Saima Bibi/appellant was challaned in case FIR No. 318 of 2009 under Sections 302/201, PPC registered at Police Station Basti Malook, District Multan, who faced trial before learned Additional Sessions Judge, Multan, and vide judgment dated 23-12-2010 appellant was convicted under Section 302(b), PPC and sentenced, to imprisonment for life with compensation of Rs. 50,000/- payable to legal heir of deceased under Section 544-A, Cr.P.C., in default whereof appellant was to further undergo SI for six months. However , benefit, of Section 382-B, Cr.P.C. was extended in her favour .
2. There is no need to repeat the detailed facts of the case as well as summary of the prosecution evidence, as it has already been given by learned trial Court in the impugned judgment.
3. The prosecution case hinges upon the evidence of extra judicial confession allegedly made by the accused before Muhammad Aslam PW-15 and Altaf Hussain son of Mushtaq Khan PW-16, on 15.07.2009; evidence of Wajtakar furnished by Sardar Ali PW-14 and Abdul Aziz PW-17; recovery of weapon of offence from the, place of occurrence; recoveries from the spot and recovery of clothes of deceased on the disclosure of Saima Bibi convict/ appellant; statements of Altaf Hussain PW-10 and Abdul Aziz PW-17 about the hearing of conversation of the acquitted accused and seeing the burnin g of bloodstained clothes of Saima Bibi convict/appellant coupled with medical evidence furnished by Dr . Rukhsana Tareen PW -4 and post-mortem examination report Ex.PD.
4. In this case Muhammad Iqbal complaint/PW -7, father of the deceased, Allah Bakhsh PW-8 and Shamim Mai PW-9 (mother Of deceased) furnished the ocular account and as per their stance, when they reached at place of occurrence, a large number of people were gathered there and dead body of Farzana smeared with blood was lying there on a cot. They are not eye-witnesses of the occurrence, as they have neither seen the accused while causing injuries on the person of Farzana/deceased nor they have seen any accused at the place of occurrence or while running away from the spot; therefore, their statements qua the ocular account is only a hearsay evidence and nothing else, which has no evidentiary value and cannot be used against Saima Bibi convict/ appellant.
5. Prosecution tried to prove its case through extra judicial confession allegedly made before Muhammad Aslam PW-15 and Altaf Hussain son of Mushtaq Khan PW-16 on 15.07.2009 at the Dera of Altaf Hussain PW-16, by alleging that Maqbool Ahmad, Abdus Sattar along with three women came at the Dera of Altaf Hussain PW-16.
Maqbool Ahmad, father of Samia Bibi convict/appellant admitted that his daughter Saima Bibi had committed murder of Farzana and he sought pardon. Abdus Sattar also sought pardon for the guilt of ladies accused. Saima Bibi convict/appellant also sought pardon. Whereas Altaf Hussain PW-16 in his statement has given the details of occurrence, i.e. motive behind the occurre nce and what was the plan of accused in this respect and other details of the occurrence including some other events committed after the occurrence. It is duty of a witness, before whom an accused makes his confessional statement, that he must ascribe the statement/co nfession of the accused without any deletion or addition before the police and the Court. But in this case the details of the statement/confession narrated by both these PWs do not corrob orate each other , although the alleged confession was made at the same time in their presence. In such circumstances, when both these PWs do not corroborate each other on every aspects of the confession/statement of the accused, their statements cannot be relied upon rather it create suspicion on the veracity of testimony furnished by them.
6. There is another important aspect in this case regarding the arrest of Saima Bibi convict/appellant. In this connection, I would like to refer the statem ent of Muhammad Iqbal complainant/PW -7, who is real father of Farzana Bibi deceased. He in his cross-examinati on has admitted that Saima Bibi accused was arrested by the, police on the same day i.e. on 07-07-2009, after shifting the dead body of Farzana Bibi deceased to the hospital. This statement of Muhammad Iqbal/PW -7 has much weight, as it came out from the mouth of father of the deceased; hence, it cannot be ignored. On the other hand, Muhammad Saeed Akhtar , Inspector/PW -10, who investigated the case, shown arrest of Saima Bibi as on 20-07-2009. In these circumstances, it appears that during interregnum period Saima Bibi convict/ appellant was under the custody of police but her arrest was shown in the police papers as on 20-07-2009; thus, how 'Saima Bibi convict/appellant could make extra judicial confession before Muhammad Aslam PW-15 and Altaf Hussain PW-16 on 15-07-2009. This aspect of the case smacks out the story of prosecution qua the extra judicial confession and left the impression that such story was built to strengthen the prosecution case. This aspect is further supported by the fact that both the. PWs of extra judicial confession were not influential persons of the locality and even they were not in a position to get pardon to the accused from the complainant party , Furthermore, they admitted that on the day when the accused confessed before them, neither they informed the complainant nor to the police and even they did not try to apprehend the accused when they made confession before them. All these facts support my earlier observations that story of extra judicial confession is a result of concoction and fabrication against Saima Bibi convict/appellant.
7. There is another important aspect in the present case that this confessional statement of both the PWs i.e. Muhammad Aslam PW-15 and Altaf Huss ain son of Mushtaq Khan PW-16 was not believed by learned trial Court qua the other two acquitted accused i.e. Mukhtar Mai and Mansab Mai. In such circumstances, when a piece of evidence has been disbelieved to the extent of co-accused, then it cannot be believed or used against the other accused for the purpose of conviction. In such a situation reliance can safely be placed upon the unreported judgment of the Hon'ble Supreme Court of Pakistan passed in Crl. Misc. Application No. 200 of 2019 in Crl. Appeal No. 238- L of 2013.
8. The other important piece of evidence against Saima Bibi convict/appellant is "Wajtakar". Both the witnesses i.e. Sardar Ali PW-14 is resident of Chah Naiwala, Mouza Pir Tannun, Multan, while Abdul Aziz PW-17 is resident of Chak No. 9/F. Tehsil and District Multan. They are not residents of Bock-D Shoukat Colony , where the occurrence was taken place. No plausible explanation has been given by both these witnesses for their presence at the road near the place of occurrence at the relevant time, from where they saw Saima Bibi convict/appellant with bloodstained clothes and entering her in the house of acquitted accused i.e. Mukhtar Mai and Mansab Bibi. Sardar Ali PW-14 stated that Abdul Aziz PW-17 came to his house for resolving the dispute of Mochhi Brothers and for the same reason they were going to Dera of Ghulam Muhammad. Whereas Abdul Aziz PW-17 states that he went to Sardar Ali PW-14 for his personal business. It is necessary for a chance witness to advance the reasons of his presence at the place of occurrence, at the relevant time. It is pertinent to mention here that said Ghulam Muhammad was neither associated with the investigation nor he was produced in the witness box to strengthen whether these PWs had come to his Dera or not and what was the reason for their presence at his Dera. Another significant aspect in this case is that both these witnesses i.e. PWs 14 & 17 in their examination-in-chief have stated that "Mst. Saima told Mst. Samina that she committed the murder of Mst. Farzana by causing injuries with Churri. When both these. PWs had heard that Saima Bibi convict/appellant had committed the murder of Farzana but neither they made any attempt to apprehend the accused nor informed said Ghulam Muhammad or the complainant. Even they did not inform the police or any respectable of the locality or any relative of the deceased immediately thereafter , rather as per their own statements they informed the complainant on the next day.
Furthermore, their statements were recorded by the police by further delay of 3 to 4 days; hence, their presence at the relevant place cannot be established without any shadow of doubt.
9. Although, as per prosecution story , occurrence took place at 12:00 (Noon) on 07-07-2019 and FIR was registered at 4:35 PM on the same day on the statement of Muhammad Iqbal PW-7. After inspection of the spot, dead body of the deceased was handed over by Muhammad Saeed Akhtar , Inspector/I.O./PW -19 to Akhtar Hussain, constable/ PW-5 on the same day for post-mortem examination but post-mortem examination was conducted on the next day i.e. on 08-07-2009 at 2:00 pm. This delay also creates serious doubt and it appears that dead body was recovered after a long time of death of the deceased and when the relatives of the deceased were summoned by the police, they were in search of the accused and for the same reason anti-dated FIR was registered and post-mortem examination was conducted after a considerable delay . This fact further strengthen by the act and conduct of Sardar Ali PW-14 and Abdul Aziz PW-17. Both these witnesses have stated that they heard the conversation of Saima Bibi with Mukhtar Mai and Mansab Bibi regarding murder of Farzana Bibi deceased but neither they approached the police nor respectable of the locality nor any family members of the deceased rather they informed the complainant on the next day when post-mortem examination was conducted. It means that a long time was consumed for post-mortem examination because police was preparing the papers and necessary padding qua the evidence of prosecution was also done during this period.
10. Another important aspect in this case is that post-mortem examination was conducted by Dr. Rukhsana Tareen, WMO, RHC Ayyaz Abad, Maral, who appeared before the Court as PW-4. Whereas Akhtar Husain, constable/PW -5 stated that on 07-07-2009 he took the dead body earlier to a private hospital in Qasba Maral but he was referred to Nishtar Hospital, Multan and he reached there at about Maghrib prayer time and he handed over the dead body to the hospital staff. On the next day, he again reached at Nishtar Hospital, Multan, where he received last worn clothes of the deceased and a parcel from the Doctor and came back to the Police Station at Maghrib Wela. Ex.PD shows that post-mortem examination was conducted at RHC, Ayyazabad Maral and not at Nishtar Hospital, Multan.
Either post-mortem examination was conducted at Nishtar Hospital, Multan, has been concealed by the prosecution and post-mortem report Ex.PD was obtained by joining hands with Lady Doctor PW-4 or dead body was kept: at Police Station or in RHC, Maral, till preparation of necessary papers and for the same reason post- mortem examination was conducted after considerable delay and to conceal this fact Akhtar Hussain, Constable/PW -5 was examined, who developed a false, story of taking the dead body to a private hospital and then to Nishtar Hospital, Multan. Hence, this piece of evidence furnished by PWs 4 & 5 is also not beneficial for the prosecution rather it creates serious doubts in the prosecution case.
11. As far as recovery of bloodstained Chhuri P-7 is concerned, it was taken into possession from the spot, no finger impressions were obtained over it, so no report from the expert could be obtained in this regard that it was used by Saima Bibi convict/appellant. Furthermore, recovery of clothes of the deceased Ex.PG at the disclosure of Saima Bibi convict/appellant is concerned, as per site plan Ex.PK said recovery was made from the same room, where dead body was lying on the cot. In such a situation, why the Investigating Officer/PW -19 did not recover the said clothes at the time when he inspecte d the spot, as the said clothes were lying under the Kot of deceased. This important aspect of the case makes the recovery of deceased's clothes doubtful. Thus, recovery of Chhuri P-7 and clothes of the deceased cannot be useful for the prosecution.
12. When all the above narrated facts are juxtaposed, it appears that prosecution has failed to prove its case beyond any shadow of doubt. After analyzing the prosecution case minutely from all angel, I am of the firm view that it was an unseen occurrence; PWs were not present at the relevant time; story of extra judicial confession has been introduced after due consultations and deliberations; no motive has also been assigned to Saima Bibi/appellant to cause murder of Farzana/deceased; and on the same evidence two of the co-accused namely Mukhtar Mai and Mansab Bibi have acquitted Consequently , I have come to an irresistible conclusion that prosecution has miserably failed to prove its case against Saima Bibi convict/appellant beyond any shadow of doubt.
13. As a result of above discussion, this appeal is allowed and Saima Bibi/appellant is acquitted of the charge.
Appellant is on bail, her surety is hereby discharged from his liabilities. Case property , if any, be disposed of in accordance with law . Record be sent to learned trial Court forthwith.