' NASIR-UL-MULK, J.--- The appellant, Sajjad Ali, was convicted by the Additional Sessions Judge, Lahore, on 31-5-2002 under section 302(b), P.P.C. And sentenced to death as well as under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 hereinafter referred to as the Ordinance' and sentenced to undergo 25 years' R.I., for the murder and commission of Zina-bilJabr with his half-sister, Misbah Bibi, aged 10 years. On appeal to the Federal Shariat Court, the convictions and sentences were upheld.
2. The incident took place in the afternoon of 23-6-2001, within the territorial limits of Police Station Batapur, Lahore. The crime was reported to the police by Mst. Tallat Jabeen, mother of the deceased and step-mother of the appellant. According to her, the appellant's mother had passed away where after she got married to his father and born 5 children out of this wedlock. It appears that the appellant did not live with this family as according to the complainant, he had come to stay with them 5/6 days prior to the incident. That on the fateful day her husband went for work and she along with her sister left the house in the morning to visit their brother, Mauzam Ali. That, latter in the day around 2-30 p.m. When she returned home, she met Mauzam Ali and her other brother, Nasir Ali, in the street coming towards her house. That the three of them went into their house, where they saw the appellant locking the door of the house. They told him that since they have returned to the house, there was no need to lock it. On this, he ran away with the key. She further alleged that her brothers broke open the lock and upon entering the house, they noticed that the neck of her daughter, Misbah Bibi, was tied with a cloth. She found her dead and blood oozing from her private parts. On this information, the police registered case against the appellant.
He was arrested. Tried, convicted and sentenced as stated above.
3. Leave to appeal was granted to the appellant on 1-1-2008 for A reappraisal of the entire evidence keeping in view the principles of safe administration of criminal justice.
4. Sardar Muhammad Siddique Khan, Advocate Supreme Court appeared for the appellant and Mr. Muhammad Siddique Khan Baloch, Deputy Prosecutor-General, represented the State.
5. We heard the learned counsel at great length and scanned the evidence with their assistance.
6. The entire prosecution evidence hinges upon the testimony of the complainant, Mst. Tallat Jabeen (P.W.1) and her bother Mauzam Ali P.W.2, both of whom claim to have seen the appellant running away from the scene of the crime after committing it. There is nothing in the shape of recovery from the appellant to connect him with the offence. In his statement under section 342, Cr.P.C., the appellant denied his involvement in the incident and alleged that he was implicated in the case by his step-mother with whom he was not on good terms and had started living with his paternal-aunt since the complainant married his father. That it was unimaginable that he would do the alleged act with his sister.
7. Undoubtedly, the crime committed was gruesome, to say the least, However, judicial scrutiny has to be made of the prosecution evidence carefully before sending the appellant to the gallows. The only prosecution evidence is the testimony of the witnesses of seeing the appellant near the scene of crime immediately after it was committed. The veracity of their testimony, therefore, needs to be tested. The complainant, Mst. Tallat Jabeen, stated that she along with her sister went to the house of their brother, Mauzam Ali, whereas her husband had gone to work and so did her sons. That the appellant had come to stay in their house 5/6 days prior to the incident and, therefore, he was present in the house with the complainant's daughter, Misbah Bibi deceased. She further stated that it was upon her return that she accidentally met her two brothers, Mauzam Ali and Nasir Ali, near her house who had come to visit her. These two witnesses were clearly chance witnesses. It is also not understandable as to why Mauzam Ali, who had come to visit the complainant when the complaint had already left her house to visit him. According to the statement of both these witnesses, their brother, Nasir Ali, resides in another locality. Mauzam Ali, in cross-examination, stated that Nasir Ali had come to his house on the day of the incident and from there the two proceeded to the house of the complainant. Nasir Ali is explained to be a Hakeem'. It is nowhere explained by any of the witnesses, the reason for which these two visited D their sister at day time when both of them are gainfully employed. Furthermore, according to the statement of Mauzam Ali, Nasir Ali had first come to his house from where they proceeded to the house of the complainant. If the complainant had visited the house of Mauzam Ali, she would have met both the brothers, which falsifies the claim of Mauzam Ali that he and Nasir Ali had visited to the complainant. Furthermore, the site-plan reveals that the crime was committed inside the room in the complainant's house. The complainant and her two brothers are shown inside the house in the courtyard at the time the appellant was locking the door of the room. If Mauzam Ali and Nasir Ali, were present, they would have stopped the appellant from leaving the house, or running away.
Even otherwise, the natural reaction of the appellant in such a situation would have been to run away rather than stay on and lock the door as according to the witnesses, the appellant was in the process of locking when they entered the house. The above narration shows that Mauzam Ali's presence at the scene of occurrence at the relevant time is not free from doubt.
8. The complainant's presence in her own house in ordinary circumstances would have been natural. However, on the day of the incident, she had left her house along with her sister at about 11.30 a.m. To visit her brother and according to her, she returned at about 3.00 p.m. Her absence from her house for such a long time and return right at the moment when the appellant was about to leave the house after the commission of the crime, would be too much of coincidence to be accepted. Further, her claim that she met her two brothers just in front of the house also creates doubt about the timing. The complainant although claims to have returned to her own house, but in the circumstances, was a chance witness.
9. Thus the prosecution story of the meeting of the complainant and her two brothers right in front of the complainant's house just when the appellant was about to leave is highly improbable coincidence to be believed for convicting the appellant on a capital charge. Since this being the only evidence, it will not be safe to maintain the appellant's conviction.
9-A. Above are the reasons for the following short order of even date:--- "For reasons to be recorded later, this appeal is allowed and the impugned judgments and orders, conviction and sentences of appellant are set aside. The appellant is acquitted of the charge framed against him and shall be set at liberty forthwith, if not required in any other case."