1. ' KHAN RIAZ-UD-DIN AHMAD, J.---This judgment will dispose of two connected appeals bearing numbers i,e, Criminal Appeal No,7/L of 2001 filed by Muhammad Zubair; Mst. Talia Bibi and Mst.
2. Aimna Bibi appellants and Criminal Appeal No,25/L of 2001 filed by Mst. Iqbal Bibi appellant and Criminal Suo-Motu No,1/L of 2001 for enhancement of the sentences of the appellants, as both the appeals and suo motu matter arise out of the same judgment dated 18-12-2000 passed by the learned Additional Sessions Judge, Sahiwal whereby Muhammad Zubair appellant was convicted under section 10(2) of the Offence of Zina. (Enforcement of Hudood) Ordinance, 1979 and sentenced to ten years' R.I. And a fine of Rs,20,000 or in default thereof to further undergo S.I. For one year. He was also convicted under section 338-A, P.P.C. . And sentenced to three years' R.I. He was further convicted, under section' 302/34, P.P.C. And sentenced to twenty five years' R.I. And a fine of Rs,50,000 or in default thereof to further undergo S.I. For two years. Half of amount of .Fine, if recovered, was ordered to be paid to the legal heirs of Mst. Anwar Bibi deceased. The appellants Mst. Talia Bibi, Mst. Aimna Bibi and Mst. Iqbal Bibi were convicted under section 338-A, P.P.C. And sentenced to three years' R.I. Each. They were also convicted under section 302/34, P.P.C. And sentenced to twenty five years' R.I. All the sentences of the appellants were ordered to run concurrently.
3. ' Zahoor, Manzoor, Zafar Javed and Mst. Razia Bibi co-accused of the appellants were, however, acquitted from all the charges.
2. Briefly, the facts of the case as gleaned from the report Exh.PA lodged by Jahangir complainant P.W.1 which formed the basis for the registration of F.I.R. Exh.PA/1 under section 302/34, P.P.C. And under section 338-A, P.P.C. At Police Station, Burjwala District Sahiwal on 29-6-1999 are, that the complainant was the resident of Chak No,68/5-L and was tractor driver of Syed Chan Pir of the village. His brother Manzoor Ahmad was a horse-rider and often remained absent from his house.
4. The said Manzoor Ahmad had ousted his wife Mst. Naziran Bibi from his house, who started living with the complainant while Mst. Anwar Bibi his unmarried daughter aged about 20/22 years continued residing with her father, and had in the meanwhile developed illicit relations with Zubair accused. On the night of occurrence at about 8-00 p.m. The complainant went to sleep in his house, when his brother Manzoor Ahmad was alkay to some unknown place and his daughter Mst.
5. Anwar Bibi was sleeping alone in the house. It was at 3-00 a.m. That Mst. Naziran. Bibi mother of Mst. Anwar Bibi awakened the complainant and informed him that Mst. Anwar Bibi was not available in her house. The complainant alongwith Mehram and Sajwar P.Ws. Went in search of her.
6. They saw Zubair, Zafar. Javed, Zahoor and Mst. Razia Bibi accused carrying Mst. Anwar Bibi on a cot were coming towards their house, who after catching sight of the P.Ws. Had left the cot, and successfully made good their escape. The complainant and the P.Ws. Had, however, identified the accused in the light of the moon. Thereafter they found that Mst. Anwar Bibi was lying dead on the cot.
7. ' The motive for the occurrence was stated to be that Zubair appellant had illicit relations with Mst.
8. Anwar Bibi deceased due to which she conceived illegitimate pregnancy which was got aborted by Zubair, Zafar Javed, Zahoor, Mst. Razia and Mst. Talia Bibi through a local "Daie" as a result of the which she had died.
9. ' The complainant proceeded to police station after leaving behind the P.Ws. To guard the dead body of the deceased. While on his way to police station, he met S.I. Muhammad Siddique at Pul Bagree and recorded his statement Exh.PA, which was read over to him and he thumb-marked the same as token of its correctness. The said S.I. Sent the statement of the complainant to Police Station Burjwala for the formal registration of the case and himself resumed the investigation. He visited the spot, prepared the injury statement of Mst. Anwar Bibi deceased Exh.PF and also inquest report Exh.PF/1 and sent the dead body to the mortuary for post-mortem examination under the escort of Muhammad Abbas, Constable P.W.8, who after . The post-mortem Examination produced before the Investigating Officer the last worn clothes of the deceased Exh.P1 to Exh. P3 which were taken into possession vide recovery memo. Exh. P.B. The Investigating Officer also took into possession sealed envelope vide memo. Exh.P.C. Duly signed by the witnesses. He prepared the visual site plan Exh.P.G. And recorded the statements of the P.Ws. Under section 161, Cr.P.C. He handed over the case property to Moharrir of Police Station Burjwala for safe custody. On 23-7- 1999, after the cancelation of pre-arrest bail, the Investigating Officer had effected the arrest of Mst.
10. Razia Bibi and got her remanded to judicial custody. Lateron the investigation was transferred to Muhammad Shafique Khan, Inspector/S. H .0. , P .W .10, who formally arrested Manzoor Ahmad on 6- 8-1999 and Mst. Talia Bibi on 9-8-1999 and recorded the statements of Binyameen and Mazhar Iqbal P.Ws. Under section 161, Cr.P.C. On 10-7-1999. After completion of the various formalities of the investigation the accused Zafar Javed and Zahoor were declared innocent, while rest of the accused were challaned to Court to face their trial.
3. The learned trial Court accordingly summoned Zafar and Zahoor accused and framed the formal charge against all of them, which was denied by all the accused, who pleaded not guilty and claimed their trial.
4. The prosecution produced as many as 13 P.Ws. To prove the guilt of the accused at the trial.
11. ' Jahangir complainant appeared as P.W.1 and reiterated the contents of the complaint Exh. PA. He while under cross-examination admitted it correct that deceased Anwar Bibi was Married to Ali Sher son of Akbar Baluch, resident of Chak No,68/5-L on 12-5-1998, but Rukhsati had not taken place. He also admitted it correct that the Nikah between Ali Sher and Mst. Anwar Bibi deceased was registered according to law. He further admitted it correct that none of the LOs. Had summoned Ali Sher to join investigation of this case. He denied the suggestion that Mst. Naziran Bibi was turned out from her house by her husband Manzoor for having illicit relations with him. He admitted that Mst. Anwar Bibi deceased had a brother namely Mana, who was residing at Karachi.
12. He denied the suggestion that Mst. Anwar Bibi deceased was pregnant from said Ali Sher or that it was due to this reason that Ali Sher had not become a complainant or the P.W. Of this occurrence.
13. He also denied the suggestion that said Ali Sher was annoyed with them on account of grievance that the complainant and Mst. Naziran Bibi had managed the abortion of Mst. Anwar Bibi and it was because of this that Ali Sher had not attended the funeral prayers of Mst. Anwar Bibi deceased. He, however, admitted it correct that they had never got recorded any statement of Ali Sher, in which he had disowned the pregnancy of Mst. Anwar Bibi from him. He also admitted it correct that he had not seen himself the administration of drugs by the accused for abortion of Mst. Anwar Bibi, and that he had only heard the same. The complainant admitted that S.H.O. Muhammad Shafique Khan, P.W.10 had visited ,the spot and after making queries from the P.Ws. Including the lady doctor, had registered the case. He termed the suggestion as incorrect that to humiliate his brother Manzoor in the Bradri he has concocted this occurrence and has involved innocent persons. He also denied the suggestion that to avoid humiliation of pregnancy from Ali Sher he in league with Naziran Bibi had attempted the miscarriage of Mst. Anwar Bibi who died as a result thereof.
14. ' Mst. Haleema Bibi appeared as P.W.2 and deposed that she was bitten by snake on her right hand and had gone for treatment of snake bite in Chak No,68/5-L from one Barbar, who resided at the Dhari of Juglanas. She saw that Zubair, Zahoor, Mst. Talia and Mst. Razia Bibi were standing outside the said Dhari. She inquired about the Barbar from the accused but they denied the presence of any such barbar and asked her to leave the place. They also threatened her but she insisted on 'meeting the barbar whose Dhari was found bolted from outside. She further stated that when she tried to unbolt the door, Mst. Razia Bibi accused had grappled with her and stopped her to enter the room but she pushed Mst. Razia Bibi aside and forcibly unbolted the dooi and went ,inside where she saw that Mst. Anwar Bibi was lying on the ground and Mst. Aimna Bibi Daie was administering medicines to her. On seeing her Mst. Anwar Bibi, went to Zubair, Zahoor, Talia Bibi and Mst. Razia Bibi and they all left the place, but she caught hold of Mst. Aimna Bibi from her wrist and inquired from her as to who had procured her services and what was happening inside. On her inquiry Mst.
15. Aimna Bibi disclosed that Zubair had brought her for administering medicines to Mst. Anwar Bibi in her womb. Thereafter, Mst. Aimna Bibi begged pardon in the name of Allah and left the place. Mst.
16. Anwar Bibi subsequently died after about five days of the administering medicine and the conceived baby was let out.
17. ' While under cross-examination she stated that after coming back to Chak she did not disclose that incident to Lumbardar of the village, who was from her Bradri. She also stated that she had not informed any authority about the aforementioned incident even after reaching Sahiwal. She further stated that she had disclosed this incident only to Mst. Naziran the mother of Mst. Anwar Bibi and to Mst. Sukhan .The paternal aunt of Mst.Anwar Bibi. The above narrated facts were duly confronted with her statement under section 161, Cr.P.C. Exh.DA, the same were not found recorded therein. She denied the suggestion that she had improved upon her version to make it believable for a rational mind. She admitted that after 15/20 days of the information of death of Mst. Anwar Bibi she had gone to Police Station Burjwala and had made her statement Exh.DA. She admitted that about 20/25 persons' of Chak No,68/5-L were brought by the accused to testify their innocence during the investigation. She also admitted that after her return from the aforementioned Dhari she had not visited it again and that she did not know as to who was residing at the said Dhari which was surrounded by number of other Dharies. She denied the suggestion that Jahangir, Sajwar and Mehram P. Ws. Were residing in their respective Dharies in their lands and that she was a procured witness and that she had not seen the occurrence and had deposed due to enmity of her parents with the accused persons.
18. ' Falak Sher appeared as P.W.3 and deposed that four months prior to this occurrence he alongwith Munir Ahmad was passing from near the land of Zubair accused when he heard-rattling in the maize crop. He entered there in and saw that Zubair accused was committing Zina with .Mst. Anwar Bibi, who on seeing him had sworn their clothes and beseeched him not to disclose the incident to anyone and left the place.
19. ' While under cross-examination he admitted that Mst. Anwar Bibi deceased was daughter of his real brother. He also admitted that he had not made any statement before the police and had disclosed this fact of seeing the above incident after about one year and four months. He further admitted that he had not given any beating to Mst. Anwar Bibi or Zubair accused at the time of seeing the incident and had also not produced them before anybody else and had kept silence to save the family honour. He denied the suggestion that they were on strained relations with Ali Sher who had sexual intercourse with Mst. Anwar Bibi deceased prior to formal Rukhsati and due to the said intercourse that Mst. Anwar Bibi had conceived.
20. ' P.W.4 Muhammad Binyameen deposed that about 14/15 days prior to the occurrence, he was standing at the shop of Allah Ditta, situated in front of the houses of Zubair and Zahoor accused to purchase house-hold articles at about evening time, where Mazhar Iqbal had reached for purchasing cigarettes. Both of them saw a car of gray colour carrying Sagheer Goldsmith, Mst.
21. Talia Bibi and Mst. Iqbal Bibi Daie, came there, from which Mst. Talia Bibi and Mst. Iqbal Bibi Daie deboarded and went inside the house of Zubair accused. It was after about 10/15 minutes that the said Daie came out of the house, when Mazhar Iqbal stepped forward to her and subsequently told him that on his inquiry from Mst. Iqbal Bibi Daie as to why she had come to this village, she had disclosed that she had come for the treatment of one girl namely Mst. Anwar Bibi.
22. ' He while under cross-examination disclosed that both of them had not entered the house of Zubair accused and he does not know who were present inside the house of Zubair accused where he was living with his parents and sisters. He further disclosed that he had not disclosed this fact to his father Ghulam Nabi Khan, who was Lumbardar of the village and had only disclosed this fact to S.H.O., Shafique Khan after 17 days of the death of Mst. Anwar Bibi when the said police officials had come at the Dera of his father. He also admitted it as correct that he had not disclosed this fact to any of the police officials who had earlier visited at their Dera during this period till the disclosure of this fact to Shafique Khan, S.H.O.
23. ' Mehram appeared as P.W.5 and deposed that his house was adjacent to the house of Manzoor accused whose wife Mst. Naziran was putting up with Jahangir complainant, while Mst. Anwar Bibi deceased, his daughter was residing with her father. He further stated that Zubair accused had developed illicit intimacy with Mst. Anwar Bibi deceased due to which she became pregnant and had died. He also stated that on the night of occurrence Jahangir P.W. Disclosed about the absence of Mst. Anwar Bibi from her house and had asked him to accompany him for her search in the village. During the search they saw Zahoor, Zafar, Zubair and Mst. Razia Bibi, carrying Mst. Anwar Bibi on a cot, coming towards her house, but, on seeing them they escaped from the scene by leaving the cot under the shade of a chhaper. Mst. Anwar Bibi was then found dead on the c'-t by the P.Ws. Who had already expired.
24. ' He also stated to have joined the police investigation and testified the memos. Of last worn- clothes of Mst. Anwar Bibi and a sealed envelope and two sealed tins produced by Muhammad Abbas constable to the Investigating Officer vide memo. Exh.PC thumb-marked by him.
25. ' He while under cross-examination admitted that Ali Sher was the husband of Mst. Anwar Bibi but, Rukhsati had not yet been taken place. He denied the suggestion as incorrect that he had demanded the hand of Mst. Anwar Bibi for his son Murtaza, and thus had caused hurdle in her Rukhsati with Ali Sher. He admitted it as correct that he had not seen any of the accused persons administering anything to Mst. Anwar Bibi deceased for eating purpose and that his statement under section 161, Cr.P.C. Was recorded by the Investigating Officer, which was consolidated one, and was recorded after the post-mortem examination. He denied the suggestion that Mst. Anwar Bibi and Zubair had committed Zina with his consent. He further stated that had he seen the said obnoxious act he would have punished both of them. He admitted that it was hearsay allegation, He, however, denied the suggestion that Mst. Sukhan, his wife and Mst. Naziran his sister on his instigation had administered medicines to Mst. Anwar Bibi deceased, to save family honour and that she had died in consequence thereof. He also termed it as incorrect that they were revengeful against Mst. Anwar Bibi who without Rukhsati had sexual intercourse with her husband Ali Sher, and that they had felt aggrieved and belittled due to the said act.
26. ' Lady Dr. Nusrat, W.M.O. District Headquarters Hospital Sahiwal appeared as P.W.6 and deposed that on 29-6-1999, she had conducted post-mortem examination on the dead body of Mst. Anwar Bibi deceased and had found the following:--- "It was a dead body of a young lady, aged about 20 years. Eyes closed. Mouth was open, clad in Kamiz of white Chiken with pink and green design on it and brown coloured Shalwar and Dopatta of yellow colour. The dead body was looking pale and was strong built. The abdomen was distended and naisogastric aspiration was present. P.M. Staining and rigor mortis was present.
27. ' On palvic examination, introitus admits four fingers loosely. Os open 4 to 5 c.m. Vagina full of foul smelling. Discharge coming out. Uterus 16 weeks size.
28. ' On dissection uterus were perforated and was full of foul smelling. Congested necrosed and large amount of puss was present in abdominal cavity and stomach distended. All other parts of the body and organs were found healthy and normal.
29. ' In her opinion the cause of death, in this case was septimic shock which was sufficient to cause death in ordinary course of nature. Septimic was ante-mortem. However, final report for detection of cause of death was, kept pending till the receipt of report of Histapathologist.
30. ' The probable time between injury and death was seven to ten days and from death to post- mortem was 8-1/2 hours.
31. ' After post-mortem examination, she handed over the dead body, postmortem report, police papers, last worn-clothes of the deceased and two sealed plastic tins and a sealed envelope to Muhammad Abbas No,1062/C. Exh.PD was the correct carbon copy of the post-mortem examination of the deceased prepared and signed by her. The report of the Histapathologist addressed to her dated 21-2-2000 was Exh.PD/1.
32. ' After going through the., report Exh.PD/1 the cause of death in this case was septicimic shock as aforementioned by her. She also signed inquest report and injury statement prepared by the Investigating Officer."
33. ' She while under cross-examination admitted it as correct that she had not sent any last worn- clothes of the deceased or any piece of lungs, heart or kidney and any stomach wash or its contents for chemical analysis. She admitted that septicemic shock can be the result of deterioration of any disease such as typhoid fever etc. ' P.W.7 Mirza Ashfaq Baig, Draftsman had prepared the site plan Exh.PE and Exh. P.E.1 Exh.PW/2 which were stated to be in his hands and signed by him. He while under cross-examination admitted that he had not shown any place whereat Mst. Anwar Bibi had expired and had also not mentioned any point in the said site plan whereat the P.Ws. Had approached and found Mst. Anwar Bibi as dead.
34. He denied the suggestion that he had prepared the site plan only to implicate the accused persons dishonestly.
35. ' P.W.8 Muhammad Abbas F.C. No,1062/C deposed about escorting the dead body to District Headquarters Hospital Sahiwal for her post-mortem examination and bringing back the last worn- clothes of the deceased and sealed parcels handed him over to him by the said lady doctor. He further deposed to have handed over the said articles to the Investigating Officer who had prepared memos. Exh.PB and Exh.PC duly signed by him.
36. ' A.S.I. Ghulam Mohy-ud-Din appeared as P.W. 9 and deposed that on 29-6-1999 on receipt of statement Exh.PA he had formally recorded F.I.R. Exh.PA/1 correctly, which was in his hand and bear his signatures. He also deposed to have kept in custody the sealed parcels, handed over to him by the Investigating Officer, which were transmitted by him to the Pathologist Lahore intact through F.C. Muhammad Shafaat.
37. ' Muhammad Shafique Khan, 'S.I-1.0./Inspector appeared as P.W.10 and gave out the details of investigation conducted by him, after the case was entrusted to him on 29-6-1999. He further disclosed that on 6-8-1999 he had formally arrested Manzoor Ahmad accused while on 9-8-1999, he effected the formal arrest of Mst. Tapia Bibi as both of them were on pre-arrest bail. On10-7- 1999 he had recorded the statements of Binyameen and Mazhar Iqbal P.Ws. Under section 161, Cr.P.C. And after completing the various formalities of investigation finally challaned all the accused to Court to face their trial except Zafar and Zahoor accused who were declared innocent during the investigation conducted by him and thus one of them namely Zafar Javed was placed in Column No,2 of the Challan, while Zahoor was challaned alongwith others on the insistence of the complainant party.
38. ' While under cross-examination he admitted it correct that there was no evidence on record that anyone had seen Mst. Iqbal Bibi accused administering any medicine to Mst. Anwar Bibi. He also admitted it correct that since 29-6-1999 till 10-7-1999 Binyameen P.W. Had not disclosed the fact of the commission of offence by the accused to the police, although the police station was located at a distance of 10 kilometers. He denied the suggestion that he had falsely challaned all the accused in this case, otherwise the death of the deceased lady was caused at the behest of Manzoor accused and his wife Mst. Naziran Bibi.
39. ' F.C. Ashfaque Ahmad P.W.11 had transmitted the two parcels on 9-7-1999 and had deposited the same intact in the office of the Pathologist Lahore.
40. ' S.I. Muhammad Siddique appeared as P.W.12 and deposed about the details of the investigation conducted by him including the recording of statement Exh.PA of Jahangir P.W. At. Pul Bagree and sending the same to Police Station, Burjwala for the formal registration of the F.I.R. He also deposed about the arrest of Mst. Razia Bibi accused on 23-7-1999 when her pre-arrest hail was cancelled.
41. ' While under cross-examination he admitted that none of the P.Ws. Had stated before him that the alleged abortion was made against the interest of Mst. Anwar Bibi deceased. He further admitted that he had not investigated the fact that the alleged abortion of Mst. Anwar Bibi deceased was made in good faith or in bad faith.
42. ' Dr. Mushtaq Ahmad Asif appeared as P.W.13 and deposed that he had examined Muhammad Zubair accused on 16-7-1999 and had found him fit to perform sexual intercourse. He testified M.L.R.
43. Exh.PH to be the correct carbon copy of the original which was in his hand and bear his signatures.
44. ' The prosecution evidence was then closed and the accused were examined under section 342, Cr.P.C.
45. ' Muhammad Zubair accused/appellant denied all the allegations levelled against him by the prosecution and professed his innocence. In reply to question No,7, "as to why this case against you and why the P.Ws. Have deposed against you", he replied as under:--- "The P.Ws. Are inter se related and were inimical towards Manzoor Ahmad, co-accused, because he has solemnized Nikah of Mst. Anwar Bibi with one Ali. Sher son of Akbar resident of our village despite repeated request and pressure of Jahangir complainant who was demanding the hand of Anwar Bibi for his son on account of which the complainant. Jahangir became inimical. Mst. Anwar Bibi, deceased, and Ali Sher had been visiting each other as husband and wife on account of which, Anwar Bibi became pregnant but as customary 'Rukhsati' had not happened, therefore, Jahangir P.W. Picked up opportunity to humiliate Manzoor Ahmad co-accused. Manzoor Ahmad co-accused, father of Anwar Bibi, was on good social terms with my family and we also supported him for solemnizing Nikah of Anwar Bibi with Ali Sher with Will and desire of Jahangir P.W., therefore, Jahangir P.W. Falsely implicated me in this case and entangled me in his own mischief done by him in connivance with Mst. Naziran, the mother of Anwar Bibi, deceased, and Mst. Sukhan, the real sister of Jahangir P.W. I had never come into contact with Mst. Anwar Bibi."
46. ' The accused opted to produce defence evidence, but refused to appear as a witness of his own under section 340(2), Cr.P.C. He tendered in defence, a copy of Nikahnama Exh.DB of Mst. Anwar Bibi with Ali Sher dated 12-5-1998 and copy of the corder of High Court dated 1-11-2000 Exh.DC and certified copy of Criminal Revision No,170 of 2000 Exh.DD and closed his evidence without producing any witness.
47. ' Similarly Mst. Aimna Bibi, appellant while professing her innocence denied all the allegations levelled against' her by the prosecution and made the following statement in reply to Question No,4, "as to why this case against you and why the P.Ws. Have deposed against you", stated as under:-- "The P.Ws. Are related inter se. They have got their enmity with their co-villagers Zubair etc. Jahangir P.W. Who is the complainant of this case approached me to become a witness against Zubair etc. Co-accused for causing death of Mst. Anwar Bibi and to testify that they had brought Anwar Bibi to me and also requested me that I declined to treat her and to state this fact before the police and Court but I on account of my advance age, illness and due to fear of God refused to become a witness of the version of Jahangir complainant of this case, who, thereafter, approached me through the respectables of the area and also threatened me to implicate me in this case falsely through his relatives Shafique Khan, S.H.O. Of Police Station, Burjwala at the relevant time but I did not yield to the request of Jahangir P.W. Thereafter, the complainant connived with Shafique Khan, S.H.O. And involved me falsely in this case. I have never gone to Chak No,68/5-L in my life nor the P.Ws. Knew me. It is for the same reason that despite my claim of innocence in my first plea at the time of arrest. I was not put to identification parade. I am quite innocent."
48. ' Zafar Javed, Zahoor Ahmad Manzoor and Mst. Razia Bibi the acquitted accused also denied all the allegations levelled against them and had professed their innocence. They had neither appeared under section 340(2), Cr.P.C. Nor had produced any evidence in their defence.
49. ' Mst. Iqbal Bibi accused/appellant while denying the allegations levelled against her by the prosecution professed her innocence and in reply to Question No,3 as to "why this case against you and why the P.Ws. Have deposed against you," stated as under:- "The P.Ws. Are related inter se. They have got their enmity with their co-villagers Zubair etc. Jahangir P.W. And the complainant of this case approached me to Become a witness against Muhammad Zubair etc. Co-accused for causing death of Mst. Anwar Bibi and to testify that they had brought Anwar Bibi to me and also requested me that I declined to treat her and to state this fact before the police and Court but, I on account of my advanced age, illness and due to fear of God refused to become the witness of version of Muhammad Jahangir, complainant of this case, who, thereafter, approached me through respectables of the area and also threatened me to implicate me in this case falsely through his relatives Muhammad Shafique Khan, the then S.H.O. Of Police Station, Burjwala but I did not yield to the request of Jahangir P.W. Thereafter, the complainant connived with Shafique Khan, Investigating Officer and involved- me falsely. I had never gone to village 68/5-L in my entire life nor the P.Ws. Knew me. It is for the same reason that despite my claim of innocence in my first plea at the time of my arrest. I was not put to identification test parade. I am quite innocent and had never gone to the house of Zubair co- accused. I came into contact with the accused persons for the first time during the hearing of this case in the Court room. Previously, neither I knew them nor I had seen any of the accused persons. I even did not know the deceased of this case."
50. ' Similarly Mst. Talia Bibi had also denied the allegations levelled against her by the prosecution and professed her innocence. She while replying to Question No,4 as to "why this case against you and why the P.Ws. Have deposed against you", she stated as under:--- "The P.Ws. Are inter see related and were inimical towards Manzoor co-accused because he had solemnized the Nikah of Anwar Bibi with one Ali Sher son. Of Akbar, resident of our village, despite repeated requests and pressure of Jahangir complainant who was demanding the hand of Anwar Bibi for his son, on account of which, the complainant Jahangir became inimical towards us. Mst.
51. Anwar Bibi, deceased, and Ali Sher had been visiting each other as husband and wife on account of which, Anwar Bibi became pregnant but as customary Rukhsati had not taken place, therefore, Jahangir complainant picked up an opportunity to humiliate Manzoor Ahmad, co-accused. Father of Anwar Bibi deceased was on good social terms with my family and we also supported him for solemnizing Nikah of Anwar Bibi with Ali Sher with Will and desire of Jahangir P.Ws., therefore, Jahangir P.Ws. Falsely implicated me in this case and entangled me in his own mischief done by him in connivance with Mst. Naziran, mother of Anwar Bibi, deceased, and Mst. Sukhan, the real sister of Jahangir P.W. I have never come into contact with Mst. Anwar Bibi."
52. ' None of the three lady accused had opted to produce any defence evidence or to make statements under section 340(2), Cr.P.C. In disproof of the allegation levelled against them by the prosecution.
5. After conclusion of , the trial arguments of the parties were heard by the learned trial Court and the appellants were convicted and sentenced as stated above, while their co-accused were acquitted by the same order. Hence these appeals by the convicts.
6. We have heard the learned counsel for the parties and have carefully gone through the record with their assistance.
7. Learned counsel for the appellants has vehemently argued that the prosecution has miserably failed to prove the case against the appellants beyond any reasonable doubt, as such they all were entitled to acquittal. Elaborating his submissions, learned counsel laid emphasis on the point that with similar allegations four co-accused of the appellants have been acquitted by the learned trial Court and there was no additional evidence on record to implicate the accused/appellants in the commission of the crime. Learned counsel further argued that the statements of the P.Ws. Were procured by the Investigating Agency after unexplained delay of 4/5 months in the case of Falak Sher P.W.3 and fortnight or more in case of Binyameen P.W.4 which cannot be reconciled at any pretext. It would be against the normal behaviour, that after having seen the act of zina, being committed by Zubair accused with Mst. Anwar Bibi deceased Falak Sher P.W.3. The uncle of the victim would have kept quite for 4/5 months without taking any serious action against the two.
53. Similarly the statement of Binyameen P.W.4 which was based on as hearsay evidence was made after about a fortnight. Before the police, despite the fact that he was present all along during the investigation. The non-production of Mazhar Iqbal P.W. Who had actually conversated with Mst.
54. Iqbal Bibi accused would also reflect adversely on the conduct of the prosecution. According to learned counsel the version of the prosecution was thus nothing but a bundle of lies which cannot be made basis for conviction of the accused/appellants.
8. Learned counsel for the State on the other hand has not been able to controvert the ,contentions raised by the learned counsel for the appellants, and has failed to reconcile the material infirmities found in the statements of the prosecution witnesses.
9. We have considered with anxiety the submission made by the learned counsel for the parties and have carefully perused the impugned judgment and the case-law cited at the Bar.
10. The prosecution has placed its reliance mainly on the testimony furnished by Jahangir P. W.1 and Mahram P.W.5, who had allegedly seen the accused namely Zahoor, Zafar Javed, Mst. Razia Bibi the acquitted accused alongwith Zubair appellant, carrying dead body of Mst. Anwar Bibi on a cot towards the house of Manzoor Ahmad and had identified them from a distance of 40 feet in the moonlit night.
55. ' Besides this, Mst. Haleema Bibi P.W.2 was examined to prove the culpability of the said Zubair, Zahoor, Talia Bibi and Razia Bibi, who had brought Mst. Aimna Bibi "Daie" accused for administering drug to Mst. Anwar Bibi for causing her miscarriage, while Falak Sher P.W.3 was produced as an eye-witness of the commission of Zina allegedly committed by Zubair accused with Mst. Anwar Bibi deceased. Binyameen P.W.4 was also produced to connect Mst. Iqbal Bibi Daie with the occurrence by deposing to have heard from one Mazhar Iqbal about the so-called conversation of Mst. Iqbal Bibi accused that she had come to that village for treatment of one girl namely Mst. Anwar Bibi deceased.
11. We have critically and cautiously scrutinized the statements made by the above said witnesses and have evaluated its intrinsic worth regarding its reliability to base the conviction of the appellants. The testimony furnished by Jahangir complainant P.W.3 and Mehram P.W.5 who are closely related inter se and with the deceased has already been disbelieved by the learned trial Court so far the culpability of four accused namely Manzoor, Zafar, Zahoor and Mst. Razia Bibi was concerned as they have been acquitted from all the charges levelled by the prosecution against them, but both these witnesses have been relied upon to connect Zubair appellant with the incident of carrying the dead body of Mst. Anwar Bibi deceased on a cot alongwith the said three co-accused without seeking any additional evidence which was sine qua non in such a situation.
56. ' We have ourselves scanned the evidence, but have not been able to lay our hands on any piece of evidence which could be termed as further confirmatory evidence or additional evidence against the said accused, therefore, we are of the view that the appellant would also be entitled to the same benefit as awarded to the four acquitted accused.
12. So far the testimony of Mst. Haleema P.W.2 is concerned, we have dispassionately considered it in the context of the circumstances of this case. She is resident of Chak No,104/9-L situated at a distance of about 18 miles from Chak No,68/5-L, where she had gone for her treatment of snake- bite from one barber and had seen the alleged occurrence of the administration of drug by Mst.
57. Aimna Bibi, Daie in the womb of Mst. Anwar Bibi deceased in the Dhari, while Zubair, Zahoor, Mst.
58. Razia Bibi and Mst. Talia Bibi were standing outside. The appraisal of the testimony of this witness revealed that she, besides being a close relative of the complainant was admittedly a chance witness of the said incident and her statement suffered from so many infirmities of grave nature.
59. She had visited the Chak No,68/5-L at the pretext of getting treatment of snake-bite from one Barbar, but despite having stayed there for two days, she neither contacted the said barbar nor had told about this incident to any of the resident of the said Chak including the Chowkidar or the Counsellor. Even she had not disclosed this fact to any person or authority at Sahiwal, which she had also visited before getting back to Chak No,104/9-L. She had made the disclosure of these facts for the first time before S.H.O. Shafique Khan P.W.10 after about 15/20 days of the receipt of information regarding the death of the deceased lady which too was received 5/6 days after her death. This delay of 20/25 days of making the disclosure of the incident to police or anyone else coupled with her conduct of not getting the treatment from the barbar for whom she had visited the chak had tarnished her image of speaking truth and thus she could conveniently be labelled as a false and procured chance witness . Of the alleged occurrence, and thus worth no reliance.
60. ' The testimony of Falak Sher P.W.3 the only witness of the act of commission of Zina by Zubair appellant with Mst. Anwar Bibi deceased also suffered from the same infirmity, as that of Mst.
61. Haleema P.W.2, as he too had not disclosed this fact to anyone else for about more than 4/5 months and had only divulged it before police, when the matter of the death of the deceased was under investigations. Besides this, the assertion of this witness that "after seeing the two i,e, Zubaii- and Mst. Anwar Bibi committing Zina in the maize field, he had not re-acted by giviig them physical beating or reprimanding them of grave consequence, he kept quite to save family honour" would not be acceptable to us as no close relative of the victim particularly the real uncle was expected to be a silent spectator of such a heinous crime without reacting over the incident harshly or that he would chew-up the incident without disclosing the same to the parents of the victim lady or to the police. This conduct of the witness being against the normal behaviour had reflected adversely on the testimony furnished by this witness which is hereby discarded as false and fabricated one, so as to implicate Zubair accused in the crime of commission of Zina. Moreover, with holding of Mureed Ahmed, another witness of 'this incident, would show that the prosecution was shy of placing all its card on the table and thus had withheld this witness mala fidely only to' avoid probable contradiction in' the statements of the two important P.Ws. And also to avoid the explanation as to why Mureed Ahmed had kept mum for such a long time, and as to why he had not reacted after seeing the commission of Zina.
62. ' We, therefore, are of the considered view that the tainted testimony furnished by Falak Sher P.W.3 inspired no confidence and was not credible enough to place reliance on.
63. ' The statement of Binyameen P.W.4, having seen Iqbal Bibi and Talia Bibi entering the house of Zubair accused and the whispering of Iqbal Bibi with Mazhar Iqbal (given up P.W.) that she was brought there for the treatment of Mst. Anwar Bibi would also be of no avail to the case of prosecution as the same would clearly fall in the purview of hearsay evidence, as Mazhar Iqbal, who had a direct talk with Iqbal Bibi accused and had then disclosed it to this witness was withheld by the prosecution leaving the statement of Binyameen P.W. Alone in the field, which has already been discarded as hearsay evidence.
64. ' Besides this, Binyameen had allegedly seen this incident about 14/15 days prior to the death of the victim, but had not divulged it to anyone else including his father, who was the Lumbardar of the village in those days. He had only disclosed this incident to S.H.O. Shafique Khan P.W.10 after about 17 days of the death of Mst. Anwar Bibi deceased despite the fact that other police officer had earlier been visiting his Dera in connection with the investigation of this case. This unexplained delayed disclosure of the incident casts grave doubts over the testimony furnished by this witness and thus the same could be discarded as worthless on this short ground alone.
65. ' We in this respect are fortified and strengthened by the observation of the learned Supreme Court of Pakistan in the case of Abdul Khaliq v. The State (1996 SCM R 1553) wherein it was held as under:- -- "It is settled position of law that late recording of statements of prosecution witness under section 161, Cr.P.C. Reduces its value to nil, unless delay is plausible explained."
66. ' This view was further confirmed by the learned Supreme Court of Pakistan in the case of Muhammad Khan v. Moula Baldish and others (1998 SCM R 570) wherein it was observed that "it is a settled law that the credibility of the witness is looked with serious suspicion, if his statement under section 161, Cr.P.C. Is recorded with delay, without any plausible explanation".
13. In the cases cited supra the statements of the P.Ws. Were recorded after the delay of 15 days to 30 days which was considered nullity in the eyes of law, while in the case in hand, the statements under section 161, Cr.P.C. Of Falak Sher P.W.3 a star witness of the crime was recorded after 4/5 months of the incident of the commission of Zina, while the statements of Mst. Haleema P.W.2 and Binyameen P.W.4 were also recorded after an unexplained delay of 20 to 40 days of the respective incidents allegedly seen by them. We are, therefore, of the firm view that all these witnesses , were procured after the death of Mst. Anwar Bibi deceased and their so-called statements under section 161, Cr.P.C. Were recorded to manufacture the links of the chain, so as to connect the appellants with the various incidents of the crime committed on different times at different places.
14. We have duly appraised the medical evidence furnished by lady Dr. Nusrat P.W.6 who had conducted post-mortem examination on the dead body of Mst. Anwar Bibi deceased on 29-6- 1999. We find that even the said testimony of the lady doctor has not fully supported the version of the prosecution as it was in conflict with the alleged time of the occurrence given by the P.Ws. And also in respect of the cause of death which according to her could be the result of the deterioration of any disease such as typhoid fever etc.
15. We, therefore, feel constrained to observe that the evidence led by the prosecution being inconsistent and vague was bristling with infirmities of such a nature, which could not be reconciled on any other hypothesis except, the acquittal of the appellants by extending them the benefit of doubt.
16. Consequently we out of abundant caution accept the two appeals filed by Zubair, Mst. Talia Bibi, Mst. Aimna Bibi and Mst. Iqbal Bibi appellants, set aside their conviction and sentences passed by the learned trial Court and acquit them from all the charges levelled against them by the prosecution. They shall be released forthwith if not required in any other case.
67. ' Suo motu notice issued against the appellants stands recalled.