' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---Mst. Paris Bibi, Ilyas, Liaqat, Zakir, Umar Hayat, Amir Shahzad, Mst. Zeenat and Yaqoob had faced trial in the private criminal complaint lodged by one Hakim Ali under sections 302, 148 and 149, P.P.C. And at the conclusion of the trial except Mst. Paris Bibi rest of the accused persons were acquitted of the charge by the learned Addl. Sessions Judge, Chiniot by way of judgment dated 30-8-2010. Mst. Paris Bibi was convicted under section 302(b), P.P.C. And was sentenced to imprisonment for life for the murder of one Mumtaz with further direction to pay Rs.300,000 as compensation to the legal heirs of the deceased, in default whereof to undergo simple imprisonment of six months. Benefit under section 382-B, Cr.P.C. Was also extended to her.
2. Mst. Paris Bibi assailed her conviction and sentence by filing Jail Appeal whereas Hakim Ali complainant had filed a petition for Special Leave to Appeal bearing No,271 of 2010 against the acquittal of the other accused persons, which appeal was dismissed for non-prosecution on 24-6- 2011 and in this connection no application for restoration of the appeal was filed uptil today. Further the complainant Hakim Ali had also filed a criminal revision petition against Mst. Paris Bibi praying for enhancement of sentence awarded to her. This criminal revision petition has not been numbered in view of the office objection, which till today has not been removed and the file was lying in the office unattended. The file of criminal revision petition has also been taken up along with the criminal appeal filed by Mst. Paris Bibi, which revision petition may be numbered by the office after the decision of the appeal of Mst. Paris Bibi.
3. Hakim Ali on 7-9-2008 at about 5-50 a.m in the morning made a complaint to Muhammad Sharif, Sub-Inspector of Police Station Barana, District Chiniot stating that at 3-00 a.m. In the night he along with his cousin Mumtaz deceased were sleeping in their residence and there was light of lantern in the courtyard when he heard the shrieks and woke up. In the lantern light he saw Mst.
Paris, Ilyas, Liaqat and Umar Hayat had held Mumtaz while Mst. Paris and Ilyas were strangulating him with a rope. Liaqat Ali was holding the head of Mumtaz while Zakir and Umar Hayat were holding his legs. When the complainant went ahead to rescue, the accused threatened him that he would also be given same treatment. At the report of noise of the complainant Muhammad Khan and Noor P.Ws. Attracted at the spot and witnessed the occurrence. Mumtaz succumbed to the injuries at the spot. Motive for the occurrence was that Mumtaz deceased had divorced Mst. Paris his wife due to which grudge she along with her companions murdered Mumtaz. On this report formal F.I.R. Was registered at the Police Station.
4. After completion of the investigations the names of Umar Hayat, Zakir, Liaqat and Ilyas were placed in Column No,2 of the report while Mst. Paris, Amir Shahzad and Muhammad Yaqoob were mentioned in Column No,3 and Mst. Zeenat Bibi was mentioned in Column No,4 of the report.
5. The complainant of the case being dissatisfied with the Police investigations filed separate private criminal complaint against the accused as mentioned in the opening para of this judgment, in which the respondents were summoned to face the trial.
6. The complainant examined nine P.Ws. In support of the charges while Muhammad Sharif Sub- Inspector was examined as C.W.1 in the case. The prosecution evidence thereafter was closed, which was duly confronted to the respondents who denied from the charge and controverted the evidence recorded against them. Mst. Paris Bibi in her statement recorded under section 342, Cr.P.C. While answering to a question "why the case was registered against her and why the PWs deposed against her?" stated that the P.Ws. Were inimical towards her. Her husband had contracted second marriage and he died in mysterious circumstances. The complainant party wanted to usurp the property of her husband, which was going to be inherited by her and her children.. She further narrated that the complainant party deprived her and her children from household articles including house, cattle and agricultural land and they are in possession of above said property after the murder of her husband. She did not make statement on oath and in her defence produced a copy of F.I.R. No,487 of 1997 as Exh.DD and closed her evidence.
7. Since the other accused were acquitted from the charge by the learned trial Court vide impugned judgment, therefore, I do not feel any necessity to give their defence version made by them in their statements recorded under section 342, Cr.P.C.
8. P.W.6 Dr. Inam Jelani conducted autopsy over the dead body of Mumtaz deceased and noticed following injuries at his person.
"Contusion was present 15 x 2 c.m on front of the neck. Cranium, Spinal Codes, scalp, skull and vertebrae were NAD. Membranes, Brain were NAD."
' According to his opinion the death was caused due to cardiopulmonary arrest which was due to asphyxia resulting from strangulation, which was due to injury No,1 and sufficient to cause death in ordinary course of nature. He described the probable time elapsed between the injuries and death was immediate and between the death and postmortem was 8 to 12 hours.
9. It is contended by the learned counsel for the appellant Mst. Paris Bibi that the prosecution had alleged the motive for the occurrence against the appellant that she was divorced by the deceased Mumtaz and due to which she murdered him, which motive is -not supported by any evidence proving the divorce. He argued that Mst. Paris Bibi is having children out of the wedlock of Mumtaz and she was never divorced and this motive has been cooked up just to deprive her from the legacy of her husband. He further argued that out of eight accused persons seven were acquitted by the learned trial Court disbelieving the evidence and only Mgt. Paris Bibi has been Indicted on the basis of the evidence, which was neither convincing nor confidence inspiring. He added that the evidence of extra-judicial confession suffers from legal infirmities whereas the evidence of 'Wajtakar' is no evidence in the eyes of law as the P. Ws. Of 'Wajtakar' evidence did not explain their presence at the spot. He maintained that the alleged occurrence had taken place at 3-00 a.m. In the night, which was unseen occurrence and the appellant has been implicated in this case just for depriving her from her 'Shari' share to be inherited by her from the property of her husband. Learned counsel while summing up his arguments prayed for the acceptance of the appeal and acquittal of the appellant as the prosecution has failed to prove the case against her beyond any shadow of doubt. '
10. The appeal has been contested by the learned Deputy Prosecutor-General, assisted by learned counsel for the complainant, by arguing that there was overwhelming evidence on the record connecting the appellant with the commission of the murder of her husband Mumtaz and the learned trial Court had rightly believed that evidence and recorded her conviction.
11. After having heard the learned counsel for the parties and perusing the record, it is observed that after registration of the F.I.R. The complainant Hakim Ali kept quiet for about one year and 23 days, whereafter he proceeded to file the private criminal complaint, that too with the addition of new accused persons, for which delay in lodging the complaint, Hakim Ali has not given any plausible reason. The learned trial Court had taken proceedings in the complaint case and after recording the evidence acquitted seven persons. Those accused persons were acquitted by the learned trial Court on the basis of the available evidence on the record, which cannot be made basis for the conviction of Mst. Paris Bibi. It has been noticed that according to the allegation contained in the complaint the appellant Mst. Paris Bibi and Ilyas (since acquitted) were strangulating the deceased Mumtaz with rope. It is in the evidence that Ilyas accused has been let off by the Police as he was not found involved in the occurrence as alleged in the F.I.R. As well as in the complaint. When two persons are charged for strangulating the deceased with the rope and one of them is found not involved in the occurrence then whole story of the prosecution against the other accused becomes doubtful and needs independent corroboration. It is not the prosecution version that the role of .Two accused had any distinguishing feature, thus involvement of the appellant in view of this evidence becomes dubious. Further the rope with which the appellant had allegedly strangulated her husband was not recovered on the pointation of the appellant, rather it was found lying at the spot by the Investigating Officer and was taken into possession. This fact further raises eyebrows whether it was the same rope with which the death was caused. Similarly the evidence of extra-judicial confession does not inspire confidence in any manner and liable to be brushed aside for the reason that apparently it was a joint confession, which has no value in the eyes of law. P.W.3 Sikandar could not explain the exact words of confession made by Mst. Paris, Amir Shahzad, Zeenat and Yaqoob. There is also no independent corroboration of this confessional statement, which is otherwise treated as weakest type of evidence and can only be considered when it is supported by any other independent evidence.
12. According to statement of Hakim Ali P.W.1 the motive for the occurrence was that Mumtaz deceased had divorced Mst. Paris due to which grudge, she with the help of her co-accused murdered her husband. This statement of the P.W.1 remained uncorroborated on the file, so much such the complainant failed to place on record any documentary proof of the divorce pronounced by the deceased. In view of scanty evidence on the point of motive, I am not persuaded to believe the same as a reason to kill the deceased. The evidence of 'Wajtakar' consisted upon the statement of P.W.8 is not cogent evidence for the reason that P.W.8 did not explain his presence at the spot at 3-00 a.m. In the night nor any other independent evidence has been produced in support of the statement of P.W.B. In this respect guideline has been provided by the Apex Court in the judgment reported as 2003 SCM R 1419. According to that judgment the witness has to prove and explain his presence at the time and place when he saw the assailants after commission of the offence. In the instant case P.W.8 remained unsuccessful in establishing, his presence at the time when he had seen the accused persons entering into the house of the deceased.
13. General survey of the statements of P.W.1 and 2 the witnesses of the ocular account as well as the witnesses of extra-judicial confession and 'Wajtakar' indicates that the witnesses have attempted to improve their case in a very desperate manner, which statements also suffer from material contradictions when are compared inter se.
14. The above analysis of the evidence led by the complainant in support of the charges leads to irresistible conclusion that the same is neither sufficient nor convincing and confidence-inspiring for proving the allegation of murder of Mumtaz against Mst. Paris Bibi beyond any shadow of doubt.
This evidence cannot be taken into consideration for holding Mst. Paris Bibi responsible for the murder of her husband. Mst. Paris Bibi, in these circumstances, has earned her acquittal.
15. For the foregoing reasons, the appeal filed by Mst. Paris Bibi is allowed and convicting and sentencing judgment impugned in this appeal is set aside. Mst. Paris Bibi is acquitted from the charge. She shall be set at liberty forthwith, if not required in any other criminal case.
16. The application seeking suspension of sentence in these circumstances has rendered infructuous and is disposed of accordingly while the criminal revision petition seeking enhancement in the sentence filed by Hakim Ali complainant is also dismissed having no merits.
Office may number the criminal revision petition.