' ABDUS SATTAR ASGHAR, J.--- Through this single order I intend to dispose of instant Criminal Appeal lodged by Mst.Shamshad Bibi as well as Criminal Appeal No.103 of 2003/Bwp lodged by Sagheer Ahmed and a Criminal Revision Petition No.61 of 2003/Bwp brought by Muhammad Sharif complainant arising out of one and the same judgment dated 11-4-2003 passed by learned Additional Sessions Judge Rahim Yar Khan whereby he had tried the above named appellants along with their co-accused Liaquat Ali (since acquitted) in the offences under sections 302/109/34, P.P.C. In case F.I.R. No.386 of 2000, dated 23-7-2000 registered at Police Station Sadar Rahim Yar Khan for hatching conspiracy and abetment to cause Qatl-e-Amd of Muhammad Iqbal husband of Mst.Shamshad Bibi appellant through hired assassins, namely, Khayam and Roshan (both declared as proclaimed offenders) by causing sharp edge weapon injuries on vital parts of his body. Learned trial court vide judgment dated 11-4-2003 convicted, both the appellants under section 109/302(b), P.P.C. And each of them were sentenced to imprisonment for life. Each of them were also directed to pay an amount of Rs.50,000 to the legal heirs of each deceased as compensation under section 544-A Cr.P.C., and in case of default to undergo further R.I. For six months each.
2. Prosecution case as unfolded by Muhammad Sharif complainant in his statement (Exh.PE) on the basis whereof formal F.I.R. (Exh.PE/1) was registered on 23-7-2000 is that he is resident of Chak No.72/NP; that his elder brother Muhammad Iqbal, painter by profession, along with his family also resides in the same chak near his house, who daily proceeds from home in the morning on work and return in the evening; that yesterday morning Muhammad Iqbal proceeded from home on bicycle but did not turn up till night; that the same day i.e. 23-7-2000, at 7-00 a.m. He received an information that a dead body is lying in the fields behind Gulshan Town whereupon he along with P.Ws. Tahir Razzaq and Abdul Latif residents of Chak No.72/NP reached the spot and saw that Muhammad Iqbal was lying murdered; that he identified the dead body bearing deep incised wounds caused by sharp edged weapon on his neck and abdomen; that cycle, painting material and other belongings of the deceased were also lying around in scattered position; that foot prints of a person and tyre prints of another bicycle were also seen at the spot; that some unknown person has killed his brother at night time' by causing sharp edged weapon injuries.
3. Muhammad Afzal Gill Inspector/ S.H.O. (P.W.14) scribe of the complainant's statement (Exh.PE) and first Investigating Officer of this case deposed that on 23-7-2010 at 7-00 a.m. On receipt of information of occurrence he along with constables Fayyaz and Asghar reached the place of occurrence in the area of Chak No.72/NP where a dead body was lying in. The fields and the P.Ws.
Along with complainant were present at the spot where the complainant Muhammad Iqbal got recorded his statement (Exh.PE) and also put his signatures; that after recording the injury statement and inquest report he dispatched the dead body to Sheikh Zaid Hospital Rahim Yar Khan for autopsy and the complainant's statement (Exh.PE) was transmitted to the police station for recording of formal F.I.R. Through Nazir Ahmed constable. He inspected the place of occurrence, prepared the rough site plan (Exh.PG), collected the blood stained earth vide recovery memo (Exh.
PA) in presence of P.Ws. And also collected the articles scattered near the dead body i.e. Bicycle (P1) and other belongings of the deceased (P2 to P18) and took into possession through recovery memo (Exh.PB); that the same day after postmortem examination' of the dead body of Muhammad Iqbal, Asghar constable produced last worn cloths of the deceased, which he took into possession through recovery memo (Exh.PC) and deposited the case property to the Moharrar; that he also recorded the statements of P.Ws. Under section 161 Cr.P.C. On 5-8-2000, he recorded the statements of Abdul Sattar and Muhammad Nawaz P.Ws. On 9-8-2000, Muhammad Boota and Naveed Ali P.Ws. Appeared before him and got recorded their statements under section 161 Cr.P.C.
On 11-8-2000, Muhammad Ajmal and Ashraf P.Ws. Got recorded their statements at the police station. On 22-8-2000, he arrested the accused Liaqat Ali. Accused Sagheer Ahmed (appellant) was arrested by him on 31.8-2000, who was produced by Hafiz Ghulam Muhammad (since deceased) and Amjad Ali (P.W.4). He also got recorded the statements of said P.Ws. On 13-9-2000 he produced- Sagheer Ahmed appellant before the Magistrate where statement of Sagheer Ahmed appellant was recorded under section 164 Cr.P.C. And thereafter he was sent to jail. On 16- 9-2000, he recorded the statement of Rehmat Bibi (P.W.8.) and Abid Iqbal (P.W.7.). Under section 161, Cr.P.C. The same day Mst.Shamshad Bibi was arrested by him consequent upon the rejection of her bail application and was sent to judicial lockup and thereafter he handed over the file of the case for investigation to Feroz Ahmed Inspector/ S.H.O. Who prepared incomplete challan. He further deposed that in his investigation Sagheer Ahmed and Mst.Shamshad Bibi were found guilty and accused Liaqat Ali were found innocent thereafter he submitted his discharge report. Challan of the case was prepared and sent up by Feroz Ahmed Inspector (P. W.
12. ).
4. On receipt of the challan learned trial court formally charge-sheeted all the above named appellants under sections 302, 109, 34, P.P.C. To which they pleaded not guilty and claimed to be tried.
5. Prosecution produced as many as seventeen witnesses to -prove the charge. Hafiz Fazal Elahi retired DSP was examined as CW besides above noted Investigating Officers, Muhammad Ajmal (P.
W .
2. ), Abdul Sattar (P. W .3 .), Atnj ad All (P.W.4.), Naveed (P.W.5.), Abid Iqbal (P.W.7.); Rehmat Bibi (P.W.8.), Muhammad Sharif complainant (P.W.9.), and Dr.Aslam Asam, who conducted the postmortem examination on the dead body of Muhammad Iqbal (R.W.
10.), are material witnesses. Rest of the witnesses are formal in nature.
6. After concluding the prosecution evidence learned trial court recorded the statements of the appellants under section 342, Cr.P.C. Whereby they rejected each and every piece of prosecution evidence while pleading their innocence. Mst.Shamshad Bibi and Sagheer Ahmed accused/appellants in answer to the question "Why this case is against you and why P.Ws. Have deposed against you" stated as under-- "P.Ws. Are related inter se. They are partial. They have deposed against me dishonestly and malafidely. The whole prosecution story is based on fictitious facts, conspiracy and dishonestly and I have been involved in this case with a plan by the complainant who is blackmailing me through this case."
' The appellants neither opted to make any statement under section 340(2), Cr.P.C. Nor produced any evidence in defence.
7. It is argued by learned counsel for the appellants that they are not nominated in the F.I.R. Rather have been falsely implicated in this case merely on the basis of suspicion; that prosecution case is based upon circumstantial evidence in the shape of last seen and extra-judicial confession; that testimonies of the P.Ws. Produced by the prosecution on the dimensions of last seen and extra- judicial confession lack intrinsic value and inherent worth, therefore, these are neither confidence inspiring nor reliable besides lacking any independent corroboration; that the evidence produced by the prosecution on the dimensions of last seen and extrajudicial confession is afterthought and concocted version set forth with inordinate delay without any sufficient explanation; that prosecution has no direct evidence against appellants regarding abetment or hatching of any conspiracy with regard to murder of Muhammad Iqbal; that it was a blind murder; that statement of Sagheer Ahmed appellant allegedly recorded by the Magistrate under section 164, Cr.P.C.
Cannot be termed as voluntairy confession and also suffers from material procedural deficiencies violative to the guidelines stipulated by this Court on the subject and thus the same has no legal effect; that appellants are innocent and never made any extra-judicial confession before any of the P.Ws.; that the medical evidence does not corroborate the prosecution version; that prosecution has failed to establish the charges against the appellants through any reliable ocular and documentary account beyond any reasonable doubt, therefore, the learned trial court has illegally convicted and sentenced the appellants merely on the basis of surmises and conjectures without appreciating the evidence and material, available on record and that they deserves acquittal.
8. On the other hand the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant argued that prosecution has proved the charges against the appellants to the hilt by producing strong and reliable circumstantial evidence in the shape of last seen and extra judicial confession through statement of reliable and confidence statements of P.Ws. Besides testimonies of Rehmat Bibi real mother of the deceased and Abid Iqbal real son of the deceased; that Sagheer Ahmed appellant also made a voluntairy confessional statement under section 164, Cr.P.C. Before the Magistrate duly proved on the record; that the learned trial Court has lawfully convicted and sentenced the accused for hatching conspiracy and abetment to cause murder of Muhammad Iqbal through . Hired assassins namely Khayam and Roshan (both proclaimed offenders), therefore, they deserve capital punishment instead of imprisonment for life awarded' by the trial court.
9. I have given patient hearing to the learned counsel for the appellants, learned D.P.-G. For the State, learned counsel for the complainant and carefully gone through the record.
10. This is .a case of circumstantial evidence produced by the prosecution on the following dimensions:-- (i). Last Seen.
(ii) Extra-Judicial Confession.
(iii) Judicial Confession under section 164, Cr. P.C.
(iv) Peculiar circumstances.
(v) Conspiracy and abetment.
(i) LAST SEEN -11. On this dimension, prosecution has produced only one witness, namely, Muhammad Ajmal (P.W.2.), who deposed that on 22-7-2000 he along with Muhammad Ashraf P.W. (given up) was coming from Chowk Bahadarpur on motorcycle at about 9-00 p.m. When reached near the house of Hameed Gujar, Muhammad Iqbal (deceased) along with another person met him; that he inquired about their destination whereupon Muhammad Iqbal introduced his companion as Sagheer. Ahmed (appellant) reportedly engaged in polishing the furniture and informed that the said Sagheer .Entrust polish work to Muhammad Iqbal (deceased); that later on Sagheer Ahmed (appellant) with Muhammad Iqbal (deceased) taking turn proceeded towards the house of Hameed Gujar and that he along with Muhammad Ashraf proceeded towards Rahim Yar. 'Khan and went to home; that on 10-8-2000, his maternal cousin Iqbal informed about murder of Muhammad Iqbal (deceased) and that the next day he recited Fatiha' and disclosed to Muhammad Sharif complainant that Muhammad Iqbal (deceased) and Sagheer Ahmed (appellant) had met him yesterday at 9-00 p.m. On 22-7-2000 near the house of Hameed Gujar and that he suspected that Sagheer Ahmed has committed the murder of Muhammad Iqbal (deceased).
12. Admittedly he is not resident of Chak No.72/NP where the deceased Muhammad Iqbal was permanently residing. He has also not disclosed any probable and plausible reason of his presence at the alleged time and date in the area of Chak No.72/NP. While facing the cross-examination he disclosed that the same night he remained present with Abdul Sattar at Chowk Bahadarpur w.e.f.
7-00 p.m. To 11-00 p.m.; that distance from Chowk Bahadarpur and the place where the accused Sagheer Ahmed and Muhammad Iqbal were seen is 10 K.M. Be that as it may his earlier statement that he had met Muhammad Iqbal (deceased) and Sagheer Ahmed (appellant) standing near the house of Hameed Gujar, at 9-00 p.m. Stands negated. During the cross-examination he further stated that he has informed the complainant about his meeting with Sagheer Ahmed (appellant) and Muhammad Iqbal (deceased) about 18/19 days after the meeting. It also negates his earlier statement during examination-in-chief- that on the next day about receiving the information regarding murder of Muhammad Iqbal (deceased) he disclosed to Muhammad Sharif complainant that he had met Muhammad Iqbal (deceased) and Sagheer Ahmed (appellant) yesterday at 9-00 p.m. On 22-7-2011 near the house of Hameed Gujar. His statement under section 161, Cr.P.C. Was recorded on 11-8-2000 after delay of about twenty days of the occurrence. No probable and plausible reason is given for inordinate delay of his appearance before the Investigating Officer if he had imparted the information to the complainant on the next day of the alleged occurrence. His other alleged companion Muhammad Ashraf has been given up by the prosecution and not produced to corroborate him. In absence of any probable and plausible reason of his presence at Chak No.72/NP his statement lacks intrinsic value and inherent worth, therefore, the same is neither confidence inspiring nor reliable. His testimony is also not corroborated by any other P.W., therefore, his solitary statement being untrustworthy is totally insufficient to discharge the burden of proof.
(ii) EXTRA-JUDICIAL CONFESSION
13. On this segment, prosecution has produced only one witness namely, Amjad Ali (F.W.4) resident of Aziz Abad Rahim Yar Khan. He deposed that on 31-8-2000, he along with Hafiz Ghulam Muhammad P.W. (since died) was waiting Molana Abdul Rauf Rabbani in his office situated at Makki Masjid after offering Isha prayer when Sagheer Ahmed (appellant) approached Hafiz Ghulam Muhammad, shook hand and thereafter started weeping and disclosed that Abid Iqbal son of Muhammad Iqbal (deceased) was working with him for the last 3/4 years and by dint of this relationship he developed intimacy with Robina daughter of Muhammad Iqbal (deceased) and started visiting them frequently; that wife of Muhammad Iqbal (decehsed) complained him regarding spouses differences and she instigated him to remove her husband (Muhammad Iqbal) from the scenario about one year prior to the occurrence; that he did not accede to her illegal demand and have been delaying for one year; that two months prior to the incident she again instigated him to remove her husband and this time he agreed to fulfil her nefarious design; that she also promised that if he fulfilled her desire she would grant hand of her daughter to him for marriage; that Mst.Shamshad Bibi (appellant) wife of Muhammad Iqbal (deceased) also ensured him to pay the expenses for executing the entire scheme whereupon on her instigation he contacted Khayam and Roshan (both proclaimed offenders) for the execution of nefarious design; that bargain was struck between him and the said absconding accused against a sum of Rs.10,000; that he reported the deal to Mst.Shamshad Bibi (appellant) who acceded thereto; that he also settled with Khayam and Roshan (proclaimed offenders) that he will take them to the place of occurrence and would identify the deceased; that half of the money had to be paid prior to the execution and the rest half amount had to be paid after the execution; that Mst.Shamshad Bibi (appellant) provided him sum of Rs.5,000 for part payment to Khayam and Roshan (proclaimed offenders); that Muhammad Iqbal (deceased) was invited by him near the Banglow of Abdul Hameed Gujar where Muhammad Ajmal (P.W.2) and Muhammad Ashraf P.W. (given up) met them on their way and that they had disclosed to them they were going to get a furniture polish work from that vicinity whereupon Muhammad Ajmal (P.W.2) and Muhammad Ashraf went away and he along with Muhammad Iqbal (deceased) proceeded towards the house of Abdul Hameed Gujar; that- accused Khayam and Roshan (proclaimed offenders) were present at place of occurrence having Chhuri' in their hands; that when he and Muhammad Iqbal (deceased) sitting on the bicycle reached near the accused Khayam and Roshan (proclaimed offenders), they inflicted Chhurr blows to Muhammad Iqbal (deceased), who succumbed to the injuries at the spot; that he imparted the information to Mst.Shamshad Bibi (appellant) at 11-00 p.m. That work has been accomplished; that he also participated in the funeral procession, burial, Qulkhawani and other formalities on the demise of Muhammad Iqbal (deceased). He also deposed that Sagheer Ahmed (appellant) further confessed before him and Hafiz Ghulam Muhammad that his conscious pricked him to seek pardon. The said confession of Sagheer Ahmed was duly conveyed to the police station Sadar Rahim Yar Khan on telephone; that he, Hafiz Ghulam Muhammad and Sagheer Ahmed met the Investigating Officer when statement of Hafiz Ghulam Muhammad and himself was recorded followed by the statement and arrest of Sagheer Ahmed.
14. While facing the cross- examination, he admitted that distance between his house and of Makki Masjid is 21/2 K.M. He further stated that he was present in the office of Hafia- Ghulam Muhammad per chance; that office of Hafiz Ghulam Muhammad was commonly used as `Baithak'; that he did not know Sagheer Ahmed (appellant); that he had no direct knowledge of incident of murder of Muhammad Iqbal (deceased); that he had no. Relation or intimacy with Sagheer Ahmed (appellant); that Sagheer Ahmed had not approached him directly. He further stated that Sagheer Ahmed had made the confession to Hafiz Ghulam Muhammad. He admitted that Sagheer Ahmed was neither related nor neighbourer of Hafiz Ghulam Muhammad. He also admitted that Hafiz Ghulam Muhammad was neither, neighbourer nor relative of the complainant or the, deceased.
Admittedly, distance between house of ,Hafiz Ghulam, Muhammad and house of the complainant is 3 K.M. During cross-examination; he also stated that Molana Abdul Rauf Rabbani was also present at the relevant time of confession made by. Sagheer Ahmed (appellant), howevei, Molana Abdul Rauf Rabbani was not examined by the police.
15. Admittedly, he is a chance witness. He has failed to furnish any probable and plausible reason of his presence in the office/Baithak of Hafiz Ghulam Muhammad (since died) at Isha time whereas admittedly his house is situated at a distance of 21/2 K.M. Reportedly, Molana Abdul Rauf Rabbani was also present at the time of alleged confession but he is not produced by the prosecution, Therefore, in the absence of any reliable corroborative piece of evidence his testimony regarding alleged extra judicial confession of Sagheer Ahmed (appellant) lacking intrinsic value and inherent worth is neither confidence inspiring nor reliable. Needless to mention that extra judicial confession is weakest piece of evidence. Untrustworthy solitary statement of Amjad Ali (P.W.4) on this dimension is totally insufficient to prove the plea of extra judicial confession.
(iii) JUDICIAL CONFESSION UNDER SECTION 164, CR.P.C.
16. Prosecution has taken much reliance upon this dimension of the case. For this purpose, prosecution has produced Mian Muhammad Suleman Joiya, Civil Judge-cum-Judicial Magistrate, Rahim Yar Khan, (P.W.15), who deposed that on 13-9-2000 Sagheer Ahmed (appellant) was produced before him at 10-45 a.m. By Muhammad Afzal Gill S.-I./Investigating Officer (P: W.14) for, the purpose of recording the statement under section 164 Cr.P.C.; that after taking appropriate and necessary precautions as described in section 164, Cr.P.C. Read with section 364, Cr.P.C. He recorded the statement of Sagheer Ahmed in terms of section 164, Cr.P.C. (Exh.PH) in his own hand and signed by him; that after recording the statement referred above he read it oyer to Sagheer Ahmed, who after hearing and understanding acknowledged it; that the above referred statement has been recorded as deposed before him and that in token of acknowledgment of genuineness Sagheer Ahmed also thumb-marked thereupon as Exh. PH/1.
17. Muharnmad Afzal Gill S.I. (P. W.14) Investigating Officer of this case who allegedly produced Sagheer Ahmed before the Magistrate for his statement under section 164, Cr.P.C. On 13-9-2000 while facing cross-examination admitted that consequent upon arrest of Sagheer Ahmed on 31-8- 2000 he produced him before the Magistrate for physical remand on 1-9-2000 and obtained his four days physical remand. He again produced him before the Magistrate on 5-9-2000 and obtained his further physical remand up to 9-9-2000. It was further extended up till 11-9-2000: He also stated that on 12-9-2000 learned Magistrate declined to grant physical remand of Sagheer Ahmed whereupon through an application he requested the Magistrate to record statement of Sagheer Ahmed under section 164, Cr.P.C. And that the Court adjourned the matter for 13-9-2000.
Again said physical remand from 12-9-2000 to 13-9-2000 was granted. At this stage it is pertinent to mention that prosecution has not produced any such application ever lodged by the Investigating Officer to the Magistrate on 12-9-2000 with a request to record the statement of Sagheer Ahmed under section 164, Cr.P.C. He further stated that on 13-9-2000 he produced Sagheer Ahmed appellant before the learned' agistrate for recording his statement under section 164, Cr.P.C. And that no other officer was present before the Court at that time and that after recording the statement under section 164, Cr.P.C. He was remanded to judicial lockup. He admitted it correct that from 9-9-2000 to 13-9-2000 physical remand of Sagheer Ahmed (appellant) was granted by Mian Muhammad Suleman Joiya, Civil Judge-cum-Judicial Magistrate Rahim Yar Khan (P.W.15). It is, therefore, obvious that Sagheer Ahmed had not volunteered to make any confessional statement under section 164, Cr.P.C. Up till 12-9-2000 when the learned Magistrate declined his further physical remand to the Investigating Officer. However, one day further physical remand up till 13-9-2000 was granted by the Magistrate On the request of the Investigating Officer for recording of confessional statement under section 164, Cr.P.C. At this juncture it is also pertinent to mention that Magistrate (P.W.15) during cross-examination has admitted that before recording the statement under section 164, Cr.P.C. He had not put a specific question to the appellant as to whether there was any pressure upon him to make a voluntary statement under section 164, Cr.P.C.
This is a material lapse on the part of the learned Magistrate. Since one day physical remand of Sagheer Ahmed was given by the Magistrate on the request of the Investigating Officer, therefore, it was incumbent upon the Magistrate to particularly ask the above question from him before recording his statement under section 164, Cr..P.C. To rule out any pressure of the police upon him to make such statement. In the absence of such particular question voluntariness of the alleged statement under section 164, Cr.P.C. Is highly doubtful and cannot be safely relied upon.
18. Besides above, Muhammad Afzal Gill S.I./Investigating Officer (P.W.14) during crossexamination has categorically stated that statement under section 164, Cr.P.C. Of Sagheer Ahmed (appellant) was recorded on the direction of the then learned District and Sessions Judge Rahim Yar Khan pursuant to application for grant of bail on behalf of Mst.Shamshad Bibi (appellant), which was adjourned for 16-9-2000. No such direction of the then learned District and Sessions Judge Rahim Yar Khan is produced on the record. Be that as it may the alleged statement under section 164, Cr.P.C. Recorded on- the direction of the then learned District and Sessions Judge Rahim Yar Khan cannot be termed as voluntary statement.
19. Alleged confessional statement (Exh.PH) reveals that Sagheer Ahmed made the statement that he had developed intimacy with one Mst.Shazia daughter of Muhammad Iqbal (deceased) who was a trainee on his shop of embroidery and he was promised by Mst.Shamshad Bibi (ippellant), to give the hand of IVIst.Shazia for the purpose of marriage if he could manage to do away with her husband Muhammad Iqbal (deceased). It is pertinent to mention that as per prosecution case Muhammad Iqbal (deceased) has no daughter namely Mst.Shazia rather the name of daughter of Muhammad Iqbal (deceased) is Robina .Bibi. It is also not case of the prosecution that said Mst.Shazia or Robina Bibi had ever worked with Sagheer Ahmed as trainee on his embroidery shop rather prosecution case is that Abid Iqbal son of Muhammad Iqbal (deceased) was trainee with Sagheer Ahmed (appellant) on his embroidery shop.
20. There is also material discrepancy in the alleged extra-judicial confession and retracted judicial confession (Exh. PH) F-allegedly made by Sagheer Ahmed (appellant). In the prosecution version it is alleged that Sagheer Ahmed himself took Muhammad Iqbal (deceased) to the actual assassins Khayam and Roshan (proclaimed offenders) on a pretext to get some painting work for him at night time when the said hired assassins having waylaid killed Muhammad Iqbal inflicting `Chhuri' blows in a premeditated manner. On the other hand in the retracted judicial confession it is alleged that Sagheer Ahmed dispatched Muhammad Iqbal (deceased) to accompany.
21. Khayam and Roshan (proclaimed offenders) to settle and accomplish the painting work who accordingly accompanied them and that next day he came to know that Khayam and Roshan have murdered Muhammad Iqbal in the standing crop of Gul Sher.
21. For the above noted reasons, the retracted judicial confession (Exh. PH) neither appears to be voluntary nor confidence inspiring and thus is not trustworthy to be relied upon.
(iv) PECULIAR CIRCUMSTANCES
22. On this dimension prosecution has produced Abdul Sattar (P.W.3), Naveed (P.W.5), Abid Iqbal (P.W.7) and Rehmat Bibi (P.W.8).
' Abdul Sattar (P.W.3.) has deposed that he is neighbour of Muhammad Iqbal (deceased); that in his absence he used to see that Sagheer Ahmed (appellant) and Liaqat accused (acquitted) visited the house of Muhammad Iqbal (deceased) again said his brother, also witnessed so; that it was lately heard that the aforesaid Sagheer Ahmed (appellant) and Liaqat accused (acquitted) intimated with Mst.Shamshad Bibi (wife) and Robina (daughter) of Muhammad Iqbal (deceased); that after the murder of Muhammad Iqbal it was his suspicion that the murder was committed by Liaqat accused and Sagheer Ahmed (appellant); that he and his brother Muhammad Nawaz made their statements to the police accordingly.
' Bare reading of the, above quoted testimony of P.W.3. Makes it clear that it is based on hearsay and suspicion. His brother Muhammad Nawaz is also not produced in the witness box for the reasons best known to the prosecution.
23. Naveed (P.W.5) resident of Gulshan Colony Rahim Yar deposed that 8/9 days prior to the occurrence per chance he was passing in front of the house of Muhammad Iqbal (deceased) along with Muhammad Boota when the spouses were picking up a quarrel on the point ' of frequent visits of Sagheer Ahmed and Liaqat; that Muhammad Iqbal objected to their visits to his house in his absence while Mst.Shamshad Bibi protested that in case he restrained Sagheer Ahmed and Liaqat from visiting the house she would abandon the house along with children. In the concluding lines of his examination-in-chief he further stated that by the expression passing near the house of Muhammad Iqbal (deceased) he means that he entered into the house of Muhammad Iqbal (deceased) along with Muhammad Boota and tried to reconcile the spouses on this issue but the female spouse remained adamant.
' Admittedly he is relative of the complainant Muhammad Sharif. Admittedly he is not resident of Chak No.72/NP where the deceased permanently resides, which is at a distance of 7-K.M. From his place of residence. He has also not disclosed any probable and plausible reason of his alleged presence in Chak No.72/NP. Therefore, being a chance witness he is not reliable. His testimony is also not corroborated by any other P.W., therefore, his solitary statement being untrustworthy is totally insufficient to discharge the burden of proof.
24. Abid Iqbal (P.W.7) aged about 17 years is real son of Muhammad Iqbal (deceased) and Mst.Shamshad Bibi (appellant). At the outset it is noteworthy that his statement under section 161, Cr.P.C. Was recorded by the police on 16-9-2000 i.e. After about two months of the alleged occurrence. In examination-inchief he deposed that 3 to 4 years prior to the occurrence he was under training with Muhammad Sagheer (appellant) in connection with embroidery work; that Sagheer Ahmed (appellant) also used to visit his house to provide embroidery work to his family; that after the murder of his father Sagheer Ahmed (appellant) was arrested and his mother was also taken by the police for the purpose of investigation; that upon her return from the police station she advised him 'that if police or Judge ask him as to whether Sagheer Ahmed has murdered his father he should reply that he has pardoned Sagheer Ahmed; that her above statement made him to believe that his mother and Sagheer Ahmed (appellant) were involved in the murder of his father.
' It is pertinent to mention that no reason is assigned for inordinate delay of two months for this appearance to make statement before the police. His above noted testimony is also merely based on a suspicion. Admittedly he has two brothers and three sisters. He also admitted that presently they are dependent upon her uncle namely Muhammad Sharif complainant. He has not denied the suggestion that Muhammad Sharif complainant has engaged his daughter with him. None of his other brother or sister came forward to corroborate his statement. His considerably belated statement not corroborated by any other witness, therefore, cannot be safely relied upon.
25. Rehmat Bibi (P.W.8) is mother of Muhammad Iqbal (deceased). She has deposed that Muhammad Iqbal had often made complaint about his wife namely Mst.Shamshad Bibi who had threatened him to commit his murder through scoundrel persons; that deceased also intended to have a separation from Mst.Shamshad Bibi but she restrained him; that she also forbade Mst.Shamshad Bibi to refrain from indulging in nefarious activities but all in vain; that one day prior to the occurrence Muhammad Iqbal (deceased) had a dispute with Mst.Shamsliad Bibi (appellant) and was apprehending that he will be murdered in the hand of Mst.Shamshad Bibi and later on left the house; that paramour of Mst.Shamshad Bibi managed to meet Muhammad Iqbal in the way and thus he was murdered.
' While facing the cross-examination she admitted that her statement under section 161, Cr.P.C. Was not recorded by the police and that she never associated the police in the investigation. She also admitted it correct that she has deposed on behalf of Muhammad Sharif complainant. Admittedly she was living apart from Muhammad Iqbal (deceased) in a separate house at some distance in the other street. Above statement of Rehmant Bibi (P.W.8) bears an allegation of general nature lacking any independent corroboration, therefore, she cannot be safely relied upon.
26. For the foregoing discussion and reasons, argument of learned counsel for the complainant that above quoted testimonies furnish sufficient circumstantial evidence to prove the guilt against the appellants for hatching conspiracy and abetment to kill Muhammad Iqbal is devoid of any force, untenable in the eye of law and thus repelled.
(v) CONSPIRACY AND ABETMENT.
27. Learned counsel for the complainant has emphatically argued that appellants had hatched the conspiracy to do away with Muhammad Iqbal (deceased) through hired assassins and thus committed the offence of abetment for his murder.
28. The term conspiracy is defined under section 12-A of the Pakistan Penal Code 1860 as under:- "When two or more persons agree to do, or cause to be done,
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
' Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
' The expression 'Abetment' is defined under section 107 of Pakistan Penal Code 1860 as under:-- "A person abets the doing of a thing, who First. Instigates any person to do that thing; or Secondly.
Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an. Act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly. Intentionally aids, by any act or illegal omission, the doing of that thing."
'Abettor' is defined under section 108 of the Pakistan Penal Code 1860, as follow:-- "A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of abettor.
' Explanation 1. The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.
' Explanation 2. To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.
' Explanation 3. It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention of knowledge.
' Explanation 4. The abetment of an offence being an offence the abetment of such an abetment is also an offence.
' Explanation 5. It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed..
29. There is no cavil to the proposition that it is hard to produce direct evidence for hatching of conspiracy. However, to prove a criminal conspiracy following essentials are to be established by the prosecution in terms of Article 23 of the Qanun-eShahadat Order, 1984:--
(i) There shall be a prima facie evidence affording a. Reasonable ground for a Court to believe that two or more persons are members of a conspiracy;
(ii) if the said condition is fulfilled, anything said, done or written by anyone of them in reference to their common intention will be evidence against the other;
(iii) anything said, done or written by him should have been said, done or written by him after the intention formed by anyone of them;
(iv) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said, done or written before he entered the conspiracy or after he left it.
' Besides above it is also pertinent to mention that a conspiracy consists not merely in the intention of two or more person but in an agreement of two or more persons to do an unlawful act.
30. None of the P. Ws. Has deposed that he had seen the appellant hatching any conspiracy or abetting the allegedly hired assassins namely Khayam and Roshan (both proclaimed offenders) to kill Muhammad Iqbal (deceased). Evidence as to conspiracy by producing chance witness is not reliable at all. Reliance be made upon Fakku Mia alias Motahar v. The State (1969 SCM R 620).
Nutshell of the above discussion is that prosecution has not been able to prove any of the alleged dimensions of this case to prove the complicity of the appellants with regard to hatching any conspiracy or abetment for causing murder of Muhammad Iqbal (deceased).
31. It is cardinal principle of criminal law, that the prosecution remains under heavy burden to bring the guilt home to the accused. Beyond any reasonable doubt, K therefore, the learned trial Court has fell in grave error to hold both the appellants guilty under section 109, P.P.C. For the abetment of the murder of Muhammad Iqbal Impugned convictions and sentences of the appellants in the absence of any confidence inspiring or trustworthy ocular and documentary account are not sustainable in the eye of law.
32. For the above discussion and reasons instant appeal (Criminal Appeal No.88 of 2003/BWP) lodged by Mst. Shamshad Bibi (appellant) and connected appeal (Criminal Appeal No.103 of 2003 of BWP) lodged by Sagheer Ahmed (appellant) are accepted, impugned convictions and sentences of the appellants are set aside and they are acquitted of the charges given benefit of doubt. Both the appellants are present in the Court on bail. Their sureties shall stand discharged of the liabilities of the surety bonds.
33. For the same reasons complainant's lodged by him for enhancement of sentences of the respondents having no merit is also dismissed.