KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,1427 of 2000 filed by Mst. Najam-un-Nisa, appellant who was convicted under section 302(c), P.P.C. and sentenced to undergo rigorous imprisonment for 14 years by the learned Additional Sessions Judge-III Mianwali vide judgment dated 29-10-1999. Criminal Revision No,649 of 1990 having been admitted to regular hearing shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that Noor Ahmad, complainant is a school teacher. On 17- 11-1998 at about 3-30 p.m. he alongwith Dost Muhammad (brother) Amir Khatoon and Mehr Khatoon (sisters) was present in his house at Dera Abdur Rehman Khan and were busy lifting the chef, when Mst. Fateh Khatoon armed with .12 bore gun, Mst. Najam-un-Nisa armed with .12 bore gun and Mst. Fakharun-Nisa armed with .30 bore pistol came. Fateh Khatoon raised Lalkara that a lesson would be taught for filing a civil suit. The complainant took shelter of a wall upon which Mst.
Najam-un-Nisa fired a shot with .12 bore gun which hit Mst. Mehr Khatoon under left eye and above the nose. The second fire shot by Mst. Fateh Khatoon hit below the neck of Mst. Mehr Khatoon. The injured fell down on the ground. The third fire shot by Mst. Fakhar-un-Nisa with .30 bore pistol missed. On the hue and cry of the complainant and his accomplices, the accused ran away from the spot while brandishing fire-arms in the air. The injured Mehr Khatoon succumbed to her injuries at the spot.
The motive alleged was that a civil dispute is going on between the complainant and Mst. Fateh Khatoon.
3. After registration of the case, investigation of the case was taken over by Mulazim Hussain Shah.
S.I. (P.W.7). He proceeded to the spot, inspected the dead body of Mst. Mehr Khatoon, prepared injury statement Exh.P.E, inquest report Exh.P.F, took into possession the bloodstained earth vide memo. Exh.P.D, prepared rough site plan Exh.P.G and on 30-12-1998 all the three accused. Ladies were arrested. After completion of investigation, all the three accused were challaned to face the trial.
4. At the trial, prosecution in, order to prove its case produced 9 witnesses in all; then the learned A.D.A. tendered in evidence report of the Chemical Examiner Exh.P.J, report of the Serologist Exh.P.K and closed the prosecution case, after that Sami Ullah, Foot Constable was produced as C.W.1 and then statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence. After conclusion of the trial, except Mst. Najam-un-Nisa, the remaining two accused were acquitted.
5. Learned counsel for the appellant after having read the entire prosecution evidence and other material available on record submits that motive set up by the prosecution has been disbelieved by the trial Court, presence of the eye-witnesses has been disbelieved, the way in which the occurrence took place has also been disbelieved by the trial Court, on the same set of evidence two co-accused of the appellant have been acquitted and specially he has drawn out attention to the acquittal of Mst. Fateh Khatoon to whom a fire shot was also attributed to deceased, appeals against the acquittal of Mst. Fateh Khatoon and Mst.- Fakhar-un-Nisa filed by the State as well as by the complainant have been dismissed by this Court, both the eye-witnesses produced by the prosecution are inimical towards the appellant and that there is no independent corroboration to their statements. Concluding his submissions, learned counsel submits that the appellant is entity to acquittal.
Learned counsel for the State submits that first short was fired by the present appellant so the trial Judge was right in convicting the appellant. She as a whole supports the judgment of the trial Court.
We have heard learned counsel for the parties and have gone through the record. Mst. Fateh Khatoon is widow of Nawab Khan while Mst. Najam-un-lstisa and Mst. Fakharun-Nisa are daughters of Nawab Khan. All the three ladies were tried but Mst. Fateh Khatoon and Fakhar-un- Nisa were acquitted by the trial Court. There was no motive on the part of the appellant to commit the murder of Mst. Mehr Khatoon. Nawab Khan the husband of Mst. Fateh Khatoon was murdered and the case was registered against Noor Muhammad and Dost Muhammad who are P.Ws. 5 and
6. Had they been present at the spot, they would have been the first target of the appellant and not Mst. Mehr Khatoon. Both the eye-witnesses were residents of 60/70 miles away from the place of occurrence. Both the eye-witnesses were held to be interested and inimical towards the appellant.
The only ground basing conviction of the appellant is that she fired the first shot. Conviction on a capital charge cannot be maintained on this ground solely. There is no independent corroboration whatsoever to the testimony of the eye-witnesses namely P.Ws. 5 and 6.
Mst. Fateh Khatoon was also attributed a fire on the person of the deceased but has been acquitted. The role of the present appellant is similar to that of Fateh Khatoon (since acquitted): Criminal Appeal No,1236 of 1999 filed by the complainant against the acquittal of Fateh Khatoon and Fakhar-un-Nisa has been dismissed by this Court. Similarly, Criminal Appeal No,870 of 2000 filed by the State against their acquittal too was dismissed.
The motive having been disbelieved, presence of the eye-witnesses also having been disbelieved, the mode of occurrence was also held to be not one as suggested by the prosecution, Mst. Fateh Khatoon to whom a fire shot was also attributed on the person of deceased having also been acquitted and appeal against her acquittal having been dismissed and the rule of consistency being available in this case, the only possible result would be that the prosecution 'has miserably tailed to prove its case against the appellant rather it is a case which is full of doubts. So, while extending the benefit of doubt, appeal tiled by the convict appellant Mst. Najam-unNisa is accepted. Conviction and sentence recorded against her by the trial Court is set aside. She is in jail and shall be released forthwith, if not required to be detained in any other case.
Criminal Revision No,549 of 1999 filed the complainant for enhancement of sentence of convict appellant is dismissed.