' ABDUL SAMI KHAN, J.---Through this appeal under section 410, Cr.P.C. The appellant has challenged the wires of the judgment dated 22.06.2013 handed down by the learned Additional Sessions Judge, Lahore through which the appellant was convicted under section 302(b) P.P.C. And was sentenced to undergo life imprisonment for Qatl-i-amd of Muhammad Altaf deceased. She was also ordered to pay compensation of Rs,200,000/- (Rupees two hundred thousand only) to the heirs of Muhammad Altaf deceased under section 544-A, Cr.P.C. And in case of default of payment thereof she shall further undergo simple imprisonment for six months. The appellant has filed the instant appeal against her conviction and sentence whereas the complainant has filed Criminal Revision No, 800 of 2013 for enhancement of sentence of the appellant from life to death. I propose to decide both these matter together through this single judgment.
2. According to the narration of the complainant unfolded. In the FIR the complainant was a prayer-leader and father of three sons and five daughters. On the fateful night he along with his brother Talib Hussain proceeded to see Muhammad Altaf his son at Gulberg-III, Lahore who used to reside at second floor in a building. The complainant and his brother stayed at night thereat in a following room. The son of petitioner was married with Mst. Gulzar Bibi alias Shama ten years back and out of that wedlock there was no issue. The wife of his son shifted to the house of her parents due to certain differences who rejoined his son 8/10 days before the occurrence. The son of complainant who was home-tutor was out of his house whereas the complainant and his brother were sleeping in the house. At about 3.40 a.m. The complainant and his brother woke up after hearing hue and cry of his daughter-in-law and they saw deadbody of his son on floor in the room.
When they reached in the room of his son they saw that their daughter-in-law was standing beside the deadbody and was mourning. On asking she informed that some unknown person after throwing the deadbody in the room fled away from the scene of crime. It is stated by the complainant that he was sure that his son has been done to death by his daughter-in-law with the help of unknown person. On, the application submitted by the complainant formal FIR No, 195/2010, dated 12.03.2010 was registered at Police Station Naseer Abad, Lahore in respect of offences under section 302/34, P.P.C.
3. The prosecution in order to prove its case against the appellant examined as many as thirteen witnesses before the learned trial court. The ocular account in this case had been furnished by Ahmad Yar (PW4) and Talib Hussain (PW5). The evidence with regard to extra-judicial confession has been furnished by Muhammad Anwar (PW6) and Ata-ulMustafa (PW7). The medical evidence had been provided by Dr. Fakhar-uz-Zaman (PW8) who conducted the Post-mortem Examination on the deadbody of the deceased. The investigation in this case was conducted by Abdul Rasheed, SI/ Investigating officer (PW13) who deposed about various steps taken by him during the investigation of this case. Rest of the evidence produced by the prosecution is more or less formal in nature.
4. In her statement recorded under section 342, Cr.P.C. The appellant had controverted the allegations leveled against her by the prosecution and she had also professed her innocence. She has not opted to make statement on oath under section 340(2), Cr.P.C. Inasmuch as she has not produced any evidence in her defence.
5. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond any reasonable shadow of doubt and, thus, convicted and sentenced her as mentioned and detailed above. Hence, the above said appeal and revision petition before this Court.
6. Learned counsel for the appellant submits that the deceased came in his house in unconscious condition along with a lady who has not been produced by the prosecution during trial before the learned trial court and the appellant had been roped in this case by the complainant after joining hands with the local police whereas she had no nexus with the occurrence at all. No eye-witness was present in the house of the deceased and the evidence of the prosecution has been manoeuvred at belated stage. The FIR had been registered by the complainant after due deliberations and consultations who had himself not witnessed the occurrence. The ocular account in this case had been furnished by related, interested and chance witnesses who while appearing before the learned trial court had remained unable to prove their presence at the spot at relevant time. The manner and mode of the FIR is contrary to the human behavior because at one hand the complainant is leveling allegation on the appellant for committing murder of his son but at the other hand he himself written in the FIR that when they reached in the room of his son the appellant was mourning while standing beside the deadbody. The complainant in order to conceal the real cause of death involved the appellant in this false and frivolous case. The medical evidence is meager enough to explain the real cause of death. The alleged recoveries of pillow and the packet of tablets are also useless to connect the appellant with the commission of alleged offence. Nothing has been brought on record that why the appellant would commit murder of his own husband with whom he has lived for 10 years. The prosecution has failed to produce any independent witness to prove that the deceased has been done to death by the appellant. The material available on record does not justify the convictions and, sentences awarded to the appellant and the same is not maintainable in the eyes of the law. The statements of the prosecution witnesses are full of discrepancies and contradictions made therein are fatal to the prosecution's case. The manner and mode of extra-judicial confession allegedly made by the appellant also not appeal to a prudent mind. Admittedly the appellant was not apprehended at the spot, nor she was arrested immediately after making extrajudicial confession. The learned counsel prays for acquittal of the appellants from the charge.
7. On the other hand learned Deputy Prosecutor-General assisted by the learned counsel for the complainant contends that the FIR has been lodged with sufficient promptitude wherein the appellant has duly been nominated. The occurrence had been witnessed by two eye-witnesses who while appearing before the learned trial court had remained consistent on each and every material point. They were subjected to lengthy cross-examination but nothing adverse to the prosecution story had been extracted which can provide any help to the appellant. The medical evidence in this case is in line with the ocular account which fully corroborates the story of the FIR.
There is no previous enmity between the parties so false implication is out of question in this case.
The role of appellant is borne out from the Post-mortem Examination Report of the deceased.
During the investigation pillow with which the deceased was suffocated and tablets were recovered from the .Appellant and the recovery proceedings were proved through reliable evidence adduced by the recovery witnesses. The appellant after administering intoxicant substance to the deceased has brutally murdered him by pressing pillow on his mouth. The plea taken by the defence has no nexus with the present occurrence hence it does not carry weight vis- a-vis providing help to the defence. The prosecution has proved its case against the appellant beyond any reasonable doubt, thus, the appeal filed by the appellant be dismissed and her conviction and sentence recorded by the learned trial court may be maintained. The learned counsel for the complainant further adds that the sentence passed against the appellant should be enhanced from life imprisonment to death.
8. I have heard the learned counsel for the parties at length, have given my anxious consideration to their arguments and have also scanned the record with their able assistance.
9. Although the crime in this case has shown to be reported within one and a half hour yet the fact remains that post-mortem examination on the dead body was conducted with a delay of more than fourteen hours which fact shows that the occurrence has not taken place at the time mentioned in the FIR because while appearing as PW8 Dr. Fakhar-uz-Zaman has categorically stated during his examination-in-chief that duration of death and post-mortem examination was 12-24 hours. All this shows that the FIR was not registered in this case at the time mentioned therein but the same has been registered after due deliberations and consultations. Reliance is placed on the case of Irshad Ahmed v. The State (2011 SCM R 1190) wherein it has been held as under:-- "We have further observed that the post-mortem examination of the deadbody of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eyewitnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the deadbody conducted."
10. It has been observed by this Court that to prove the ocular account the prosecution has kept in its fold two eyewitnesses, i,e, Ahmad Yar, complainant (PW4) and Ahmad Yar (PW4). Before analyzing their evidence adduced before the learned trial court it may not be out of place to point out here that the allegation against the appellant is that she after administering intoxicant tablets to the deceased pressed his mouth by pillow due to which he died at the spot but admittedly nobody has seen her committing the occurrence on the fateful night. Even nobody had seen the appellant or anybody else administering intoxication to deceased or-suffocating him with the help of pillow. It was an unseen murder and that is why the complainant has only expressed his apprehension that the appellant with the help of unknown persons has committed the murder of his son. During the whole episode before the learned trial court none from the unknown has been brought before the learned trial court to prove this particular part of prosecution story. At the time of occurrence Ahmad Yar, complainant (PW4) was residing at Chak No, 182/9-L which was 30 kilometers away from the place of occurrence whereas Talib Hussain (PW5) was resident of Sahiwal District so both the so-called witnesses are chance witnesses who could not furnish any valid reason for their presence at the scene of crime on fateful night. During his cross-examination the complainant admitted that the appellant prior to her marriage with the deceased was wife of his brother Ahmad Ali and the complainant was not happy on account of marriage of the appellant with his deceased son, so in the backdrop of such a peculiar circumstance it is very astonishing that in absence of his son the complainant stayed night with his daughter-in-law with whom he was carrying strained relations especially in the company of his other brother. No explanation, whatsoever has been brought on record that why he has come to the house of the deceased after travelling 30 kilometers. The prosecution story set forth by the complainant even otherwise does not appeal to a prudent mind that why the appellant would select night for committing the murder of her husband when his father and maternal uncle were also present in the same house and even after committing murder she being a lady still remained present in the same house.
11. Another intriguing feature in this case is that in spite of the fact that the appellant was duly nominated in the promptly lodged FIR as shown by the prosecution but she was not arrested by the police at the spot. If the complainant and other eye-witnesses were quite sure about the involvement of the appellant then it is very strange that why they have not got her arrested at the spot. Another intriguing feature in this case is that after the murder of the deceased his deadbody was taken to village and appellant also attended his funeral ceremony but Abdul Rasheed, SI/ Investigating Officer (PW13) arrested the appellant on 18.03.2010 after six days of the occurrence meaning thereby that the appellant has not been arrested even after making extra-judicial confession on 14.03.2010. Even the investigating officer (PW13) remained unable to explain in his evidence that why he has not arrested the appellant till 18.03.2010 especially when she remained present and attended funeral ceremony of the deceased. Another mysterious fact which I would like to mention here is that in the evidence it has been established that one lady was also present at the scene of crime when the deceased was found dead in his room and admittedly that lady was not joined either with the investigation of this case by the investigating officer as an accused or PW nor she has been produced before the learned trial court which fact also cast doubt in the prosecution story vis-a-vis involvement of the appellant in this case.
12. Apart from ocular account the prosecution has also produced evidence with regard to extra- judicial confession of the appellant. Muhammad Anwaar (PW6) and Atta-ul-Mustafa (PW7) have furnished evidence of extra-judicial confession made by the appellant. According to them after funeral ceremony on the day of Rasm-e-Qul the appellant has made extra-judicial confession before them to the effect that after administering intoxicant pills to the deceased she has pressed his mouth with pillow and committed his murder because he was going to contract second marriage. In this context I may observe here that there was no occasion for the appellant to make extra-judicial confession regarding an offence which carries death penalty. Law is settled on the point that extra-judicial confession is a weak type of evidence. It is not understandable that when the appellant was duly nominated in the FIR then why the evidence of extra-judicial confession was manufactured in this case, the only answer one can gather from the facts and circumstances of this case is that the prosecution intended to assign role to .The appellant and also intended to strengthen the case of prosecution. By producing evidence of extra-judicial confession the prosecution has tried to improve its case. I may observe here that evidence of extrajudicial confession is a mode adopted by incompetent investigating officer to entangle innocent persons in such like cases.
13. It is also significant to point out here that the place of occurrence was a thickly populated area and according to the complainant at the time of murder many people had gathered at the spot but intriguingly no independent witness has been produced by the prosecution to provide an independent support to the evidence of interested witnesses. All the witnesses produced by the prosecution are interested, related and chance witnesses who could not prove the story mentioned in the FIR by the complainant. Ahmad Yar, complainant (PW4)/eye-witness is father of the deceased, Talib Hussain (PW5)/eyewitness is maternal uncle of the deceased and brother of the complainant, Muhammad Anwaar (PW6)/witness of extra-judicial confession is real brother of the deceased and son of the complainant, and Atta-ulMustafa (PW7) witness of extra-judicial confession is brother-in-law of the deceased and son-in-law of the complainant. All this shows that the case of the prosecution has been presented by related, interested and chance witnesses who all remained unable to bring the guilt of the appellant home rather they miserably failed to justify truthfulness of their deposition before the learned trial court.
14. The medical evidence has been furnished by Dr. Fakhar-uz-Zaman (PW8) who has categorically stated that he has not seen any mark of violence on the body of the deceased. The medical evidence remained unable to establish any conclusive proof regarding cause of death of the deceased. Even in his cross-examination the doctor has categorically stated that Zolgray Tablets allegedly recovered from the appellant contains Alprazolam and it does not contain chloral Hyderate. It has also not been established from the medical evidence that the deceased was done to death by suffocation. So the medical evidence could not provide support to the prosecution's case.
15. Now adverting to the recoveries of tablets and pillow effected on the pointing out of the appellant. In this context I have observed that the pillow (P5) and zolgray pills (P6/1-5) were recovered on pointing out of the appellant from the same room where the dead body of the deceased was lying on 20.03.2010, i,e, after eight days of the occurrence which were taken into possession by the investigating officer vide recovery memo Ex. PB/1. According to the medical evidence the tablets were not found by the doctor to be the cause of death whereas no mark of violence was found on the body of deceased, therefore, it cannot be said that he has been done to death. By the appellant by pressing pillow on his mouth especially when no sign of suffocation was observed by the doctor (PW8) so the recoveries effected in this case has no nexus with the death of the deceased. I am confident in my mind to observe that the recovery effected in this case cannot provide corroboration to the prosecution's case. No motive has been brought on record by the prosecution that why the appellant would committed the murder of her husband especially when she had lived with him about ten years.
16. In a criminal case, the evidence produced by the prosecution should be so strong or solid that 'it should start right from the toe of the deceased on one hand and the same should encircle a dense grip around the neck of the accused on the other hand and if the chain is not complete or any doubt which occurred in the prosecution's case that is sufficient to demolish the H structure of evidence and the benefit of doubt must go to the accused especially when the same has been built up on the basis of feeble or shaky evidence. It is also settled law that not many circumstances creating doubt in the prosecution story are required but only one circumstance creating doubt in the prosecution story is enough to acquit the accused. Reliance can easily be placed upon 2009 SCM R 230 wherein the Hon'ble Supreme Court has held as under:- "For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
17. The upshot of our discussion made above is that the prosecution has failed to prove its case against the appellants beyond any reasonable shadow of doubt, so by extending benefit of doubt to the appellant, Criminal Appeal No, 864 of 2013 is allowed and the appellant is acquitted of the charge. The appellant should be released from the jail forthwith, if not required to be detained in connection with any other case.
18. In sequel to my discussion made above Criminal Revision No, 800 of 2013 for enhancement of sentence of the appellant is, therefore, dismissed.