' MUHAMMAD AHSAN BHOON, J.--- This criminal appeal is directed against the judgment, dated 19- 7-2000 passed by the learned Additional Sessions Judge, Rawalpindi, whereby he acquitted respondents Nos.1 to 3 in case registered vide F.I.R. No,221, dated 24-6-1999 offence under section 302/34, P.P.C. Registered at Police Station, Murree, District Rawalpindi.
2. Prosecution story in brief is that on 24-6-1999 Muhammad Nazir, S.-I. After receiving the information regarding occurrence reached at Civil Hospital, Murree where Mst. Farzana wife of the deceased Itfaq was admitted and she got her statement recorded before him stating therein that she was married to Itfaq deceased and had a minor daughter aged about two years, her husband after serving at Saudi Arabia for About 6/7 years had come on leave for 1-1/2 months. On the night between 23/24-6-1998 she along with her husband and daughter went to sleep and at about mid night she heard knock at the door of her room on which she and her husband awoke up. In the meantime main switch of the electricity was switched off and again the door was knocked. At this her husband opened the door and five persons standing outside the room were seen by them. Out of them three persons entered into the room who were armed with lethal weapons and out of the said one person switched on the electric light and directed her and her husband not to raise alarm and to deliver them whatever they had. One of them was armed with pistol while second one was armed with gun and then they placed handkerchiR on her face and on the face of her husband and thereafter they made successive 3/4 fire shots which hit her husband on chest and head who after receiving them fell down on the bed and thereafter she became unconscious. The said accused persons snatched away her ornaments.
3. During the course of investigation Imtiaz, Muhammad Farooq, Ghalib Hussain and Ishfaq Ahmad, real brothers of Itfaq deceased submitted an application to the incharge Police Post Gulehra Gali, Police Station Murree on 9-7-1998 (Exh.P.T.) stating therein that all the above said persons were real brothers of Itfaq deceased who was murdered on the night between 23/24-6-1998 while he was asleep in his house and case F.I.R. No,221, dated 24-6-1998 under section 302/34, P.P.C. Was registered however, in the light of the circumstances it had transpired to them that their brother Itfaq was murdered by Farzana, his wife along with Niaz Abbas Shah and Muhammad Jameel, real brother of Mst. Farzana accused and that prior to this occurrence Mst. Farzana had illicit relations with Niaz Abbas Shah while deceased was serving at Saudi Arabia for about 6/7 years and when he came to his house from Saudi Arabia he came to know that her wife Mst. Farzana accused was pregnant for about 3/4 months and after arrival of the deceased, she got aborted her pregnancy.
On the night of occurrence, a dispute took place between the deceased and Mst. Farzana accused and due to which the accused Farzana Bibi was of the fear that he would be divorced by the deceased, as the deceased had taken into possession all the ornaments and cash from Mst.
Farzana Bibi and she was further directed by the deceased to hand over the money which was deposited by her in the bank in, her name. Mst. Farzana made plan for the murder of deceased Itfaq, as she had developed illicit relations with Niaz Abbas Shah and Muhammad Jameel accused planned to eliminate Itfaq deceased. One day prior to the occurrence, the deceased narrated about his miserable domestic life before his brothers, which had strengthen the guilt of the accused and after the murder of Itfaq deceased the conduct of Mst. Farzana was highly doubtful, as despite feeling well she did not attend the funeral ceremony of her husband and thereafter all the above said persons being real brothers of the deceased prayed that Mst. Farzana Bibi, Niaz Abbas Shah and Muhammad Jameel, the real culprits of tphe crime be roped as accused in the above referred case, on receipt of application, the Investigating Officer arrested Mst. Farzana Bibi and Niaz Abbas Shah while Jameel accused was arrested on 28-7-1999.
4. After completion of investigation report under section 173, Cr.P.C. Was submitted before the learned trial Court against accused/respondents Mst. Farzana Bibi, Niaz Abbas Shah and Muhammad Jameel. Charge was framed against them, who Snied of the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. Statements of the accused were recorded under section 342, Cr.P.C. In which Mst. Farzana Bibi was confronted with all the incriminating material on record against her but she denied the same and on a question as to why this case against her and why the P.Ws. Had deposed against her, she replied as under:--- "The P.Ws. Are inter se related. On mere suspicion I was made a scapegoat in this case at the instance of the brothers of the deceased although the actual occurrence was reported by me through the complaint Exh.P.R. I am innocent, and the version advanced by P.Ws. Is false and fabricated one."
' Niaz Abbas Shah accused in his examination under section 342, Cr.P.C. In answer to question No,5 stated as under:- "The P.Ws. Are related inter se and with the deceased. The prosecution story is rested on surmises, conjectures and suspicion."
' Muhammad Jameel, accused in his examination in answer to question No,5 stated as under:- "The P.Ws. Are inter se related. I and my sister Mst. Farzana Bibi accused have been made a scapegoat in this case on mere suspicion at the instance of the brothers of the deceased. The actual occurrence was reported by my sister Mst. Farzana Bibi through complaint Exh.P.R. I am innocent, and the version advanced by the brother of the deceased is false and mere concoction."
4. (sic) The appellants-accused neither opted to appear as their own witnesses in disproof of allegations levelled against them as required under section 340(2), Cr.P.C. Not did they produce defence evidence.
5. (sic) We have considered the submissions of the learned counsel for the parties and going through the record.
4. (sic) The motive as stated in the application submitted by the brothers of the deceased was that Niaz Abbas Shah, accused had developed illicit relations with his co-accused Mst. Farzana Bibi while deceased had been serving in Saudi Arabia and when he returned, he came to know that his wife Mst. Farzana Bibi accused was pregnant and she got abortion on deceased's return from abroad. In order to prove this motive Imtiaz and Muhammad Rashid, P.W.2 and P.W.3 respectively appeared before the learned trial Court but neither they have proved the factum of illicit liaison of Mst. Farzana with Niaz Abbas Shah nor any medical evidence regarding pregnancy and abortion was brought on record. Even otherwise it is highly improbable that real brother of a married lady would join in murder of her husband to perpetuate her illicit liaison with her paramour. Therefore, the motive alleged by the prosecution does not prove with the independent and corroborative evidence. Mere solitary statement of P.W.1 Ishfaq, who is real brother of the deceased is of no avail to the prosecution being an interested witness. Hence the prosecution has failed to prove the motive.
7. As far as extra-judicial confession on the part of the accused Niaz Abbas Shah is concerned, Muhammad Irshad P.W.4 and Muhammad Akram P.W.5 deposed that on 3-7-1998 at about 2-45 p.m. Both the P. Ws. After offering Jumma prayer came out from the mosque and in front-of mosque Niaz Abbas Shah accused/respondent met them and inquired about the murder of Itfaq deceased from them and they asked him that he knew about he case better than them and on their inquiry he disclosed that he had illicit relations with Farzana Bibi, accused and due to the said relations she became pregnant for which the relations between the deceased and Farzana became strained. He further disclosed before them that Farzana and Jamil had decided to eliminate Itfaq and it was Farzana, respondent who had murder her husband. The extra-judicial confession made by respondent Niaz Abbas Shah was exculpatory in nature to his extent, which is in admissible in evidence, whereas, the same could not be considered as evidence against coaccused/other respondents at any touchstone of the criminal administration of justice. Even it is available from the evidence that there is no other material collected against the respondents except extrajudicial confession made by Niaz Abbas Shah. It is available on record that respondent Farzana Bibi was complainant of the case but later on she was arrayed as an accused on the joint application made by all the brothers of the deceased. Nothing surfaced on record how she was shifted from the calendar of prosecution witnesses to array of accused. The recovery of pistol from Farzana accused is not sufficient to connect her with the commission of crime. The above discussion would show that prosecution has failed to discharge onus of proving its case against the respondents.
8. The learned trial Court on appreciation of evidence recorded acquittal of respondents through well-reasoned judgment. The reasons advanced by the learned trial Court for recording acquittal of the respondents have not been found by us to be either perverse or fanciful. The conclusion arrived at by the learned trial Court is such that any reasonable Court could have arrived at the same upon a fair assessm ent of evidence available on the record. In these circumstances, we have found no occasion for interference with the impugned judgment of acquittal. Double presumption of innocence is attached to the judgment of acquittal passed by the competent Court.
9. For what has been discussed above, this appeal having no merit is dismissed.