MANZOOR AHMAD MALIK, J.---Convict-appellants Haq Nawaz and Muhammad Hayat along with four others were indicted by the learned Sessions Judge, Vehari to face trial in case FIR No, 126 dated 24.04.1994, offence under sections 302/148 read with section 149, P.P.C., registered at P.S. Sadar Vehari. On conclusion of the trial, learned trial Court vide its judgment dated 27.02.1997, convicted the appellants under sections 302/34, P.P.C. and sentenced them to imprisonment for life each, with fine of Rs,20,000/- each, in default whereof to undergo RI for one year's each. Benefit of section 382-B, Code of Criminal Procedure was extended to them. The learned trial Court, however, acquitted Umar Hayat, Ghulam Rasool and Khizar Hayat, co-accused by giving them the benefit of doubt. Another co-accused Shahadat Ali died during the course of trial. The criminal appeal filed by the appellants was dismissed by the learned High Court vide the impugned judgment, which prompted them to file petition for leave to appeal before this Court, wherein leave to appeal was granted on 01.09.2015 to reappraise the evidence.
2. The facts of the case have succinctly been penned down in Para 2 of the impugned judgment which need not to be reproduced here.
3. The prosecution mainly relied on the statement of Mst. Husina Mai (PW5) to prove its case against the appellants. In the FIR, there is only an allegation against the appellants and their co- accused that they committed the murder of Mst. Nooran Bibi (deceased) without any reference to any eye-witness. It is, therefore, of utmost significance to go through the statement of Mst. Husina (PW5) wherein she had assigned specific roles to the appellants and their co-accused for committing the murder of Mst. Nooran Bibi (deceased). While appearing before the learned trial Court, Mst. Husina (PW5) stated in her examination in chief as under:- "A day before convening of the said Punchayat, Shahadat Ali father of said Muhammad Hayat, Haq Nawaz, Khizar Hayat Ghulam Rasool and Umar Hayat accused came there. They all gathered in my house. They all conspired that Mst. Nooran be done to death during the night time, as my husband Muhammad Hayat wanted to get rid of Mst. Nooran deceased. They had gathered in my house at about 7/8-00 P.M.
I slept in my house and at about 12/1-00 mid night I woke up after hearing the shriek of Mst.
Nooran deceased. I saw that the cots of all the persons mentioned above were lying vacant. I then peeped over the intervening wall and saw that Muhammad Hayat accused had placed his hand over the mouth of Mst. Nooran deceased and had also held her from her head. Haq Nawaz accused had held Mst. Nooran deceased from her legs. Shahadat accused was strangulating her while sitting on the chest of Mst. Nooran deceased. Umar Hayat, Ghulam Rasool and Khizar Hayat were standing near them. Due to fear I went back to my cot and laid down there. The accused persons murdered Mst. Nooran deceased."
4. Mst. Husina Mai who is wife of appellant No,2 further stated in her examination in chief that on the following day to the day of occurrence, appellant No,2 took her to his parents house in Chak No,51/WB/1 where she remained for about 14 days, and then she was taken by her father to his house at Bhai Phairoo where she remained for about 10/15 days. Afterwards, appellant No,2 came to the house of his father to take her back but she refused to go with him out of fear and told her father about the details of the occurrence; that her father informed Muhammad Nawaz (complainant) about the occurrence when he visited her father's house four days after the arrival of Muhammad Hayat. According to PW5, the appellants and their co-accused came to her house at about 5.00 p.m. where they conspired to commit the murder of Mst. Nooran Bibi (first wife of appellant No,2). In her cross-examination she stated as under:- "All the accused persons had slept on separate cots. However, they remained sitting together when they were making conversation with each other. No accused persons asked me to get aside as they wanted to make some secret conversation. I myself had prepared the meals. The oven (Chulha) was ahead of the cots at a distance of about three cots from our cot During the period the accused persons had been making conversation with each other I had been making loaves and had also been walking here and there in the courtyard for performing other household work..........I was free from preparing the meals at about 8.00 P.M . The conversation between the accused persons was being heard by me while sitting near the oven."
5. At another point, she (PW5) stated in her cross-examination that she might have slept at about 8/9.00 P.M. She also stated before the learned trial Court that the appellants and their co-accused remained consulting with each other from 8.00 p.m. to 12.00 midnight. Having gone through the statement of Mst. Husina Mai (PW5), we have observed that the conduct of Mst. Husina Mai (PW5) is quite unnatural and improbable. It does not appeal to a prudent mind that the appellants and their co-accused would allow a person to hear out the alleged conspiracy of committing the murder of Mst. Nooran and be a witness against them. If at all it is admitted that Mst. Husina Mai was allowed to hear out the conspiracy being hatched by the appellants and their co-accused, then as per her own stance (as reproduced above), after preparing meal for the appellants and their co-accused by 8.00 p.m., she slept by 8/9.00 p.m., how come she came to know of the alleged conspiracy being hatched by the appellants and their co-accused between 9.00 p.m. to 12.00 midnight when she was already sleeping.
6. Mst. Husina Bibi (PW5), while appearing before the learned trial Court alleged that she witnessed the crime of murder of Mst. Nooran by peeping over the wall as to how the appellants and their co- accused did away with Mst. Nooran Mai. It is hard to believe why the appellants and their co- accused would let Mst. Husina Bibi (PW5) go when she not only heard out the conspiracy but also witnessed the crime. Another important aspect of the matter is that after the alleged occurrence, appellant No, 2 Hayat took her to his parent's house where she remained for a period of 14 days but she did not tell anybody about the occurrence; that thereafter she was taken by her father to his house at Bhai Phairoo but even during her travel with her father or during her stay at her parent's house, she did not disclose the real facts of the case to anyone. She admitted before the learned trial Court that her statement was recorded by the police after about two months of the occurrence. This fact was also proved by the statement of Ali Muhammad, Inspector (PW10) who conducted investigation of this case and stated before the learned trial Court that on 12.07.1994, he recorded the statement of Mst. Husina Mai. No plausible explanation has been given by Mst. Husina Mai (PW5) for not disclosing the real facts of the case to anyone during her stay with her father.
7. Mst. Husina Mai (PW5) has admitted in her cross-examination that the relations of her family were not cordial with that of family of appellant No,
1. She stated as under:- "My marriage with Hayat accused was the result of Watta-Satta. In exchange of my marriage with Hayat accused, Haq Nawaz accused had promised to give the hand of his daughter Balqees to my brother Ahmed Bakhsh. At that time the age of Balqees was about 13/14 years. We demanded the hand of Mst. Balqees but Haq Nawaz refused to marry her with my brother. When Haq Nawaz accused refused to give the hand of his daughter Balqees, our relations became strained."
8. In this backdrop, the testimony of Mst. Husina Bibi (PW5) does not inspire confidence particularly when she had herself admitted that the relations between her family and the family of Haq Nawaz (appellant No,1) got strained before the occurrence (as alluded to above) and when her statement to the extent of acquitted co-accused has not been believed by the learned Courts below.
Moreover, the complainant or the State did not bother to file appeals against the acquittal of Khizar Hayat, Ghulam Rasool and Umer Hayat. Considering the overall circumstances, it can be safely held that prosecution has not been able to prove its case against the appellants beyond reasonable doubt and the findings of guilt rendered by the learned Courts below against the appellants are not based on correct appreciation of evidence available on record.
9. or what has been discussed above, this appeal is allowed. The impugned judgments to the extent of appellants Haq Nawaz and Muhammad Hayat are set aside. They are acquitted of the charge. They are on bail. Their sureties are discharged of the liability of bail bonds.
Cr1. P. No, 502-L of 2017 10.Through this petition, the complainant has impugned the order of the learned Lahore High Court, Multan Bench dated 06.03.2017 whereby sentence of respondents Nos, 1 and 2 stands suspended. Since while deciding Crl. Appeal No, 69-L of 2015 filed by respondents Nos,1 and 2, we have already acquitted them vide Para 09 above, this petition has lost its relevance which is dismissed accordingly.