' MUHAMMAD ANWAR BHAUR, J.---Mst. Farzana alias Saba daughter of Bashir Ahmad, Abdul Hafeez son of Manzoor Ahmad and Muhammad Amin son of Khadim Hussain were tried by the learned Additional Sessions Judge, Faisalabad for the murder of Mst. Razia alias Saima, in case F.I.R. No,305, dated 25-4-2004, registered with Police Station Ghulam Muhammad Abad, District Faisalabad for an offence under section 302/34, P.P.C. The learned trial Judge by virtue of his judgment dated 21- 5-2005 found them guilty of the charge, convicted them under section 302(b), P.P.C. And sentenced each of them to death. It was further ordered that in case death sentence is not confirmed by this Court, all the three convicts would pay Rs.1,00,000 each as compensation to legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to undergo simple imprisonment for six months each.
2. Mst. Farzana alias Saba-convict by filing Criminal Appeal No,229/J of 2005, Abdul Hafeez and Muhammad Amin-convicts (hereinafter to be called the appellants) by filing Criminal Appeal No,233/J of 2005 have called in question the conviction and sentence awarded to them through the impugned judgment, whereas the learned Additional Sessions Judge has sent Murder Reference No,701 of 2005 seeking confirmation or otherwise of the death sentence awarded to them. Muhammad Yaqoob-complainant by filing Criminal Revision No,676 of 2005 has sought enhancement in the compensation amount. We propose to dispose of all these matters together through this single judgment.
3. Occurrence in the instant case took place on 25-4-2004, in the area of Bismillah Park, situate at a distance of two kilometers from Police Station Ghulam Muhammad Abad, District Faisalabad.
Muhammad Yaqoob-complainant (P.W.6), brother of Mst. Razia alias Saima deceased, reported the matter ' to Muhammad Asghar, S.-I. (P.W.9), at Bismillah Town on the same day at 3-30 p.m., who as per his dictation reduced into writing complaint (Exh. PF) and dispatched the same to the Police Station for formal registration of F.I.R. On receipt thereof, Mahmood Ahmad, MHC (P.W.8) drew up F.I.R. (Exh.PF/1) on the same day at 3-45 p.m. Without any addition or alteration on his part.
4. Concisely the prosecution story as enunciated in the complaint (Exh.PF) made by Muhammad Yaqoob-complainant (P.W.6) was that about one and a half years before his sister Mst. Razia alias Saima, aged 35 years, widow of Muhammad Aslam was married to Muhammad Amin son of Muhammad Shafi, resident of Adam Chowk Ghulam Muhammad Abad, Faisalabad; his maternal uncle Haji Bashir Ahmad was residing in Bismillah Park, Ghulam Muhammad Abad, Faisalabad, whose daughter Mst. Farzana alias Saba, aged 24/25 years, who was a matriculate, was going to be married on 2-5-2004; said Mst.Farzana alias Saba took his sister Mst.Razia alias Saima along with her to her house for taking part in the household work and making arrangements for the marriage on 23-4-2004; on the fateful day, he was informed by his maternal uncle Haji Bashir Ahmad that Mst. Razia alias Saima had been killed by someone by strangulating her and Mst.
Farzana alias Saba was also missing, whereupon he (the complainant) along with his brother Muhammad Farooq reached the spot and on inquiry it came to his notice that inmates of the house leaving Mst. Farzana alias Saba and Mst. Razia alias Saima at home, had left for Bazaar for the purpose of shopping at 11-00 a.m.; Mst. Farzana alias Saba, who was a bad character lady, by tying Mst. Razia alias Saima and putting a cloth in her mouth in order to keep her quiet fled from the scene with her paramour; Mst. Razia alias Saima died due to asphyxia. Resultantly, the instant F.I.R. (Exh.PF/1) was registered.
5. After registration of the case, investigation into the crime commenced, during course whereof the appellants having been found to be connected with the crime were challaned to Court for their trial in accordance with law.
6. On receipt the challan, the trial Court proceeded to frame a charge against the appellants, to which they pleaded not guilty and claimed to be tried. The prosecution in order to prove its case produced as many as thirteen witnesses, namely, Lady Dr. Humaira Parveen (P. W . 1), Aurangzeb, Draftsman (P. W . 2), Lady Constable Robina Kausar (P.W.3), Subey Khan, Constable (P.W.4), Masood Ahmad (P.W.5), Muhammad Yaqoobcomplainant (P.W.6), Muhammad Abdullah alias Afzal (P.W.7), Mahmood Ahmad, MHC (P.W.8), Muhammad Asghar, S.-I. (P.W.9), Umar Hayat, S.-I. (P.W.10), Dr. Tahir Ismail (P.W.11), Dr. Salma Iqbal (P.W.12) and Abdul Sattar, Constable (P.W.13).
7. Learned Prosecutor closed the case of prosecution by giving up rest of the witnesses and tendering in evidence reports of Chemical Examiner (Exhs.PR & PS) in respect of Mst. Farzana accused and Mst Razia Bibi deceased, respectively.
8. Thereafter, the trial Court examined the appellants under section 342, Cr.P.C., who denied the allegations brought against them and claimed their absolute innocence in the matter. They alleged their false involvement in the case due to enmity. They neither adduced evidence in their defence nor opted to make statement on oath under section 340(2), Cr.P.C. The trial ultimately culminated into conviction of the appellants as aforementioned.
9. Learned counsel for the appellants in support of both these appeals argued that except Mst.
Farzana alias Saba-appellant none is nominated in the F.I.R. And the complainant (P.W.6) was admittedly not present at the place of occurrence; that it is a case where the prosecution has not produced any incriminating evidence, which could connect the appellants with the commission of alleged crime except the statement of Muhammad Abdullah alias Afzal (P.W.7), who claimed that he saw all the appellants coming out of the house where the occurrence took place in a worried position and that no reliance can be placed on the statement of this witness for the following reasons:--
(a) that he (P.W.7) was not resident of the area, where the house, in which the occurrence took place as he has admitted that his house is at a distance of one and a half kilometer from the place of occurrence;
(b) that he has not assigned any reason for his presence at the place of occurrence at the relevant time;
(c) that he has admitted that he worked in Thopper Hosiery Gulfishan Colony and working hours are 9-00 a.m. To 5-00 p.m.;
(d) that he claimed to have made statement before the police on the same day i,e, 25-4-2004, but his name or position is not mentioned in the site plan (Exh.PD), which was prepared by Aurangzeb, Draftsman (P.W.2) on 1-5-2004.
' It has further been argued by the learned counsel for the appellants that even if the statement of this witness is accepted as correct, no inference qua the guilt of the appellants can be drawn as he has merely stated that he saw all the appellants while coming out of the house, where the occurrence took place; that the house where the occurrence took place is not owned by Abdul Hafeez and Muhammad Amin-appellants and they have admittedly no concern with the said house, whereas besides Mst. Farzana alias Saba, other persons by the name of Haji Bashir Ahmad, his wife Mst. Siddiquan, and their son Saeed Ahmad were also residing in that house; that as it is a case of no evidence, therefore, the appellants may be acquitted.
10. Learned Deputy Prosecutor General Punjab for the State assisted by the learned counsel for the complainant opposed these appeals on the grounds that the prosecution has no reason to falsely implicate the appellants because Mst. Farzana alias Saba was arrested along with other two appellants, therefore, there is a strong presumption of their involvement in this case in the absence of any enmity on the part of the witnesses, who deposed against them; that the evidence of Muhammad Abdullah alias Afzal (P.W.7), who had seen the appellants while coming out of the house, where the occurrence had taken place in worried condition, is sufficient for maintaining the conviction of the appellants; that even otherwise, Muhammad Abdullah alias Fazal (P.W.7) is an impartial witness as he is neither related to the complainant side nor inimical towards the appellants; that circumstantial evidence fully proved the guilt of the appellants; that disappearance of the appellants from the place of occurrence and their subsequent arrest collectively establishes the fact that they are involved in the commission of the offence.
11. Both the sides have been heard at considerable length and record has been perused with their able assistance.
12. In this case, the occurrence wherein Mst. Razia alias Saima lost her life, had taken place on 25- 4-2004, in the area of Bismillah Park, Ghulam Muhammad Abad, Faisalabad and on receipt of information regarding this incident, Muhammad Yaqoob-complainant, brother of the deceased, reached Faisalabad from Sargodha and reported the matter to Muhammad Asghar, S.-I. (P.W.9) on the same day at 3-30 p.m., when he was available in Bismillah Town. The said police official reduced into writing complaint (Exh.PF), on the basis whereof formal F.I.R. (Exh.PF/1) was registered at 3-45 p.m.
13. In the F.I.R., the complainant (P.W.6) stated that on 23-4-2004 his maternal uncle Haji Bashir Ahmad took his sister Mst. Razia alias Saima along with him to Faisalabad from Sargodha for taking part in the household work and making arrangements of the marriage of Mst. Farzana alias Saba, which was going to be held on 2-5-2004, but two days later i,e, on 25-4-2004, he (Haji Bashir Ahmad) informed the complainant that Mst. Razia alias Saima had been murdered by some one by strangulating her and Mst. Farzana alias Saba was also missing, whereupon he (the complainant) along with his brother Muhammad Farooq reached the spot and on inquiry it came to his notice that inmates of the house after leaving Mst, Farzana alias Saba and Mst. Razia alias Saima at home, had gone to Bazaar for shopping purpose at 11-00 a.m. According to the complainant, Mst. Farzana alias Saba, who was a loose character lady, tied Mst. Razia alias Saima, gagged a cloth in her mouth and decamped from the venue of crime with her paramour. Mst.
Razia alias Saima died due to asphyxia. Whereas, while appearing in the Court as P.W.6, the complainant stated that Mst. Farzana Bibi, who was residing in Bismillah Park, Ghulam Muhammad Abad, Faisalabad, was engaged with his younger brother Muhammad Farooq, but after one and half years on coming to know of the bad character of Mst. Farzana, the engagement was broken and thereafter all social relations between the two families were disconnected. On 17-4-2004, parents of Mst. Farzana along with some other relatives came to the complainant's house at Sargodha and requested for compromise because marriage ceremony of Mst. Farzana was being held on 2-5-2004, whereupon the complainant party responded positively. Therefore, on 24-4- 2004, parents of Mst. Farzana again came at Sargodha and requested for sending of Mst. Razia alias Saima along with them for conducting work at their home due to marriage of Mst. Farzana and on the same day took her to Faisalabad. On the fateful day, i,e, 25-4-2004, at 12-30 p.m., the parents of Mst. Farzana had informed him telephonically that their daughter Mst. Farzana was missing and Mst. Razia alias Saima had been murdered in their house.
' On receipt of this information, the complainant reached the spot at about 2-30 p.m. On the same day and saw that a pillow cover was gagged in the mouth of deceased and her face, head, and mouth was tied with a separate Chaddar. The hands of the deceased were tied with a Dopatta and the legs of the deceased were tied with Azarband. At that time, he also saw nine pieces of broken bangles lying on the right side of dead. Body at a distance of one foot. The dead body was lying on the floor with her face upward. He further goes on to state that after lodging of the F.I.R., he was told by Muhammad Abdullah alias Afzal (P.W.7) and Pervaiz P.W. (not produced) that Mst. Farzana was seen by them in the company of Abdul Hafeez and Muhammad Amin while coming out of the house, where the occurrence took place, in a worried position. Putting both these versions in juxtaposition would show that the complainant has made improvements by giving details, as discussed hereinabove, which were not mentioned in the F.I.R.
14. In order to prove his case, the prosecution got examined Muhammad Abdullah alias Afzal as P.W.7, who while appearing in the Court stated that on the fateful day he and his companion Pervaiz P.W. (not produced) had seen the appellants while coming out of the house in a worried condition and they decamped from the scene towards east after hiring a rickshaw.
15. Insofar as medical evidence is concerned, Dr. Humaira Parveen (P.W.1) had conducted autopsy on the dead body of Mst. Razia alias Saima and had found bruises below her left ear, chin and right elbow. She opined that the death had occurred due to asphyxia caused by strangulation (smothering) and injuries on the neck and face were sufficient to cause death in the ordinary course of nature. This piece of evidence is of no avail to the prosecution because there is nothing on record to show that the deceased was strangulated by the appellants.
16. As far as medical examination of the appellants is concerned, Abdul Hafeez and Muhammad Amin-appellants after having been arrested on 14-5-2004 were produced before Dr. Tahir Ismail (P.W.11) on 15-5-2004 and according to him, there was no evidence, which could suggest that they were unable to perform sexual acts. Mst. Farzana alias Saba-appellant was medically examined by Dr. Salma Iqbal (P.W.12). Although, she had observed that intercourse was committed with Mst.
Farzana alias Saba-appellant, but this piece of evidence would also not be helpful to the prosecution because no person appeared to prove the commission of sexual intercourse with Mst.
Farzana Bibi alias Saba-appellant by Abdul Hafeez and Muhammad Amin-appellants.
17. After considering all aspects of the case, we are of the considered view that admittedly there is no direct evidence against the appellants, as the complainant (P.W.6) was not available at the place where the occurrence had taken place and he got registered the case after reaching at the spot. He had not witnessed the occurrence besides there is no evidence except the statement of Muhammad Abdullah alias Afzal (P.W.7), who claimed that he along with Pervaiz P.W.(not produced) had seen the appellants coming out of the house of Mst. Farzana alias Saba-appellant in a worried condition. All other pieces of evidence are also not incriminatory in nature. If this evidence (statement of P.W.7) is accepted as a whole truth, even then it is very difficult to connect the appellants with the commission of crime imputed to them. The evidence led by Muhammad Abdullah alias Afzal (P.W.7) can also not be believed because admittedly he was not resident of the area, where the house in which the occurrence took place as he has admitted that his house is at a distance of one and a half kilometer from the place of occurrence. He has not assigned any reason for his presence at the place of occurrence at the relevant time because he has admitted that he works in Thopper Hosiery Gulfishan Colony and working hours are 9-00 a.m. To 5-00 p.m. He claimed to have made statement before the police on the same day i,e, 25-4-2004, but his name or position is not mentioned in the site plan (Exh. PD), which was prepared by Aurangzeb, Draftsman (P.W.2) on 1-5-2004.
18. Insofar as contention of the learned counsel for the complainant that the appellants remained absconder for about twenty days is concerned, it has no force B because perusal of the record reveals that no proceedings for declaring them absconder were initiated against them. Even otherwise, it is well settled that mere abscondence is not a proof of guilt of any accused person.
Abscondence may be a relevant fact but the same cannot be used for entailing conviction on capital charge alone when the ocular account is not trustworthy and does not get any corroboration from any other source.
19. Considering the case from all angles, we have come to the conclusion that the prosecution has failed to prove its case beyond any shadow of doubt against the appellants. It is well settled that if there are doubts in the prosecution story, then the benefit thereof will go to the accused not as a matter of grace but as a matter of right. Reliance in this behalf is placed on the case D of Muhammad Akram v. The State 2009 SCM R 230.
20. Keeping in view the facts and circumstances of the case as discussed above and following the principle of law laid down by the honourable apex Court, we extend the benefit of doubt to the appellants. Accordingly, these appeals are allowed, convictions and sentences awarded to the appellants vide the impugned judgment are set aside and they are acquitted of the charges. They are behind the bars, so they are directed to be released from custody forthwith, if not required in any other case.
21. Death sentence awarded to the appellants by the learned trial Court is not confirmed and Murder Reference is answered in the negative.
22. As far as Criminal Revision No,676 of 2005 is concerned, the same is dismissed in view of the observations made hereinabove.