1977 P Cr (PLP)

ALI HUSSAIN QAZILBASH, J.-The learned Sessions Judge, D. I. Khan, has convicted Nasir Khan, aged 18-19 years, son of Saidullah Khan, resident of village Paniala, District D. I. Khan, under section 302/34, P. P. C: and sentenced him to suffer life imprisonment and to pay a sum of Rs. 1,000 as compensation for the heirs of the deceased or in default to suffer further six months' R. I. vide his judgment dated 14-1-1976.

2. The appellant has preferred the present appeal against the above conviction and sentence.

3. The F. I. R., Exh. P. A. was lodged by Bhai Khan son of Aziz Khan (P. W. 5) father of the deceased on 20-1-75 at 15-30 hours stating that his son Abdul Qayum alias Momin in the company of his wife Mst. Noor Jehana (P. W. 7) wanted to take their ailing son for medical treatment to D. I. Khan and were waiting for a Bus at the Paniala Bus Stand, which is situated on the bank of the to in front of-his house. Inayatullah (P. W. 6) was also sitting near his deceased son and both were engaged in conversation when in the meantime Sher Azam (absconding accused) accompanied by Nazir Khan accused-appellant appeared on the scene of occurrence. The latter was carrying a 12 bore shot gun and on seeing the deceased, the former (absconding accused) took the gun from the appellant. He loaded the gun, aimed at his son and told Inayatullah (P. W. 6) to get aside and fired at the deceased Abdul Qayum who was hit at his back. On receiving the shot, the deceased fell down on the ground in an injured condition and became unconscious. Inayatullah took to his heels and the accused appellant alongwith the absconding accused decamped from the site of occurrence. He (Bhai Jan P. W. 5), Mst. Noor Jehana (P. W. 7) widow of the deceased, Amanullah (P. W. 8) and Abdullah (P. W. 9) rushed towards the deceased but he died soon after without saying anything. Shai Khan on which the dead body of Abdul Qayum was placed and taken to the Police Station, Paniala for report. Motive attributed for the crime in question was that the accused was beaten by Sher Azam (absconding accused and others). This incident was reported by the deceased and a case under section 326, P. P. C. was registered against Sher Azam etc. After six months of the said tragedy, Mst. Noor Jehana (P. W.) was abducted by the deceased on whom a report against the deceased by Mir Azam brother of the absconding accused Sher Azam was made and a case under section 363/366, P. P. C. was registered against him. Mst. Noor Jehana (P. W.) was tied through nikah with one Abdullah, A compromise was entered into by the complainant party with both Abdullah and the brothers of the abductee and a sum of Rs. 1500 was paid to Abdullah and another sum of Rs. 1,500 to the abductee's brothers whereafter she was divorced by Abdullah and her nikah was performed with the deceased:

3. The accused denied having participated in the crime. He maintained that he was away to Punjab for labour. On return to his village. He learnt about the charge and surrendered himself to the police voluntarily. The accused appellant, however, produced no evidence in defence.

4. The prosecution has mainly based its case upon the ocular evidence of Bhai Khan, informant (P. W. 5), Inayatullah (P. W. 6), Mst. Noor Jahana (P. W. 7), Amanullah (P. W. 8) and Abdullah (P. W. 9).

5. Dr. Muhammad Saleem Javid (P. W. 1) conducted the autopsy on the dead body of Abdul Qayum and found the following external injuries on the corpse (1) Multiple small wound of enterance 1/4"X 1/4" each with big wound of entry 1/2" x 1/2" in its middle on lateral aspect of right chest on front. On dissection the doctor found walls, ribs, cartillages and right lung injured. Diaphragm was healthy but was injured on right side. Stomach was healthy and contained semi-digested matter. Liver was also injured. 7th rib on front was fractured. Death, according to the doctor, was due to injury to vital organ like liver and right lung to excessive heamorrhage and shock. Probable time between injury and death was within five minutes and between death and p.m. was 18 to 24 hours.

6. Bhai Khan (P. W. 5) besides narrating the motive for the offence in question before the trial Court in his statement, deposed that on the fateful day at "Pashin" time the deceased intended to go to D. I. Khan to show his ailing son to a doctor. He was acompanied by his widow Mst. Noor Jehan (P. W. 7). They were waiting for a bus at the Paniala Adda which is situated in front of his house and there is a to (perinnial water channel con taining water of fountain) in-between the Adda and his house. He was standing in front of his house while the deceased and his wife were sitting across the Inayatullah (P. W. 6) was also at the Adda and was talking with the deceased. In the meantime, accused appellant and the absconder came to the spot. The accused appellant was carrying 12 bore shot-gun (S.BJ while Sher Azam (absconding accused) was empty handed. As they came near the deceased, Sher Azam (absconder) took the gun from the accused appellant, loaded the same and fired at the deceased from behind. The deceased hopped a little with the shot and fell down. He rushed to him at once but found his son (deceased) unable to talk. He expired soon after. The appellant and the absconder ran away. Abdullah Khan and Amanullah (P. Ws.) were present nearby. They also came to the spot on hearing the shot. Leaving these people with the deceased, he went home, brought a cot on which the deceased was placed and took to the Police Station, Paniala, where he lodged the report, Exh. P. A.

7. Inayatullah (P. W. 6) in his statement before the trial Court stated that he is neither related to the deceased nor has any enmity with the accused appellant and Sher Azam (absconder). He was driving back his bullocks to his village when at the Adda of Paniala, he saw the deceased along with his wife who was waiting for Bus to proceed to D. I. Khan. He took the deceased aside to give him a message for Gulab of Paniala residing at D. I. Khan. While talking, they were sitting on the fallen date tree when in the meantime Sher Azam (absconder) who was armed with a shot-gun told him (Inayatullah) to get aside. On seeing him (Sher Azam absconder), the deceased jumped to run away but the former fired at him immediately as a result of which the deceased was hit and fell on the ground. He (Inayatullah) got scared and took to his heels. He did not see back as to where the accused appellant and the absconding accused decamped. He also did not care as to who also was present near the spot.

8. Mst. Noor Jehan (P. W. 7) deposed before the trial Court that Sher Azam (absconder) is her brother. She is not aware of any relationships between Sher Azam (absconder) and the accused appellant Nazir. She stated that she had eloped with Abdul Qayum deceased, her brother Mir Azam made a report in that behalf against the deceased on which a case was registered. Later on, they affected a compromise according to which her brothers were paid Rs. 1500 by the deceased. She was also betrothed to one Abdullah Khan and to him also a sum of Rs. 1,500 was paid by the deceased, and following this compromise she married the deceased. About the occur rence she stated that at "pashin" time she and her deceased husband were taking their ailing son to D. I. Khan for treatment. They were waiting for a Bus at the Adda of Paniala. In the meantime, Inayatullah (P. W.) came and took her husband aside. They sat together on a fallen date tree and were talking when the accused appellant and Sher Azam (absconder) emerged; that the latter was empty-handed while the former was armed with S. B. shot-gun. As they reached near the deceased, Sher Azam (absconder) took the gun from the accused appellant, put a cartridge in it, aimed the gun at her dead husband, and fired at him when he (deceased) was about to escape. The deceased was hit on the back and fell down two paces away. Bhai Khan (P. W.) father of the deceased was present across the tol and on seeing the occurrence, he rushed towards the deceased whereas Inayatullah (P. W.) took to his heels immediately after the occurrence and disappeared. Aman ullah and Abdullah also came to the spot. The former was at that time doing ablution while the latter was present in his garden nearby. Both the accused and the absconder Sher Azam ran away towards the jungle.

9. Amanullah (P. W. 8) stated before the trial Court that he is neither related to the deceased nor has any enmity with the accused appellant. Abdullah Khan (P. W. 9) stated in the trial Court that the deceased was his brother-in-law. He has no enmity with the accused appellant or the absconding accused. The statements of these P. Ws. about the actual incident, snore or less are to the same effect as advanced by the above-mentioned witnesses.

10. Muhammad Iqbal Shah A. S. 1. (P. W. 11) investigated the case. He recorded the F. I. R. Exh. P. A. in the Police Station on 28-1-75, examined the dead body of the deceased, prepared injury sheet, Exh. PB/1 and inquest report, Exh. PB and sent the dead body to the mortuary for post-mortem examination. He, also inspeted the spot and found blood there. He picked up blood-stained and vide memo Exh. P. D. in the presence of Abdullah Khan and Amanullah Khan (P. Ws.). He prepared the site-plan, Exh. P. C. at the instance and pointing out of Bhai Khan, Amanullah Khan, Inayatullah Khan, Abdullah Khan Mst. Noor Jehana, (P. Ws.). He recorded the state ments of Mst. Noor Jehana, Amanullah Khan, Abdullah Khan copies of which are Exh. DA, Exh. DB and Exh. DC. These were recorded by the I. O. on 20-1-75. He too recorded the supplementary statement of Bhai Khan at p.m. on 20-1-75. According to the site-plan, Point No. 4 is the place where the deceased was hit and injured with the fire-shot. Point No. 2 is the place from where the absconding accused fired at the deceased. This point is at a distance of 15 feet from Point No.

1. Point No. 3 denotes the place where Abdul Qayum fell down after the receipt of injury at Point No.

1. Sufficient blood was found as Pint No. 3, and blood-stained sand was picked up from this place. This Point is 59 feet apart from Point No. 1, and 64 feet from point No.

2. Point No. 4 shows the place where Nasir Khan accused appellant was standing at the time of incident. This point is at a distance of 17 feet from Point No. 1 and two feet from Point No.

2. Point No. 5 indicates the presence of Inayatullah (P. W.) at the time of occurrence. It is eight feet apart from Points Nos. 1 and 10 feet from Point No.

2. Point No. 6 is the place where Abdullah Khan witnessed the incident. This point is at a distance of 85 paces from Point No. 1 and 92 paces from Point No.

2. Similarly Point No. 7 is the place from where Amanullah Khan (P. W.) witnesses the incident. It is at a distance of 25 paces from Point No.

2. Point No. 8 is the place where Bhai Khan (P. W.) was standing at the time of occurrence which is at a distance of 90 paces from Points Nos. 1 and 97 paces from No.

2. Point No. 9 indicates the house of the absconder Sher Azam situated at a distance of 200 paces from Point No.

1. The house of the deceased has been shown at Point No. 10 at a distance of 210 paces from Point No.

1. Point No. 12 denotes the presence of Mst. Noor Jehana (P. W.) widow of the deceased at the critical time. This is at a distance of 20 feet from Point No.

1. The Investigator searched the houses of the accused-appellant and the absconding accused Sher Azam but they were not available and nothing incriminating was recovered from their houses. Therefore, warrants of arrest under section 204, Cr. P. C. were obtained against them and entrusted for service to P. C. Muhammad Jan (P. W.) who after making a diligent search for the accused and the absconder, returned the warrants Exh. P. W. 10/1 and Exh. P. W. 10/2 as unnerved. Both the accused-appellant and the absconding accused were proceeded against under section 87, Cr. P. C. and the copies of proclamations against them are Exh. P. W. 10/3 and Exh. P. W. 10/4. How ever the appellant was arrested on 3-4-75 when he surrendered himself before the police. The I. O. also took into possession two shirts, Exh. P. 1, fungi, Exh. P. 2 (both blood-stained) of the deceased and a phial containing 26 pellets, Exh. P. 3, produced to him by Hazrat Khan (P. W.), which he took into possession, vide memo. Exh. P. X. and sent the above articles along with the blood-stained sand to the Chemical Examiner whose report received in this behalf is Exh. P. 2/2 and that of the serologist is Exh. P. Z. /2.

11. All the above alleged eye-witnesses are closely related to the deceased though Amanullah (P. W. 8) tried to riggle out of his relationship with the deceased but Abdullah Khan (P. W. 9) in his statement connected Amanullah with the deceased by saying that the sister of the deceased is betrothed t,) Sardar Ali, brother of Amanullah (P. W. 8).

12. In this case we are only concerned with the guilt or innocence of the appellant Nasir Khan. There is no denying the fact that all the ocular witnesses are closely related but at the same time all of them have unanimously stated that the accused appellant was armed with the weapon of offence but it was the absconding accused who took the shot gun from the accused appellant, loaded the same himself (absconder) and fired at the deceased. From the evidence of eye-witnesses, however, it is clear that the accused: appellant was present at the spot bat he did not take any part, whatsoever in the commission of the offence. None of the eye-witnesses has ascribed any overt act to the appellant in the crime in question, therefore, it cannot be said that the accused appellant has participated in the commission of the offence or had a common intention with the absconding accused in the murder of the deceased. The mere presence of the appellant, if any, of the time of incident at the spot is not sufficient to clothe him with the heinous crime for which the punishment is forfeiture of life.

13. The appellant is said to have absconded soon after tire incident and remained at large till 3-4-75. In his statement, the appellant stated that did not abscond and had gone to Punjab for labour; that on return to Miss village, he learnt of the charge and surrendered himself to the police voluntarily. The abscondence of the accused appellant per se, is nut, good ground to base the conviction of the accused appellant. The people do abscond out of fear of the police if charged wrongly or rightly. In the circumstances the abscondence of the accused appellant is of little help to the prosecution case.

14. In view of the above discussion, the appeal is accepted, judgment and order of the trial Court is set aside and the accused appellant is acquitted of the charge levelled against him. Appeal allowed