1. ' BASHIR A. MUJAHID, J.---Muhammad Sadiq son of Imam Din has challenged judgment dated 30- 5-2003 whereby he was convicted under section 302 (b), P.P.C. For committing murder of his wife Razia Bibi and minor children namely, Asif and Sajid (sons), Mehwish and Asma (daughters), and sentenced to imprisonment for life on five counts. The sentences were ordered to run consecutively and it was observed that he has to suffer 125 years RI. Benefit of section 382-B, Cr.P.C. Was, however, extended in his favour.
2. ' The law was put in motion thzough F.I.R. No, 302/2003 got registered on the statement Exh.PA of Muhammad Zubair, P.W.2 stating therein that at 7-30 a.m. On the fateful day he along with Mehboob, P.W.3 and others were sitting in his house when Muhammad Siddiq, P.W.1 brother of deceased Razia Bibi came and disclosed that Muhammad Sadiq, appellant husband of his sister Razia Bibi has murdered his wife Razia aged 40 years along with four minor children namely, Mehwish, Asma, Asif and Sajid. He further stated that when he came to the house of his sister at 9- 30 p.m. From his shop Muhammad Sadiq (appellant) was making the deceased drink intoxicated milk. Muhammad Siddiq, P.W.1 went to the upper storey and slept there and in the morning when he came down he saw blood all around and five dead bodies were also found in different rooms. The complainant Muhammad Zubair along with Muhammad Siddiq. P.W.1, Mehboob Hassan, P.W.3 and one Tahir went to the house of the deceased and having seen the dead bodies and the appellant sitting on a cot at the upper story informed the police and got their statement Exh.PA recorded at the spot. The investigation of the case was undertaken by Shoaib Zaman, P.W.8 who took the dead bodies into possession, prepared the injuries statements, inquest reports and collected the blood- stained earth from the places where the dead bodies were lying. He got the post-mortem conducted and took the last worn clothes of all the deceased into possession through respective memos. He also took into possession blood-stained Toka P1 and Danda, P2 lying in a vacant plot adjacent to the house of Zubair Councillor, P.W.2, through memo Exh. PB and after completion of the investigation he submitted the challan. The trial Court framed the charge which was denied by the appellant and he claimed trial.
3. ' During the trial the prosecution examined as many as 10 witnesses to prove guilt of the accused.
4. ' The medical evidence was furnished by Lady Dr. Nasreen Ishaq, P,W.9 who conducted the post- mortem examination on the dead bodies of Razia Bibi, and found seven injuries on her body. She also conducted the post mortem examination on the dead body of Mehwish two injuries one on throat and others on her wrist. This witness also conducted the postmortem examination on the dead body of Asma and noticed a cut on the throat of the deceased. Lady Dr. Nasreen Ishaq, P.W.9 also verified the reports of Dr. Zafar Mumtaz (who went abroad) who medically examined Rizwan and Amir sons of Muhammad Sadiq who were with the history of poisoning and had vomited. Dr. Muhammad Zafar, P.W 10 conducted the post-mortem examination on the dead bodies of Sajid and Asif and found cut marks on the necks of the dead bodies.
5. ' The ocular account was furnished by P.W.1 Muhammad Siddiq, brother of the deceased Razia Bibi but he declined to prove the prosecution story and was cross-examined by the prosecution and was not relied upqn by the trial Court, therefore, his evidence is of no consequence. The star witnesses of the case relied upon are Ch. Muhammad Zubair, P.W.2 who is complainant of the case, he supported the story of his complaint Exh.PA and in his support Mehboob Hussain, P.W.3 was examined. His statement is in line of statement of Muhammad Zubair, P.W.2 Muhammad Irshad, P.W.7 attested the recovery memo. Exh.PB of Danda P2 and blood-stained Toka P1. The remaining witnesses are of formal nature and need not to be discussed.
6. ' After closing of the prosecution evidence the statement of the appellant was recorded under section 342, Cr.P.C. He denied the allegations ,and claimed his innocence and false involvement. In reply to question as to why the case against him and the P.Ws deposed against him, he stated as under:--- ' "On the day of occurrence and time of occurrence I was not present at my residence as I had gone to Sargodha to attend the ceremony of engagement of my brother in law at the house of my father in law namely, Muhammad Ismail son of Abdul Ghani at H.No,89, St.No,1 Sultan Town, near Johar Colony, Sargodha. At that time my children 5 in number, my wife and my brother in law namely, Siddiq were present in the house. My wife had developed illicit relations with some unknown persons and Zubair P.W. Complainant Of this case. So many times I forbade Zubair P.W.
7. Not to visit my house whose office is situated near to my residence who did not care of my advice.
8. He continuously had been visiting in my house in my absence. Few days prior to occurrence in my presence when I came to my house, Zubair P.W. Was present at my residence, my wife Razia Bibi was quarrelling with him and saying that why you have come at my residence in the absence of my husband, Zubair P.W. Left my residence extending threats of killing to my wife and children. On the day of occurrence complainant had managed to murder my wife and children in my absence.
9. I have made no confessional statement in the presence of any P.W. The entire prosecution story has been concocted by complainant with the connivance of police. As the complainant is an influential person of locality who had succeeded to involve me in this case, otherwise I could not think about murder of my wife and children. When the occurrence came to my knowledge, I came back to my house at Lahore on 12-8-2002 at about 3 p.m. Mohalladars of locality told me about the occurrence and said that they had seen Zubair P.W. At the place of occurrence on the day of occurrence at night when I went to P.S. Mohalladars in the presence of Zubair councillor stated before the I.O. That Zubair P.W. Is responsible for murder of my wife and children. My first version was not recorded by I.O. As stated by me even the statement of Siddiq P.W. Who was present was not correctly recorded by the I.O. And he was not cited as complainant inspite of the fact that he informed about the occurrence first in point of time to police. P.Ws Mehboob Hassan and Tahir are close friends of Zubair councillor and for this reason they falsely deposed against me with connivance of Zubair complainant. Police did not record the statement of Muhammad Ismail son of Abdul Ghani, my father in law who was present with me when I came back from Sargodha. The P.Ws have falsely deposed against me with the connivance of police and Zubair councillor in order to save the skin of Zubair complainant who is responsible for the occurrence."
10. ' In his defence the appellant produced Muhammad Ismail, his father in law as DW1 who stated that on 10-8-2002 the appellant stayed in his house and both of them went to Phularwan for fixing the date of marriage of his son on the next day. The appellant also stayed in his house on the night of 11-8-2002. On 12-8-2002 at about 10-45 a.m.^they received telephonic message from Muhammad Siddiq P.W.l that his daughter Razia Bibi and her children had been murdered.
11. ' The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal.
12. ' Learned counsel for the appellant and for the State have been heard exhaustively and record has been perused.
13. ' The complaint Exh.PA is based on hearby evidence which was provided to Ch. Muhammad Zubair, P.W.2 by Muhammad Siddiq, P.W.l who was declared hostile and had not support the prosecution story. Apart from evidence the information received by Muhammad Zubair, P.W.2 through Muhammad Siddiq, his statement is to the extent that when he entered into the house of the deceased and the appellant he saw the appellant sitting at the upper storey on the cot but admittedly the appellant had not ^ confessed his guilt having committed the murder of deceased, in his presence. Similarly, Mehboob Hassan, P.W. 3 accompanying Muhammad Zubair, P.W.2 supported the prosecution story on the basis that he had received information from Muhammad Siddiq, P.W.l and-he had not added much to the evidence/story narrated by Muhammad Zubair, P.W.2 so the evidence of Muhammad Zubair, P.W.2 and Mehboob flassan, P.W.3 cannot be taken as extra-judicial confession also, because it does not fulfil the legal requirement for extra-judicial confession as admittedly the appellant had stated nothing before them and the story narrated by both these P.Ws. Is based on mere information provided to them by Muhammad Siddiq, P.W.l and in their presence only the dead bodies were taken into possession by the police and investigation was undertaken. Learned counsel for the State has argued that as the occurrence took place in the house of the appellant and plea of his alibi is afterthought as he never took this plea before the I.O.
14. And it was for him to explain as in what manner the occurrence took place so mere denial does not exonerate him from commission of the crime.
15. ' It is correct that the occurrence took place in the house of the appellant and it is for him to explain but I find that the prosecution is to stand on its own legs and the case is to be proved by independent evidence. I find that as a matter of fact this is case of no evidence. Mere recovery of blood-stained Toka PI and Danda P2 at the instance of appellant which were also lying in an open plot is also of no consequence. There is also another aspect of the case that Muhammad Ismail son of Abdul Ghani, father of Razia Bibi, deceased has also appeared before this Court and also appeared before the trial Court as D.W.l who is permanently resident of Sargodha stated that the appellant was with him at Sargodha at relevant time. He has supported the plea of alibi taken by the appellant before the trial Court. Similarly, Mst. Safia Sultana, sister of Razia Sultana, deceased is also present along with two minor sons of the deceased namely, Rizwan and Aamer, who are presently residing with Muhammad Ismail and Safia Sultana and it has been stated by Muhammad Ismail that the appellant has no other relative and they also do no want to support the conviction recorded against him in the best interest of the minor children. It is also noticed that Muhammad Siddiq, P.W.l who was brother of Razia Bibi had not supported the prosecution story. In view of peculiar circumstances of this case and by placing the defence plea of alibi by the appellant and the prosecution story in juxta position. I find that the prosecution case has not been proved against the appellant beyond shadow of doubt, therefore, this appeal is allowed. The conviction and sentence of the appellant is set aside and he is acquitted of the charge by extending benefit of doubt. He is ordered to be released forthwith if not required to be detained in any other case.