JUDGMENT MAZHAR IQBAL SIDHU, J.---This judgment will dispose of above captioned criminal appeal filed by Mst. Shamim as well as criminal revision filed by Muhammad Raees complainant of complaint case and also the P.L.S.A. No.110 of 2009 filed by the Muhammad Raees. The appellant was convicted and sentenced by learned Addl. Sessions Judge, Gujranwala in private Complaint No.3 dated 16-1-2009 under sections 302/506/ 148/149, P.P.C. Emanated from F.I.R. No.258 dated 26- 7-2008 registered at Police Station Wahndo District Gujranwala vide impugned judgment dated 18- 6-2009. Following conviction and sentence was imposed on the appellant:-- MST. SHAMIM Life imprisonment under section 302(b), P.P.C. And fine of Rs.50,000 was directed to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default whereof to further undergo six months' S.I. She was also given the benefit of section 382-B, Cr.P.C.
2. The facts in brief as disclosed by complainant Muhammad Raees (P.W.8) in private complaint (Exh.PF) are that he was a shop-keeper. His brother Hafiz Muhammad Wasim was employed in Sonex Factory, unknown people used to visit the house of Mst. Shamim appellant at village (Tamboli) and complainant's brother had asked appellant Mst. Shamim whose. Husband had gone abroad, time and again that why she used to invite the unknown people in her house and also forbade Muhammad Shafique and Muhammad Azhar acquitted co-accused to come in street. On the fateful day i.e. 26-7-2008 at 2-00 p.m, the complainant along with Muhammad Khurshid P.W.
Were going out together whereas his brother Hafiz Muhammad Wasim (deceased) was coming behind them. The appellant Mst. Shamim called him for listening her Muhammad Wasim complainant's brother refused but Mst. Shamim started beseeching and succeeded to take him inside. Complainant and other had gone only 3-4 steps ahead when they heard screams. They rushed, entered the house of appellant Mst. Shamim and saw that two unknown persons had over powered Muhammad Wasim while Mst. Shamim appellant, her two daughters Mst. Shaheen (co- appellant) Naureen and Muhammad Azhar, the latter two acquitted co-accused were causing him injuries to kill him with their respective Chhuries. The complainant and others raised alarm whereupon out of them one unknown accused brought out a pistol and exclaimed that they would also be treated likewise in case of raising alarm. The complainant and others could not step forward due to fright of their lives. Muhammad Wasim fell down on the ground and succumbed there in their view. The unknown accused expelled the complainant and others from inside the house by extending threat to their lives and fled away. Appellant Mst. Shamim, her two daughters Mst. Shaheen (juvenile co-appellant) since been tried as juvenile and Naureen, Muhammad Azhar and Raja Shafiqaue alias Sheeloo, the latter three acquitted co-accused and two unknown accused who could be recognized on appearance thus murdered complainant's brother by their inter se privy. Zulfiqar Inspector recorded Karwai Police under the above statement and sent the same to Police Station. Hence the above said case vide F.I.R. No. 258 dated 26-7-2008 Exh.PE/1 was got registered.
3. Then investigation conducted by Muhammad Yasin Khan S.-I/I.O. (CW-2). During the investigation he inspected the dead body of Hafiz Muhammad Wasim deceased victim and prepared inquest report Exh.CW-2/A, injury statement Exh.CW2/B and petition for autopsy, Exh.CW- 2/C. Dead body was entrusted to Kafayat Ullah 904-C to get the autopsy conducted from THQ, Hospital Kamonke. CW-2 inspected the spot and prepared rough site plan Exh.CW-2/D. He took the blood imbrued earth from the spot, made it into a sealed parcel and took the same into possession vide recovery memo. Exh.PH, attested by the witnesses; draftsman obtained rough notes and prepared scaled site plans Exh.PD and Exh.PD/1; on 23-8-2008 he arrested Mst. Shamim appellant who made a disclosure and led to the recovery of weapon of crime Chhuri P-5 which was made into a sealed parcel and taken into possession vide recovery memo Exh.PG, attested by the witnesses whose statements were recorded, site plan of place of recovery Exh.PG/1 was prepared by CW-2. On 5-9-2008, Muhammad Zaman father of Mst. Naureen (since acquitted) and Shaheen (juvenile co-appellant) produced both of them before the I.O. At P.S. Wahndo, were interrogated.
Mst. Shaheen Akthar juvenile co-appellant made disclosure and led to the recovery of weapon of crime blood imbrued Chhuri which was taken into possession vide recovery memo. Attested by the witnesses whose statements were recorded by CW-2; site plan of place of recovery was prepared.
On 12-9-2008 Raja Shafique and Muhammad Azhar acquitted co-accused Appeared before the said I.O. CW-2 who after interrogation found both of them innocent.
4. Feeling aggrieved with the after mathing of investigation the complainant instituted the instant private complaint. After recording the preliminary evidence of the complainant and conducting the usual inquiry all the accused mentioned in the private complaint were summoned to face the trial.
5. Trial commenced on the denial of indictment.
6. At the trial, prosecution in order to prove its case produced as many as 11 witnesses in total. Out of them 9 were examined as P.Ws. And two were, as CWs.
The medical evidence was adduced through the statement of Dr. Abid Hussain, M.0 DHQ, Hospital, Gujranwala (P.W.1). He on 27-7-2008 conducted post mortem examination on the dead body of Hafiz Muhammad Wasim at 5-00 a.m and observed the following:-- INJURIES (i) An area of multiple penetrating wound 10 x 10 cm ten in number, each measuring 1.5 cm x.5 c.m. x muscle deep on the front of right chest, middle part 2 c.m from mid line and 3 c.m from right nipple.
(ii) A penetrating wound 2 cm x.7 c.m going. Deep on front of right chest middle part, 3 cm from right nipple, 2 cm from midline.
(iii) A penetrating wound 2 cm x 7 cm in front of right chest, lower part and 5 cm from midline.
(iv) A penetrating wound 1.5 cm x 0.75 cm going deep on front of chest middle 10 cm below middsterni.
(v) A penetrating wound 1.5 cm x 7.5 cm going deep on front of left chest, middle part 5 cm from midline and 5 cm below left nipple.
(vi) A penetrating wound 1.5 cm x 0.5 Cm in going deep on front of left chest, middle part, three cm from midline and 8 cm from left nipple.
(vii) A penetrating, wound 1.5 cm x 0.5 cm in going deep on the middle of front of left chest and 2 cm below the nipple.
(viii) A penetrating wound 1.5 cm x 0.5 cm going deep on left chest 2 cm above nipple.
(ix) An area of multiple penetrating wound 8 x 8 cm three in number each measuring 2.5 cm x 1 cm going deep on the epgestium area.
(x) A penetrating wound 1.5 cm x 5 cm x going deep front of the right abdomen upper part.
According to his opinion the cause of death was heart failure due to injuries to heart, caused by Injuries Nos.5 and 6, leading to shock and death. Injuries Nos.5 and 6 were dangerous to life and was sufficient to cause death each individually in ordinary course of nature. All injuries were ante- mortem and caused by shat-pr edged weapon. Probable time between injuries and death was immediate while between death and post mortem examination was 12 to 24 hours. Exh.P.A was the correct carbon copy of the post mortem examination report while Exh.PA/1 was the sketch of the injuries which bore his signatures.
In order to prove the ocular testimony the prosecution produced P.W.8 Muhammad Raees complainant and P.W.9 Muhammad Khurshid.
Learned counsel for the complainant renounced P.Ws. Namely Zafar Iqbal, Munir Ahmad, Salman Hashir as being unnecessary and by tendering in evidence the reports of Chemical Examiner, Exh.P-H, Exh.PJ and the reports of Serologist Exh.PK, Exh.PL closed the prosecution evidence. Then statement of the appellant was recorded under section 342 Cr.P.C. In which she negated the charge and professed her innocence. The appellant in her defence also examined Mst. Shaheen as DW-1.
Appellant while answering to a question why this case against her and why the P.Ws. Deposed against her stated infra:-- "It is a false case and P.Ws. Deposed against me falsely. My mother Shamim co-accused being tried separately had gone to the house of my other sister Fahmida on the fateful day. My sister Naureen co-accused being tried separately was asleep in the house. Hafiz Wasim trespassed by climbing over the wall with the intention to commit rape with me. I was cleaning utensils including kitchen Chhuri. He over powered me and put his hand on my mouth so that I could not raise alarm.
He put his feet upon my feet, placed me with the wall and was in the process of committing rape with me when I used the kitchen Chhuri present there for washing and gave blows on the person of deceased in order to save my honour and modesty. I did not commit any crime. I am innocent."
The appellant in her defence produced Mst. Shaheen as DW-1 who stated under section 340(2)
Cr.P.C. Infra:-- "I had murdered Hafiz Wasim deceased victim for the sake my honour. It was 26th at 10 a.m, I was washing utensils in the "Ghusal-Khana" of my house. I could not know that how and from where Wasim deceased had come. I was sitting on a "Peehri" and washing the utensils. I had got out all the utensils including the kitchen Chhuri. Hafiz Wasim deceased put his hand on my mouth and Chhuri on my neck. He put both his feet on both my feet. He placed me so with the wall. He did not know at that time that I was also possessing a Chhuri as it was under my Dopatta. The deceased put forward his hand as a step to outrage my modesty, upon which I murdered him. Hafiz Wasim deceased had come to outrage my modesty. My mother Shamim co-accused was not at home as she had gone to the house of my sister. I study in Class 8th in school situated in Tamboli."
7. Learned counsel for the appellant submits that appellant has been falsely implicated in this case being mother of Mst.Shaheen Bibi juvenile co-convict (appellant). Learned counsel has further submitted that the occurrence 'took place intramural part of the house of the appellant and the complainant party has widened the mesh and implicated as many as five inmates of the house including the appellant so that nobody may be left behind to pursue the case. It has further been maintained that persons of questionable character used to visit the house of the appellant and her daughters namely Mst. Shaheen and Naureen were of demi-mondi character because of this, neighbours were in text, about the same no evidence has been brought on the record. Learned counsel has further submitted that even during the investigation, the Investigating Officer has not collected any evidence in this respect and any person of his on did not appear before the Investigating Officer or before the court to state that the appellant and her daughters had been living immoral lives.
Learned counsel has further submitted that had the deceased been called by the appellant in her house then why she did not cause any injury to the deceased and even otherwise why the deceased entered in the house at 2-00 p.m. During the dog-days " when inmates are naturally found to be present in their house to take rest. It has been further submitted that Mst. Shaheen (juvenile) co-convict appellant has explained the circumstance under which deceased was caused injuries and since she has owned of her participation in the occurrence, and then how the appellant can be punished in this case. It has been further maintained that even otherwise, presence of the P.Ws. At the relevant time at the place of occurrence is highly doubtful on the ground that in presence of the complainant and Muhammad Khurshid P.W. How it was possible by Mst. Shaheen Bibi the juvenile convict to cause injuries to Muhammad Wasim deceased alone. It has been further submitted that presence of the alleged P.Ws. Lacks intrinsic values for their believing. It has further been mentioned that a false recovery of blood imbrued chhuri has been planted on the petitioner to strengthen the prosecution case.
8. Learned counsel has further submitted that appellant in her defence has produced Mst. Shaheen Bibi the juvenile co-accused as DW-1 who explained the circumstances in which the deceased was caused injuries, more so, during the investigation assertion of the complainant party was not found correct, again this fact goes against the credibility of the prosecution case and has thus entreated for acceptance of appeal.
9. Learned D.P.P assisted by the learned counsel for the complainant has opposed the appeal by arguing that appellant broke the ice by inviting the deceased in a pre-planned manner, she along with her co-accused since been acquitted except Mst. Shaheen caused multiple injuries on the body of deceased resulted in his death. Learned counsel has further submitted that the occurrence took place inside the house of the appellant, therefore, presence of the appellant at the place of occurrence cannot be doubted especially when the eye-witnesses saw the occurrence. Learned counsel has further submitted that Mst. Shaheen Bibi DW-1 has made a false statement to save her mother and for the murder of deceased having committed by her on the ground that she being less than 18 years could not be sentenced to death.
10. Hearkened. Record scanned.
11. Indubitably it is noted down that the appellant is real mother of Mst. Shaheen co-convict who had owned causing of injuries to death but had explained the circumstances allegedly faced by her for his flat lining. Obviously, the Court can differ from the prosecution story as well as from the defence version and can construe its on independent out come from the material available as guided in Syed AR Bepari v. Nibran Mollah and others (PLD 1962 SC 502) and being guided by the said legal precedent, I have made an independent view in this case that P.Ws. Were not present and they have made false statement being related to the deceased and if they knew that the house wherein the deceased was allegedly invited by the appellant run by suspicious activities then why he accepted the invitation and why the P.Ws. Did not forbid him and more so that the appellant did not cause any injury to the deceased as per her version.
12. For what has been discussed above, conclusion drawn is that prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubts, therefore, the instant appeal is allowed. Consequently, conviction and sentence of the appellant is set aside and she is acquitted of the charge. She is behind the bars and is directed to be set at liberty forthwith if is not required in any other case.
13. As far as Revision Petition No.746 of 2009 filed by Muhammad Raees petitioner/complainant for enhancement of quantum of sentence of appellant is concerned, the same for the reasons mentioned above stands dismissed.
14. So far as P.S.L.A. No.110 of 2009 filed by Muhammad Raees petitioner/ complainant is concerned, I am of the considered view that the learned trial court has rightly Acquitted the respondents namely Raja Shafique alias Sheelloo and Mst. Naureen. In such circumstances, I do not want to grant leave to the petitioner against acquittal of the said respondents, therefore, this petition is also dismissed..