' SH. IJAZ NISAR, J.---Muhammad Anwar and Muhammad Tufail appellants alongwith three other accused (since acquitted) were tried for committing the murder of Shaukat Ali and Mst. Irshad Bibi deceased, by the learned Additional Sessions Judge, Kasur, who vide his judgment, dated 30-4- 1992, convicted the appellants and sentenced them as under:-- Under section 302/149, P.P.C.
' To suffer death each on two counts for the murder of Shaukat Ali and Mst. Irshad Bibi with fine of Rs,20,000 on each count or in default thereof to undergo 3 years' R.I. With the direction that fine, if recovered, half of the same to be paid to the legal heirs of the deceased.
Under section 201/149, P.P.C.
' To suffer 7 years' R.I. Each with fine of Rs,10,000 or in default thereof to undergo 1 year R.I.
2. The learned Division Bench of the Lahore High Court, Lahore, while disposing of the Murder Reference and the appeal of the appellants maintained their conviction and sentence awarded by the trial Court.
3. The convicts-appellants filed Petition for Leave to Appeal before this Court against the judgment of the High Court, dated 11-4-1995. Leave to appeal was granted vide order, dated 31-7-1995 to consider the points raised by the learned counsel for the appellants, relevant portion whereof is reproduced as under:-- "Learned counsel for the petitioners contended that there were glaring contradictions in the evidence of Medical Officer and the two eyewitnesses. He canvassed that according to eye- account both the deceased met their death by strangulation and then their bodies were taken away and disposed of astonishingly, the learned counsel submitted that the Medical Officer has opined that cause of death of deceased Mst. Irshad Bibi was due to haemorrhage and shock from five injuries on her body. According to him, the medical evidence belies the entire ocular version.
The contradictions have not been properly attended to by the two Courts below.
' The points raised by the learned counsel for the petitioners need reappraisal of the evidence for administration of the criminal justice in accordance with the established principles settled by the Superior Courts of this country. Leave to appeal is granted accordingly."
4. The prosecution case, in brief, is that on 22-9-1988 at 12-15 p.m. Mahanda complainant, father of Shaukat Ali deceased and father-in-law of Mst. Irshad Bibi deceased, lodged an F.I.R. At Police Station Khudian, District Kasur, alleging therein that his son Shaukat Ali deceased used to visit Mauza Najabat for the last four years and during this period he established illicit relations with Mst.
Irshad Bibi deceased and wanted to marry her. Mahanda complainant and his wife Mst. Taj Bibi visited Mauza Najabat and asked for the hand of Mst. Irshad Bibi but her parents refused to do so, whereafter Shaukat Ali deceased abducted Mst Irshad Bibi deceased, 5/6 days after abduction, Mst. Saad Bibi, mother of Mst. Irshad Bibi, Anwar and Sarwar brothers of Mst Irshad Bibi deceased visited the house of Mahanda complainant and informed him about her abduction by his son Shaukat Ali. The complainant showed his ignorance but promised that he would search for them and sought time. After a few days both the deceased were located by the complainant, whereupon the parents of Mst. Irshad Bibi again approached the complainant for restoration of their daughter. It is alleged that though the complainant was willing -to send her back but she herself refused to accompany them. Whereupon, Mahanda complainant, in exchange, offered the hand of his daughter Mst. Parveen P.W.9 to Muhammad Anwar appellant, to which they agreed, and on the same day Nikah was performed between Mst. Parveen and Muhammad Anwar appellant but the Rukhsati was deferred. Four days prior to the occurrence Mst. Saad Bibi and her son Muhammad Anwar appellant visited the house of the complainant and asked for the Rukhsati of Mst. Parveen, which was again deferred.
5. On 21-9-1988 Mahanda complainant alongwith his sons Liaquat Ali, Shaukat Ali deceased and Mst. Irshad Bibi deceased went to Mauza Najabat to leave Mst. Parveen in the house of Muhammad Anwar appellant. After taking meals the complainant, his sons, daughter-in-law Mst. Irshad Bibi deceased and Mst. Parveen, his daughter, slept in the Verandha of the house of Muhammad Anwar appellants. At about 11-00 p.m. Muhammad Anwar appellant No,1 armed with a .12 bore gun, Muhammad Tufail appellant No,2, Muhammad Sarwar, Muhammad Younas and Muhammad Aslam entered into the house and caught hold of Shaukat Ali and Mst. Irshad Bibi deceased.
Muhammad Anwar appellant threatened that if anybody raised alarm he would be shot dead.
Muhammad Aslam and Yonuas held Shaukat deceased in Japha. Tufail appellant put a Safa around the neck of Shaukat Ali deceased while Muhammad Anwar appellant strangulated him to death. Thereafter, Muhammad Aslam and Tufail appellant caught hold of Mst. Irshad Bibi deceased from her arms while Anwar and Sarwar strangulated her. She also died on the spot. After killing both the deceased the accused proceeded towards the complainant-party, who entered into a room and bolted the same from inside. The accused then lifted the dead bodies of both the deceased and went away for their disposal.
6. It is contended by the learned counsel for the appellants that the prosecution has miserably failed to prove its case, that the prosecution story is inherently improbable, further that there are material discrepancies in the statements of the eye-witnesses with regard to the role attributed to the accused and that the ocular evidence is in conflict with the medical evidence.
7. According to the prosecution case, Shaukat Ali deceased, son of Mahanda complainant (P.W.10) had abducted Mst. Irshad Bibi deceased, the sister of Anwar appellant and had taken her to the house of his parents. Mst. Saad Bibi, the mother of Mst, Irshad Bibi accompanied by her sons, namely, Muhammad Anwar appellant and Sarwar accused, had visited the house of Shaukat Ali deceased for her restoration but or the refusal of Mst. Irshad Bibi to go alongwith them, Mahanda complainant offered the hand of his daughter Mst. Parveen P.W.9 to Muhammad Anwar appellant, who accepted the proposal and a compromise was reached between the parties to that effect in a mosque. Whereafter, the Nikkah of Mst. Parveen was performed with Muhammad Anwar appellant.
On the day of occurrence Mahanda complainant accompanied by his sons Shaukat Ali deceased, Liaqat Ali and Mst. Irshad Bibi deceased had gone to Mauza Najabat where the accused lived and which was at a distance of about 100 miles away from their village to leave Mst. Parveen in the house of the accused and they were staying for the night there when the occurrence in question took place.
' According to the complainant, both the deceased were done to death on account of stangulation and there is no mention in the F.I.R. Lodged by Mahanda P.W.10 of the two accused receiving any sharp-edged weapon injuries on their bodies at the hands of the accused, but surprisingly the doctors who had conducted the post-mortem examination on the dead bodies had found a number of sharpe-edged weapon injuries thereon. The complainant party does not even allege that any of the accused was armed with a sharp-edged weapon.
8. To judge the truthfulness of the prosecution story it is to be. Seen as to whether any Nikah between Mst. Irshad Bibi deceased, the sister of Muhammad Anwar appellant and Shaukat Ali deceased and Mst. Parveen, daughter of the complainant and Muhammad Anwar appellant. Had been performed. No evidence whatsoever was led by the prosecution to prove this assertion.
Neither any Nikah Khawan was examined, nor was any witness attending the marriage ceremonies produced. Even no evidence was led to show the registration of Nikkah between the aforementioned persons. No witness to the compromise reportedly reached between the parties in the mosque, as alleged by the prosecution, was examined.
9. The prosecution version that Mst. Parveen P.W. Had been taken to the house of Muhammad Anwar appellant for Rukhsati purposes is highly improbable. This is against the custom prevailing in our society and it is unheard of that the parents would take their daughter to. The house of the bride-groom without any formal ceremony. Had it been so, at least the accused party would have invited their relatives or co-villagers to participate in the marriage ceremony of Muhammad Anwar, but that was not done, nor was any witness from that village examined to prove even the visit of the complainant party to the house of the accused on the relevant date or leaving it after the occurrence. No witness of that village was examined to depose anything about any event taking place either before or after the occurrence. Since both the dead bodies were unidentifiable, it cannot be said with certainty that those were of Shaukat Ali and Mst. Irshad Bibi deceased. There is a serious doubt about the place of occurrence also. If the deceased had been given sharp- edged weapon injuries in the house of the accused, blood-stained earth or any trace of it must have been found there, but no such thing was noticed. Even the dead bodies were not recovered from the house of the accused. It would also be worthwhile to point out that except for Mahanda no other witness was examined to prove the recoveries of the dead bodies which were admittedly not at the instance of the appellants and were recovered from places far away from the scene of occurrence. No incriminating material like any article of dowery given to Mst. Parveen P.W. On the occasion of her marriage/Rukhsati was recovered from the house of the accused. The genesis of occurrence is shrouded in mystery and nothing can be said with certainty as to how, where and under what circumtances it happened.
' Shaukat Ali deceased was not a man of good antecedents, as it is in evidence that he was involved in some criminal cases. He had abducted Mst. Irshad Bibi deceased and was maintaining sexual relations with her without any formal Nikah, as a result of which she had become pregnant.
The refusal of Mst. Irshad Bibi deceased to accompany her parents is not supported by any independent evidence, nor the factum of the offer of the hand of Mst. Parveen P.W.9 in her exchange to Anwar appellant, brother of Mst. Irshad Bibi deceased. If there had been any compromise between the parties, as alleged by the prosecution, there would have been no reason for the murder of Mst. Irshad Bibi deceased by her brothers. If the accused could kill their own sister, they would not have spared Mahanda complainant or his daughter Parveen P.W., who were at their mercy being present in their house, merely for becoming eye-witnesses of the incident in question against them.
10. For the reasons discussed above, the prosecution has failed to prove its case against the appellants beyond all reasonable doubt. Accordingly, the appeal is accepted, and giving them the benefit of doubt the appellants are acquitted of the charges. Their conviction and sentences are set aside. They shall be set at liberty, forthwith, provided they are not required in any other case.