SHEIKH ABDUR RAZZAQ, J.---Briefly stated the prosecution case as unfolded in complaint Exh.P.O initially lodged at the instance of Mst. Shahnaz Fatima is that her husband Muhammad Nassarullah is employed as Manager in National Bank, Sikandarabad. She alongwith her husband and aunt Mst.
Bhag Bharri had been residing in the official house provided by the National Bank. On the previous night i,e, 6-7-1997 at 9-30 p.m. she went to sleep while her husband was watching T.V. Her aunt Mst.
Bhag Bharri also went to sleep in the adjoining . room. At about 1-00/2-00 a.m. she got up on hearing some noise and saw that three unknown persons were present in the room who were grappling with her husband Muhammad Nassarullah. As soon as she tried to get up one of them kept some cloth on her nose and pressed her throat. She felt some pressure on her chest and consequently became unconscious and regains senses at 7-00 a.m. and found herself lying on the floor of the room with her right hand, right foot and right ankle injured. She also found that her husband Muhammad Nassarullah was also lying on the floor soaked in blood and had breathed his last with injuries on his neck and other parts of the body. She also found that her aunt Mst. Bhag Bharri was also lying injured on the cot in her room with injuries on her neck, abdomen and other parts of her body. Seeing this horrible scene she rushed out of said room and informed about this incident to the wife of Assistant Manager, National Bank, Sikandarabad who was present in the door of her house. She also brought this fact into the notice of Inayat Ullah Khan, Assistant Manager and then made for the police station to lodge report.
2. Allah Bakhsh, Inspector (P.W.17) was posted as S.H.O. Police Station Daudkhel when he on the statement of Mst. Shahnaz Fatima recorded complaint Exh.P.O, prepared statement of injuries of Mst. Shahnaz Exh.P.Q and sent her to Rural Health Centre for her medical examination through Abdul Manan, S.I. he then proceeded to the place of occurrence where dead body of Nassarullah was lying. He prepared his statement of injury Exh.P.R and inquest report Exh.P.S. He then despatched the dead body of Muhammad Nassarullah for post-mortem examination through Muhammad Nawaz, Constable (P.W.13). he also prepared statement of injury of deceased Mst.
Bhag Bharri Exh . P. T and inquest report Exh.P.U. He inspected the spot, secured blood-stained earth from the place of murder of Muhammad Nassarullah Exh.P.F, from the place of murder of Mst. Bhag Bharri Exh.P.H, from place where dead body of Nassarullah was lying ,Exh.P.G. he also secured blood lying in between bath-room and store-room vide memo. Exh.P.L, secured blood-stained soap P.2 vide memo. Exh.P.J, secured blood-stained clothes P.3 to P.6 vide memo. Exh.P.K and prepared rough site plan Exh.P.B. On the same day Abdul Manan, S.I.produced clothes of Mst. Shahnaz Fatima P.9 and P.10 which he secured vide memo. Exh.P.P. Muhammad Nawaz, Constable (P.W.13) produced clothes of Mst. Bhag Bharri P.11 to P.14 which he secured vide memo. Exh.P.N. He also delivered the parcels to Moharrir for keeping in safe custody. On 10-7-1997 Muhammad Shafique Khan, draftsman (P.W.6) visited the site and handed over site plans Exh.P.E and Exh.P.E/1 to him on 12-7-1997. On 19-7-1997 he secured non-bailable warrant for the arrest of Muhammad Ramzan and consequently arrested him on 6-8-1997. He also secured non-bailable warrant for arresting of Mst.
Shahnaz Fatima. On 14-8-1997 Muhammad Ramzan accused led to the recovery of blood-stained Chhuri P.1, which he secured vide memo. Exh.P.A and also prepared rough site plan of the place of recovery Exh.P.A/1. on 13-9-1997 he arrested Mst. Shahnaz Fatima who on the same day led to the recovery of bloodstained Chhuri P.8 which he secured vide memo. Exh.P..M and prepared rough site plan of place of recovery Exh.P.Ma. As a result of investigation it was discovered that the- complainant Mst. Shahnaz Fatima was carrying on with Muhammad Ramzan and both of them had committed the murder of Muhammad Nassarullah and Mst. Bhag Bharri. Accordingly both of them were sent up to face trial.
3. A charge under section 302/34, P.P.C. was framed against the accused to which they pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused prosecution examined Sharaf Hussain P.W.1, Muhammad Shoaib P.W.2 who deposed about extra-judicial confession of Muhammad Ramzan and Mst. Shahnaz Fatima respectively. Shafa Ullah P.W.3 deposed about a conversation between the accused on the day of occurrence. Dr. Zahid Hussain Shah P.W.4 conducted medical examination of Mst. Shahnaz Fatima on 6-7-1997 and found the following injuries on her person:-
(1) A sharp-edged wound 1.5 x 1 c.m. on inner aspect of right hand little finger in tip. Wound had damaged only the subcutaneous tissues (not muscle).
(2) An incised wound 1.5 x I/2 c.m. on inner aspect of right hand ring finger on its junction with palm.
The wound was skin deep.
(3) An incised wound 1.5 x 1/2 c.m. skin deep on right hand middle finger alongwith its junction with palm.
(4) An incised wound 2 x 1 c.m. under right foot great tow, which was skin deep.
(5) Slight abrasion on right arm.
He issued Medico-Legal_ Report Exh.P.B and sketch of injuries Exh.P.B/1 and report Exh.P.B/2. Dr. Arshad Mehmood Khan P.W.5 conducted the postmortem examination of Muhammad Nassarullah on 6-7-1997 and found the following injuries on his person:-
(1) An incised wound 14 x 4 c.m. on front .of neck, trachea, esophagus, blood vessels were 'cut, blood was clotted.
(2) An incised wound 1 1/2 x 1 c.m. on the left side of upper chest, 6 c.m. below left shoulder.
(3) An incised wound 1 1/2 x 1 c.m. on left side of chest 2 c.m. above left nipple.
(4) An incised wound 3 x 1 1/2 c.m. on left side of chest 9 c.m. from nipple, 7 c.m.- from midline.
(5) An incised wound 1 x 1/2 c.m. on right side of chest, 12 c.m. below right axilla.
(6) An incised wound 4 x t c.m. on the right hand, over back of base of thumb.
(7) An incised wound 2 x 1 c.m. on the right hand, base of thumb anteriorly.
(8) An incised wound 2 x 1 c.m. on right index finger anteriorly.
(9)An incised wound on back of right hand 4 V2 x 1 c.m.
(10) An incised wound 2 x 1/2 c.m. on right thigh, 6 c.m. above right knee joint.
(11) An incised wound 1 x 1 c..m. on anterior surface of all fingers of left hand.
(12) An incised wound on right lower back 2 x 1/2 c.m., 2 c.m. from midline, 10 c.m. below inferior angle of right scapula.
(13) An incised wound 3 x 1 c.m. on right back of thigh 21 c.m. above right knee joint.
In his opinion all injuries were ante-mortem in nature and were caused by sharp-edged weapon.
Injury No,1 caused damage to trachea and major blood vessels. The death was due to severe blood loss i,e, haemorrhagic shock. Injury No,1 in combination with all injuries were sufficient to cause death of any person. The probable time between injuries and death was within 5 to 15 minutes whereas between death and post-mortem was 12 to 18 hours. He issued post-mortem examination report Exh.P.0 and sketch of injuries Exh.P.C/1.
5. On the same day at 4-30 p.m. he conducted post-mortem examination of Mst. Bhag Bharri and found the following injuries on her person:-
(1) An incised wound 7 x 1 c.m. on front of neck, skin and muscles were cut but trachea and blood vessels were intact.
(2) An incised wound 4 x 2 c.m. on right shoulder anteriorly.
(3) A group of incised wound 7 in number measuring 3 to 1 c.m. in an area of 22 x 6 c.m. at junction of chest and abdomen.
(4) An incised wound 2 x 1. c.m. on back of left elbow.
(5) An incised wound 1 x 1/2 c.m. on lateral side of right forearm 10 c.m. below elbow joint.
(6) A bruise 2 x 1 c.m. below right eye on face.
In his opinion all injuries were ante-mortem in nature. Injuries Nos,1 to 5 were caused by sharp- edged weapon while injury No,6 was due to blunt weapon. Injury No,3 and others had caused severe blood loss resulting into her death. The time between injuries and death was 5 to 15 minutes whereas between death and post-mortem was 12 to 18 hours. He p.roduced postmortem examination report Exh.P.D, sketch of injuries Exh.P.D/1. Muhammad Shafique P.W.6 visited the place of occurrence on 10-7-1997 and delivered site plan Exh.P.E and Exh.P.E/1 on 12-7-1997. Inayat Ullah P.W.7 deposed about ocular account of the occurrence. Muhammad Nassarullah P.W.8 deposed about hiring a taxi for going to Mianwali. Zafar Ahmad Khan, Head Constable P.W.9 was Incharge Police guard National Bank, Sikandarabad and had seen the accused Muhammad Ramzan standing with deceased Muhammad Nassarullah. Altaf Hussain, S.I. P.W.10 is a witness of recovery of memos. Exhs.P.F, P.H, P.J, P.K, P.L and P.M respectively discussed during the evidence of P.W.13 Allah Bux Inspector.
Mutti Ullah P.W.11is the witness of recovery of memo. Exh.P.A Abdul Manan A.S.I P.W. 12 got Mst.
Shahnaz Fatima accused medically examined on 6-7-1997.
He was given clothes of the accused P.9 and P.10, which he produced before the Investigating Officer Muhammad Nawaz, Constable P.W.13 escorted the dead body of Muhammad Nassarullah deceased on 6-7-1997. After the post-mortem examination he produced last worn-clothes of deceased which were secured vide memo. Exh.P.N. He was also given two parcels containing blood for onward transmission to the office of Chemical Examiner, which he delivered there intact. Said Rasool, Constable P.W.14 escorted the dead body of Mst. Bhag Bharri for her post-mortem examination on 6-7-1997. On 16-9-1997 he was given parcel containing blood-stained Chhuri for onward transmission to the office of Chemical Examiner, which he delivered there on 17-7-1997.
Abdur Razzaq P.W 15 was given a parcel containing blood-stained Chhuri on 7-9-1997, which he delivered in the office of Chemical Examiner intact. Muhammad Akbar, H.0 P.W.16 on the basis of complaint Exh.P.O recorded formal F.I.R. Exh.P.O/1 on 6-7-1997. He was also given two parcels containing blood which he delivered to Muhammad Nawaz, Constable (P.W.13) on 22-7-1997 for delivering in the office of Chemical Examiner. On 14-8-1997 he was handed over a parcel containing blood-stained Chhuri which he delivered to Abdur Razzaq, Constable (P.W.15) on 7-9- 1997 for onward transmission to the office of Chemical Examiner. On 13-9-1997 he was handed over another parcel containing blood-stained Chhuri which he delivered to Said Rasool, Constable (P.W.14) on 16-9-1997 for onward transmission to the office of Chemical Examiner. Allah Bux, Inspector P.W.17 is the Investigating Officer whose evidence has already been discussed above. On 28-2-1998 Malik Muhammad Ansar, Public Prosecutor produced reports of Chemical Examiner Exhs.P.X , P.Y and P.Z and reports of Serologist Exh.P.A.A, Exh.P.B.B and Exh. P.C.O and then closed the prosecution evidence.
6. When examined under section 342, Cr.P.C. the accused Muhammad Ramzan denied the prosecution version and stated that he was present in his office at Adda Jahan Khan on 5-7-1997 and never went to Sikandarabad. He further stated that he had been implicated in this case at the instance of Mutiullah (P.W.11) and in reply to question No,20, if he had anything to say, stated as follows:- "I am innocent. I am a married man. My relations with the family of both the deceased are very much close. Mst. Shahzaz Fatima is like my daughter and sister. My wife and the step-mother of Shahnaz Fatima accused are real sisters inter se. On 5-7-1997, I performed my duties at Habib Bank Adda Jahan Khan, Tehsil Bhakkar District Bhakkar. I came to my house at Phathi Joyianwali at about 5-00 p.m. where Malik Atta Muhammad father of Mst. Shahnaz Fatima and Malik Muhammad Usman a real brother of Mst. Bhag Bharri deceased were present. Malik Atta Muhammad thad come alongwith his wife to see my ailing wife. I , Muhammad Usman P.W. Atta Muhammad afore-said P.Ws. stayed together in the house of Muhammad Usman P.W. for whole of the night. We slept together in the night. On 6-7-1997. I learnt about this occurrence from Atta Muhammad. I, Muhammad Usman and Malik Atta Muhammad P.Ws. came to Sikandarabad on 6- 7-1997 at about 11.00 a.m. in a Taxi 04. From 5-7-1997 to 6-7-1997 remained in the company of afore- said persons. I never came to Sikandarabad on 5-7-1997. It was for the first time when I came to Sikandarabad after learning about this occurrence in the company of Malik Atta Muhammad and Usman P.W. When we came to the place of occurrence Mst. Shahnaz Fatima was sitting with the dead body of her husband. She was weeping and crying when we reached there.
Atta Muhammad her father and Muhammad Usman P.Ws. consoled her. We came back to Chak No,184-TDA after taking the dead bodies of both the deceased. In my presencel Mst. Shahnaz Fatima told to Malik Allah Bakhsh that her ornaments, cash and prize bonds were missing. All the household, clothes and other articles were totally scattered in the rooms. The police had told us that they will arrest the actual culprits as soon as possible. Mutti Ullah P.W. never visited the house of the deceased or the house of Malik Atta Muhammad. I am quite innocent."
7. When examined under section 342, Cr.P.C. Mst. Shahnaz Fatima also denied the prosecution version and in reply to question No,2,1 stated as follows:- "I have been falsely involved in this case at the instance of Mutti Ullah P.W. Nassarullah deceased was aged about 1/2 year when his mother was died. My father brought Nassarullah deceased to his' home because my mother and the mother of the deceased were real sisters. Mutti Ullah P.W. and his sister Safal Khatoon were taken by their father Habib Ullah. Mutti Ullah P.W. was never allowed by my father to visit our house. Mutti Ullah P.W. became a terrorist as soon as he came to senses. He left District Mianwali and was residing in District Rawalpindi. He never came to the house of my husband. His brother Nassarullah deceased was very much annoyed with him. Mutti Ullah P.W. in collusion with the local police got me involved in this case, though I am innocent. Mst. Bhag Bharri deceased was my mother and was living with me since my childhood. She brought up Nassarullah deceased and myself as her own son and daughter. She was unmarried Mst. Bhag Bharri deceased had only a single heir on the earth and he is Muhammad Usman P.W., her real brother. Muhammad Usman P.W. also appeared before the police and stated my innocence before the Investigating Agencies. Muhammad Usman P.W. also engaged his counsel but he was given up by the prosecution.
8. The accused Muhammad Ramzan led evidence in defence and examined Atta Muhammad D.W.1, Muhammad Usman D.W..2 and his learned counsel produced documents Exhs.D.A to D.H.
However, Mst. Shahnaz Fatima did not adduce any evidence in her defence.
9. Arguments have been heard and record perused.
10.It is submitted by the learned counsel for the appellants that according to the prosecution version some unknown three persons committed the murder of Muhammad Nassarullah as well as Mst. Bhag Bharri, that such information was communicated to Allah Bakhsh, Inspector Police Station, Daud Khel by Mst. Shahnaz Fatima who is widow of Muhammad Nassarullah deceased, that as a result of investigation it was found that Mst. Shahnaz Fatima was herself responsible for committing the murder of Muhammad Nassarullah and Mst. Bhag Bharri and had accomplished her design with the connivance/assistance of his co-accused Muhammad Ramzan. He argued that there being no eye-witness of this occurrence, the entire prosecution case rests upon the circumstantial evidence. While explaining his contention he referred to the statement of Sharif Hussain (P.W.1) and asserted that his statement does not inspire any confidence as there is no plausible reason of his presence on that particular day and time at the Bus Stand and of exchanging information regarding his (accused Muhammad Ramzan) visit of Sikandarabad on 5- 7-1997 and of seeing the deceased Muhammad Nassarullah. Similar is the Case regarding second meeting of the accused with them on 10-7-1997 and of making extra-judicial confession regarding murder of the deceased. He further stated that again it is P.W.1 Sharif Hussain who has been chosen to be witness of recovery of Chhuri P.1 at the instance of accused Muhammad Ramzan secured vide memo. Exh.P.A dated 14-8-1997. He also referred to the statement of P.W.2 Muhammad Shoaib who has deposed about the extra-judicial confession of Mst. Shahnaz Fatima on 5-8-1997 in the presence of Zafarullah P.W. (not produced). He argued that there was no occasion of making any such extra-judicial confession before the said P.Ws. and the so-called extra-judicial confession has been fabricated just to create some evidence against the accused.
11. So far as the last seen evidence of the accused Muhammad Ramzan with the deceased is concerned, it again consists of statement of Sharif Hussain (P.W.1) referred above. Again on this point Shifa Ullah P.W.3, Muhammad Nassarullah P.'W.8 and Zaffarullah Khan P.W.9 have been examined. Their evidence is also devoid of any intrinsic value as Shifa Ullah (P.W.3) has deposed that on 6-7-1997 at . 5-30 a.m. he had been to Sikandarabad and Thad seen- Muhammad Ramzan and Mst. Shahnaz Fatima accused standing outside the gate of the house of Muhammad Nassarullah deceased, that on inquiry by Mst. Shahnaz Fatima accused, Muhammad Ramzan accused informed her that he would reach his village till 8-00 a.m. upon which Mst. Shahnaz Fatima accused told him that she will not inform anybody about this occurrence by that time, that Nassarullah (P.W.8) claims to have carried Muhammad Ramzan accused on his pick-up on 6-7- 1997 from Sikandarabad to the Bus Stand Mianwali, that on his way to Mianwali, Muhammad Ramzan accused informed him (P.W.8) that he was returning after staying a night with Muhammad Nassarullah deceased, that similarly Zaffarullah P.W.9 has deposed that he had seen the accused standing outside the gate of National Bank Sikandarabad on 5-7-1997 alongwith the deceased. He argued, that statements of aforementioned P.Ws do not inspire any confidence as there, are no reasons to believe the presence of Sharaf Hussain (P.W.1) on 6-7-1997 at 6-45 a.m. at New Khan Bus Stand. Similarly there is no reason of the presence of Shifa Ullah (P.W.3) outside the gate of the house of deceased on 6-7-1997 at 5-30 a.m. when he (P.W.3) is a resident of village situated at a distance of 1-1/2 mile from the said house. The statement of P.W.8 regarding carrying Muhammad Ramzan accused in a taxi also hardly appeals to reason and it is not a matter of routine that a passenger will disclose his name to the taxi driver and will also inform the taxi driver as to with whom he had stayed the overnight. He thus submitted that last seen evidence is of no avail to the prosecution.
12. So far as the recovery of Chhuri P.1 from accused Muhammad Ramzan is concerned he argued that it was .recovered on 14-8-1997 and that too from a gutter, situated outside the house of Muhammad Nassarullah deceased. Again Chhuri P.8 is alleged to have been recovered at the instance of Mst. Shahnaz Fatima on 13-9-1997 and that too from a plank of the Kitchen of her house.
Both the Chhuris have been recovered vide memos. Exh.P.A and Exh.P.M respectively and the said memos. have again been attested by Sharif Hussain (P.W.1) and Altaf Hussain (P.W.10). He submitted that recovery of Chhuri P.1 from the gutter and recovery of Chhuri P.8 from the Kitchen of the house of deceased is of no value as the place of first recovery was accessible to public in general and place of second recovery was also not in the exclusive use of the accused Mst.
Shahnaz Fatima as at the relevant time.
13. While referring to medical evidence, he submitted that prosecution has tried to prove that both Muhammad Nassarullah and Mst. Bhag Bharri have been murdered by Muhammad Ramzan with the assistance of Mst. Shahnaz Fatima. He argued that if this contention is accepted then there is no explanation of six injuries of Mst. Shahnaz Fatima, as is evident from her Medico-Legal certificate Exh.P.1 dated 6-7-1997 brought on record through the statement of Dr. Zahid Hussain (P.W.4). He further argued that to implicate Mst. Shahnaz Fatima in this case a query was made from the Doctor on 5-10-1997, if the said injuries could be self-suffered or not. As per report Exh.P,B/2 possibility of the said injuries having been self-suffered has not been ruled out. He submitted that if such an injuiry was necessary it should have been made from the said Doctor (P.W.4) and that too on 6-7-1997 when he examined the accused and not from other Doctor. The mere fact that such query was made after about 3 months of the occurrence, clearly shows that it is an afterthought and has been fabricated to make out some case against the present accused Mst. Shahnaz Fatima. He contended that even report Exh.P.B/2 has been prepared by P.W.5 without examining Mst. Shahnaz Fatima as admitted by P.W.S. He thus submitted that-. this piece of evidence cannot be relied upon regarding the injuries on the person of Muhammad Nassarullah and Mst. Bhag Bharri deceased. He also referred to the statement of Dr. Arshad Mehmood Khan (P.W.5) and argued that there was no necessity of causing remaining injuries on the person of deceased after 'inflicting injury No,1 each on the person of deceased as the said injury was sufficient to cause of their death. He thus argued that stand of the prosecution that it was Mst. Shahnaz accused who inflicted remaining injuries on the person of deceased hardly inspires confidence. While summing up his contentions he submitted that prosecution has failed miserably to bring on record evidence connecting the accused/appellants with the commission of this offence, as such appeal may be accepted and they be acquitted.
14. Conversely, the impugned judgment has been supported by the learned counsel for the complainant assisted by the learned counsel for the State. To supplement his contentions, it is submitted by the learned counsel for the complainant that Muhammad Nassarullah deceased received 13 injuries on his person whereas Mst. Bhag Bharri received 6 injuries on her person. Thus there are 19 injuries which have been found on the person of deceased. He further argued that as the deceased were found lying dead in the house of Mst. Shahnaz Fatima, so onus lies upon her to explain as to under what conditions and circumstances they were murdered. He further argued that story cooked up by Mst. Shahnaz Fatima does not appeal to reason and as such has rightly been disbelieved. He further stated that as Mst. Shahnaz Fatima accused was carrying on with her co-accused Muhammad Ramzan so it is to accomplish their nefarious design that both the accused hatched a conspiracy to eliminate both Muhammad Nassarullah and Mst. Bhag Bharri. He further argued that if the stand of Mst. Shahnaz accused is accepted that three persons with muffled faces were responsible for the commission of murder of Muhammad Nassarullah and Mst.
Bhag Bharri, then question arises as to why they spared Mst. Shahnaz Fatima accused. He submitted that there is no answer to this query on the part of Mst. Shahnaz Fatima accused/appellant, which fact itself shows that it was she who with the assistance of her co- accused committed this murder of the deceased and the story unfolded in complaint Exh.P.O does not represent the real facts. He thus submitted that prosecution has succeeded in bringing home guilt to the accused on the basis of evidence produced in .the trial Court and the appeal being devoid- of force merits dismissal.
15.Now the question is if the prosecution has been able to bring on record evidence warranting the conviction of the accused/appellants. Admittedly , prosecution version as appearing in complaint Exh.P.O has not been believed in the instant case. On the other hand prosecution has collected evidence referred above connecting the accused with the commission of this offence.
16.The first limb of prosecution evidence relates to the statement of Sharif Hussain (P.W.1) and Muhammad Shoaib (P.W.2). Their statements have been discussed above. It is very strange that Muhammad Ramzan accused meets Sharif Hussain (P.W.1) on 6-7-1997 and informs him that he had gone to see Muhammad Nassarullah on 5-7-1997. There is no occasion of the presence of P.W.1 at the Bus Stand New Khan, at that time. It is also very strange that this accused (Muhammad Ramzan) again mentioned Sharif Hussain (P.W.1) and Riaz Qadir (not produced) on 10-7-1997 and makes extra-judicial confession. Again it is P.W.1 in whose presence this accused Muhammad Ramzan leads to recovery of Chhuri P.1 on 14-8-1997. The extra-judicial confession made in the presence of Sharif Hussain (P.W.1) does not disclose about the injuries on the person of Mst.
Shahnaz Fatima accused/ appellant. Again it is admitted by P.W.1 Sharif Hussain that Muhammad Nassarullah deceased was brought up by the father of Mst. Shahnaz Fatima accused, as mother of Muhammad Nassarullah died in his infancy. It is also admitted by him that mother of Muhammad Nassarullah deceased as well as mother of Mst. Shahnaz are real sisters and their third sister was Mst. Bhag Bharri. He also admits that father of Mst. Shahnaz Fatima accused as well as of Muhammad Nassarullah deceased were cousins inter se. Again it also hardly stands to reason that Mst. Shahnaz Fatima accused /appellant in the presence of her father will make an extra-judicial confession before Muhammad Shoaib (P.W.2) and Zaffarullah (not produced). The reason for committing the murder of her husband is stated to be the fact that Mst. Shahnaz Fatima accused did not like her husband and wanted to have divorce from him, to which he (Muhammad Nassarullah deceased) was not a consenting party. This reasoning is devoid of any force as there is no evidence on record to show if the relations between the accused Mst. Shahnaz Fatima and her husband Muhammad Nassarullah deceased were not cordial. Thus evidence of extra-judicial confession does not appeal to reason. The other piece of evidence collected by the prosecution consists of evidence of last seen which consist of statements of Sharif Hussain (P.W.1), Shifa Ullah (P.W.3) Muhammad Nassarullah (P.W.8) and Zaffarullah H.O (P.W.9). As discussed above, the presence of Sharif Hussain (P.W.1) at the Bus Stand on 6-7-1997 at 6-45 a.m. hardly inspires confidence, as he has not given any plausible explanation of his presence over-there at that time.
Similarly the statement of Shifa Ullah (P.W.3) that he had been Sikandarabad on 6-7-1997 at 5-30 a.m. and had seen both the accused standing outside the house of Muhammad Nassarullah deceased hardly stands to reason as P.W.3 has not given any explanation of his presence at that early hours of the day when his house is situated at a distance of (1/2) mile from the house of accused Mst. Shahnaz Fatima. There remains the statement of Muhammad Nassarullah (P.W.8) who claims to have carried Muhammad Ramzan accused in his Toyota Pick-Up, which was being used as taxi. His statement that Muhammad Ramzan accused informed him that he had gone to Sikandarabad and had been returning after staying a night in the house of Muhammad Nassarullah deceased hardly appeals to reason as there was no occasion to make such disclosure to said witness. It is thus clear that even the last seen evidence is not of that quality, which can be relied upon for passing an order of conviction in a murder case.
17. The prosecution has also collected evidence regarding motive ascribed to Inayat Ullah (P.W.7) and Mutti Ullah (P.W.11). the stand of these P.Ws. is that as Mst. Shahnaz Fatima was not having cordial relations with her husband so she had committed the murder of deceased with the active assistance of her co-accused. Admittedly Mst. Shahnaz Fatima was married with Muhammad Nassarullah deceased about 6/7 years prior to the occurrence as admitted by Muhammad Shoaib (P.W.2). It is also fact that there is no evidence on record that relations I between the spouses were strained. The E bald statement of P.W.7 that Mst. Shahnaz Fatima remained with her husband Muhammad Nassarullah for 2/3 days and thereafter deserted him and again returned to his house (1/2) days prior to this occurrence cannot be believed as it lacks corroboration. Again the information regardingstrained relations was communicated to Inayat Ullah (P.W.7) by his wife who has not been examined as a P.W. similar is the statement of P.W.11 Mutti Ullah who claims himself to be a joint owner with the deceased Muhammad Nassarullah. It appears that Mutti Ullah (P.W.11) has deposed against Mst. Shahnaz Fatima accused just to oust her and eliminate her from scene to become sole owner of the house, which belongs to Muhammad Nassarullah deceased.
Thus evidence of motive hardly inspires confidence.
18. So far as the evidence of recovery of Chhuri P.1 from Muhammad Ramzan accused and of Chhuri P.8 from Mst. Shahnaz accused is concerned that hardly appeals to reason as in the first instance Chhuri P.1 has been recovered from a gutter situated outside the house of Muhammad Nassarullah and secondly. Chhuri P.8 is alleged to have been recovered from the Kitchen of the house of accused Mst. Shahnaz Fatima which was not in her exclusive possession after the alleged occurrence.' The medical evidence also does not come to the rescue of the prosecution as there is no explanation of the injuries sustained by Mst. Shahnaz Fatima accused as is evident from her Medico-Legal Report Exh.P.B. None of the P.Ws. before whom she is alleged to have made extra- judicial confession has given any explanation about the injuries on her person. This silence on the part of prosecution casts a serious doubt about the prosecution stand that Mst. Shahnaz Fatima is involved in the commission of this offence. Again evidence of Dr. Arshad Mehmood (P.W.5) shows that after inflicting injury No,1 on the person of deceased there was no need to inflict remaining injuries on the person of deceased as injury No,1 each on the person of deceased was sufficient to cause death of the deceased. There is also no explanation forthcoming on the part of prosecution as to what was the necessity of causing successive blows on the person of deceased after inflicting injury No,l each on their persons.
19. Learned counsel for the complainant has laid much stress on the point that as dead bodies had 19 injuries on their persons and were found in the house of Mst. Shahnaz Fatima accused so onus was on her to explain as to how she was not responsible for their murder. There is no cavil to the proposition that if a dead body is found in a house then onus is on the inmates of the house to explain under what conditions the death occurred. In the instant case Mst. Shahnaz Fatima has given her explanation of this incident. She has stated that she was given injuries as she tried to intervene and her said contention stands corroborated from the statement of Dr. Zahid Hussain (P.W.4) who examined her on 6-7-1997 and found as many as 6 injuries on her person. The prosecution has tried to bring on record report Exh.P.B/2 of the same Doctor (P.W.4) which shows that possibility of said injuries being self-suffered cannot be ruled out. This report is dated 5-10- 1997 and has been issued even without examining the injured at the relevant time. There is no explanation forthcoming on the part of prosecution as to what made the prosecution to secure this report on 5-10-1997 and why such report was not obtained on 6-7-1997 when she was I medically examined. This shows that it is after 13-9-1997 when Mst. Shahnaz Fatima was arrested that the prosecution felt the necessity of acquiring such report so as to implicate her in this case. It is under these circumstances that report Exh.P.B/2 does not carry any value. Again prosecution stand is that on 6-7-1997 when the place of occurrence was inspected by Allah Bakhsh, Inspector (P.W.7) , some hair of the accused Mst. Shahnaz Fatima were secured and so also her blood-stained clothes.
Admittedly neither the said hair nor blood-stained clothes were ever sent to the Expert for his opinion. This also shows that said articles were not secured on 6-7-1997 and were procured after 13-9-1997 when she was arrested. If the said articles had been recovered on 6-7-1997 what. prevented the prosecution to despatch the said articles for comparison and report by the Chemical Examiner.
20.For what has been stated above, we are of the considered view that prosecution has failed to bring home guilt to the accused/appellants beyond reasonable doubt. Accordingly appeal is accepted and accused/appellants are acquitted. They are ordered to be released forthwith if not required in any other case.
21.Since the criminal appeal has been accepted so the Murder Reference No,125-T of 1998 is answered in negative.