' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,712 of 1999 filed by Muhammad Naeem alias Billa and Criminal Appeal No,790 of 1999 filed by Muhammad Sharif alias Kaka, appellants who were convicted by Judge Special Court No,1, Lahore on 9-7-1999 for committing Zina-bil-Jabr and thereafter, murdering Mst. Rashidan and sentenced as under:- Muhammad Sharif alias Kaka Muhammad Naeem alias BillaDeath under section 302(b)/34, P.P.C. with compensation of Rs.1,00,000 to be paid to legal heirs of deceased and in default 2 years' R.I.; Death under section 10(4) of Ordinance VII of 1979; 7 years' R.I. and fine of Rs.25,000 and in default 6 months' R.I. under section 16 of Ordinance VII of 1979.
Death under section 302(b)/34, P.P.C. and compensation of Rs.1,00,000 and in default 2 years' R. I.
Under section 10(4) of Ordinance VII of 1979 death and 7 years' R.I. with a fine of Rs.25,000 end in default six months' R.I. under section 16 of Ordinance VII of 1979.
2. Occurrence in this case had taken place at 9 p.m. On 1-10-1997 in the area of Kot Khawaja Saeed which is at a distance of one and a half kilometre from Police Station Gujarpura, Lahore while the matter was reported to police by Ghulam Rabbani, complainant, at 2-30 p.m. (noon) on 2-10-1997 and the formal F.I.R. Exh.P.A. Was recorded by Nazir Ahmad, Sub-Inspector (P.W.10) on the same day.
3. Brief facts of the case are that Mst. Rashidan wife of the complainant, namely, Ghulam Rubbani (P.W.1) used to teach Qur'an-e-Pak to the children of Mohallah. She at 9 p.m. On 1-10-1997 went to Bazar to purchase a tablet for headache but did not return for long time. Complainant thought that she might have gone to the house of Zahoor Ahmad on the eve of marriage of his daughter. He alongwith his children went to sleep when at 12-30 mil-night, on hearing the noise of weeping, complainant asked the reason for weeping from his wife Rashidan Bibi upon which she told that when she a fter purchasing the tablet was coming from the Bazar, she fell down as a result of fist blow on her head. Then four persons, out of whom one was Labpa the second was Sain and the remaining two unknown persons took her to room of a Mai (old woman) where all the four committed Zinabil-Jabr with her and after sufficient long night, all the accused left me in the street.
The complainant when went to tell the incident to his relations at Kot Lakhpat, he received information that Mst. Rashidan Bibi had died due to Zina-bil-Jabr.
4. After registration of the F.I.R. Exh.P.A., Nazir Ahmad, S.-I. (P.W.10) went to the place of occurrence; prepared the inquest report Exh.P.J. He also prepared rough sketch plan of the place of occurrence Exh.P.L. The Investigating Officer arrested Sharif and Rashid accused on 3-10-1997. Ashraf alias Labha, accused was also arrested and thereafter, efforts were made to arrest accused Naeem alias Billa who was arrested on 4-10-1997. Rashid alias Sain and Ashraf alias Labha were killed in a police encounter. Muhammad Naeem accused while in police custody led to the recovery of video cassette which was taken into possession vide memo. Exh.P.G. After completion of the investigation, both the appellants were challaned to face the trial.
5. Prosecution in order to prove its case produced 15 witnesses in all. Thereafter, the learned Public Prosecutor tendered in evidence report of the Chemical Examiner Exh.P.Q. And closed the prosecution case. Then statements of the appellants were recorded under section 342, Cr.P.C. In which they pleaded innocence. After conclusion of the trial, both the appellants were convicted and sentenced as stated above.
6. Learned counsel for both the appellants after having read the prosecution evidence and statements of the appellants recorded under section 342, Cr.P.C. Submit that both the appellants are not named in the F.I.R.; no identification parade was held and that there is no eye-witness of commission of Zina-bil-Jabr with Mst. Rashidan or killing her. According to the learned counsel, in fact, it was an unwitnessed occurrence. Adds that video cassette is inadmissible in evidence.
7. On the other hand, learned counsel for the State submits that act of the appellants was very brutal one and that Mst. Rashidan being a Hafiza of Qur'an-e-Pak was firstly subjected to Zina-bil- jabr and then killed.
8. We have heard learned counsel for the parties at length and have gone through the evidence recorded by the trial Court. In the instant appeal, three witnesses produced by the prosecution are closely related inter se inasmuch as Ghulam Rubbani (P.W.1) is husband of the deceased, Ghulam Murtaza (P.W.2) is brother of Ghulam Rubbani and Muhammad Hassan (P.W.3) is cousin of the deceased. Appellants were not named in the F.I.R. Two persons named in the F.I.R. Have already been killed in a police encounter. No identification parade was held in this case. There are material contradictions and improvements in the statements of the eye-witnesses. There is no direct evidence either of Zina-bil-Jabr or murder of Mst. Rashidan against the appellants. On the basis of such a weak type of evidence, innocent persons cannot be hanged. After going through the entire prosecution evidence and the other material brought on record, we are of the considered opinion that it was a case of no evidence and when it is held that it was a case of no evidence, then we are left with no option but to accept the appeal, acquit the appellants from the charge and set aside the conviction and sentence recorded by the trial Court against them. Both the appellants are in jail. They shall be released forthwith, if not required to be detained in any other case. Murder Reference is answered in the negative.
Death sentence is not confirmed.