1986 P Cr (PLP)

(4) Incised wound 3" x 1/8" muscle deep on the left side of neck horizontal. (5) Incised wound on the left base of neck 2" x 3/4" x 1 " muscle deep, muscles, nerves and vessels cut. (6) Incised wound 2 " x 1" anterior base of left side of neck spine cutting vessels, nerves and muscles all cut, horizontal. According to his opinion, death was a result of shock and haemorrhage due to the injuries.

8. Karam Din complainant appeared as P.W.

6. He stated, that, on the night of occurrence he had slept in the room at the brick‑kiln of Rao Rashid alongwith Rao Khalil‑ur‑Rehman (deceased) and Ata Muhammad accused. Rao Khalil‑ur‑Rehman within their view after counting the sum of Rs.2,500 had placed the same under his pillow alongwith the wrist watch. He woke up hearing noise in the latter part of the night and saw Ata Muhammad inflicting Kassi blows on his back, as a result of which the handle of the Kassi was broken. The accused threatened him not to intervene. Thereafter, he picked up hatchet lying in the room and started giving blows to the deceased. After inflicting 5‑6 blows, he ran away alongwith the hatchet and took away the sum of Rs.2,500 and the wrist watch of the deceased. He raised alarm and ran after him. Sadiq and Babu Rashid P.Ws. who came to the spot on hearing his alarm, also joined him in the chase, but all of them turned back when they were threatened by the accused with dire consequences. Muhammad Sadiq P.W. 8 stated that he heard the noise while he was performing ablution. He ran towards the spot. He saw Ata Muhammad running armed with a hatchet, after coming out from the room of the brick‑kiln, chased by Karam Din P.W. According to him Rashid was also attracted to the spot. All of them tried to apprehend the accused but he threatened them with dire consequences. Rashid P.W. after having been given up, was examined as C.W.

1. He stated that on having heard alarm, he saw a man running towards the East of the brick‑kiln followed by Sadiq and Karam Din. He learnt that the person running was Ata Muhammad accused, and he had murdered Rao Khalil‑ur‑Rehman (deceased). According to him, he also chased the accused for some distance, but returned when he was threatened by him. Shafquat Ali P.W. 7 deposed about the recoveries effected fin this case from the spot which included blood‑stained earth, blood‑stained Kassi, beddings of the deceased and lantern. Muhammad Idrees P.W. 5 deposed about having witnessed the recovery of hatchet P. 2 at the instance of the appellant. Mushtaq Hussain, Sub Inspector who had recorded the first information report, appeared as P.W.

10. He stated about having effected the recoveries from the spot including blood‑stained Kassi with a broken handle. He also stated about having got initiated proceedings under section 87/88 of the Code of Criminal Procedure, against the appellant. According to him, he arrested the appellant on 28‑5‑1975. He deposed that the appellant led to the recovery of hatchet P. 2 on 30‑5‑1975 from a graveyard. According to him, on the same day, the appellant had, also led to the recovery of wrist watch P. 13 and purse P. 14 from the ceiling of his room in village Anoop Singh Bashir Ahmad Khan and Nabi Bakhsh, the two attesting witnesses of the recovery memo. vide which wrist watch and purse were taken into possession, were given up as having been won‑over.

9. The appellant during his statement under section 342 of the Code of Criminal Procedure denied the prosecution case. In answer to question, why this case against you and why the P.Ms. have deposed against you, he stated:‑- "This is a false case and built up by the Police with the connivance of the complainant. I am a poor person. I never worked and slept at the brick‑kiln of Rao Rashid as alleged. The real persons were let off by the Police and I have been made a scape‑goat in this case. The P.Ws. were supplied by the complainant. I am in the judicial lock‑up for the last seven years and have already suffered a lot."

10. The prosecution case rests on the medical evidence, ocular account given by Karam Din complainant, the statements of Sadiq P.W. 8 and Rashid C.W. 1 who deposed about having seen the appellant running from the spot armed with a hatchet, the recoveries and .the evidence of abscondence. The evidence of recoveries of articles belonging to the deceased i.e. wrist watch P. 13 and purse P. 14 is of no consequence, first, for the reason that no witness has been produced to corroborate statement made by the Sub‑Inspector about the recoveries of these articles, having been effected at the instance of the appellant, and secondly, for the reason that nobody stated at the trial that he had identified these articles to be that of the deceased.

11. The evidence of recovery of hatchet also does not inspire confidence. The recovery was effected 3 months after the occurrence. The only attesting witness of recovery of hatchet produced at the trial, belonged to some village in the area of Depalpur while the recovery was effected from some place in the area of Okara. It hardly sounds well, to believe that a person from a village in the area of Depalpur would have accompanied the Police to a graveyard in the area of Okara. which is at a far off place, for attesting recovery. Apart from this, it does not appeal to reason to believe that the appellant would have kept the hatchet with stains of blood for a period of 3 months after c occurrence.

12. Although the Dub‑Inspector stated that the appellant was nut traceable and so he got initiated proceedings under section 87/88 of the Code of Criminal Procedure, but the fact remains that neither the warrants of arrest issued against the appellant nor the proclamations issued under section 87/88 of the Code of Criminal Procedure were produced in evidence during trial Mere statement of the Sub‑inspector of having initiated steps for declaring the appellant as absconder, without documentary proof, cannot be accepted as a gospel truth, particularly when the officials entrusted with the service of warrants and proclamations were also not examined. Even otherwise evidence of abscondence can be taken into consideration only as a corroboratory piece of evidence. If there is no other reliable evidence to sustain conviction, the same cannot be maintained merely on the evidence of abscondence. Late Justice Muhammad Munir in his Law of Evidence, edition 1974, observed at page 61; " ..the conduct of a person in absconding after the commission of the offence is evidence to show that he was concerned in the offence, but it is usually a very small item in the evidence on which conviction can be based. Absconding is equally consistent with innocence and guilt. It is well known that different persons are differently constituted, and that some arc used persons though innocent, deliberately abscond rather than to face, the .ordeal of a criminal trial" In Mesal and another v. The Crown 1971 S C M R 239, It was observed: "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 consequences 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."

13. The evidentiary value of the statements of Sadiq P.W. 8 and Rashid C.W.1, is again of the lowest grade for the reason that Karam Din informant had not mentioned anything in the F.I.R. about their having seen‑the appellant, running from the spot, or of their having chased the appellant while running from the spot armed with a hatchet. Head their names not figured in the F.I.R. at all, it would have been a different matter and one could argue that the informant, slipped, mentioning the part played by them, but the fact is, that the complainant stated in the F.I.R. that he went to lodge the F.I.R. leaving the dead body under the care and custody of these two witnesses. The mentioning of heir names tin the F.I.R. shows that the informant remembered them to have come to spot. Had they witnessed the appellant running from the spot armed with a hatchet or had they accompanied the complainant in chasing the appellant, he would not have forgotten to mention this fact. The statements of these two witnesses, therefore seems to be an afterthought. Even otherwise, their statements do not inspire confidence. We are of the considered view that no reliance can placed on their evidence.

14. The only evidence which remains to be considered, is the statement of Karam Din complainant. He made quite a few improvements in the statement made by him at the time of lodging F.I.R., while appearing at the trial. Most of them have been highlighted by way of cross‑examination. The one important improvement made by him about introducing Sadiq P.W. 8 and Rashid C.W. 1 having seen the appellant running from the spot and of their having chased him, has already been discussed above. In that very connection we would like to note that in the statement made by him on the basis of which F.I.R. was registered, he had not stated about having chased the appellant, himself even. This part of his statement, apart from being an improvement over his previous statement, even otherwise does not inspire confidence. Had he the courage, to chase the appellant after he was free from having murdered the deceased, he could well have intervened when he was inflicting blows, which would have been slightly easier, as while inflicting blows he could be pounced upon from behind. If he could not do an easier thing, he could not have shown the guts of doing a more difficult thing.

15. Another significant improvement made by him at the trial is, about having seen the appellant collecting the money and purse before leaving the room. In the F.I.R. he did not state of having seen the appellant carrying these articles. All, he stated. is that after the accused had run away, he had found the sum of Rs.2,500, the wrist watch and the purse missing.

16. Yet the other thing which strikes our mind, is, would he, go to sleep in the room? While being Chowkidar, his duty was to be on guard. If he had stated that after having a round, he had corps there and was sitting there, we would have given some weight to hit evidence. But his statement that he was in his bed during the whole night, in the room, makes his credentials doubtful.

17. The last but not the least point in this case is that the owner of the brick‑kiln was not only not produced at the trial, but was not even examined during investigation by the Investigating Officer. In this regard he made categorical statement in the cross‑examination.

18. The medical evidence also does not lend full corroboration to the ocular account furnished by Karam Din complainant. Although he stated at the trial that the deceased was given a Kassi blow on the back of the deceased but he had not stated this fact in the F.I.R. All that he stated there, is that he had seen a blow being given with Kassi, which struck the cot, as a result of which handle of the same was broken. Even otherwise the injury on the back of the deceased shows that it could not have been caused if the deceased was having a quilt over him. Karam Din complainant has clearly stated that the deceased was having quilt over him when he was given injuries. Nobody has stated anything about the quilt, bearing corresponding cut. As a result of the above analysis of the evidence, doubts have arisen in our mind, about the prosecution having succeeded to prove the case against the appellant beyond reasonable shadows of doubt. The appeal is accepted and the appellant is acquitted by way of grant of benefit of doubt. S.A. Appeal accepted.