' QAZI FAEZ ISA, J.---In Jail Petition No.482 of 2005 leave to appeal was granted by this Court on 14th November, 2007 against the impugned judgment of the Lahore High Court, Multan Bench, whereby Criminal Appeal No.184 of 2001 filed by Ali Sher was dismissed and the death sentence awarded to him was confirmed and Murder Reference No.221 of 2000 was answered in the affirmative. Whereas Criminal Appeal No.324 of 2001 filed by the other accused Bashiran Bibi, against her conviction under section 308 of the Pakistan Penal Code ("P.P.C.") was disposed of by converting her conviction to one under section 302(b), P.P.C. And her sentence of imprisonment of fourteen years was enhanced to imprisonment for life and she was directed to pay fifty thousand rupees as compensation, in default whereof to undergo six months' simple imprisonment; and her bail was cancelled and she was ordered to be taken into custody to serve out the sentence.
2. That Ali Sher and Bashiran Bibi were convicted of the case arising out of the first information report ("F.I.R.") No. 13 registered at 6-30 a.m. On 16th January; 2000 at Police Station Ghallah Mandi, District Sahiwal on the statement of Mahmood Ahmed ("complainant") under section 302 read with section 34, P.P.C. For the murder of Muhammad Ali that took place about even hours earlier around 12 midnight. It was alleged in the F.I.R. That the complainant's brother Muhammad Ali resided in a rental house in Chak No. 135/9L for the last ten or eleven years with his wife Bashiran Bibi, a woman of not good repute, and their marital relations were strained; and on 15th January, 2000 at about 10 p.m. The complainant received a message that his brother was not well and had sent for him, therefore he along with his brother Shabbir Ahmed and his nephew Qasim Ali went to meet Muhammad Ali. When they reached Muhammad Ali's said residence "at about .30/12.00 night" they found the outer door of the house open and saw in the light from an electric bulb that Muhammad Ali was lying on his bed (charphoy) and Ali Sher was pressing his knees onto his chest and pulling a rope around his neck, Bashiran Bibi was pressing a cloth into his mouth and Ghulam Ali (another accused who was acquitted) was gripping his legs and Muhammad Ali was convulsing, however, upon seeing them the assailants got off Muhammad Ali and Ali Sher pulled out a dagger from his shalwar and threatened them so they retreated and the assailants made good their escape. The complainant then went to Muhammad Ali and found him dead due to strangulation. The motive for the murder, which was also mentioned in the F.I.R., was that Ali Sher wanted to marry Shazia, the daughter of Bashiran Bibi and Muhammad Ali, but the deceased was not in favour of such marriage whilst Bashiran Bibi was, therefore, a plan was made to eliminate Muhammad Ali.
3. At the trial nine prosecution witnesses ("P.Ws." by the prosecution in support of its case, as under:--
(i) Mirza Muhammad Ashfaq Baig (P.W.1), the Draftsman, who inspected the place of occurrence on the direction of the investigating officer and prepared the site plan.
(ii) Muhammad Afzal (P.W.2), Police Constable, who took the dead body of the deceased for autopsy and post mortem examination.
(iii) Dr. Shafiq-ur-Rehman (P.W.3), Medical Officer, who conducted the post mortem of the deceased. In his opinion the death was caused due. To asphyxia and shock. He further stated that all the injuries were ante-mortem and the time between death and post mortem examination was about eighteen hours.
(iv) Muhammad Akram (P.W.4), Inspector/SHO of the Police Station, who recorded the state of the complainant, inspected the place of occurrence and took into his possession the bed (P-1), dohar/khase (P-2), quilt (P-3) vide recovery memo (Exhibit PF), a string of nylon (P-4) vide n.
Recovery memo (Exhibit PG), Shalwar (P-5), Shirt (P-6) and one string (P-7) vide recovery memo (Exhibit PH). He also recorded the statements of the P.Ws. Under section 161 of the Code of Criminal Procedure ("Code") and prepared site plan of the place of occurrence.
(v) Mahmood Ahmed (P.W.5), the real brother of the deceased, who was an eye-witness and also, the complainant who reported the crime to the police.
(vi) Qasim Ali (P.W.6), the nephew of the complainant and eyewitness of the murder.
(vii) Qari Zulfiqar Ahmed (P.W.7), son of the complainant, who attested the recovery memo (Exhibit PH) in respect of shalwar (P-5), shirt (P-6) and string (P-7).
(viii) Muhammad Yousaf (P.W.8) who conveyed to the complainant that Muhammad Ali was ill and wanted to meet with him. He also attested the recovery memo (Exhibit PK) whereby the dagger (P- 8), that Ali Sher drew out at the time of the murder, was taken into possession after a week of the incident and upon Ali Sher revealing its location.
(ix) Maqbool Ahmad (P.W.9), Sub-Inspector, the investigating officer of the case who arrested Ali Sher, Ghulam Ali and Bashiran Bibi and his interrogation led to the recovery of the dagger (P-8) which was taken into possession vide recovery memo (Exhibit PK).
4. The entire case of the prosecution is built upon the testimonies of the complainant Mahmood Ahmed (P.W.5) and Qasim Ali (P.W.6). The third person who also was stated to have witnessed the murder, namely, Shabbir Ahmed was not produced as a witness. Mahmood Ahmed repeated what he had stated in the F.I.R. With certain improvements. He now specifically alleged that Bashiran Bibi "was having illicit relation with Ali Sher accused and she intended to marry her daughter Mst.
Shazia with Ali Sher". In his cross-examination he acknowledged that his deceased brother used to live in his neighborhood, but sold his house to Nazir Fauji for fifty five thousand rupees, therefore, he filed a suit against the sale and "got the possession of the said house through panchayat". The following responses to further questions with regard to the said house are revelatory:- "It is incorrect to suggest that there was dispute between me and my deceased brother on this account or that we were not on visiting terms with each other. The said house is still in my possession. Two tolas of golden ornaments of Muhammad Ali is lying with me. Again said that is not with me, or that his amount of Rs.55,000 of the said house is with me. It is incorrect to suggest that I have involved Mst. Bashiran falsely in this case so that she may not demand the aforementioned golden articles or the amount".
' He acknowledged that the couple had six children, respectively aged sixteen, nine, seven, six, four and two and a half years all of whom lived in a "one room" house, and except Shazia, who "was with her maternal grandfather" at the relevant time all of them were living in the room on the fateful night. He also conceded that co-accused Ghulam Ali's father, "supported Bashiran and Muhammad Ali deceased, in their dispute of house aforementioned with me".
5. Thus, it was established that the complainant had a dispute regarding the house with the deceased and his sister-in-law and he had taken possession of the same. He also had two tola of gold ornaments and fifty five thousand rupees of theirs in his possession. Such a person if not inimical could not possibly be on good terms with his deceased brother and his sister-in-law and therefore would have a good reason to falsely implicate his sister-in-law. Then there is the unlikely story that brought him to his brother at around midnight where he witnessed a murder-in- progress under the full glare of a light bulb and with the front door open, Moreover, in the enthusiasm of damning his sister-in-law, it was alleged that not only was she having an affair with Ali Sher, but also wanted him to marry her own daughter, an irreconcilable contradiction. And why would Ghulam Ali want to lend a hand in the murder? A likely explanation could be to either neutralize Ghulam Ali's father, who had supported the couple in their property dispute with him, or to appease his hate for him. With Muhammad Ali dead and Bashiran Bibi incarcerated Mahmood Ali could continue his illegal possession of their house and also to retain their gold ornaments and money; therefore, he clearly was an interested and inimical witness, and one on whose testimony reliance could not be placed for convicting the accused of murder.
6. The other purported eye-witness Qasim Ali (P.W.6) repeated the complainant's story and that he had accompanied the complainant to see the deceased Muhammad Ali that fateful night, however, neither he nor Mahmood Ali explained why Mahmood Ali came to collect him before proceeding to see his brother, or why he did not take one of his own sons with him. He stated that:- - "I had just gone to home when Mahmood Ahmad complainant came to me and asked me to accompany him to the house of Muhammad Ali as he was ill to know about his health. Mahmood Ahmad, complainant, P. W. Had three sons. Qari Zulfiqar is his elder son, Allah Yar is his second son while Muhammad Ahsan is his third son. Qari Zulfiqar is aged about 25/26 years, while Allah Yar is aged about 24 years, whereas Ahsan is aged about 8/9 years. Qari Zulfiqar aforementioned is a teacher in a Madrasa while the other two sons resided with Mahmood Ahmad, P. W. I resided on the back of street of Mahmood Ahmad P.W.".
' That Mahmood Ali left late at night to see Muhammad Ali presumably because he was ill and was worried about him, but if this is accepted then it is not understandable why he would first go to pick up Qasim Ali from his house, which was in a street behind his, spend "10/15 minutes" there and then go on to see his brother. If on the other hand, he was not anxious he would have gone to see his brother the net day at a more civilized hour. The third person, who both Mahmood Ahmed and Qasim Ali stated was an eye witness, namely Shabbir Ahmed, the brother of the deceased, was not produced as a witness.
7. That other additional factors too render extremely doubtful the credibility of the prosecution case; the deceased lived in one room with his wife and, at the time of the alleged murder, five of his children were in the same room, when in the glare of a light and leaving the front door open the three accused decided to strangle him to death. It is also incredulous that three men would let the said three killers get away and make no attempt to apprehend them, despite the fact that two of them were admittedly unarmed and one of whom was a woman. Whilst one of the co-accused, namely Ghulam Ali, was acquitted, by extending him the benefit of doubt, on the same evidence Ali Sher and Bashiran Bibi have been convicted, which in inexplicable.
8. That after a thorough examination of the evidence we can safely conclude that the prosecution had failed to prove its case beyond reasonable doubt; that Mahmood Ali the stated eye-witness was not a reliable witness and was inimical towards the deceased and his wife Bashiran; that the other eye-witness Qasim Ali could not satisfactorily explain his presence at midnight in the alleged place of occurrence; that the motive urged to support the prosecution case was beyond credulity; and hard to believe that a planned murder was committed with a room full of children under an electric bulb with the front door open to enable any and every one to view the same. Both the trial court and the High Court disregarded these important aspects of the case and ignored the basic tenet of criminal law, which is to establish the guilt of the accused beyond reasonable doubt.
Consequently, the appellant Ali Sher is acquitted of the charge of the murder of Muhammad Ali.
9. That Bashiran Bibi has not filed an appeal from the judgment of the Hon'ble High Court, however, she lad throughout maintained her innocence and had filed an appeal before the High Court against her conviction for fourteen years under section 308, P.P.C., which sentence unfortunately was enhanced to life by the High Court; therefore, she may have been apprehensive of filing another appeal. Nevertheless, since the impugned judgment also records her conviction, the evidence has been appraised by us and the reasons as mentioned for acquitting Ali Sher are equally applicable to her we also acquit her by placing reliance upon the cases of Muhammad Aslam v. State (1972 SCM R 194), Muhabbat Ali v. State (1985 SCM R 662) and Waqar Zaheer v. State (PLD 1991 Supreme Court 447).
10. That on 18th November, 2014 we had passed the following order:-- "For the reasons to be recorded later, this appeal is allowed and the appellant Ali Sher is acquitted from all the charges. He shall be set at liberty forthwith if not required in any other criminal case. As far as Mst. Bashiran Bibi, who was convicted under section 308, P.P.C. And sentenced to 14 years' R.I., is concerned, her sentence was enhanced to life imprisonment by the High Court after conversion of her conviction from 308, P.P.C. To 302, P.P.C. Though she has not filed appeal yet as we find the case of insufficient evidence and in our view the prosecution has miserably failed to prove the case against her. Therefore, Mst. Bashiran Bibi is also directed to be set at liberty if not required in any other case".
' The aforesaid are the reasons for the above mentioned order.