CH. MUSHT AQ AHMAD, J.:- This judgment will dispose of criminal appeals No.2268/201 1 & 2274/201 1 filed by Razia Bibi appellant as well as Murder Reference No.18/2012. Appellant was convicted by learned Additional Sessions Judge, Gujranwala, in case FIR No.405 dated 04.06.2010 registered under Sections 302/436/34, PPC at Police Station Tatley Aali vide impugned judgment dated 14.12.201 1 and sentenced as under: Death as Ta'zir under Section 302(b) and to pay Rs.5,00,000/- as compensation to the legal heirs of deceased as required u/s 544-A Cr. P.C and in default of payment, to further undergo S.I for six months.
Feeling aggrieved, appellant preferred above said appeal whereas Murder Reference No.18/2012, under section 374, Cr.
P.C for confirmation of death sentence awarded to convict Razia Bibi is also before us. We propose to decide both the matters through this consolidated judgment.
2. Prosecution case is that on 03.06.2010 at about 02.00 p.m, in the a rea of Umar Colony , Tatley Aali falling within the territorial jurisdiction of Police Station Tatley Aali, appellant Razia Bibi alongwith her co-accused (husband) Muhammad Iqbal (since acquitted) sprinkled petrol on the body of Khalid Mahmood and set him on fire due to which his body was burnt .
FIR in hand was registered under Sections 436/324 PPC. Due to precarious condition, he was referred from THQ Hospital Kamonke to Mayo Hospital, Lahore where he died on 07.06.2010 and Section 302 PPC was added in the FIR. Motive behind the occurrence as per complainant Muhammad Riaz (PW-1) was that Khalid Mahmood deceased sold out agricultural land to Basharat and received Rs.1,00,000/- from him. Apart from that deceased had also gold ornaments in his possession. Accused committed the murder of Khalid Mahmood deceased in order to snatch the aforesaid amount and ornaments. The place of occurrence was stated to be the house of Mst. Razia Bibi appellant. Occurrence was witnessed by complainant Muhammad Riaz, Shahzeb and Basharat PWs.
3. PW-4 Munir Hussian SI/I.O on receiving the information about the occurrenc e, went to Civil Hospital Kamonke, recorded statement of injured Khalid Mahm ood vide Ex.PD. On 04.06.2010 after registration of FIR, he visited place of occurrence, prepared site plan and recove ry memos. On 07.06.2010 he received information about death of Khalid Mehmood at Mayo Hospital Lahore so offence under Section 302 PPC was added in the case. He proceeded to Mayo Hospital Lahore, took the deadbody of deceased into possession and prepared injury statement (Ex.PF) and inquest report (Ex.PH), sent the deadbody for postmortem examination. He arrested appellant Razia Bibi on 10.06.2010. On 17.07.2010 he joined Muhammad Iqbal in investigation who was found innocent in his investigation.
4. PW-8 Dr. Syed Suleman Kazmi M.O medically examined Khalid Mehmood and noted three injuries on his body on 03.06.2010. On 07.06.2010 at about 05.00 p.m, he conducted postmortem examination on the deadbody of deceased Khalid Mahmood. According to him, cause of death in this case was burn injuries, sufficient to cause death in ordinary course of nature due to sepsis and shock. Time between injury and death was approximately 88 hours and between death and postmortem was about 10 hours.
5. After submission of challan, charge was framed against appellant and her co-accused Muhammad Iqbal to which they pleaded not guilty and claimed trial. Ocular account in this case was furnished by complainant Muhammad Riaz PW-1 and Shah Zaib PW-2. Prosecution produced eight witnesses whereas Dr. Misbah Ilyas was examined as court witness. PWs Basharat Ali and Mustafa were given up being unnecessary . Statements of accused under Section 342 Cr. P.C were recorded wherein they denied the charges and professed innocence. Appellant, Razia Bibi, in response to the question why this case against her and why PWs deposed against her , stated as under:- ""I have been falsely implicated in this case. In fact, 6/7 months before the occurrence, the deceased Khalid Mahmood made a friendship with my husband because of that he often used to come to my house. He forced me to marry and developed illicit relations with me. I informed his relatives about the said fact. At the time of occurrence, I was present in my house at second story and on my refusal to marry and keeping illicit relations with me, the deceased Khalid himself sprinkled the petrol on his body and set him at fire. I came down to save his life but the deceased intentionally caught hold me and due to this I also suffered burn injurie s. The complainant and PWs lodged false FIR against me and my husband co- accused due to personal grudge. I have no nexus with this case. I am innocent. The wife of deceased Mst. Farrah Bibi filed a private complaint against me and my husband and thereafter , she withdrew the same due to false and concocted story ."
At conclusion of trial, appellant Razia Bibi was convicted and sentenced as mentioned above whereas her co-accused Muhammad Iqbal was acquitted. Hence, instant reference as well as appeal.
6. Learned counsel for appellant contended that she was innocent and falsely involved in this cased due to mala-fide intention; that prosecution could not prove the motive; that there were material contradictions in the evidence of eye witnesses and ocular account did not inspire confidence; that presence of eye witnesses at the place and time of occurrence was doubtful; that PWs did not witness the occurrence but were introduced lateron to falsely involve the appellant in this case; that co-accused of appellant was acquitted on the same evidence in this case and appellant was also entitled to acquittal.
7. Conversely , learned Deputy Prosec utor General has supported the impugned judgment on the ground that motive against appellant was proved one and ocular account was corroborated by medial evidence.
8. Arguments heard. Record perused.
9. Muhammad Riaz (PW-1) and Shah Zeb (PW-2) furnished ocular account of the incident which took place at the house of present appellant Mst. Razia Bibi on 03.06.2010 at 02.00 p.m. Case was regis tered late at night at 01.15 a.m on the written application of Muhammad Riaz, maternal uncle of Khalid Mahmood deceased. As per prosecution case contained in FIR, on the day of occurrence at 02.00 p.m, complainant and Shah Zeb alongwith Basharat, brother of deceased Khalid Mahmood(given up PW), were present on a tea stall in village Tatley Aali when they, on hearing noise from the house of present appellant Razia Bibi, went running and in their sight, Muhammad Iqbal (co-accused since acquitted) husband of Razia Bibi sprinkled petrol on Khalid Mahmood whereas Razia Bibi set him on fire with match box. As per version of complainant, he alongwith Shah Zeb (PW2) shifted Khalid Mahmood to Hospital at Kamonke where he was provided first aid and then referred to Lahore for further treatment. PW-8 Dr. Syed Suleman Kazmi had attended Khalid Mahmood and medically examined him. AS per his statement, injured was brought by Muhammad Iqbal, husband of present appellant (co-accused since acquitted). Complainant in his cross examination stated that he was Government servant and on the day of occurrence went to his office at District Council Office, Gujranwala and came at 10/11 a.m back at his house.
He further stated that on account of his field duty, no attendance register was maintaine d in the office; that he remained in his house for about 30/60 minutes, when Basharat came to his house and he alongwith him went to Umar Colony . PW-2 Shah Zeb, who is Khala Zad of deceased, stated in cross examination that on the day of occurrence, he was posted at Police Lines Gujranwala. On the day of occurrence, he was present in his village and was sitting on the tea stall where Riaz and Basharat also came. They heard alarm from the house of Razia and rushed towards her house and saw the occurrence. It is evident from the statements of both the witnesses that at relevant time, they were Government employees, posted at Gujranwala. The explanation put-forth by them that they gathered at a tea stall for having tea near the house of present appellant, is implausible on the face of it and is not confidence inspiring for the reason that they being close relative inter-se would have preferred having tea at their house and not at a tea stall near the house of occurrence. Moreover , Khalid Mahmood deceased was shifted by Muhammad Iqbal husband of present appellant to hospital as per statement of PW-8 Dr. Syed Suleman Kazmi, not by the witnesses. FIR was also got registered late at night with delay of 11 hours whereas police station was at a distance of one kilometer from the place of occurrence. Presence of complainant Muhammad Riaz and Shah Zeb (PW-2) at the place of occurrence was, therefore, highly a doubtful affair. It is further worth noticing that as per version of both witnesses Riaz and Shah Zeb, Iqbal husband of present appellant sprinkled petrol on Khalid Mahmood (deceased) whereas during investigation it was found that Iqbal was not even present at his house at the time of occurrence. During investigation conducted by PW-4 Munir Hussain SI, it came to light that Khalid Mahmood (deceased) himself poured petrol on his body and set himself on fire. Present appellant Razia Bibi came forward to save him and in the process, she also sustained burn injuries. Presence of both the eye witnesses being highly doubtful and their version having been found incorrect during investigation, it was not safe to rely on their testimony . Therefore, oral account furnished by them about the incident has to be excluded from consideration. What remains to be considered, is statement of Khalid Mahmood (deceased) made by him in injured condition before the I.O at hospital which is contained Ex.PD available on record and statement of present appellant Razia Bibi recorded under Section 342 Cr. P.C in juxtaposition. Statement of Khalid Mahmood (deceased) was recorded by PW-4 Munir Hussain SI after obtaining fitness certificate from the Doctor through application Ex.PC. Perusal of Ex.PD , reveals that as per version of Khalid Mahmood, then injured, he fell in love with present appellant Razia Bibi, six months prior to the occurrence and two months prior to the incident both of them swore on Holy Qur'an to live together and on the day of occurrence, they went to purchase clothes from Kamonke on his motorcycle. After shopping, they came back at the house of Razia Bibi and after half an hour a dispute arose between them where-after , Razia Bibi sprinkled petrol on him after taking it from his motorcycle and set him ablaze. The above version of Khalid Mahmood (deceased) did not sound logical as he could easily avoid the situation by escaping from the house of Razia Bibi (appellant) when she was taking out petrol from his motorcycle, particularly , when she was alone in the house, as per his statement. Version of present appellant contained in her statement recorded under Section 342 Cr. P.C was as under:- "I have been falsely implicated in this case. In fact, 6/7 months before the occurrence, the deceased Khalid Mahmood made a friendship with my husband because of that he often used to come to my house. He forced me to marry and developed illicit relations with me. I informed his relatives about the said fact. At the time of occurrence, I was present in my house at second story and on my refusal to marry and keeping illicit relations with me, the dece ased Khalid himself sprinkled the petrol on his body and set him at fire. I came down to save his life but the deceased intentionally caught hold me and due to this I also suf fered burn injuries.
Above statement of present appellant being exculpatory , could not be made basis for recording conviction against her. It is settled principle of law that where prosecution possesses no incriminating evidenc e against an accused, then his statement/version recorded under Section 342 Cr. P.C. has to be believed in toto. In a case titled "Azhar Iqbal Vs. The State"
(2013 SCMR 383), the above proposition came up for consid eration before the Apex Court. It was observ ed that both the courts below had rejected the version of prosecution in its entirety and had then proce eded to convict and sentence the appellant on the sole basis of his statement recorded under Section 342 Cr. P.C wherein he had advanced the plea of grave and sudden provocation. It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person, then the accused person is to be acquitted even if he had taken a plea and had there by admitted killing the deceased. It was further observed that law is equally settled that the statement of an accused person recorded under Section 342 Cr. P.C is to be accepted or rejected in its entirety and where the prosecution' s evidence is found to be reliable, and the exculpatory part of the accused person' s statement is established to be false and has to be excluded from cons ideration, then inculpatory part of the accused person' s statement may be read in support of the evidence of the prosecution. Keeping in view the law laid down in the above referred case, the statement of present appellant was to be believed in its entirety as ocular account has been found unreliable. Reference may be made to the cases titled "Khalid Javed Vs. The State " (2003 SCMR 1419 ), "Muhammad Yaqoob Vs. The State" (2000 SCMR 1827 ) and "The State Vs. Muhammad Hanif" ( 1992 SCMR 2047 ).
10. After reappraisal of evidence in the light of facts established and law on the subject, we have drawn the inference that charge against present appellant, was not proved by the prosecution. Hence, conviction recorded by the trial court in this case is liable to be set-aside. Consequently , Criminal Appeal No.2268/201 1 is allowed, appellant Razia Bibi is acquitted of the charge from this case, she be released forthwith if not required in any case. Murder Reference No.18/2012 is answered in negative and death sentenced awarded to appellant is not confirmed. Criminal Appeal No.2274/201 1 was also filed by appellant against her conviction, the same has become infructuous and the same is dismissed.