' This judgment will dispose of Criminal Appeal No,306/J of 2002 filed by Mukhtiaran Bibi, appellant and Criminal Appeal No,1717 of 2001 filed by Hassan Shah, appellant who were convicted and sentenced by learned Additional Sessions Judge, Kasur vide judgment dated 20-10-2001 as under:- - ' Imprisonment for life and to pay Rs,20,000 each as compensation and in default one month's S.I.
As required under section 544-A, Cr.P.0 with the benefit of section 382-B, Cr.P.C.
2. Briefly stated the facts of the case are that younger brother of complainant Muhammad Hanif was married with Mst. Mukhtiaran daughter of Muhammad Rafique about two months prior to the instant occurrence. After marriage, the complainant party came to know that Mst. Mukhtiaran Bibi had illicit relations with Hussain Shah and for this reason the complainant party forbade Mst.
Mukhtiaran not to go to her parents. About 26/27 days prior to the occurrence, Mst. Mukhtiaran and Muhammad Hanif went to the parents of Mukhtiaran from where Hassan Shah, Mukhtiaran Bibi and Muhammad Hanif went to Karachi and remained there for about 17/18 days and came back to the village on 2-1-1997. The complainant party reprimanded Mukhtiaran Bibi not to meet Hassan Shah and forbade her strictly. Hassan Shah and Mukhtiaran Bibi felt ill. On last night prior to the occurrence Muhammad Hanif and Mukhtiaran Bibi slept in their room while the complainant and his younger brother went to irrigate their fields. At about 1 midnight the complainant and his younger brother were coming to their house after irrigating the fields. Towards south of their house in the lane they saw Hassan Shah and Riaz while coming. The complainant and his brother slept in their house. At about Sehri time the complainant called Muhammad Hanif upon which Mukhtiaran Bibi came out of the room. The complainant called Muhammad Hanif twice/thrice but he did not get up. The complainant went in the room and saw that blood was oozing from the nose of Muhammad Hanif and there were marks of strangulation and he was lying dead. The complainant asked Mst. Mukhtiaran who kept mum for some time and then told that last night Riaz came to her and delivered four intoxicant pills with direction to administer the same to her husband and that Riaz and Hassan Shah will come and finish the matter and then Mukhtiaran Bibi will be married with Hassan Shah. According to the complainant, Mukhtiaran further told that at night she mixed these pills in the milk and administered the same to Muhammad Hanif. At about 11/12 midnight Hassan Shah and Riaz came to the house of Mukhtiaran after scaling over the wall and then she alongwith Riaz pressed Muhammad Hanif and Hassan Shah strangulated Muhammad Hanif as a result whereof Muhammad Hanif died.
3. Investigation of the case was taken over by Shati Khan, S.-1. (P.W.9). After registration of the case, he went to the place of occurrence where the dead body of Muhammad Hanif was lying; prepared inquest report Exh.P.W.9/I; took into possession bedding vide memo. Exh.P.W.9/2 and arrested Mst.
Mukhtiaran on 22-1-1997 while Hassan Shah and Saleem accused were arrested on 24-1-1997.- Hassan Shah on 28-1-1997 got recovered the string which was taken into possession vide memo.
Exh.P.W.2/2 and in the supplementary statement the complainant took the name of Riaz and not Saleem. Finally, Hassan Shah, Muhammad Riaz, Saleem and Mukhtiaran Bibi 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 D.D.A. Tendered in evidence report of the Serologist Exh.P.O. And closed the prosecution case.
Thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. After conclusion of the trial, Muhammad Saleem and Muhammad Riaz accused were acquitted while Mst. Mukhtiaran Bibi and Hassan Shah were convicted and sentenced as stated above.
5. Learned counsel for Hassan Shah appellant submits that there being no eye-witness in this case, it was an unwitnessed occurrence; ocular account is contradicted by medical evidence, initially Hassan Shah, Mukhtiaran Bibi and Muhammad Riaz (since acquitted) were named as accused and Riaz was ascribed the role of bringing intoxicant pills and giving the same to Mst. Mukhtiaran but later on the role of bringing the pills was attributed to Muhammad Saleem; according to firstly the deceased was administered the intoxicant and then strangulated with a string; there is no injury around the whole neck of the deceased; both Riaz and Saleem have been acquitted by the trial Court; the motive was not proved because it has not come on record that the deceased in his lifetime had even rebuked his wife for having illicit relations between Hassan Shah and Mst.
Mukhtiaran; no poison was detected and that the appellant has been falsely involved in this case.
' Learned counsel for Mst. Mukhtiaran Bibi adopts the arguments advanced by learned counsel for Hassan Shah, appellant, ' Learned counsel for the State opposes the submissions made by learned counsel for the appellants. He submits that a man has been murdered and there are circumstances to show that the murder was committed by both the convicts; there is evidence on record that Hassan Shah and Mukhtiaran had illicit relations and in order to remove the deceased from their way, both the convicts murdered the deceased and that the prosecution has been successful in proving its case against the appellants to the hilt.
6. I have heard learned counsel for the parties and have gone through the record. There being no eye-witness in this case, it was a case of unwitnessed occurrence. According to the prosecution, the occurrence had taken place at Sehrwela and the matter was reported to the police at A 9-10 a.m. On 15-1-1997 though distance between the place of occurrence and police station was 13 miles. The post-mortem on the dead body of the deceased was conducted by Dr. Nawab Din (P.W .5) at 10 a.m. On 15-1-1997 and the duration given between the death and post-mortem was 30 to 36 hours which does not fit in with the time of occurrence given by the prosecution. It can be inferred that the occurrence had not taken place on 14-1-1997 but on 13-1-1997. This fact alone demolishes the prosecution case.
' It was also the case of the prosecution that Riaz brought intoxicant pills, gave to Mukhtiaran who then administered the same into milk and gave to deceased Muhammad Hanif who became unconscious and then the accused pressed his neck. The viscera were taken into possession by the doctor and were sent to Chemical Examiner but no poison was detected which also falsifies the prosecution story. It was also the story of the prosecution that the deceased was done to death by strangulation but according to report of the doctor there was a skin bruised injury 15 x 2.5 c.m. In front and both sides of neck which clearly demolishes the prosecution story.
' The motive was that Mst. Mukhtiaran had illicit relations with Hassan Shah and the complainant party had admonished Mukhtiaran Bibi. There is no evidence on record that anybody saw both Hassan Shah and Mukhtiaran together at any time and there is also no evidence on record that Hssan Shah and Mukhtiaran had gone to Karachi and lived for 15/16 days there. There is also no evidence on record that Muhammad Hanif deceased had ever come to know about the illicit relations between both the appellants.
' Another important factor in favor of the appellants is that the complainant firstly made Riaz as accused for having brought the intoxicant pills and then Saleem was introduced. Though both these accused were challaned but were acquitted by the trial Court. In nutshell the complainant has been changing his version according to his own whims. It is a murder case and life of two persons is involved. It is settled law that in a case of capital punishment, evidence must have come from an unimpeachable source and worthy of credence. In the instant appeals, this fact is missing.
' After having scanned the entire prosecution case from all the angles I am of the considered view that the prosecution has failed to prove its case against the appellants beyond any reasonable doubt rather the ocular account is fully contradicted by medical evidence and motive alleged by the prosecution has not been proved and even the complainant party has been changing his version at its whim. It being a case of doubtful nature, I extend the benefit of doubt in favor of the appellants and set aside the conviction and sentence recorded against them by the trial Court.
The appeals filed by the convicts are accepted. Both the appellants namely Mst. Mukhtiaran and Hassan Shah are in jail. They shall be released forthwith if not required to be detained in any other case.