' RANA BHAGWAN DAS, J.---This appeal with the leave of this Court is directed against the judgment, dated 6-10-1998 passed by a learned Division Bench of the Lahore High Court dismissing appellant's appeal against his conviction and sentence of death for the murder of Mst. Gulzaran wife of P.W. Muhammad Sarwar.
2. Prosecution case in brief appears to be that Mst. Gulzaran daughter of complainant Naseer Ahmed was married to Muhammad Sarwar, about 15 years back, from whom she had four minor sons. It was stated in the F.LR. That appellant Munir Ahmed developed illicit relations with her and about one month prior to the occurrence he had taken her away on account of friendly relationship with her. Complainant added that at his own level he tried his level best to persuade the appellant through the respectables of the locality for the return of his married daughter but to no avail. He claimed that one day prior to 28-1-1993, he alongwith his wife Mst. Bhagan P.W.2 and his son-in-law namely Muhammad Sarwar, at about 6-00 p.m., went to Wagon Stand at Mauza Hotu where his daughter Mst. Gulzaran came running towards them. She informed them that her relations with the appellant had become strained and he had developed hatred towards her, therefore, with great difficulty she had managed to escape. She disclosed that the appellant has just brought her in the Wagon and upon seeing her parents she had rushed to them. Complainant went on to say that they feared that the appellant might forcibly take her away again, therefore, they stayed near the Khokha which at that time was closed, and at Fajar time left for Chak.
No,10/KB. They had hardly covered a distance of about 2 miles when in the vicinity of the lands of Mazhar Hotiana when appellant suddenly emerged from the fields duly armed with a .12 bore pistol and fired at Mst. Gulzaran at her chest who fell on the ground. Appellant shouted that he had taught a lesson to Mst. Gulzaran for her infidelity. After sunrise complainant went to inform Jehangir Lambardar who advised him to approach the police .For registration of the case. He added that the appellant committed the murder of his daughter at the abetment of co-accused Muhammad Ramzan. Leaving Muhammad Sarwar and Jehangir to guard the dead body, he left for Police Station and met a police officer on the way who recorded his statement which was later incorporated in the F.I.R.
3. After arrest of the appellant in a case under the Arms Ordinance he was formally arrested in this case on 14-11-1993 whereafter he was sent up for trial. At the trial prosecution examined as many as 12 witnesses. Appellant denied his involvement, proclaimed innocence and examined 3 witnesses in defence. By judgment, dated 26-2-1995, learned Sessions Judge, Pakpattan Sharif found the appellant guilty of the charge and sentenced him to death and fine of Rs,50,000 or in default R.I. For 2 years. By the same judgment he acquitted co-accused Muhammad Ramzan extending to him the benefit of doubt.
4. Appellant unsuccessfully challenged his conviction before the High Court where his appeal was dismissed and Murder Reference was accepted leading to this appeal by leave of the Court for reappraisal of the evidence to determine whether the Courts below while convicting the appellant and sentencing him to death kept in view the principles of safe administration of justice enunciated by this Court in a number of cases.
5. On hearing learned counsel for the appellant as well as the State Counsel and examining the record we are of the considered view that prosecution story on the face of it appears to be concocted and absurd. We are convinced that the incident of murder did not take place in the manner as stated by Naseer Ahmed father of the deceased, and Mst. Bhagan mother of the deceased. It is difficult to believe that having been abducted by the appellant and lived unhesitatingly with him for a period of one month she would be brought to a wagon stand in the manner stated by the prosecution and done to death by the appellant as alleged.
6. In his evidence complainant Naseer Ahmed admitted that on the day of occurrence it was extremely cold season it being the month of January. In the circumstances, presence of the complainant, his wife, daughter and son-in-law at a public place behind a Khokha for whole the night appears to be hardly believable and ridiculous on the face of it. In case we were to accept this piece of evidence, on complainant's own showing appellant had accompanied the deceased to this place by a wagon. If that be so, one wonders as to why the appellant should lose sight of the deceased and not to kill her when she allegedly approached her parents. Neither Naseer Ahmed nor Mst. Bhagan have accounted for their presence at the wagon stand at about 6-00 p.m. In the month of January which is also a circumstance nothing short of a mystery. Furthermore, non- examination of the husband of the deceased P.W. Muhammad Sarwar cited as eye-witness in the F.I.R. Strongly militates against the truth of, the prosecution version. In all probability he would be a natural witness to lend support to the evidence adduced by the prosecution but it appears that he was not inclined to support the cooked up story, therefore, he was conveniently given up as being unnecessary.
7. According to prosecution about one year prior to the incident appellant had inflicted Chhurri blows on the person of the deceased 'when she refused to join him. Consequently a criminal case was registered against him which was later compounded. Furthermore, about 28 days prior to the occurrence she was forcibly abducted by the appellant with the intention to continue illicit relationship with her. Both the circumstances apparently tend to show that it would be the complainant party and the husband of the deceased who would have a natural grouse against the appellant rather than the appellant having a motive to eliminate the deceased. False implication of the appellant, therefore, cannot be ruled out.
8. Interestingly trial Court had taken into consideration the fact of absconsion of the appellant after the commission of the crime against him. Curiously enough this circumstance also found favour with the High Court without verifying as to on what date the appellant actually came to be arrested in the connected case under the Arms Ordinance. The matter does not end here. No question with regard to this incriminating piece of evidence was put to the appellant during his examination under section 342, Cr.P.C. This is undoubtedly quite strange. In laws, if an incriminating piece of evidence is not put to an accused and it has resulted in causing prejudice to the accused the same shall not be considered as evidence against him. When we asked learned counsel for the appellant whether this ground was agitated by the appellant's counsel before the Court below, he frankly replied in negative with an assertion that it was not necessary' to do so. But we may observe that absence of any challenge to such circumstance may in appropriate cases amount to admission that no prejudice thereby was caused to the accused/appellant. A reference may be made to the case reported as Allah Dad v. State (PLD 1978 SC 1) in this behalf.
9. Lastly, trial Court wrongly relied upon the recovery of pistol from the possession of the appellant without the recovery of any crime empty from the place of incident and in the absence of any positive report from Fire-arms Expert creating any nexus between the crime weapon and the commission of the crime. Learned High Court did not rely upon this piece of evidence and completely ignored it in the impugned judgment.
10. For the aforesaid facts and circumstances we are of the considered view that the prosecution case does not inspire confidence and the conviction of the appellant was founded on tainted evidence which cannot be sustained in law. We, therefore, allow this appeal, set aside the judgment of the trial Court as well as of the High Court and acquit the appellant of the charge. He shall be released forthwith unless required to be detained for any other cause.