had been discarded by the trial Court itself! No money or weapon was recovered from the appellants possession during the investigation of this case so as to lend corroboration to the ocular account. The medical evidence had failed to provide the requisite support to the ocular account as Dr. Muhammad Zaman Cheema (P.W.7) had failed to opine about the cause of death of Akhtar Saleem deceased and the reports pf the Chemical Examiner and Bacteriologist were in the negative. The deceased had allegedly been done to death at 2-00 a.m. On 4-9-2000 but post-mortem examination of his dead body had been conducted at 9-00 a.m. On 5-9-2000. All these factors clearly indicate towards a real possibility that Akhtar Saleem deceased had lost his life in unknown circumstances and the eye-witnesses produced in this case had been procured from Lahore and planted in this .Case at a subsequent stage.
6. For what has been discussed above I have arrived at an irresistible conclusion that the prosecution had failed to prove its case against both the appellants beyond reasonable doubt.
Criminal Appeal No,90-J of 2002 filed by Mst. Tasleem Bibi appellant and Criminal Appeal N0.91-J of 2002 filed by Mujeeb ur-Rehman appellants are, therefore, allowed die convictions and sentences of both the said appellants recorded by the learned trial Court are set aside and both the said appellants are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required in any other case.