' This judgment will dispose of Criminal Appeal No,594 of 2001 filed by Mst. Manzooran, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Jhang vide his judgment dated 17-3-2001 to undergo imprisonment for life and to pay Rs,10,000 as compensation to the legal heirs of the deceased under section 302(b), P.P.C. Or in default six months' S.I. With the benefit of section 382-B, Cr. P . C .
2. Facts of the case as disclosed by Sarfraz complainant P.W.7 are that he was resident of Basti Waryam and a cultivator by profession. His sister was married to deceased Zahoor Hussain while sister of deceased Zahoor Hussain was married to him. Deceased Zahoor Hussain was employed as Munshi with one Mohammad Afzal and Zahoor Hussain used to visit the house of said Muhammad Afzal. The houses of Muhammad Afzal and Asghar Ali were in front of each other having the common Durri and Muhammad Afzal and Asghar Ali used to enter in their house through this common Durri. Zahoor Hussain deceased developed illicit relation with Mst. Asima wife of Asghar Ali. When Asghar Ali came to know, he forbade Zahoor Hussain from coming to the Durri but Zahoor Hussain deceased continued to visit the house of his employer Muhammad Afzal. On the fateful day, that's 27-11-1997 at about 6-00 p.m. Zahoor Hussain and his wife Mst. Pathani alongwith Muhammad Afzal were going to the house of Muhammad Afzal in order to deliver milk at the house of Muhammad Afzal while complainant Sarfraz was waiting for Zahoor Hussain at the Dera of Muhammad Afzal. He also accompanied Zahoor Hussain. Zahoor Hussain deceased was leading them and when Zahoor Hussain deceased crossed the Durri and went a few steps ahead, Asghar All armed with .12 bore shot, gun came in front of deceased Zahoor Hussain by raising a Lalkara that he would teach him a lesson on account of playing with his honour. Asghar All made a straight fire at Zahoor Hussain, who received the same on his chest and pellets exited from his body. Complainant Sarfraz, Muhammad Afzal and Mst. Pathani witnessed the occurrence and Asghar Ali rushed to nis house by seeing these persons coming. Zahoor Hussain succumbed to the injury after a short while.
3. After registration of the formal F.I.R., Muhammad Abdullah P.W.9 went to the spot, prepared injury statement Exh.P.B. And inquest report Exh.P.C., recorded the statements of the witnesses under section 161, Cr.P.C. Collected blood-stained earth from the spot vide memo. Exh.P.D., got the accused Mst. Manzooran medically examined on 2-2-1998 and also got statement under section 164, Cr.P.C. Of Manzooran accused recorded by a Magistrate, thereafter, the investigation was entrusted to Nabi Bakhsh Luk, D.S.P. P.W.11, who found Asghar All accused of the F.I.R. Innocent and held Mst. Manzooran guilty in this case. On 3-2-1998 Nazir produced the gun double-barrel P.1 alongwith licence P.2 with which the accused Mst. Manzooran committed the murder of Zahoor Hussain deceased which was taken into possession vide memo. Exh.P.J. And after completion of the remaining formal investigation the accused Mst. Manzooran was challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 15 witnesses in all, thereafter, learned A.P.P. Tendered in evidence report of Chemical Examiner Exh.P.M., report of the Serologist Exh.P.N.
And closed the prosecution evidence, then the statement of the accused-appellant was recorded under section 342, Cr.P.C. In which she pleaded innocence.
5. Learned counsel for the appellant is not present today, so I have appointed Mr. Mumtaz Ahmad Khan Niazi, Advocate at State expense to defend the appellant. He after having read the entire prosecution evidence, statement of appellant recorded under section 342, Cr.P.C. And other relevant material available on record submits that appellant was not named in the F.I.R., that according to the F.I.R. Which was lodged by Sarfraz complainant it was Asghar Ali who had committed the murder of the deceased, that Nabi Bakhsh Luk, D.S.P. In his investigation had declared Asghar All as innocent and declared Mst. Manzooran as guilty in this case, that he got recovered gun from Afzal, that said D.S.P. Had declared all the accused innocent except Mst.
Manzooran, present appellant, that nothing incriminating was recovered on the pointation of Mst.
Manzooran, that no case is made out against the appellant and she is entitled to acquittal.
6. On the other hand, learned A.A.-G. Assisted by learned counsel for the State submits that Mst.
Manzooran had made a statement under section 164, Cr.P.C. Which is Exh.D.L./1 on the record in which she had stated that Zahoor Hussain deceased had committed Zina-bil-Jabar with her and she had committed the murder of the deceased under grave and sudden provocation because the deceased had committed Zina-bil-Jabar with her and after committing the same he also took away the Shalwar of Mstl Manzooran.
7. I have heard the learned counsel for the parties. In the instant case, F.I.R. Was lodged by Sarfraz complainant. In the F.I.R. Fatal injury was attributed to Asghar Ali but during the Investigation, all the accused except the present appellant were found innocent by Nabi Bakhsh Luk, D.S.P., appellant was arrested in this case, her statement under section 164, Cr.P.C. Was recorded. I have gone through the said statement which is Exh.D.L./1, even one believes the statement of Mst. Manzooran that she had committed the murder of the deceased i,e, under grave and sudden provocation because deceased had committed Zina-bilJabr with her and after committing the same he also took away her Shalwar. Appellant went to her husband, after concealing herself, on the next day, she sent a message to the deceased to return her Shalwar but that was not returned to her, she became mentally deranged due to Zinabil-Jabr, then she took the double-barrel gun and committed the murder of the deceased although she has retracted from her statement recorded under section 164, Cr.P.C. While making a statement under section 342, Cr.P.C. In reply to Question No,6. Learned A.A.-G. Submits that except the statement of Mst. Manzooran appellant under section 164, Cr.P.C. There is no other evidence which she has also retracted.
8. After having heard the learned counsel for the parties and going through the record I am of the considered opinion, that it is a case in which there are so many doubts and benefit of same always goes in favor of the accused not as a matter of grace but as a matter of right, so while extending the same benefit I accept this appeal, set aside the conviction and sentence recorded against the appellant by the learned Court. She is in jail and she shall be released forthwith, if not required to be detained in any other case.