' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,202-J of 2007 titled as "Mst. Shahnaz Bibi v. The State" Criminal Appeal No,203-J of 2007 titled as "Manzoor Ahmad v. The State" and Criminal Revision No,652 of 2007 titled as "Qari Abdul Shakoor v. Mst. Shahnaz Bibi and others" as all these matters have arisen out of the same case i.e, F.I.R. No,410 of 2006 dated 26- 8-2006 offence under sections 302/34, P.P.C. Registered at Police Station Ellah-Abad, District Kasur.
2. Mst Shahnaz Bibi appellant has filed Criminal Appeal No,202-.J of 2007 against the judgment of learned Additional Sessions Judge Chunian dated 25-7-2007 whereby she was convicted under section 302(c), P.P.C. And sentenced as under:-- "23.
(a) Accused Shahnaz Bibi is wedded wife of deceased Tariq Mehmood having four minor children left on her mercy. Her status is that of legal heir of deceased as well, she is convicted under section 302(c) of the P.P.C. And punished with rigorous imprisonment for 10 years, by taking lenient view."
' Appellant Manzoor Ahmad has filed Criminal Appeal No,2034 of 2007 whereby he was also convicted through the same judgment under section 302(c), P.P.C. And sentenced as under:-- "23.
(a). ..........
(b) Accused Manzoor Ahmed, having been proved to be responsible for murder of deceased Tariq Mehmood is convicted under section 302(c) of the P.P.C. And becauseof mitigating circumstances, he is sentenced and punished with rigorous imprisonment for 14-years."
' Qari Abdul Shakoor complainant has filed Criminal Revision No,652 of 2007 for enhancement of the quantum of sentence awarded to Mst. Shahnaz Bibi and Manzoor Ahmad respondents Nos.1 and 2 from 10 and 14 years to death under section 302(b), P.P.C.
3. Necessary facts of the case are that Qari Abdul Shakoor (P.W.5) complainant of the case on 26- 8-2006 moved an application (Exh.PG) to the S.H.O. Police Station Ellah Abad on the basis whereof formal F.I.R. (Exh.PG/1) was registered on the same day. According to the contents of the F.I.R. He (complainant) was resident of Ward No,6 Basti Usman Nagar, Ellah-Abad and was teaching in a Deni Madrassa at Habib Abad, Police Station Sadar Pattoki. Cousin of the complainant namely Tariq Mehmood resident of Chak No,9 Gehlan had shifted to Ellah-Abad along with his family in a rented house situated in Ward No,6, Ellah-Abad. On 20-8-2003, after visiting Manzoor son of Nizam Din, caste Maen resident of Awan Town Lahore his first cousin Tariq Mehmood (deceased) was coming back from Lahore through bus along with Shahnaz Bibi (appellant), his wife and children. When the vehicle reached Chunian, Shahnaz Bibi (appellant) asked Tariq Mehmood (deceased) to have a night stay in the house of her parents at Chunian but Tariq Mehmood (deceased) showed reluctance with the assertion that his brother-in-law Manzoor (appellant) had been extending threats to him and he would not stay there at any cost. Both the spouses along with their children came to EllahAbad in the house of Liaquat Ali son of Hakim Ali caste Maen resident of Ward No,7 Ellah Abad. Liaquat Ali served them meal. Shahnaz Bibi (appellant) informed her brother on telephone at Chunian that on that day Tariq Mahmood had not permitted her to see him and invited Manzoor Ahmad (appellant) to reach to the house of Liaquat Ali immediately and Manzoor Ahmad reached the house of Liaquat Ali. After some time Manzoor and Liaquat Ali started quarrelling with Tariq Mehmood. He (Tariq Mahmood) informed the complainant that Manzoor Ahmad, Liaquat Ali and Shahnaz are seriously angry with him and they might not kill him in the night and requested the complainant to patch up the matter. The complainant along with Amanat Ali (P.W.6) son of Rehmat Ali caste Maen resident of Safa Rice Mills, Noorpur Jattan and Muhammad Iqbal (P.W. Since given up) son of Abdul Hameed caste Maen resident of Chak No,9 Gehlan Police Station Saddar Pattoki who had come to the house of the complainant to visit him, reached the house of Liaquat Ali where Manzoor Ahmad, Liaquat Ali and Shahnaz were present. They advised them to refrain from indulging in disputes on petty household matters but no fruitful results could come out and the prosecution witnesses returned their homes. The following morning, he received information that Tariq Mehmood (deceased) was found dead in his house underneath a Toot tree and his nose was bleeding and scars were present on his neck. In the meanwhile Haleema Bibi and Khalil Ahmad also reached at the spot. The complainant along with Amanat Ali and Muhammad Iqbal reached at the spot. Liauqat Ali etc. Put Tariq Mehmood on a cot and pretended that he had committed suicide. As a matter of fact Tariq Mahmood was strangulated by Manzoor Ahmad, Shahnaz Bibi (appellants) and Liaquat Ali (co-accused of the appellants since proclaimed offender) in furtherance of their common intention and thereafter they escorted his dead-body to his own house and they misinformed Haleema in the Police Station so as to avoid their criminal liability. In the complaint Exh.PG, the complainant narrated with certainty that Tariq Mahmood had been strangulated by Manzoor Ahmad, Liaquat Ali and Shahnaz Bibi and thereafter threw him face down in the courtyard of his house and bolted the outer door of the house.
4. Sikandar Ali S.-I. (P.W.7) was posted at Ellah-Abad. Investigation of the case was entrusted to him. He visited the place of occurrence and prepared unsealed site plan (Exh.PK). He took into possession blood-stained earth vide memo (Exh.PH) and a piece of electricity wire vide recovery memo (Exh.PJ). After post-mortem examination of the dead body of Tariq Mehmood (deceased), Muhammad Ismail 412/C (P.W.3) handed over to him last worn clothes of deceased, Qameez (P-1), Shalwar (P-2) and Bunyan (P-3) which were taken into possession vide memo (Exh.PC). He got prepared the scaled site plan through Master Sadiq Ali Qamar (PW.2). He arrested Shahnaz Bibi (appellant) on 1-9-2008 and on the same day sent her to judicial lock-up Thereafter he was transferred from Ellah-Abad Police Station. Consequently, investigation of the case was handed over to Muhammad Younas (C.W.1) after transfer of Sikandar Ali S.-I. (P.W.7). He obtained warrants of arrest against Manzoor Ahmad (appellant) and Liaquat Ali (co-accused of the appellants since proclaimed offender). They concealed themselves in order to avoid their arrest. Proceedings under sections 87 and 88 of the Code of Criminal Procedure were initiated against them. Yar Muhammad 1023/C (P.W.4) executed the proclamation and accordingly his statement was recorded under section 161, Code of Criminal Procedure. Manzoor Ahmad and Liaquat Ali were declared proclaimed offenders and an incomplete challan was submitted in the Court. On 15-10-2006 Manzoor Ahmad appellant voluntarily appeared before C.W.1. He was arrested, interrogated and found innocent. He was produced before the learned Illaqa Magistrate along with the recommendation of his discharge but the learned Illaqa Magistrate did not agree with the findings of the Police and as such Manzoor Ahmad appellant was sent to judicial lock up whereas Liaquat Ali remained proclaimed offender.
5. In this case initially incomplete challan to the extent of Mst. Shahnaz Bibi (appellant) was submitted. She was summoned to face the trial. Copies of the documents, as required under section 265-C, Code of Criminal Procedure, were provided to her vide order dated 15-11-2006.
Formal charge was framed against her on 13.12-2006 to which she pleaded not guilty, and claimed trial. Thereafter supplementary chllan to the extent of Manzoor Ahmad (appellant) was submitted in the Court. He was also summoned to face the trial. Copies of the documents as required under section 265-C Code of Criminal Procedure were provided to him on 18-1-2007. Thereafter joint charge against both the appellants was framed on 2-3-2007 to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined seven witnesses, in all whereas Muhammad Younas Inspector was examined as C.W.1. Ch. Muhammad Arif Medical Officer, Tehsil Headquarters Hospital Chunian appeared as P.W.1 and stated that on 22-8-2006 at 10-00 a.m. He conducted post mortem examination on the dead-body of Tariq Mahmood (deceased) Master Sadiq Ali Qamar, Draftsman appeared as P. W. 2 and stated that on 28-8-2008 on the direction of Police and on pointation of the prosecution witnesses he prepared scaled site plan of the place of occurrence. (Exh.PB and Exh.PB/1). Muhammad Ismail 412/C appeared as P.W.3 and stated that on 21-8-2008 he along with Inayat Ali escorted the dead body of Tariq Mahmood deceased to the mortuary in THQ Hospital Chunian for post mortem examination. After post mortem examination of the dead-body, doctor handed over to him last worn clothes of the deceased which he delivered to Sikandar S.I/I.O. Who took the same into possession vide memo (Exh.PC). Yar Muhammad 1023/C appeared as P.W.4 and stated that he was entrusted with the warrants of arrest of Manzoor and Liaquat. The warrants (Exh.PD and Exh.PE) could not be executed due to concealment of the accused persons from arrest. Later on, he also executed proclamation (Exh.PE and Exh.PF). On the basis of his report both the accused were declared proclaimed offenders. Qari Abdul Shakoor (P.W.5 and Amanat Ali (P.W.6) supported the prosecution version as set out in the F.I.R. Sikandar Ali S.-I (P.W.7) and Muhammad Younas (C.W.1) conducted the investigation and while appearing before the learned trial court, they narrated various steps taken by them during the course of investigation. On the written application of complainant learned Deputy District Public Prosecutor gave up Muhammad Younas Inspector being collusive with the accused party vide statement dated 9-7-2007. Vide statement dated 25-6-2007, learned Deputy District Public Prosecutor gave up Muhammad Iqbal and Khalil Ahmad (P.Ws.) being unnecessary. Learned Deputy District Public Prosecutor, after tendering in evidence report of Chemical Examiner (Exh.PB), closed the prosecution evidence vide statement dated 11-7-2007. To a question as to why the case against her and why the prosecution witnesses had deposed against her, Shahnaz Bibi appellant replied as under:-- "I have been enropped in this murder case with mala fide. Complainant P.W. Qari Abdul Shakoor is having absolutely no concern with the death of my husband. He had remote relationship with the deceased. The occurrence of death of my deceased husband has been used by him just to teach me a lesson for the disputes about immovable property. No eye-witness has come forward to give evidence against me. So-called P.Ws. Examined by the prosecution are inter se closely related. And having malice and grudge against me."
' Manzoor Ahmad (appellant) to the same question relied as under:-- "I have been enropped in this murder case with mala fide. Complainant P.W. Qari Abdul ShakOor is having absolutely no concern with the death of deceased Tariq. I have been falsely implicated due to relationship of accused Shahnaz Bibi, who is my' real sister. The occurrence of death of Tariq has been used by him just to teach me a lesson for the disputes about immovable property. No eye- witness has come forward to give evidence against me. So-called P.Ws. Examined by the prosecution are inter se closely related and having malice and grudge against me."
' The appellants did not appear as their own witnesses as required under section 340(2), Code of Criminal Procedure, nor did they produce any evidence in their defence.
6. After conclusion of the trial, the learned trial court convicted and sentenced the appellants as detailed above. Hence these appeals and revision.
7. Learned counsel for the appellants, in support of both these appeals, contends that initially death of Tariq Mahmood (deceased) was reported to the Police by Liaquat Ali (co-accused of the appellants since proclaimed offender) through a rapt; that in the inquest report of Tariq Mahmood deceased (Exh.PL) in Column Nos.20 and 21 it is mentioned that the deceased has committed suicide; that even in Column No,14 of the inquest report it is mentioned that there was a piece of electric wire hanging with the branch of Toot tree; that the inquest report was prepared on 21-8- 2006 and the post mortem on the dead body of Tariq Mahmood deceased was conducted on 22- 8-2006 whereas the case was registered on the written application of the complainant (P.W.5) on 26-8-2006 wherein he implicated the appellants without any evidence. Learned counsel for the appellants further submitted that during the trial prosecution produced seven witnesses and the statements of Qari Abdul Shakoor (P.W.5) and Amanat Ali (P.W.6) are only relevant but both these witnesses have clearly admitted that they had not witnessed the actual occurrence and they just saw the deceased in the company of the appellants and Liaquat Ali (co-accused since proclaimed offender) one day prior to the occurrence; that the medical evidence at the most will be considered as a corroborative piece of evidence and it is not a substitute of the ocular account; that even statements of Qari Abdul Shakoor (P.W.5) and Amanat Ali (P.W.6) do not inspire confidence; that P.W.5 has not given any reason, for not reporting the matter to the Police despite the fact that he claimed that he reached at the place of occurrence on 21-8-2006 just after receiving the information about the death of the deceased; that though according to the complainant (P.W.5) he informed the Police on 21-8-2006 but the application submitted by him bears the date of 28-8-2006; that there are contradictions in the statements of Qari Abdul Shakoor (P.W.5) and Amanat Ali (P.W.6) as P.W.6 claims that matter stood patched up between Tariq Mahmood deceased and the appellants' side in their presence whereas according to the complainant (P.W.5) the accused persons did not accept their advice and they continued indulging in altercation with the deceased; that there is another contradiction in the statements of both these witnesses as it is the case of the complainant (P.W.5) that he received the information regarding quarrel by some unknown person whereas case of Amanat Ali (P.W.6) is that Qari Abdul Shakoor complainant got information about quarrelling of accused pesons through telephone of Tariq Mahmood deceased; that apart from the statements of P.W.5 and P.W.6 there is absolutely no evidence against the appellants. Learned counsel further submits that Liaquat Ali co-accused of the appellants who was initially declared a proclaimed offender was arrested in this case and tried separately by the learned Additional Sessions Judge Chunian but he was acquitted vide judgment dated 10-2-2010 because of the reason that the prosecution witnesses did not support the prosecution .Case. In support of this submission, learned counsel for the appellants has placed on record copy of the judgment dated 10-2-2010 and statements of the witnesses recorded by the learned trial Court. Learned counsel lastly contended that it is a case of no evidence.
8. On the other hand, the learned Deputy District Public Prosecutor opposes these appeals on the grounds that Qari Abdul Shakoor (P.W.5) complainant of the case has absolutely no enmity with the appellants for their false implication in this case and he has given the natural account of the incident which is supported by the medical evidence available on record; that Manzoor Ahmad (appellant) remained a proclaimed offender and his abscondane has been proved through the statement of Yar Muhammad 1023/C (P.W.4). However, learned Deputy District Public Prosecutor after perusal of the record states that except the statements of P.W.5 and P.W.6, medical evidence and abscondance of Manzoor Ahmad (appellant) there is no other evidence against the appellants though according to the learned DDPP this evidence is sufficient to maintain conviction and sentence awarded to the appellants by the learned trial Court.
9. I have heard learned counsel for the appellants as well as the learned Deputy Prosecutor- General for the State at a considerable length and also gone through the record with their able assistance.
10. The death of Tariq Mahmood (deceased) was reported to the Police through a Rappat of Liaquat Ali (co-accused of the appellants since acquitted) as admitted by Muhammad Younas Inspector (C.W.O. After the receipt of this information from Liaquat Ali, inquest report was prepared by Sikandar Ali S.-I. (P.W.7) which is (Exh.PL). In columns No,20 and 21 of the inquest report it is mentioned that the deceased had committed suicide and even in Column No,14 of the said report it is mentioned that there was an electric wire hanging with the branch of Toot tree. Thereafter an application (Exh.PG) was submitted by Qari Abdul Shakoor complainant (P.W.5) wherein both the appellants and their co-accused Liaquat Ali were implicated as killers of Tariq Mahmood. The contents of his application (Exh.PG), on the basis whereof the F.I.R. (Exh.PG/1) was registered have been reproduced in para 3 of this judgment.
11. It is clear from the statements of P.W.5 (Qari Abdul Shakoor) and P.W.6 (Amanat Ali) that they did not witness the occurrence. Even if statements of P.W.5 and P.W.6 are accepted as true, in to to, at the most inference can be drawn that there was a quarrel between the deceased on the one hand.
And appellants and their co-accused (Liaquat Ali) on the other hand on 20-8-2006 in the house of Liaquat Ali but statements of both these prosecution witnesses do not inspire confidence because of the following reasons:--
(i) According to P.W.5 namely Qari Abdul Shakoor, he received information about quarrel of the deceased with the accused party through some unknown person whereas according to Amanat Ali. (P.W.6) the complainant got this information through telephone of Tariq Mahmood.
(ii) According to the P.W.5 the accused persons did not accept their advice and continued indulging in altercation with the deceased whereas according to B Amanat Ali (P.W.6) the matter was patched up in their presence.
(iii) It is case of both P.W.5 and P.W.6 that they reached the spot on 21-8-2006 after receiving information about death of Tariq Mahmood deceased and according to P.W.5 he even accompanied the deadbody of the deceased to the mortuary and identified the same but both of them did not report the matter to the Police till 26-8-2006. Though according to P.W.5 he informed the Police immediately but this assertion of the complainant is belied by the date written by him on the application submitted for registration of the F.I.R. As the date mentioned on the application (Exh.PG) is 26-8-2006.
12. As far as medical evidence is concerned, it is only a supporting piece of evidence because it may confirm the ocular evidence with regard to the receipt of the injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death, presence of the injured P. Ws or of the accused on the spot but it would not tell the name of the assailants. Reliance is placed on "Ata Muhammad and another v. The State" (1995 SCM R 599).
13. Now adverting to the argument of learned Deputy District Public Prosecutor that abscondance of Manzoor Ahmad (appellant) lends support to the prosecution story. It is case of the prosecution through the statement of Muhammad Younas Inspector (C.W.l ) that Manzoor Ahmad appellant voluntarily appeared before the Police on 15-10-2006 whereas the alleged occurrence took place on 20/21-8-2006. Moreover, abscondance is a corroborative piece of evidence and by itself is no proof of the guilt of an accused. The Hon'ble Supreme Court of Pakistan in the case reported as "Inayat Ali v. The State" (PLD 2002 SC 77) at A page 82 observed as under:-- "It is worth-mentioning that this Court in the case titled Mesal and another v. The Crown. (1971 SCM R 239) has discussed the evidentiary value of the evidence of abscondance as follows:- "While the fact of an alleged offender having absconded may be regarded as providing some kind of support to another evidence which in itself is strong enough to sustain a. Conviction for the crime charged such conduct by itself never has the effect of remedying defects in the other evidence led to show participation in the crime. The reason is simple, namely that a man may wish to avoid the consequence of being reported against for the commission of a serious crime as ardently if he is not guilty as he might if he is guilty."
' This view has been followed in a number of cases by this Court and although there are judgments in which abscondance has been held to furnish corroboration of the prosecution evidence, but the view taken in Mesal's case has never been overruled by this Court."
14. There is another important facet of the case. Prosecution is relying heavily upon the evidence of last seen and quarrel between the deceased on one hand and the appellants and their co- accused Liaquat Ali on the other hand allegedly on 20-8-2006 in the house of Liaquat Ali but surprisingly this was not put to either of the appellants in their statements recorded under section 342, Code of Criminal Procedure. It is well-settled that if any piece of evidence is not put to the accused in his statement under section 342, Code of Criminal Procedure, then the same cannot be used against him for his conviction. While holding so, I am fortified by the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in the case of "Muhammad Shah v. The State" (2010 SCM R 1009).
15. Considering this case from all angles this court is left with no option but to conclude that the prosecution has failed to prove its case against the appellants and story of the prosecution is doubtful in nature, therefore, both these appeals are allowed and the appellants are acquitted of the charges levelled against them. They are in jail. They be released forthwith if not required in any other case.
16. Since the appellants have been acquitted of the charges levelled against them, therefore, there is no question of enhancement of their sentence as prayed through Criminal Revision No,652 of 2007. Resultantly, Criminal Revision No,652 of 2007 filed by the complainant is hereby dismissed in limine.