2006 PLP 1024 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This appeal is directed against the judgment dated 20-9-2002, passed by the learned Additional Sessions Judge, Lahore, whereby, after having tried the appellant, convicted her under section 302(b), P.P.C. and sentenced to imprisonment for life as Tazir with a further direction to pay a compensation of Rs.50,000 as provided under section 544-A, Cr.P.C. in default whereof to further undergo six months' S.I.

2. Brief facts of the case as explained by Syed Manzoor Hussain Shah complainant (P.W.2) in the F.I.R. are that his deceased father Syed Khadim Hussain Shah contracted second marriage with the appellant, she went back to her parents' house as the deceased and appellant used to quarrel with each other, appellant asked the deceased to come to her house for return of the ornaments, his father did not return, they started his search but failed, suspicion was drawn on the appellant and her co-accused and hence the case was registered.

3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced 12 witnesses during the trial.

4. Learned counsel for the appellant in support of this appeal submits that there is no eye-witness in this case; that there is no extra-judicial-confession in this case; that even the evidence of last seen is non-existent in this case; that the dead body of the deceased was not recovered on the pointation of the appellant and was recovered on the pointation of co-accused Ashiq who has been convicted and sentenced; that it is a case of no evidence; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court.

5. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that the appellant is named in the FIR.; that she had the motive to kill the deceased; that the dead body was recovered on the pointation of the co-accused of the appellant; that the prosecution has proved its case against the appellant beyond a shadow of doubt and that this appeal is liable to be dismissed.

6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.

7. According to the F.I.R., which was registered on the statement of Syed Manzoor Hussain Shah complainant (P.W.2), who is the real son of the deceased, with the allegation that the appellant married his father, who was about 55/57 years of age while the appellant was about 35 years of age. It has come on record during trial that the deceased had given half of his house to the present appellant which was transferred according to the F.I.R., on 10-10-1995 Azra Bibi appellant came to the house of the deceased and asked him to come to her house in order to get back jewelry and other articles on 12-10-1995 the appellant came with an unknown person to the complainant's house and asked about the deceased whereafter he disappeared, complainant went on searching his father since 12-10-1995 but he was not traceable, suspicion was shown on the appellant in the F.I.R. that he was done to death by the appellant in connivance with . Tanvir, Ijaz and Ashiq after having abducted him. Except the statement of Syed Manzoor Hussain Shah complainant (P.W.2) there is no other evidence on record. Even the dead body was recovered on the pointation of co-accused Ashiq who has been convicted and sentenced but he has not filed any appeal against his conviction. There is neither any extra?judicial-confession nor any incriminating article was recovered from the appellant during investigation. She was arrested on 18-11-1995 i.e. one month after the occurrence. She cannot be termed as a proclaimed offender. Even no proceedings under sections 87/88, Cr.P.C. were initiated against her. As far as implication of the appellant in the case is concerned, she has made following reply to Question No.5 in her statement recorded under section 342, Cr.P.C.:-- "I am widow of Khadim Hussain Shah deceased. At the time of my Nikah half of the portion of his house situated at Nadirabad was given to me in lieu of Nikah and this fact has also been incorporated in the Nikah Nama. The sons of Khadim Hussain deceased wanted to deprive me from that property. Actually Khadim Hussain Shah so-called deceased is now missing or he himself had hidden in order to save his life from his sons as well as son-in-law, because all of his sons as well as son-in-law, because all of his sons and especially Iftikhar Shah. I have been falsely implicated in this case in order to deprive me from his property."

8. After having sifted grain from the chaff and after having applied independent judicial mind this Court is of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt to sustain conviction. The prosecution case is full of doubts and on the basis of such a shaky evidence, the conviction and sentence awarded to the appellant cannot be maintained because the same has not come through unimpeachable sources, is untrustworthy, unreliable and cannot stand the test of judicial scrutiny. Resultantly, this appeal is allowed, the impugned judgment is set aside, the appellant is acquitted from the case. The appellant is on bail. She shall be discharged from his bail/surety bonds. H.B.T./A-607/L?????????????????????????????????????????????????????????????????????????????????? Appeal allowed.