This judgment will dispose of Criminal Appeal No.73/J of 2000 filed by Mst. Robina, appellant, through jail who was convicted under section 302-B, P.P.C. Read with section 109, P.P.C. And sentenced to imprisonment .For life and also under section 201, P.P.C. To undergo years. A sum of Rs.30,000 was also to be paid by the appellant as compensation as required under section 544-A, Cr.P.C. Both the sentences were to run concurrently with the benefit of section 382-B, Cr.P.C. The conviction and sentence was recorded by learned Additional Sessions Judge, Bhalwal vide judgment dated 26-1-2000.
2. Occurrence in this case had taken place in village Jehanpur at 12.30 mid-night on 7-7-1999 while the matter was reported to the Police at 3.15 mid-night on the same night and the formal F.I.R.
Exh.P.D, was recorded by a Sub-Inspector at Police Station on the statement of Khizar Hayat. The Police Station Bhera is at a distance of five miles from the place of occurrence.
3. Briefly stated the facts of the case as narrated by Khizar Hayat, complainant, in tire F.I.R. Exh.P.D.
Were that he was married with Naziran daughter of Manzoor Ahmad 4/5 years prior to the occurrence. Manzoor Ahmad, his father-in-law had contracted second marriage with Mst. Robina while Mst. Sattan, mother-in-law of the complainant had died 5/6 years prior. One night prior to the occurrence, Manzoor Ahmad alongwith his wife Mst. Robina was sleeping in the courtyard of his tubewell. It was about 12-30 p.m. When one unknown person armed with a toka came and gave 4/5 toka blows on the person of Manzoor Ahmad which hit on different parts of his body. On the noise, Mst. Robina also woke up who wanted to raise cry but she was threatened of dire consequences. The assailant then took Mst. Robina towards the backside of the tube-well and forcibly snatched her golden ornaments and ran away from the spot. After the departure of assailant, Mst. Robina raised hue and cry, which attracted many people from the locality. The injured was removed to hospital where he succumbed to his injuries.
4. F.I.R. Was recorded by Muhammad Bashir S.I. (P.W.11) who prepared the injury statement Exh.P.G., prepared inquest report Exh.P.J., took into possession last worn clothes of deceased vide memo.
Exh.P.F., on the same day visited the place of occurrence and took into possession blood--stained earth vide memo. Exh.P.C., recorded statements of P.Ws. Under section 161. Cr.P.C., Muhammad Azam co-accused of the appellant was absconder, then the investigation was taken over by the S.H.O. Who also found the appellant guilty and challaned her to face the trial.
5. Prosecution in order to prove its case produced 11 witnesses in all, then the learned D.D.A.
Tendered in evidence report of the Chemical Examiner Exh. P.L. And report of the Serologist as Exh.
P.M. And closed the prosecution evidence. Thereafter, statement of the appellant was recorded under section 342, Cr.P.C. In which she denied the prosecution case and claimed false implication due to enmity..
6. After conclusion for the trial, the appellant was convicted and sentenced as stated above.
7. Learned counsel for the appellant after having read the entire prosecution evidence submits that in order to deprive the appellant from inheritance of movable and immovable properties of deceased Manzoor, Khizar Hayat son-in-law of the deceased has made her a scape goat. Further, submits that there is no eye-witness except Khizar Hayat, complainant who had not named the present appellant in the F.I.R. As an accused rather stated that she was also given beating by the assailant and her golden ornaments were removed. Adds that there is no circumstantial evidence in the shape of last seen evidence or recovery except the extra judicial confession and that too before the complainant and near relations of the deceased. Learned counsel lastly submits that prosecution has failed to prove its case against the appellant.
8. On the other hand, learned counsel for the State submits that Muhammad Sharif and Khizar Hayat, P. Ws. 5 and 6 have fully implicated the appellant and that the prosecution has proved its case. He in nutshell supports the judgment of learned trial Court.
9. I have heard learned counsel for the parties and have gone through the evidence on record. In the instant case, the F.I.R. Was lodged by Khizar Hayat, son-in-law of the deceased who was examined as P.W.6. What he stated in the F.I.R. Was that on the night of occurrence some unknown person came and caused injuries on the person of Manzoor Ahmad deceased with toka. Mst.
Robina, the present appellant also woke up and she too was given beating and her golden ornaments were removed. Thereafter, the assailant ran away from the spot. After about one month on 8-8-1999 a supplementary statement was introduced by the Police through the complainant in which the complainant changed whole of his version as given in the F.I.R. He stated that he was sleeping at his own dara. One person namely, Mumtaz told him that Manzoor Ahmad has been killed. Thereafter, he reached at the spot and saw that Manzoor Ahmad was in very precarious condition and then the F.I.R. Was lodged by him (Khizar Hayat) who signed the same is token of its correctness. Firstly, he was eye-witness and later on he introduced the story that he was told about the injuries on the person of Manzoor by one Mumtaz who was never produced by the prosecution.
The only evidence against the appellant was that of extra judicial confession. The witnesses of extra judicial confession namely, Khizar Hayat, Sharif and Muhammad son of Abdullah stated that the present appellant approached them and made extra judicial confession. She admitted that she got her husband murdered through Azam who has not been arrested so far. It is strange that the appellant being a lady made extra-judicial confession before but they neither took her into custody nor produced before the Police. It is a case of capital punishment and in a case of such like nature. Evidence must have come from an unimpeachable source which is missing and there is evidence only of extra judicial confession and that too before the close relations of the deceased.
It is settled law that extra judicial confession is a weak type of evidence and solely on this evidence, capital punishment cannot be awarded.
The stand of the appellant before the learned trial Court was that she was issueless, deceased had got movable and immovable property, in order to deprive her from that, she was falsely implicated in this case after one month. If both the versions one adopted by the prosecution and `the other introduced by the appellant are put in juxta position, the version/defence of the appellant seems to be more plausible and convincing coupled with the only evidence of extra judicial confession and that too before close relations of the deceased who neither took the appellant into custody nor produced her before the Police. The possibility of stance of the appellant to be true cannot be ruled out.
For all that has been stated above, I am convinced that the appellant has been able to create doubt and dent in the prosecution story and the fact that possibility of appellant's false implication cannot be ruled out, this appeal filed by the appellant is accepted, conviction and sentence recorded by the learned trial Court is set aside and he is directed to be released forthwith, if not required to be detained in any other case.
H.B.T./R-60/L