JUDGMENT ZAFAR IQBAL CHAUDHRY, J. - Through this appeal the appellant has challenged the impugned judgment dated 12.11.2002 passed by the learned Sessions Judge, Attock whereby he convicted the appellant under Section 308, P.P.C, and sentenced him to ten years' R.I. With a fine of Rs. 50,000/- or in default thereof to further undergo R.J. For one year. He was also directed to pay Diyat at the rate prevalent at the time of commission of the offence to the legal heirs of the deceased Mst. Taslima Jan. The benefit under Section 382-B, Cr.P.C, was also extended to him :
2. Succinctly the facts of the prosecution's case are that Mst. Rabia Bibi mother of the deceased got lodged F.I.R. No. 282, dated 18.9.2002 under Section 302, P.P.C, at Police Station Attack Khurd alleging therein that during the night of occurrence her husband Muhammad Khan as usual went to cattle- shed for sleeping. She along with her two sons Khizar Hayat, Mashkoor Hayat and other family members slept in the courtyard of thd Haveli whereas her son-in-law Sardar Khan slept in the residential room alongwith his wife Mst. Taslima Jan and children, it was about 4.30 a.m. When a noise of fire came from inside the residential room upon which she alongwith her sons Khizar Hayat and Mashkoor Hayat went towards the side while running. Sardar Khan armed with pistol came out of the room and said that do not come near to him and then he fled away. She went inside the room and saw her daughter Mst. Taslima Jan lying on a cot smeared with blood and she was found dead. She raised hue and cry on which people of the locality attracted at the spot.
3. The motive behind the occurrence was alleged that father of Sardar Khan accused/appellant had died when he was minor and his mother contracted second marriage. The appellant was the real paternal nephew of her husband. They brought up him and also gave him the hand of their daughter Mst. Taslima Jan, who had a son aged eight years and a daughter aged three years.
About one year ago, the appellant divorced Mst Taslima Jan for the purpose of contracting second marriage upon while she filed a suit for maintenance against the appellant which was decreed against him. Later on, compromise was effected between them due to intervention of a Jirga and the appellant used to live in the sale Haveli alongwith his wife and children but still he was trying to contract second marriage and for this reason, he committed Qatl-i-Amd of her daughter Mst.
Taslima Jan.
After the registration of the case Raja Abdur Razzaq, S.H.O. (PW.10) proceeded to the spot with police officials,. Rabia Bibi and Mashood Hayat where the inspected the dead-body of Mst, Taslima Jan, prepared injury statement Ex.PH and inquest report Ex.PI of the deceased and sent the same for post-mortem examination through Muhammad Boota, Constable. He Inspected the. Spot and prepared rough site plan Ex.PJ. He also took blood from the spot with cotton and sealed into parcel and secured the same vide memo. Ex.PG. He also took into possession an empty of .30 bore pistol P.14 sealed the same in a parcel and attested both the memos. He recorded the statements of the PWs and searched the accused., Muhammad Boota, Constable produced last worn clothes of the deceased i.e. Shirt P.8, Shalwar P.9, dupatta P.10, Chaddar P.11, Tulai P.12 and a cot P.13, all blood- stained and he took the above-said articles into possession 'vide memo. Ex.PD, duly attested by Muhammad Boota, Constable. On 24.9.2002 Maskhoo! Hayat PW produced copy of judgment, Ex.
P.l5 and divorce-deed P.16 and he took both these documents in possession vide memo. Ex.PK, duly attested by Mashkool Hayat. He arrested the appellant on 25.9.2002. On 27.9.2002 .The appellant made a disclosure and got recovered pistol .30 bore P.17 from the wall of stones situated hear Dakhnair Ziarat "Ghanghori Mai*. On unloading the pistol, he recovered four live rounds P.18/1-4 and four rounds P.19/1-4 from an envelope. He took all the above- said articles into possession vide memo. Ex.PL after sealing the pistol into parcel. Safdar Khan and Ghulam Khan PWs attested the same.. He prepared rough site plan of place of recovery Ex.PL/1. On 22.9.2002 he summoned the Draftsman Muhammad Hanif, who took notes on his asking and on the pointation of the place of woccurrence. On 26.9.2002, he produced site plan Ex.PB, state and PB/2. He recorded the statements of PWs on different dates and handed over the sealed parcel of the pistol to the Moharrar alongwith other case property. On 25.9.2002 he searched the appellant and recovered a purse P.1, ID card P.2, an amount of Rs. 80/- P.7, wrist watch P.3, a comb P:4, a mirror P.5 and a finger ring P.6, and took the same into possession vide memo. Ex.PC, duly attested by Zubair Hayat, Constable and Maqbool, A.S.I.
5. After the close of investigation the challan was submitted in the Court, the copies of documents as required under Section 265-C, Cr.P.C, were supplied to the appellant, charge was framed against him1 to which he pleaded not guilty and claimed to be tried.
6. The prosecution in order to prove its case produced as many as 10 witnesses. Thereafter the appellant was examined under section 342, Cr.P.C, who denied the allegation levelled by the prosecution and professed his innocence. To a question that "why this case is against you and why the PWs have deposed against you", the appellant made the following reply:- 1 "Though I sent a notice of talaq to my wife but later on compromise has been effected and I was residing with my wife happily. After notice of talaq my mother- in-Jaw wanted to dispossess me from the haveli which * fell to my share to being inherited by me from my grand-father. Thereafter the complainant alongwith his children who were residing in another-haveli which wer inherited by my father-in-law/uncle and on finding the occasion I was involved in this case falsely due to above-said greed and grudge. That is' why my father-in-law/father of the deceased and husband of the complainant is not supporting the prosecution case who is satisfied with my version that some unknown person had murdered My wife and I was away of Lahore at the time of occurrence and returned from Lahore on being informed on telephone about the death of my wife and reached at the time of funeral." '
The appellant produced Muhammad Aslam as DW1 in his defence, bit he did not opt to make statement on oath under Section 340(2), CrP. C. s
7. The learned Trial Court on conclusion of the trial and after hearing the learned counsel for the parties had convicted and sentenced the appellant as detailed in para 1 ante through the impugned judgment. Hence this appeal.
8. Learned counsel for the appellant submits that the prosecution has failed to prove the case against the appellant; that the learned Trial Court while mis-reading the evidence has illegally convicted him for the charge of murder of Mst Taslima Jan his wife; that in the F.I.R, it was alleged that the appellant had been apprehended at the spot and locked in a room of the house while the crime pistol remained lying on the cot of the deceased but in the evidence led by Rabia Bibi PW.8 and Khizar Hayat PW.9, it was nowhere mentioned that the appellant had been apprehended at the spot and also handed over to the I.O. When he reached at the spot whereas according to the statement of Raja Abdur Razzaq, Inspector/S.H.O./I.O. PW.10 after reaching at the spot and taking into possession blood-stained earth, pistol and other articles he had searched for the appellant and arrested him on 25.9.2002 i.e. Seven days after the occurrence which clearly shows that the prosecution version introduced in the F.I.R, and the evidence produced before the Trial Court was highly doubtful and it was not safe to base the conviction of the appellant on such like evidence.
According to the learned counsel for the appellant the prosecution evidence was highly doubtful and keeping in view this fact the statement of the appellant should have been accepted in toto and he is liable to be acquitted.
9. Learned Additional Prosecutor-General on the other hand opposes this appeal and submits that Mst. Rabia Bibi PW.8 and Khizar Hayat PW.9 who are closely related inter se and to the appellant as well had no motive to falsely involve him. In this case and on account of the minor discrepancies only pointed, out by the learned defence counsel their evidence cannot be disbelieved and brushed aside. According to him the report of the Forensic Science Laboratory regarding the pistol which was recovered from the possession of-the appellant was positive and this is sufficient corroborative piece of evidence to connect him with the alleged offence; that in the 'absence, of any enmity and on the basis of strong evidence produced by the prosecution which is consistent on all aspects the appellant is not liable for any concession because he had committed the murder of his own wife in a brutal manner without any reason. -The motive was also proved in this case.
10. - I have "heard the learned counsel for the parties at length and also perused the evidence as well as the impugned judgment.
11. Admittedly,, it was a blind murder and as per evidence led by PWs 8 and 9 they had reached the spot on hearing the sound of fire, when the appellant was seen coming out, who admitted about hitting of fire by him to the deceased and then he was locked in the room. The said version of PWs 8 and 9 is not supported by any other piece of evidence. Even th
12. So far as recovery of pistol is concerned. ! Have observed that according to the statements of Mst. Rabia Bibi PW.8 and Khizar PW.9 pistol alleged used for the murder of -Mst. Taslima Jan was found lying on the cot of the deceased but according to the investment it was recovered, from the appellant on 27.9.2002 on his pointation. As such it is proved that the recovery of weapon had been planted upon the appellant and in such like circumstances if there was any positive report from the Forensic Science Laboratory in favour of the prosecution that cannot be used as a corroborative piece of evidence.
13. For the foregoing reasons I am satisfied that the evidence led by the prosecution is not free from doubt and while relying the same the conviction and sentence of the appellant cannot be maintained, it is settled principle of law that even the benefit of slightest doubt has to go to the accused. Hence, this appeal is accepted, impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the change by extending the benefit of doubt to him. He shall be released from jail forthwith if he is pot required in any other criminal case.