1993 P Cr (PLP)

MIAN ABDUL KHALIQ, J.

Muhammad Yousuf aged 30 years was tried for the murder of Mahmood Akhtar by the learned Additional Sessions Judge, Gujrat, who vide his judgment, dated 30-6-1990 had convicted and sentenced the appellant to death and a fine of Rs.15,000, in default whereof to suffer S.I. for two years. The fine, if realized, half of it was ordered to be paid to the legal heirs of the deceased. The appellant alongwith Muhammad Ayub aged 14/15 years, Pir Muhammad aged 17 years, Ali Bahadur aged 30 years and Ghulam Haider 45 years was involved in case F.I.R. No. 286/87, dated 27-11-1987 registered at Police Station Kunjah, District Gujrat on the complaint of P.W.5 Nazar Muhammad. The appellant had absconded whereas his co-accused named above were acquitted of the charge by the learned Additional Sessions Judge, Gujrat vide his judgment, dated 30-4-1989. The convict has appealed to this Court. The case for confirmation of his death sentence is also before us. Both the matters shall be disposed of by this judgment.

2. Briefly the prosecution case is that P.W.5 Nazar Muhammad on 27-11-1987 lodged F.I.R. Exh. P.C. at 3-00 p.m. at Police Station Kunjah, District Gujrat recorded by P.W.13 Manzoor Hussain, SI/S.H.O. to the effect that he was resident of village Kakka, a cultivator and his beta was situated on the north-western side of the village, and on the day of occurrence i.e. on 27-11-1987 at about 12 noon he alongwith his deceased son Mahmood Akhtar, P.W. Muzaffar Iqbal (given up) and P.W.6 Muhammad Nazir were coming to the village from the Dera and reached at a distance of about 3 Killas on the land of Mirza Khan, Lamberdar, when appellant Muhammad Yousaf armed with licensed 12 bore gun, Muhammad Ayub (acquitted co-accused) armed with a Sota who were sitting in ambush, stood up. Muhammad Ayub raised Lalkara that Nazar Muhammad and Mahmood Akhtar, father and son should not be spared. Muhammad Yousaf appellant tired with his gun which hit on the throat of Mahmood Akhtar, who fell down with his mouth downward and succumbed to his injuries. The accused while raising Lalkara escaped towards the east. The motive was that about 6/7 months earlier to the occurrence Muhammad Yaqoob, brother of the accused had got registered a theft case against the complainant and Pir Muhammad was a P.W. who was abused and given fist blows about 6/7 days earlier by Umer Hayat son of the complainant serving in the army and due to that grievance appellant Muhammad Yousuf and Muhammad Ayub after making mutual consultation with Bahadur, Ghulam Haider and Pir Muhammad (all the four since acquitted) had committed murder of Mahmood Akhtar with firing. Besides the complainant, the occurrence was witnessed by P.W. Muzaffar lqbal (given up) and P.W.6 Muhammad Nazir. The dead body was lying at the spot and leaving behind Muzaffar Iqbal P.W. (given up) to guard the dead body, P.W.5 reached the police station and lodged the F.I.R.

3. P.W.13 Manzoor Hussain S.I. after recording the F.I.R. Exh.P.C./1 (the correct carbon copy of the F.I.R. on supplementary challan) had proceeded to the spot, prepared injury statement Exh.P.K., inquest report Exh.P.L./1 and despatched the dead body to the mortuary. He inspected the spot, secured blood-stained earth vide memo. Exh.P.D/1. After completing the formalities he challaned the appellant alongwith the acquitted co-accused. Proceedings under section 512, Cr.P.C. were separated by the trial Court against the appellant and the co-accused were acquitted vide judgment, dated 30-4-1989 passed by the learned Additional Sessions Judge, Gujrat.

4. P.W.13 Manzoor Hussain Shah, S.I. arrested the appellant on 2-10-1989, who on 8-10-1989 led to the recovery of 12 bore gun P.4 which was secured by P.W.8 Muhammad Afzal, A.S.I. vide memo. Exh.P.H. Supplementary challan was submitted against the appellant. A charge under section 302/34, P.P.C. was framed against him, to which he denied and claimed trial.

5. The prosecution examined 13 P.Ws. in all to substantiate its case. The ocular account as well as the motive was furnished on record by P.W.5 Nazar Muhammad complainant and P.W.6 Muhammad Nazir. P.W.10 Dr. Munawar Ahmad, conducted autopsy on the dead body of Mahmood Akhtar deceased on 28-11-1987 at about 10-00 a.m. and found the following injuries:

(1) A fire-arm wound of entry 3 x 3 c.m. on front and lower side of neck and upper side of chest at the root of neck. (2) Five fire-arm wounds each measuring 1/2 c.m. x 1/2 c.m. on back side of right shoulder, both of these wounds had entrance separately. and had opined that all the injuries were ante-mortem and caused by a fire arm anti death was due to shock and haemorrhage. Injury No.l was sufficient to cause death in the ordinary course of nature alongwith injury No-2 contributed. The probable time between injuries and death was immediate, while between injuries and post-mortem was 20 to 23 hours. Exh.PJ was the carbon copy of the post-mortem report, and the sketch of injuries was Exh.P.J./1.

6. The appellant when examined under section 342, Cr.P.C. denied the charge against him anal stated about the absconsion that he was an Army employee and during this period he was serving as Sepoy. The police came to his Commanding Officer to effect his arrest, but he was not spared. He had learnt about the occurrence only when the police came to his Unit to arrest him. Before that he had no knowledge about the occurrence and after exigencies of service were over, he himself appeared before the police and offered his arrest. No warrants of arrest were issued against him and he was not in the know of proceedings against him and further stated that he had been falsely involved in the case, because the complainant and the eye-witnesses were closely related inter se and were inimical towards him. They had also deposed earlier in the same case against his co-accused who were tried by the Additional Sessions Judge, Gujrat, who acquitted them disbelieving the prosecution evidence. He neither made statement on oath as envisaged under section 340(2), Cr.P.C. nor produced evidence in defence.

7. It is argued by the learned counsel that the prosecution had failed to establish its case and the witnesses examined by it are inter-related. The motive also does not stand proved. The ocular testimony is not in consonance with the medical evidence. The recovery of gun P.4 at the instance of the appellant has no corroborative value. No independent witness attested the recovery memo. P.W.5 and P.W.6 were closely related to the deceased. P.W.5 Nazar Muhammad is the father of the deceased, While P.W.6 Muhammad Nazir is the brother-in-law of P.W.5 P.W. Muzaffar Iqbal who is nephew of P.W.5 was given up by the prosecution as unnecessary. Umer Hayat who is alleged to have abused and given fist blows to Pir Muhammad about 6/7 days earlier to the present occurrence has not been produced nor any copy of the F.I.R. of the case registered against the complainant was produced at the trial. In the circumstances, the motive behind the occurrence does not stand proved.

8. P.Ws. 5 and 6 are closely related to the deceased and their statements have not been corroborated by any other independent prosecution witness from the vicinity. P.W.5 during cross-examination has admitted that he was conversant about the pendency of criminal litigation between himself as well as the appellant party. The parties are locked in litigation since long and many murders have been committed on each side. It is pertinent that even though P.Ws. 5 and 6 have stated that they alongwith Muzaffar lqbal P.W. (given up) were present and had witnessed the occurrence, neither an attempt was made on their lives nor they were attacked.

9. P.W.5 and P.W.6 unanimously stated that deceased Mahmood Akhtar was fired at by the appellant which hit on the front of his neck, fell down and succumbed to his injuries at the spot, whereas P.W.10 Dr. Munawar Ahmad, who conducted autopsy on the dead body of the deceased had found two entry wounds i.e. one on the front and lower side of neck and upper side of chest at the root of neck, and the second on back side of right shoulder. Both the wounds had entrance separately. P.W.10 during cross-examination stated that injury No.l was not possible if the assailant fired a shot from behind the victim and injury No.2 could not be caused if the appellant fired from the front side of the victim. The ocular testimony furnished on record by P.Ws. 5 and 6 is not in consonance with the medical evidence brought on record by P.W.10. Hence the ocular testimony is in conflict with the medical evidence.

10. During trial of the co-accused (since, acquitted) P.W.6 Muhammad Nazir was not produced. Only P.W.5 Nazar Muhammad was produced alongwith Muzaffar lqbal P.W. who had not been produced by the police in the trial against the appellant.

11. No doubt absconsion is a ground for conviction of an accused, but absconsion alone is not sufficient to warrant conviction of an accused. The other surrounding circumstances going into the root of the case have to be examined, and every circumstance has to corroborate each other. It is evident from the daily incidents that the people usually run away after hearing the news of their involvement due to fear of conviction. In the instant case the appellant was alleged to have absconded after the occurrence on 27-11-1987 and appeared before the police on 2-10-1989. He stated that he was serving in the Pakistan Army at Abdul Hakim District Khanewal and due to exigencies of service his Officer Commanding did not permit his apprehension. He only learnt about the occurrence when the police came to his Unit to effect his arrest and after exigencies of service were over, he himself appeared before the police and offered his arrest. No non-bailable warrants of arrest issued against the appellant were exhibited. On the proclamation Exh.PG/1 village address of the appellant was given. Moreover, no date was mentioned in Exh.P.G. about appearance of the appellant in the Court. No warrant of arrest of the appellant was deposited in the Court and the proclamation was affixed in the village of the appellant. No motive behind the occurrence against the appellant has been established on record. The ocular testimony is in conflict with the medical evidence. The recovery of gun P.4 at the instance of the appellant has no corroborative value.

12. The prosecution has failed to establish its case beyond doubt against the appellant and giving him benefit of doubt we acquit him of the charge. The appellant is in jail, who shall be released forthwith if not required in any other case.

13. The death sentence awarded to the appellant is NOT confirmed. N.H.Q./M-1104/L Appeal allowed.