1995 PLP 1373 (SCMR)

(c) Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S. 342‑‑‑Appreciation of evidence ‑‑‑Unless a circumstance sought to be used against an accused is put to him during examination under S. 342, Cr.P.C. it cannot be used against him. (d) Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑S. 302/34‑‑‑Abscondence‑‑‑Abscondence per se is not proof of the guilt of an accused person‑‑‑Disappearance of a person named as a murderer/culprit after the occurrence is but natural, whether named rightly or wrongly. Abdul Hakeem Khan Kundi, Advocate instructed by Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 20th March, 1995. MUHAMMAD MUNIR KHAN, J: ‑‑This petition arises from the facts that in the occurrence which took place on 15‑3‑1988 at Peshi Qaza Wela in "Yak Ghundi, Sarki Lawaghir, District Kohat", Asal Muhammad, Rashid Gul and Khan Muhammad fired shots at Gul Khan Mir which hit him resulting in his death. The occurrence was seen by Rasool Muhammad P.W.10/complainant (brother of the deceased), and his son Abdul Aziz P.W.

11. The F.I.R. of this occurrence was lodged by Rasool Muhammad P.W.10 at 5‑30 p.m. on the same day at Police Station, Takht Nasrati, Tehsil and District Kohat. On the same day, Asal Muhammad respondent No.1 came to the police station and lodged F.1.R. Exh.P‑8/1 under section 307/34, P.P.C. Giving his own version of the occurrence, he stated that at the eventful time, Gul Khan Mir (deceased), Rasool Muhammad P.W.10, Abdul Aziz P.W.11 and Kadir Aziz had fired at him, Rashid Gul, Khan Muhammad and others. Asal Muhammad was arrested on the same day. Rashid Gul and Khan Muhammad co‑accused absconded. Asal Muhammad alone was tried for the murder of Gul Khan Mir. He was acquitted of the charge by the trial Court. The revision filed by the complainant against the acquittal of Asal Muhammad was dismissed by the Peshawar High Court on 22‑8‑1990. By that time, the two absconders Rashid Gul and Khan Muhammad had been arrested and were facing trial. Feeling aggrieved by the order of the High Court passed in Revision, the complainant riled petition for leave to appeal in this Court which was converted into appeal and allowed on 11‑5‑1991 with the direction that Asal Muhammad should be retried alongwith his co‑accused Rashid Gul and Khan Muhammad.

2. Prosecution produced 11 witnesses in all. Dr. Taj Ali Khan (P.W. 9) proved the post‑mortem examination report. Rasool Muhammad (P.W.10) and Abdul Aziz (P.W.11) giving the ocular account of the occurrence claimed to have seen all the three accused firing shots hitting the deceased. Gul Sharaf (P.W.4) supported the recovery of the empties from the house of Rashid Gul accused. Rab Nawaz (P.W.5) supported the recovery of two empties, blood stained earth, three card boards of .12 bore, one deformed pellet of .12 bore from the place of occurrence. He also supported the production of 7 MM rifle of the deceased by Ayub Khan before the police. Pir Nawaz Khan (P.W. 8) had investigated the case. When examined under section 342, Cr.P.C., the accused/respondents denied all the incriminating circumstances.

3. The trial Court convicted the three accused under section 302/34, P.P.C. and sentenced them to imprisonment for life and a fine of Rs.10,000 each or in default, six months' S.I. each. The accused were also directed to pay Rs.10,000 each as compensation under section 544‑A of Cr.P.C. or in default thereof to suffer six months' S.I. each. They filed appeal against their conviction and sentence in the Peshawar High Court, Branch Registry D.I. Khan, which was accepted on 17‑5‑1994. The respondents were acquitted of the charge. Hence this petition against acquittal.

4. Learned counsel for the petitioner has submitted that the prosecution has successfully brought home the charge of the murder of Gul Khan Mir to the respondents; that Rasool Muhammad and Abdul Aziz, the two eye witnesses are quite dependable; that the presence of the eye‑witnesses having been admitted in the F.I.R.(Exh.PW8/1) lodged by Asal Muhammad respondent No.1 himself, the High Court was not justified in holding that their presence on the spot was not established; and that the ocular evidence was corroborated by the medical evidence, the motive, the recovery of the empties and the circumstances of abscondence of Rashid Gul and Khan Muhammad respondents Nos.2 and 3. 5: We have carefully considered the submissions made by the learned counsel for the petitioner and examined the evidence on the record. We find that the High Court, after applying its conscious mind to the entire evidence on record including the F.I.R. Exh.PW8/1 lodged by Asal Muhammad respondent No.1 has come to the conclusion that the eye‑witnesses were not present on the spot; that the recovery of the empties was of no consequence; that the medical evidence was in conflict with the ocular evidence; that the F.I.R. Exh.PW8/1 lodged by Asal Muhammad was not conclusive proof of presence of the eye witnesses on the spot at the time of occurrence; and that after the exclusion of the ocular evidence from consideration, the circumstance of abscondence takes the prosecution case no further. On our independent assessment of the evidence and circumstances of the case, we find that the conclusions arrived at and the reasons given by the High Court m support of observations with regard to the ocular evidence, medical evidence, recovery of empties and motive are supportable from evidence on record. The considerations for interference in appeal against conviction and appeal against acquittal are quite different. This Court will not interfere with a judgment of acquittal unless the findings arrived at by the High Court are found to be in disregard of the evidence, which is not the case here. While examining Asal Muhammad accused under section 342, Cr.P.C, the trial Court has not questioned him about his lodging F.I.R. Exh.PW8/1 and the correctness of its contents. He was not given any opportunity to explain as to whether or not he had mentioned the presence of Rasool Muhammad P.W.10 and Abdul Aziz P.W. 11 in the F.I.R. Exh.PW8/1, allegedly lodged by him. It is by now well‑settled that unless a circumstance sought to be used against an accused is put to him during examination under section 342, Cr.P.C., that circumstance cannot be used against him. Omission to draw the attention of an accused person to a circumstance to be used against him is, prejudicial to him. So, it can neither be considered, nor used against him for and purpose. The circumstance of abscondence of Rashid Gul and Khan Muhammad respondents Nos.2 and 3 after the occurrence will not help the prosecution. Haq Nawaz Khan S.H.O. P.W.6 has stated that Khan Muhammad and Rashid Gul had appeared before him voluntarily on 15‑2‑1990 when he arrested them. In their statements under section 342, Cr.P.C., while explaining their alleged abscondence, they stated that prior to the occurrence they had gone to Punjab for earning their livelihood. On their return to the village they learnt about the charge against them and they voluntarily appeared before the police. Rehman Gul Constable P.W.3 who was deputed to execute the warrants of arrest of Rashid Gul and Khan Muhammad has stated that the people of area usually go to Punjab for earning their livelihood. Furthermore, disappearance of a person named as, a murderer /culprit after the occurrence, is but natural, whether named rightly or wrongly. Abscondence per se is not a proof of the guilt of an accused person. It may, however, create suspicions against him but suspicions after all are suspicions. Consequently, we find the impugned judgment of acquittal as neither perverse, nor the reasons given for acquittal as artificial. We, therefore, refuse to interfere with the impugned judgment.

6. Leave to appeal is, therefore; refused and the petition is dismissed. N.H.Q./R‑262,/S Leave refused.