CH. MUSHT AO AHMAD, J. Brief facts of the matter , as disclosed by PW-6 Muhammad Shahbaz Abid, complainant, in FIR No.232/2014 lodged by him on 07.05.2014 under sections 302, 34 PPC at police station City Chichawatni, District Sahiwal, are that he was resident of Chak No.56/12-L Tehsil Chichawatni. His elder brother Soobedar Haq Nawaz was residing at Al- Fateh Town, Chichawatni and was having two sons, namely Qaisar Nawaz and Faisal Nawaz and two daughters, from wedlock with his first wife. Said brother of complainant had contracted second marriage about five years ago with Fouzia Shaukat (appellant) who was residing with him at Al-Fateh Town, however , relations between the spouses were strained for sometime. On evening of 06.05.2014, complainant and one Falak Sher, resident of Chak No.56/12-L came to house of his brother Haq Nawaz and kept on talking with him till 11:00 P.M. Then above said Falak Sher and complainant' s nephew Qaisar slept in parlor room, whereas his second nephew slept in courtyard. Haq Nawaz and Fouzia Shaukat slept in residential room, whereas mother of Fouzia Shaukat, namely Kaneez Bibi slept in other room. On the night falling in- between 6 and 7th of May 2014 at about 01:30 A.M., on hearing noise from his brother 's room, complainant, Falak Sher and Qaisar Nawaz attracted there and saw that Haq Nawaz had received a fire shot on his chest at left side, who had succumbed to the injury . Fouzia Shaukat and her mother were standing nearby . Many other people of vicinity attracted there on raising hue and cry by complainant and his companions. It was alleged in the FIR that Fouzia Shaukat and her mother Kaneez Bibi alongwith their unknown companion had murdered Haq Nawaz.
2. Appellants alongwith their co-ac cused Kaneez Bibi were sent up for trial. Vide its judgment dated 18.05.2015 (impugned herein), learned trial court found the appellants guilty of offence and convicted them to imprisonment for life each with payment of compensation to the tune of Rs.1,00,000/- each under section 544-A Cr.P.C. In default in payment of said amount, delinquent convict to further undergo six months' SI. Benefit under section 382-B Cr.P.C. was also extended to both the appellants. Co-accused Kaneez Bibi was acquitted of the charge vide impugned judgment. Mst. Fouzia Shaukat convict has filed criminal appeal No.303 of 2015 whereas Muhammad Naveed convict has filed criminal appeal No.415 of 2015 challenging their conviction and sentence.
3. Contention of learned counsel for appellants is that occurrence was unwitnesse d and the witnesses introduced by prosecution are chance witnesses as well as closely related to complainant who could not justify their presence at the place of occurrence at relevant time, which argument finds support from delay in reporting the matter to police coupled with delay in conducting autopsy . Further added that statements of eye witnesses are full of dishonest improvements inconsistent to their earlier version; that story narrated in the FIR is highly illogical; that no motive was mentioned in the FIR and even there was not mentioned as to who made fire shot on deceased and with which weapon. Learned counsel further argued that co- accused Kaneez Bibi who was named in the FIR with same role and there was same evidence against her, was acquitted of the charge, meaning thereby prosecution evidence was disbelieved by learned trial court; in that eventuality , appellants also entitled acquittal under the rule of consistency . Learned counsel for appellants placed reliance on case law titled Mst. Shazia Parveen v The State (2014 SCMR 1197), Mst. Sughra Begum and another v Qaiser Pervez and others (2015 SCMR 2241), Akhtar Ali and others v The State ( 2008 SCMR 6 ).
4. Appeal has been opposed by learned APG assisted by learned counsel for complainant. It was argued that the eye witnesses have explained their presence at the place of occurrence at relevant time and despite lengthy cross examination presence of PWs at the place of occurrence at relevant time could not be shattered; that medical evidence corroborate ocular account, therefore, learned trial court rightly convicted the appellants.
5. I have heard the submissions of learned counsel for parties as well as learned APG and have gone through the record.
6. The occurrence took place in the house of deceased at 01:30 A.M in the month of May. Ocular account was furnished by PW-6 Muhammad Shahbaz Abid, real brother and PW-7 Qaisar Nawaz, real son of deceased. Marriage of deceased with Fouzia Shaukat (appellant) was second and prior to that, deceased had four children from his wedlock with first wife, who were not residing in the house where occurrence took place. Both the eye witnesses introduced by prosecution were residing in village Chak No.56/12-L. They did not state any solid reason for their presence at the place of occurrence at relevant time, rather they improved their statements in this respect. According to FIR, complainant (PW-6) and Falak Sher came to the complainant. There was not mentioned as to when PW-7 Qaisar Nawaz and his brother Faisal reached there. While appearing in the witness box, both the eye witnesses attempted to justify their presence by introducing improvements inconsistent to their earlier version. No motive was mentioned in the FIR, which was introduced by PW-6 and PW-7 while appearing in the witness box that too without any corroboration in that respect. Nobody having firearm was mentioned in the FIR, however , according to eye witnesses Naveed appellant was present in the room of occurrence while armed with pistol. Source of light was not introduced in the FIR which was stated by witnesses as a bulb lighting there at the time of occurrence. According to FIR, witnesses attracted to the room of occurrence on hearing noise, however , while appearing in the witness box, both the eye witnesses stated that they attracted on hearing report of fire shot. Occurrence according to prosecution took place at 01:30 A.M., whereas matter was reported to police at 08:50 A.M. Both the eye witnesses are closely related to the deceased as well as inter se and were not residents of the place of occurrence. It is correct that evidence of a family member cannot be discarded merely on the ground of his close relationship with the deceased provided the same rings true and finds support from the circumstantial evidence but in the instant case testimony of ocular account is not confidence inspiring. Above discussion lead me to infer that presence of the witnesses at the time of occurrence is a highly doubtful affairs, which inference is further strengthened from the fact that had the appellants intended to murder complainant' s brother Haq Nawaz at his house, they could have chosen any other time instead of killing him in presence of his two sons and a real brother . Story narrated in the FIR on the face of it is implausible and the eye witnesses made unsuccessful attempt to fill in the lacunas by introducing lots of dishonest improve ments. Murder of Haq Nawaz was committed in his house. In such eventuality , implication of appellants in this case is result of suspicion. Suspicion howsoever grave or strong, could never be a proper substitute for proof beyond reasonable doubt required in a criminal case.
7. Medical evidence was furnished by PW-8 Dr. Muhammad Naveed who condu cted autopsy on the dead body of Haq Nawaz deceased on 07.05.2014 at 12:00 P.M. According to prosecution story , occurrence took place at 01:30 A.M.
Probable time between injury and death according to medical officer was sudden whereas between death and postmortem examination was seven-eight hours, meaning thereby death had occurred at about 04:00 A.M. Therefore, medical evidence is in contradiction with ocular account qua time of death. According to ocular account only one fire shot injury was received by deceased, however , medical officer noted three injuries, out of which injury No.3 was not mentioned in the injury statement prepared by Investigating Of ficer.
8. On re-appraisal of evidence, in my view, prosecution had failed to prove charge against appellants, as such findings recorded by learned trial court are not sustainable. Resultantly , criminal appeal No. 303 of 2015 and criminal appeal No.415 of 2015 are allowed and conviction and sentence of the appellants Fouzia Shaukat and Muhammad Naveed awarded by learned trial court through impugned judgment are set aside. Appellants Fouzia Shaukat and Muhammad Naveed are acquitted of the charge extending benefit of doubt to them. They are in jail. They be released forthwith if not required in any other case.