Mst Nasima Bibi, appellant, was convicted and sentenced to life imprisonment under Section 302- B, APC by Additional District Criminal Court Muzaffarabad vide its judgment dated 27.12.2004 in a case registered against her at Police Station Chanari on the pretext of statement of Mst. Kali Begum recorded by Muhammad Riaz Abbasi Inspector Police (P.W.23) dated 25.06.2000. It was alleged by the complainant that her husband had gone to Karachi for earning his livelihood. She alongwith her son Abdur Rehman, daughter Mst. Zainab and daughter-in-law Mst. Nasima Bibi were living at home. On the evening of 24th June 2000, she went to the house of Muhammad Rasheed and came back home at night and thereafter slept in a room whereas Abdur-Rehman and Mst. Nasima Bibi slept in adjacent room. At night on hearing jingling from the room of her son, she asked her son and daughter-in-law about the rattle, whereupon her daughter-in-law told her that there was not clatter and asked the complainant to sleep. At-about midnight, Mst. Nasima Bibi made hue and cry-and asked the complainant to come in the room at once. She rushed towards the room and lit the lantern. She found her son lying dead in a pool of blood. The deceased sustained severe injuries on his head, neck, shoulder and face. The cot, bed and clothes of the deceased were stained with blood. The blood was also present on the floor. The complainant further stated that she informed Kala Shaikh about the occurrence, who arrived at the spot and laid the dead body on the cot. She further deposed that her deceased son had no enmity with anybody and some accused persons have murdered her son for their personal gain. Her daughter-in-law Mst. Nasima Bibi, her daughter Mst. Zainab and Kala Shaikh know about the occurrence, who reached at spot soon after the occurrence.
On the aforesaid statement of the complainant, Muhammad Riaz Abbasi, Inspector Police, (P.W.23) sent a Murasla to the Police Station for registration of the case, whereas the officer in charge of Police Station (not named in the calendar of challan as P.W.) registered F.I.R. No, 30/2000 dated 25.6.2000 under Section 302, APC. On the same day, Mst. Nasima Bibi was arrested.
Muhammad Riaz Abbasi Inspector Police prepared an injury form (not exhibited) and sent the dead body for the post-mortem. On the same day, he prepared an inquest report (not exhibited) and a site-plan Exh. PT. He took into possession the blood-stained earth (vide recovery memo Exh.PB), a piece of blood-stained mattress (vide recovery memo Exh.PC), a blood-stained shirt of accused found under the mattress of a cot from the place of occurrence (vide recovery memo Exh.PD), a blood stained dagger from the Almirah of the room of occurrence (vide recovery memo Exh.PE), witnessed by Amir Khan (P.W.2) and Kala (P.W.3).
On the same day, said Muhammad Riaz Abbasi Inspector Police took into possession a blood- stained trousers of the deceased alongwith a string from Manzoor Hussain Shah Head Constable police which was handed over to the police by doctor after the autopsy , (vide recovery memo Exh.PH) in the presence of Saghar Akbar Head Constable Police No,310 (P.W.5) and Muhammad Bashir Constable Police No, 461 (P.W.6).
On 27.6.2000, Muhammad Riaz Abbasi Inspector Police (P.W.23) submitted an application Exh. PP to Tehsildar Haitian for preparation of site-plan by the Patwari.
On the same day, said Muhammad Riaz Abbasi I.O. wrote a letter to Civil Medical Officer Hattian Bala Exh.P-4 for examination of the body of Mst. Nasima Bibi and also obtained medical examination report from the doctor (not named in the calendar of challan).
On 29.6.2000, Said Hussain Shah Patwari (P.W.20) prepared the site-plan Exh. PQ.
On 30.6.2000, said Muhammad Riaz Abbasi I.O. took into possession the shirt and trousers of Mst.
Nasima Bibi, accused (vide recovery memo Exh.PI) witnessed by Saghar Akbar Head Constable'
Police No, 310 (P.W.5) and Muhammad Bashir Constable Police No,461 (P.W.6).
On 4.7.2000, said Muhammad Riaz Abbasi I.O. took into possession a mirror produced by Nazir Hussain (vide recovery memo Exh.PG) and a hatchet stained with blood alongwith a handle on the pointation of Mst. Nasima Bibi (vide recovery memo Exh.PF) in the presence of Kale Shaikh (P.W.3) and Muhammad Sadiq (P.W.7).
On 7.7.2000, said Muhammad Riaz Abbasi (P.W.23) took into possession a scarf of green colour from Mst. Nasima Bibi (vide recovery memo Exh.PJ) witnessed by Said Ahmad Shah Naib Muharrar Police Station Chanari (P.W.8) and Muhammad Shabbir Constable Police No, 471 (P.W.9).
On 8.8.2000, said Investigation Officer wrote a letter Exh. PV to Civil Medical Officer Civi1 Hospital Hattian Bala for examination of blood-stained hatchet and dagger and also obtained the examination report dated 11.7.2000 (not exhibited) from doctor Muhammad Nazir (P.W.19) (not produced before the trial Court). He also obtained the report of Chemical Examiner Exh.PW dated 7.8.2000.
The postmortem of the dead body of Abdur-Rehman was performed by Dr. Muhammad Nazir (P.W.19) vide its report Exh.PK who found the following injuries on the dead body:--
1. Laceration blow outer canthus of Rt. eye and Rt. ear about 2" long 1" width and bone deep.
2. Laceration over Rt. mastoid region about 3 " bone deep.
3. Laceration over Rt. post avuncular region about 1" x 1" bone pieces are broken, brain water is coming out from wound.
4. Sig lacerated and chopped wound over Rt. side of neck below Rt. ear about 5/x2" exposing upto vertebral column with destroying underlying vessels and muscles.
5. Incised wound 3" x W over Rt. side of neck muscle deep.
6. Incised wound 3W x 1" over Rt. side of neck blow Injury No, 5 and is muscle deep.
7. Incised wound bout 4" x (1/2)" over Rt. side of neck below injury No, 6 and is muscle deep.
8. Incised wound over nape of neck about 4" x W and is muscle deep.
9. Incised wound over nape of neck about 3" and is muscle deep.
10.Incised wound over nape of neck about 3 " x (1/2)' and is muscle deep.
11.Laceration wound over-Rt. mandibular region about 2" and is bone deep.
12.Incised wound over right scapular region about 3" and is muscle deep.
According to the doctor, the death occurred due to hemorrhagic shock and severe head injury.
After necessary investigation, Mst. Nasima Bibi was sent to face trial before the Additional District Criminal Court Muzaffarabad on 18.9.2000. The charge was framed on 11.12.2000 but the accused denied the guilt and claimed the trial.
To prove its case, the prosecution produced Mst. Kali (P.W.1), Amir Khan (P.W.2), Kala (P.W.3), Mst.
Zainab (P.W.4), Muhammad Bashir Constable Police (P.W.6), Muhammad Sadiq (P.W.7), Said Muhammad Shah Naib Muharrar (P.W.8), Muhammad Shabbir Constable Police (P.W.9), Anayat- Ullah (P.W.10), Mst. Fatima Bibi (P.W.11), Ata-Ullah (P.W.12), Aurangzeb (P.W.13), Mst; Tahira (P.W.14), Pervaiz (P.W.15), Rahmat Ullah (P.W. 17), Kala s/o Kareem (P.W.18), Said Hussain Shah Patwari (P.W.20), Javaid Iqbal Inspector Police (P.W.21), Muhammad Riaz Abbasi Inspector Police, I.O.
(P.W.23) and Dr. Manzoor Ahmad instead of Dr. Muhammad Nazir'(P.W.19).
The salient features of the prosecution evidence appearing against the accused were put to the accused for her explanation on 16.10.2004, whereby she refuted the prosecution evidence and claimed to be innocent. The accused also appeared as her witness as required by Section 340(2), Cr.P.0 on 27.10.2004 but did not produce any evidence in her defence.
After completion of the prosecution evidence and hearing the arguments, the learned trial Court convicted and sentenced the accused to life imprisonment under Section 302-B, APC. The benefit of Section 382-B, Cr.P.0 was also extended in her favour vide its judgment dated 27.12.2004. The aforesaid judgment has been challenged through the instant appeal.
Tahir Aziz Khan, the learned Counsel for the accused has strenuously argued that a false case has been registered against the accused-appellant. The learned Counsel contended that the trial Court has convicted the accused on basis of surmises and conjectures. The learned Counsel pointed out that neither the F.I.R. of the case has been filed with the challan nor its scribe has been produced as prosecution witness; therefore, the registration of case has also become suspicious and doubtful. The learned Counsel maintained that the perusal of the statement of Mst. Kali Begum Exh.PA shows that it has been recorded at Camp Darra Batangi when Muhammad Riaz Abbasi Inspector Police SHO Chanari came to know about the occurrence while he was on perambulation there-from he sent a Murasla to the police station where a case was registered by some Assistant Sub-Inspector of Police, then in charge of the Police Station but the P.Ws. have deposed in the evidence that F.I.R. was lodged by Ata-Ullah and Aurangzeb P.Ws. The learned Counsel also argued that the motive of the occurrence has been mentioned in the challan, the illicit relations between Muhammad Nazir and the accused-appellant but Muhammad Nazir and Muhammad Latif were given the concession of Section 169, Cr.P.C. The learned Counsel vehemently criticized the evidence of the extra-judicial confession and submitted that the P.Ws. Mst. Kali (P.W.1) and Mst. Zainab (P.W.4) who according to the prosecution, at the time of occurrence were present in an adjacent room did not level any charge of murder against the accused whereas the aforesaid type of evidence of all other nine witnesses is also not worthy of any credence. To substantiate his plea, the learned Counsel stated that the evidence of recovery is fake and fictitious which was believed by the Court below contrary to the principles laid down by the Superior Courts. According to him, except hatchet all other recovery articles have been taken into possession by the police at their own and not on the pointation of accused; therefore, such type of evidence cannot be relied upon.
As to recovery of hatchet, the learned Counsel submitted that in the light of the evidence of both the marginal Witnesses, Kala and Muhammad Sadiq recovery of hatchet could not be proved by the prosecution because according to the prosecution version, the hatchet was recovered on 4.7.2000 but both the aforementioned witnesses have testified that hatchet was also taken into possession on 25.6.2000 when the dagger and other articles were picked up by the police. The learned Counsel further maintained that according to the P.Ws. the accused confessed her offence before the P.Ws. before filing of F.I.R but while lodging F.I.R. the fact of confession of accused was not mentioned and she was not nominated as an accused which shows that the prosecution story has been cooked up later on and after a lot of deliberation and consultation, the accused has been involved in the instant case. The learned Counsel pressed into service the submission that the trial Court has based its judgment upon the fact that both the accused and deceased were sleeping in the same room; therefore, he was killed by the accused which is a baseless ground because the prosecution has miserably failed to prove aforementioned fact. The learned Counsel zealously argued that it transpires from the perusal of prosecution evidence that at the night of occurrence, the door of the cattle-shed was opened by some unknown person or persons which was seen by the P.Ws. after the occurrence. According to him, this fact also lends support from the site-plan prepared by police and Patwari P.W. The learned Counsel also pointed out that the report of chemical examiner was dispatched on 7.8.2000 which was received by SSP Muzaffarabad on 10.8.2000 and was dispatched on .11.8.2000 but surprisingly a letter alongwith hatchet and dagger was sent to Civil Medical Officer Hattian by I.O. on 8.8.2000 for its examination and report of the same was given by the medial officer on 11.7.2000 which shows that not only forgery has been committed to involve the innocent accused but it is also a case of dishonest investigation. The learned Counsel stressed upon the point that the recovery of the clothing of the accused and the deceased also does not support the other evidence and the allegation of finding blood upon the clothing of the accused has been justified by the prosecution itself because according to the P.Ws., Mst. Zainab and Mst. Kali alongwith accused picked up the dead body of the deceased from the floor and laid it upon the cot; therefore, the presence of the blood upon the clothing of the accused is a natural phenomena. The learned Counsel agitated that the report of chemical examiner, the opinion of doctor about the use of weapons of offence and the evidence of beating of the accused by her deceased husband has not been put to the accused during her examination under Section 342, Cr.P.C; therefore, aforestated evidence cannot be read in evidence against her which was arbitrarily relied upon by the trial Court.
With this background, the learned Counsel submitted that the prosecution having failed to prove its case, the appellant is entitled to acquittal. In support of the arguments reliance was placed upon the following case law:--
1. 1985 PCr.LJ 1951.
4. 2004 SCMR 1185.
5. 2005 SCMR 277.
6. PLJ 2005 Cri. Cases Lahore 317.
7. PLJ 2005 SC (AJK) 198.
8.2005 MLD 512.
9. PLD 2006 SC 538.
10. 2006 SCR 58.
11. 2006 SCMR 1846.
12. PLJ 2007 Sh.C. (AJK) 78.
13. 2007 YLR 138.
On the other hand, Syed Ejaz Ali Gillani, the learned Assistant Advocate General appearing on behalf of the State, contended that the prosecution has established its case beyond any reasonable doubt and it has been abundantly proved on the record that at the time of occurrence both, the accused and deceased were sleeping in one, room which is sufficient to implicate the accused with the commission of offence. The State counsel pointed out that the weapons of offence hatchet and dagger have been recovered on the pointation of accused and the evidence of other recoveries along the medical evidence fully involves the accused with the crime. The learned Counsel for the State, further maintained that the prosecution witnesses do not nurse any grudge or animus against the accused for her false implication; therefore, their evidence cannot be ignored. The learned State Counsel defended the impugned judgment on all counts and cited PLJ 1986 Cri. Case's (Peshawar) 594 in support of his arguments.
I have given my dispassionate thought to the arguments addressed at Bar, perused the record and the case-law cited with care. It will be relevant to note that F.I.R. in the instant case has not been proved by the prosecution which is a foundation stone of a criminal, case although it is not a piece of substantive evidence but it is always used for contradicting under Article 140, the Qanun-e- Shahadat Order, 1984 and corroborating under Article 153 of the Qanun-e-Shahadat Order.
Furthermore, when some infirmities or irregularities are found in an F.I.R. it certainly affects the final determination of the case especially when it is lodged by a mere stranger and not by an eye- witness. In the instant case, the filing of F.I.R. is shrouded in mystery. According to I.O., he recorded the statement of Mst. Kali during his perambulation at camp Darra Batangi and sent a Murasla Exh.
PA to Police Station for registration of the case but when the said I.O. appeared before the trial Court, he clearly stated that the complainant lodged a written F.I.R. at the Police Station whereas according to Ata-Ullah (P.W.12), Master Saghir (P.W.22) lodged F.I.R. at Police Station. Similarly, Aurangzeb (P.W.I 3) ' deposed that he alongwith Ata-Ullah and Master Saghir reported the occurrence orally at 6:00 a.m. Kala (P.W.3) testified that he sent Hafiz Ata-Ullah, Master Saghir and Aurangzeb to file an F.I.R. at Police Station. In this manner, prosecution could not prove the factum of lodging of F.I.R. Likewise, F.I.R. has neither been placed on record nor has been exhibited. The scribe of F.I.R. is some ASI/In-charge Police Station who registered F.I.R. No, 30/2000 was also not produced before the trial Court. Moreover, F.I.R. is also defective and of no evidentiary value because it has been recorded after consultation and deliberation. In this regard, all the P.Ws. are in full agreement that before lodging F.I.R they inquired about the occurrence from the accused, who also nominated Latif and Nazir, her co-accused and thereafter they directed other P.Ws. to file an F.I.R. at police Station but ironically neither accused nor Latif and Nazir were nominated as accused-persons; therefore, the facts and circumstances mentioned above clearly warrant that F.I.R. is fabricated and could not be proved on 'the record being reduced into writing by a reliable I.O. who has made an incorrect statement about the time of recording of F.I.R. In this regard reference can be made to a case reported as Nazim V. The State (1985 PCr.L J 1951). The observation made at page 1955 is the following:-- ''Haji Muhammad, complainant, allegedly reported the incident to A.S.I. Malik Muhammad Amir (P.W.10) in village Changarh at about 7-00 p.m. and made before him his statement Exh.P.C. on the basis of which formal F.I.R Exh.P.C/1 was recorded by Muharrar H.C. Ghulam Qadir (P.W.3). Learned Counsel argued that the F.I.R Exh.P.C. is not a genuine document. He maintained that it was recorded after consultations and deliberations by the complainant party in collusion with the police officials. Haji Muhammad (P.W.7) has conceded during the cross-examination that his statement was recorded at the place of occurrence after the Investigating Officer had inspected the dead body and then his thumb-impression was obtained thereon at that time. It thus leaves me in no manner of doubt that statement Exh.P.C. of Haji Muhammad was drafted at the spot. In these circumstances, it could be fairly inferred that after having seen the injuries of the deceased and the injured P.W. and after deliberating with the complainant party and their confederates, story as it, host suited to the complainant party was drawn up. The F.I.R cannot, therefore, be termed as a. document containing unalloyed truth. Rather it entertains grave doubts about the genuineness of the prosecution story."
The same view was affirmed in case titled Iftikhar Hussain & others V. The State (2004 SCMR 1185).
The relevant Para of the report at page 1195 is reproduced herein below thus:-- "As far as F.I.R. under Section 154, Cr.P.0 itself is concerned it is always treated to be a corner stone of the prosecution case to establish guilt against culprits involved in the crime. Thus, it has got a very significant role to play. If there is any doubt in lodging of F.I.R. and commencement of investigation, it gives rise to a doubt in benefit of which, of course, cannot be extended to any one else except to the accused. However, an F.I.R. under Section 154, Cr.P.C. which has been lodged after conducting an inquiry loses its evidentiary value as held in the cases of Muhammad Hanif V. State (PLD 1977 Lahore 1253). Mst. Muhammadia V. Zaribacha & another (PLD 1982 Peshawar 85), Nazir Masih V. State (1997 MLD 48), Muhammad Javed V. SSP Gujranwala & others (PLD 1988 Lahore 214) and Qazi Muhammad Javed V. SSP Gujranwala and others (1999 PCr.L J 1654). It is also to be borne in mind that merely for such reason that F.I.R. has been registered under Section 154, Cr.P.0 before conducting a preliminary inquiry, the prosecution case cannot be disbelieved but such act on the part of the Investigating Officer puts the Court on guard and persuades it to conduct a close scrutiny of the prosecution case with a view to avoid false implication of accused nominated for the commission of offence." The next question which requires consideration is the admissibility and reliance of the evidence of extra judicial confession which has been fully taken into consideration by the trial Court. In this respect, the prosecution has produced (12) witnesses but their evidence is not only inconsistent and self-contradictory but not at all trustworthy. It has been amply proved on the record that the P.Ws. inquired the accused about the occurrence and thereafter they lodged the F.I.R. but they did not choose to nominate the accused. It is also admitted by the prosecution that Mst. Kali (P.W.1), Mst. Zainab (P.W.4) and one Mst. Shahida who was withheld by the prosecution for unknown reasons were sleeping in an adjacent room at the time of occurrence but Mst. Kali and Mst. Zainab did not involve the accused with the crime.
As far as the evidence of Mst. Fatima Noor (P.W. 11) is concerned, is also not worthy of credence because according to her, on inquiry, the accused confessed about the commission of offence in the presence of Haji Sadiq, pervaiz and Javaid but Haji Sadiq did not level any allegation of confession against the accused "whereat Pervaiz (P.W.15) did not mention the presence of Mst.
Fatima Noor at the time of aforestated confession rather he stated that he alongwith Aurangzeb and Javaid asked the accused about the occurrence but she stated that some unknown persons killed the deceased.
Anayat-Ullah (P.W.10) testified that when he alongwith Kala, Fatima Noor, Tahira Bibi and Haflz Ata- Ullah asked the accused about the occurrence, she told them that she did not know about the killers.
Ata-Ullah (P.W.12) stated that the accused confessed the commission of offence in presence of Anayat Ullah Rahmat Ullah, Kala, Master Saghir, Haji Sadiq, Mst. Kali and Mst. Zainab whereas Anayat Ullah, as stated earlier, deposed that Mst. Nasima refuted the commission of offence, Rahmat Ullah (P.W.17) speaks about the hearsay evidence. Kala (P.W.3) deposed that when he went to the house of Haji Sadiq about inquiring Rahmat Ullah he told him that some unknown persons murdered the deceased. Similarly, Haji Sadiq, Mst. Kali and Mst. Zainab have not involved the accused whereas Master Saghir was not produced before the trial Court; therefore, the statement of Ata Ullah does not find support from the depbsition of any of the P.Ws. Furthermore, Ata Ullah has not mentioned the presence of Mst. Tahira Bibi (P.W.14), Mst. Fatima Noor (P.W.11) and Aurangzeb (P.W.13) during his statement.
So far as the deposition of Aurangzeb (P.W.13) is concerned, is also not reliable because according to him, accused confessed the commission of offence on inquiring by Haji Sadiq (E.W.7) whereby Haji Sadiq has not corroborated the aforesaid fact and did not state anything about the extra- judicial confession by the accused. Furthermore, Aurangzeb P.W. has made a lot of improvements in his statement and changed his whole version mentioned in his statement recorded. under Section 161, Cr.P.C.
Pervaiz (P.W.15) brother of Aurangzeb P.W. mentioned above, testified that he alongwith Aurangzeb and Javaid arrived at the spot when the accused told them that two persons entered in the room and killed her husband but she could not recognize them because of darkness, in this manner, Pervaiz deposes a different story than his brother Aurangzeb. Similarly, Pervaiz excludes the presence of Mst. Fatima Noor at the relevant time.
Mst. Tahira Bibi (P.W. 14) deposed that she alongwith her husband Anayat Ullah, Kala and Fatima Noor asked the accused whereupon she confessed the crime but Anayat Ullah stated that when they asked the accused about the occurrence she refuted-the allegation. Mst. Tahira Bibi further stated that when her companions inquired about the occurrence she got unconscious; therefore, she did not ask anything from her and accused also did not mention about the weapon of offence.
Kala (P.W.3) stated that the confession was made in presence of Rahmat Ullah, Aurangzeb, Pervaiz,'Javaid and Master Saghir. As stated earlier, Master Saghir and Javaid did not appear before the trial Court. Pervaiz P.W. did not support his version and narrated a different story and also refuted the presence of Kala at the relevant time. The evidence of Rahmat Ullah is hearsay whereas Aurangzeb has excluded, the presence of Kala at the time of alleged confession.
The close scrutiny of above stated evidence shows that the story of extra judicial confession is fake, fictitious, suspicious and ambiguous which does not render any support to the prosecution version because a suspicion by itself, however, strong it may be is not sufficient to take the place of proof of warrant of finding of guilt of the accused. The onus is always, upon the prosecution to prove the guilt of the accused. (1996 PCr.L J 478 Lahore). It is well known principle of criminal administration of justice that evidence of extra judicial confession is very weak type of evidence which has to be appraised and appreciated with great caution whereas in E the instant case no direct evidence is available against the accused even convincing forthright or reliable circumstantial evidence is not available upon the record to establish the charge against the accused in accordance with law. My aforesaid view finds support from a case titled Abdul Mateen V. Sahib Khan & others (PLD 2006 SC 538) wherein it has been opined that extra judicial confession must be proved by evidence of a very high and unimpeachable character and furthermore the evidence which requires corroboration cannot corroborate each other and therefore, cannot be made legal basis for conviction. Meaning thereby where there are two sets of evidence neither of which alone can be accepted without corroboration, they cannot each in its term be taken to corroborate the other and joint together so as to justify any Court in acting of such evidence.
There is another element in the case which creates even great difficulty namely the mode of recoveries. All of the recoveries except hatchet have not been made at pointation of the accused; therefore, such type of evidence cannot be relied upon as corroboratory evidence. Similarly, the recovery of hatchet could not be proved because both the marginal witnesses Kala (P.W.3) and Muhammad Sadiq (P.W.7) have testified that the hatchet was recovered on 25.6.2000 at the time of recovery of other articles whereas according to the prosecution hatchet was taken into possession on the pointation of accused vide recovery memo Exh.PG on 4.7.2000. Furthermore, according to the prosecution evidence, the hatchet was recovered near Almirah of the room, the place easily accessable to all the family members. Therefore, the evidence of recovery also does not support the prosecution tale. It has been held in a case titled Pervaiz Akhtar V. The State (2005 MLD 512) that recovery of pistol was affected from the residential room jointly possessed by the accused and his brother and no independent or respectable from the area was associated with recovery proceedings; therefore, the room accessable to the visitor of the family being place of recovery not in exclusive possession of the accused, the prosecution failed to establish a case against the accused beyond reasonable doubt. The same view finds support from another case titled Aurangzeb & others V. The State (PLJ 2005 Cri. Cases Lahore 317 DB) wherein it has been opined that the recovered articles being taken into possession from an open place of the house, reliance can not be placed upon such type of evidence. It is an enriched principle of criminal jurisprudence that one weak piece of evidence cannot corroborate another similar evidence.
I am in full agreement with the contention of the learned Counsel for the appellant that the provisions of Section 342, Cr.P.C. are mandatory in nature and the report of the chemical examiner, the opinion of doctor about the weapon of offence and the evidence of beating of the deceased to the accused being not put to the accused during his examination under Section 342, Cr.P.0 cannot be read against her. It is by now settled position of law that a piece of evidence not put to an accused for his explanation as required by Section 342, Cr.P.C. has to be either excluded from consideration or the case has to be remanded for re-examination of the accused. In this regard reference can be made to the cases titled Fazal Ellahi V. Muhammad Yaqoob & 17 others (2003 SCR 334) and Nuzhat Bibi V. Shabbir Hussain & 2 others (2006 SCR 58).
It will be pertinent to point out that the accused has taken a specific stance during her statement recorded under Section 340(2) Cr.P.C. but she was not cross examined on material questions of being sick because of delivery and sleeping with her mother-in-law at the time of occurrence etc. therefore it will be deemed to be admitted by the prosecution which also adversely affects the case of prosecution. (2002 SCR 288).
It has also been admitted by the P.Ws. that at the time of occurrence Mst.. Shahida was also sleeping alongwiht Mst. Kali and Mst. Zainab but Mst. Shahida was not produced before the trial court who was a material witness according to the peculiar facts and circumstances of the case.
My aforesaid view stands fortified by a case reported as Lal Khan v. The State (2006 SCMR 1846) whereby it has been observed that non-production of most natural and material witness of occurrence strongly leads to an inference of prosecutorial misconduct which will not only be considered a source of undue advantage for prosecution but also an act of suppression of material facts causing prejudice to accused. It certainly creates an impression that such witness if would have been brought into witness box he might not have supported the prosecuton.
It is necessary to mention that trial |Court has also given serious consideration to the fact that the accused dragged the dead body of the deceased near the cattleshed but this fact does not find support from medical evidence because marks of dragging were not found on the body of the deceased which negates the version of the prosecution therefore clear conflict between the prosecution version and the medical evidence makes the case of prosecution suspicious and doubtful.(2005 YLR 1092).
So far as an authority referred to be the learned Counsel for the state is concerned supports the case of defence instead of prosecution because according to the aforementioned authority the accused-appellant was acquitted of the charge.
Pursuant to the above detailed discussion the prosecution has miserable failed to bring charge home to the accused-appellant beyond any reasonable doubt; therefore, the benefit of slightest doubt must be extended to the accused without any reservation. (PLJ 2005 SC (AJK) 198).
It is well settled doctrine of criminal jurisprudence that to give benefit of doubt to an accused is much more than a mere rule of law. It is the rule of 'prudence' which no man ought to and no judge, acting in accordance with the provisions of Evidence Act, can ignore and this rule was vigorously enforced by Islam. It is one of the foundations of all good and civilized societies. (PLD 1999 Lahore 56). As stated earlier, the prosecution case is full of glaring defects, legal infirmities and material irregularities. A very weak motive setup by the prosecution during the trial could not be proved and the persons allegedly involved in illicit relations with the accused were set free. The prosecution did not discharge its basic duty to prove its case beyond reasonable doubt but the trial Court misdirected itself while reaching the conclusion that the prosecution story stands proved against the accused. The impugned judgment is vague, arbitrary and fanciful. It has not been recorded after a careful and proper consideration of the attendant relevant facts and circumstances; therefore, has to be reversed. The upshot of the above discussion is that I accept this appeal, set-aside the impugned judgment dated 27.12.2004 and acquit the accused of the charge of murder. She shall be set free forthwith, if not required in any other case or offence.