' MAZHAR IQBAL SIDHU, J.---This judgment will dispose of the above captioned criminal appeal filed by Mst. Shaheen who was convicted and sentenced by learned Addl: Sessions Judge, Gujranwala in private Complaint No,3 dated 16-1-2009 under sections 302/148/149, 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. SHAHEEN ' 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 co-appellant at village (Tamboli) and complainant's brother had asked co-appellant Mst. Shamim whose husband had gone abroad, time and again that why she invites the unknown people at her house and also forbade Muhammad Shafique and Muhammad Azhar acquitted co-accused to come in the 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, the (deceased) was coming behind them. Co-appellant Mst. Shamim called him for listening her. Muhammad Wasim complainant's brother refused but Mst. Shamim co-appellant started beseeching and succeeded to take him inside. Complainant and other had gone only 3-4 steps ahead when they heard screams. They rushed at the spot and entered into the house of co-appellant Mst. Shamim and they saw that two unknown persons had over-powered the complainant's brother Muhammad Wasim while Mst. Shamim co-appellant, her two daughters Mst. Shaheen appellant, Naureen and Muhammad Azhar, the latter two acquitted co-accused were causing him injuries to kill him with their respective "Chhurries". 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 danger to their lives. Muhammad Wasim fell down on the ground and succumbed to the injuries in their view. The unknown accused expelled the complainant and the others from inside the house by hurling threat to their lives and fled away. Co-appellant Mst. Shamim, her two daughters Mst. Shaheen (appellant) since been tried as juvenile and . Naureen, Muhammad Azhar and Raja Shafique alias Sheeloo, the latter three acquitted co-accused and the two unknown accused who could be recognized on appearance thus murdered the complainant's brother in consultation with each other. Zulfiqar Inspector recorded Karwai Police under the above statement and sent the same to the Police Station. Hence the above said cases vide F.I.R. No, 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 Ex.CW-21A, injury statement Exh.CW-2/B and petition for autopsy, Ex.CW-2/C. Dead body of Hafiz Muhammad Wasim 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 stained earth from the spot, made it into a sealed parcel and took it into possession vide recovery memo Exh.PH, attested by the witnesses. Draftsman obtained the rough notes and prepared the scaled site plans Exh.PD and Exh.PD/1 and on 23-8-2008 he arrested Mst. Shamim co- appellant who made disclosure and led to the recovery of weapon of crime "Chhuri" P-5 which was made into a sealed parcel and taken into possessiol, vide recovery memo Exh.PG, attested by the witnesses whose statements were recorded by CW-2. Site plan of place of recovery Exh.PG/1 was prepared by CW-2. On 5-9-2008, Muhammad Zaman the father of Mst. Naureen (since acquitted) and Shaheen appellant produced both of them before the I.O. At Police Station Wahndo. Both these accused were interrogated. Mst. Shaheen Akthar juvenile appellant made disclosure and led to the recovery of weapon of crime "Chhuri" which was taken into possession vide recovery memo, attested by the witnesses whose statements were recorded by CW-2. The 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 investigation of the police the complainant instituted an 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 examined as CWs.
' The medical evidence was adduced through the statement of Dr. Abid Hussain, M.O. 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 midline and 3 c.m from the right nipple.
(ii) A penetrating wound 2 cm x .7 c.m going deep on front of right chest middle part, 3 cm from the 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 midsterni.
(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 epigestium 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 in this case 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 were sufficient to cause death, each individually, in ordinary course of nature. All injuries were ante mortem and caused by sharp 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 is the correct carbon copy of the post mortem examination report while Exh.PA/1 is 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 lqbal, Munir Ahmad, Salman Bashir as being unnecessary and by tendering in evidence the reports of Chemical Examiner, Exh.P-Fl, 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 statement opted to appear under section 340(2), Cr.P.C. And thereafter she got recorded her statement on oath as permissible under section 340(2), Cr.P.C. 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 under section 340(2), Cr.P.C. Stated 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 has submitted that P.Ws. Have made false statements because of their propinquity with the deceased in fact no body saw the complainant in connivance with the police and after due deliberations and consultations got a false case registered against the appellant and her co-accused but during the investigation the police came to the conclusion that case was false whereupon complainant Muhammad Raees, brother of the deceased instituted a private criminal complaint. Learned counsel has further submitted that according to the version of the complainant joint role of causing injuries to the deceased by the appellant, Naureen, Raja Shafique alias Sheeloo and no specific injury has been attributed to the appellant. Learned counsel has further maintained that co-accused of the same role has been acquitted on the basis of same evidence which was resulted by the learned trial court for the conviction and sentence of the appellant and the same cannot be relied upon without any independent corroboration. Learned counsel has further maintained that no doubt Mst.
Shaheen Bibi has taken a specific plea under which the incident had taken place to 'the effect that she was alone in her house on the day of occurrence, the deceased got an opportunity trespassing in the house and attempted to outrage her modesty then she caused him injuries but at the same time it is for the prosecution to prove its case on its own legs and if the court comes to the conclusion that P.Ws. Did not see, the occurrence then it is not always for the court to rely upon the plea advanced by an accused. Learned counsel has further submitted about the suspected activities allegedly undertaken in the house of occurrence, no evidence has been brought on the record. Learned counsel has further argued that the deceased had himself became harbinger of inviting the trouble and was not (rikr'') at the time of occurrence. Learned counsel has further submitted that the learned appellate court can differ with the prosecution case as well as the defence version by applying his independent judicious mind as guided by a case reported in Sayed Ali Bepari v. Nibran Mollah and others (PLD 1962 SC 502). Learned counsel submits that it is not incumbent upon the court to accept the plea of an accused unnecessarily. Learned counsel has further submitted that since the presence of the P.Ws. Have not been proved at the time of place of occurrence at the relevant time due to their natural behaviour and other circumstances; therefore, it is expedient to accept the appeal of the appellant.
8. Learned D.P.P assisted by the learned counsel for the complainant has opposed the appeal and has argued that occurrence took place during the daylight. P.W. Saw the incident, dead body was found in the house of appellant, blood-stained earth was also taken into possession from there.
During the investigation as well as trial it has not been denied that the deceased was not murdered by the appellant, recovery of crime weapon has been effected from the appellant, its report corroborates the prosecution version, opinion of the police being inadmissible and irrelevant cannot be relied upon being not binding, the appellant has herself admitted the commission of murder of the deceased, therefore, appeal may be dismissed.
9. I have heard the learned counsel for the parties and have also gone through the record. Firstly it is discussed that prosecution has not led any evidence about the nefarious activities of the appellant or anybody else of the inmate of her house. Both the P.Ws. Appeared in this Court, have been found to have not seen the occurrence and being kith and kin of the deceased have made false statements in this case. By virtue of their natural conduct and actions allegedly made by them do not persuade a prudent man to accept their presence at the place of the occurrence, therefore, their presence is discarded and their evidence is also disbelieved.
10. So far as the evidence of crime weapon is concerned, that is always regarded as collateral and not the substantive and if the court does not believe the corroborative piece of evidence cannot be relied upon, in this way, the same too is discarded. Coming to the plea put forth by the appellant before the learned trial court through her statements recorded under sections 342, Cr.P.C. And 340(2), Cr.P.C. Is concerned, the court is well within its domain cannot be compelled to accept the same. Onus of proof always remains on the prosecution and if the prosecution has not discharged its duty as required by law then it is not obligatory to accept the version of an accused. No doubt the dead body was found in the house of appellant but this fact alone is not sufficient to connect the appellant with his murder.
11. For what has been discussed above, resoluted in acceptance of instant appeal. Consequently, conviction and sentence of the appellant is set aside and she is acquitted of the charge alleged against her. She is behind the bars and is directed W be set at liberty forthwith if is not required in any other case.