1992 PLP 1625 (SCMR)

(c) Abscondence‑‑‑ ‑‑‑‑Abscondence by itself is no evidence of involvement o(' the absconder in the occurrence, but the same provides sufficient corroboration of the ocular account. Malik Rab Nawaz Noon, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellant. Ch. M. Akram, Advocate Supreme Court for the State. Sardar M. Ishaq Khan, Advocate Supreme Court and Ejaz M. Khan, Advocate‑on‑Record for the Complainant. Date of hearing: 4th May, 1992. WALL MUHAMMAD KHAN, J.‑‑‑Habib‑ur‑Rehman alias Rehman alias Raja Bottal, appellant herein, through leave of the Court, has called in question the order dated 12‑6‑1990 passed by the Lahore High Court, whereby his appeal against his conviction under section 302, P.P.C. for causing the death of Riaz Ahmad deceased, was partly accepted to the extent of reducing the death sentence imposed upon him by the trial Court to life imprisonment plus fine. Leave to appeal was granted to examine whether:‑ "After disbelieving complainant about his own injury the ocular evidence could be considered to be consistent; and (ii) Acceptance of the statement of Ismail (C.W.1) and rejection of statement of Muhammad Nawaz did not react against the correctness of the prosecution case?" The background of the case culminating in the instant tragedy is that deceased Riaz Ahmad alongwith his sons Shaheen Riaz P.W.10 and Shamim Riaz P.W.11 were returning home after their day's work of construction of a street in Sharif Abad Satellite Town, Rawalpindi on 6.9‑1986 at 5‑30 p.m. and when they reached near their house at about 6‑00 p.m. Habib‑ur‑Rehman appellant armed with .12 bore carbine and Fazal‑ur‑Rehman (acquitted accused) armed with a Son came out of their house raising lalkara that they would not spare the deceased and coming near them Habib‑ur‑Rehman fired with his carbine at the deceased hitting him on his left flank near the armpit as a result of which he fell down on the ground. Shaheen Riaz P.W.10 wanted to catch hold. of the appellant but Fazal‑ur‑Rchman acquitted accused gave him soti blows one of which fell on his head and the other on his back. Habib‑ur Rehman reloaded his carbine and fired at him which went amiss. Their noise attracted Muhammad Ismail and Muhammad Nawaz P.Ws. to the scene of occurrence and the accused entered their house. The deceased was taken to the Holy Family Hospital and reaching there he succumbed to his injuries. Mehmood Akbar Kiyani P.W.6 stayed behind to guard the dead body and Shaheen Riaz left for the police station where he reported the occurrence to Muhammad Yousaf S.I. P.W.15 who recorded the same vide F.I.R. Ex. P.J. He also prepared the injury sheet Ex. PM of Shaheen Riaz P.W. and sent him to the Holy Family Hospital through Mirbaz Constable for medical examination. He thereafter left for Holy Family Hospital where he prepared injury statement and inquest reports Ex.PN and Ex.PO of the deceased and dispatched the dead body for post‑mortem. He then visited the spot but due to darkness could not make proper inspection thereof. The next morning he collected blood‑stained pieces of cement and pieces of concrete from the spot through the help of chisel vide memo Ex.PA. He took into possession blood stained clothes of the deceased produced to him by Muhammad Ramzan FC PW, a finger ring in a sealed phial vide memo Ex.PL. The accused were not traceable so non‑bailable warrants of arrest were secured on 10‑9‑1986 from the Ilaqa Magistrate vide Exhs.PP./1 and PP/2 and entrusted to Muhammad Ramzan and Mirbas Constables for execution who returned them un-served with an endorsement. Site plan was prepared through Muhammad Akram Draftsman P.W. as well. The accused surrendered to the Ilaqa Magistrate on 22‑9‑1982 and the I.O. on receipt of information went there and effected their formal arrest. While in police custody Fazal‑ur‑Rehman led to the recovery of soti EX.P.1 from baithak of his house which was taken into possession vide memo Ex.PB on 28‑9‑1986, .on which date Habib‑ur‑Rehman accused also led to the recovery of .12 bore carbine Ex.P.3, three live cartridges Ex.P4/1‑3 and an empty cartridge Ex.P.5 from an iron box lying in the store of his house which were taken into possession vide memo Ex.PH. After the completion of the investigation the challan against both the accused was submitted to the Ilaqa Magistrate who in his turn sent up the accused before the Court of Session where after framing of the charge‑sheet, recording of the evidence and the statement of the accused including statement of Muhammad Ismail C.W.I, the learned Additional Sessions Judge on the appraisal of the evidence produced in the case, vide his judgment dated 29‑7‑1987, found Habib‑ur -Rehman appellant guilty of the murder of Riaz Ahmad deceased and sentenced him to death subject to confirmation of‑the High Court plus a fine of Rs.20,000 or in default 2 years' R.I. The fine, on recovery, was ordered to be paid as compensation to the heirs of the deceased under section 544‑A, Cr.P.C. However, it was ordered that if the death sentence of the appellant is converted into life imprisonment, he will enjoy the benefit of section 382‑B, Cr.P.C. as well. Fazal‑ur‑Rehman accused was given the benefit of doubt and acquitted. The appeal filed against it was partially accepted. Hence the instant appeal through leave of the Court. We have heard Malik Rab Nawaz Noon, Advocate, for the appellant, Sardar M. Ishaq Khan, 'Advocate, for the complainant, Ch. Muhammad Akram, Advocate, for the State and have perused the record of the case with their valuable assistance. The learned counsel for the appellant submitted that Shaheen Riaz P.W.10 and Shamim Riaz P.W.11 being the sons of the deceased were interested witnesses and not worthy of credence; that the statement of Muhammad Nawaz P.W.12 was discarded by both the lower Courts, that Muhammad Ismail mentioned in the F.I.R. as eye‑witness was given up by the prosecution as won over, that the recoveries made by the I.O. were considered as of no assistance to the prosecution, that the motive advanced was trivial and not proved according to law that, the version of Shaheen Riaz P.W.I.O having not been accepted by the two Courts below for his own injuries could not be relied upon regarding the part attributed by him to the appellant for firing at the‑deceased; additionally, he laid great stress that the injuries on the person of Shaheen Riaz were self‑inflicted or by a friendly hand in order to convince the Court about his presence at the spot and as such the prosecution case was false and concocted. The learned counsel for the complainant and the State, on the other hand, submitted that the I.O. found Shaheen Riaz injured while he visited the police station for lodging the report as is apparent from the injury sheet prepared at‑that very moment that both the parties were neighbours and were not inimical to each other except the earlier quarrel and that the abscondence of the accused from 6‑9‑1986 to 22‑9‑1986 was sufficient corroboration of the prosecution version. From the overall reading of the evidence on record, we are fully convinced that the occurrence took place in the manner alleged by the prosecution. Shaheen Riaz P.W.10 and Shamim Riaz P.W.11 admittedly are the sons of the deceased but their presence at the spot at the time of occurrence, close to their house, is natural. The stamp of injuries on the person of Shaheen Riaz P.W.10 further lends support to his presence at the scene of occurrence. Though the trial Court extended the benefit of doubt to Fazal‑ur -Rehman to whom these injuries were attributed by Shaheen Riaz P.W. but the learned High Court, though did not interfere with the order of acquittal of the co‑accused, believed in his presence on the spot. Muhammad Ismail mentioned in the F.I.R. was abandoned as having been won over but he was examined as C.W. by the trial Court and his statement lends some support to the prosecution version inasmuch as, according to him, when he reached the place of occurrence, people present at the spot told him that Riaz Ahmad was murdered by Habib‑ur‑Rehman accused present in the Court, which could not be termed as hearsay because anything said immediately after the occurrence by the people gathered is admissible as res gestae. This witness has proved the motive by stating "on 5‑9‑1986 at about 6‑00 p.m. I came to a Bakery which is adjacent to the house of Riaz Ahmad to fetch certain articles and I learnt from the Mohallahdars that Riaz Ahmad deceased of this ease and Habib‑ur Rehman accused had an altercation with each other over the dispute of obstruction of flow of water in the drain and it was further told to me that the obstruction was removed as the result of altercation." Abscondence by itself is no evidence of involvement of the absconder in the occurrence but the same provides sufficient corroboration of the ocular account. The absence of the appellant from 6‑9‑1986 to 22‑9‑1986 has not been satisfactorily explained by him. The recovery of soti and the carbine was not considered as corroboration by the Courts below not because that they were not recovered at the instance of the accused but they could not be linked as weapons of offence do account of non‑presence of blood on the soti and non‑recovery of empties from the spot to match them with the carbine. The earlier quarrel, as it was urged as motive for the present occurrence, was accompanied by kicks and fist blows and it depended on the mind of the appellant to resent it or not. The appellant has not advanced any serious motive for false charge and the motive alleged by the prosecution being trivial has already been considered by the High Court for reducing the death penalty. In view of the overwhelming evidence in the case the learned trial Court had no alternative but to find the appellant responsible for the murder of the deceased and the High Court had no option but to concur with it regarding his conviction. Resultantly, there is no merit in the instant appeal and the same is dismissed. N.H.Q./H‑147/S Appeal dismissed.