' Asif Saeed Khan Khosa, J.--Nazeer Ahmed appellant and his brother and co-accused namely Jehangir were booked and tried in case FIR No, 191 registered at Police Station Qabula Sharif, District Pakpattan Sharif on 22.07.2003 for an offence under Section 302, PPC read with Section 34, PPC for an alleged murder of the wife of Jehangir co-accused namely Mst. Tahira Bibi who was a sister-in- law of the present appellant. After a full-dressed trial the trial Court convicted the appellant and his co-accused for an offence under Section 302(b), PPC and sentenced them to imprisonment for life each and to pay compensation. The appeal filed by the appellant and his co-accused before the High Court was allowed to the extent of Jehangir co-accused and he was acquitted of the charge but the same was dismissed to the extent of the present appellant and his conviction and sentence recorded by the trial Court were maintained. Hence, the present appeal by leave of this Court granted on 05.08.2010.
2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have gone through the record of the case.
3. The story put up by the prosecution has been found by us to be hard to believe because according to the said story the complainant party had come to know that at 03.20 a.m. During the fateful night an altercation was in progress between the appellant and his brother on the one hand and the wife of appellant's brother on the other inside the house of the appellant and his co- accused and upon receipt of information about such altercation the complainant party had gone to the house of the appellant and his co-accused and at 04.00 a.m. They knocked at the door of the relevant house which door was opened by the appellant and thereafter within the view of the complainant party the appellant had fired at the deceased on her chest with a gun .12 bore which shot proved fatal. The role attributed to the appellant's co-accused namely Jehangir was that he had held the deceased by her arms. It is rather unbelievable that the appellant and his co- accused had facilitated the complainant party in entering their house at the relevant time and in witnessing the murder when it was being committed. The background of the said murder was that Mst. Tahira Bibi deceased and the appellant's brother namely Jehangir had got married to each other against the wishes of the complainant party about six years ago and during the interregnum the couple had been blessed with children and in that backdrop it was the complainant 4party which could have the motive to do away with the deceased rather than the appellant and his brother killing her. The eye-witnesses produced by the prosecution, i.e, Ahmed Saeed complainant (PW-6) and Gulzar Ahmed (PW-7) were not only very closely related to Mst. Tahira Bibi deceased but they were also chance witnesses and it could not be seriously doubted that they were also inimically disposed towards the appellant and his brother. The statements made by the said eye- witnesses had failed to receive any independent corroboration or support inasmuch as the motive set up by the prosecution was very weak and unbelievable, the crime-empty secured from the place of occurrence was sent-to the Forensic Science Laboratory after recovery of the gun rendering such recovery to be legally unacceptable and the medical evidence had contradicted the ocular account in respect of the level of fire at the deceased. We have noticed that post- mortem examination of the deadbody had been conducted with a noticeable delay giving rise to an inference that time had been consumed by the complainant party and the local police in procuring and planting eyewitnesses and in cooking up a story for the prosecution. It is unfortunate that at the time of passage of the impugned judgment the - High Court had failed to seriously adveit to the factors noticed by us above.
4. It may be true that when a vulnerable dependant is done to death inside the confines of a house, particularly during a night, there some part of the onus lies on the close relatives of the deceased to explain as to how their near one had met an unnatural death but where the prosecution utterly fails to prove its own case against an accused person there the accused person cannot be convicted on the sole basis of his failure to explain the death. These aspects of the legal issue have been commented upon by this Court in the cases of Ars had Mehmood v. The State (2005 SCM R 1524), Abdul Majeed v. The State (2011 SCM R 941) and Saeed Ahmed v. The State (2015 SCM R 710).
5. Por what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the Courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.
(R.A.) .