1978 PLP 54 (SCMR)

Mr. S. M. War, Senior Advocate, assisted by Mr. M. Bilal, Advocate, for the appellant and Mr. Nur Ahmad Khan, Advocate on Record for the State heard at length. The whole of the material prosecution evidence in the case consists of the statement of Nasim Iqbal P. W. 8 brother of the deceased and the abscondance of the accused. It was also alleged on behalf of the prosecution that there was no enmity between the parties and thus there was so motive for a false charge. This circumstance however does not help the prosecution, for if there was no motive for the false charge then similarly there was no motive for the accused to kill the deceased. As regards the previous quarrel between the accused and the deceased a clay before, there is no evidence whatsoever on file. The non‑existence of any motive for the murder would belie the statement of the solitary prosecution witness. For 1f there was no motive for the murder then admittedly some sort of quarrel took place between the accused and the deceased just before the occurrence as a result of which the deceased was shot dead. But then that is not the story of Nasim Iqbal P. W. who allegedly saw the occurrence and this circumstance would therefore belie his statement. Be that as it may, the non‑existence of any motive for the murder neither helps the prosecution nor the accused and we have to rely on the other two pieces of evidence. There is no doubt that the accused absconded after the occurrence as there is evidence for the prosecution on file in support of it. The statements of Abdul Karim Sub‑Inspector P. W. 9 and Khanbaz F. C, P. W. 2 show that warrant for the arrest of the accused was got issued and that procla mation under section 87 of the Code of Criminal Procedure was also issued but that the accused could not be found. The assertion of the accused t1hat he had gone to Rawalpindi long before the occurrence to assist his father- in‑law in his business has no evidence whatsoever in its support. At any rate abscondence is merely a piece of evidence which can only corroborate the ocular evidence and by itself it proves nothing. The only point in this case therefore is as to whether Nasim Iqbal P. W. 8 was present on the spot and witnessed the occurrence. This is to be judged from a close perusal of his statement and the attending circumstances. From a very close perusal of his statement and the rest of the evidence on file I am of the opinion that he was not present on the spot and that he did not see the occurrence. My reasons for coming to the above conclusion are as follows :‑ (1) The F. I. R. is very sketchy and most of it is from the personal knowledge of the reporter Feroz Shah who is not a witness to the occurrence, The only information In the F. I. R. which Nasim Iqbal gave him is that Muhammad Iqbal was killed by Muhammad Younis Eon of Yar Mohammad with a fire‑srm. Now if this P. W. Nasim Iqbal had seen the occurrence he would certainly have given the details of it to his father as it was his father who was going to the police station for reporting the matter. (2) On the other hand, if Nasim Iqbal had seen the occurrence his father Feroz Shah would certainly have taken him along with himself in the wagon to the police station for reporting the matter. (3) It is in the statement of Nasim Iqbal that after the occurrence he rushed to his village situated nearby and informed his relations of the occurrence. Now if he had seen the occurrence then he would certainly have named the accused to his relations and some of those relations could have been produced to depose to at least this much that soon after the occurrence the witness charged the accused fat the offence. (4) The P. W. in this police statement with which he was confronted stated that after informing his relations he accompanied them to the spot brought the dead body to the house and then went to inform his father. At the trial, however, he stated that after informing his relations be did not go to the spot but went after his father to inform him of the occurrence. It is however not understood as to how could under the circumstances he and his father then go to their house from the bus stand when he had not seen the deceased being taken to his house by his relations. It is in the statement of his father that from the bus stop he went with his son to his house and not to the spot. (5) If the P. W. had seen the occurrence he would certainly have informed his father that the deceased had been shot either with a pistol or with a shot‑gun, especially When his father saw the decease in his house and was going to the police station far report. The fact that the type of the tire‑arm does not find any mention in the F. I. R. clearly suggests that the P. W. bad not seen the shooting. Even the place of occurrence does not find any mention in the F. I. R. It is very strange that even in the inquest report which was prepared by the investigating officer long after the occurrence the type of fire‑arm does not find any mention. (6) Both the bullets or pellets had gone out of the dead body but it is very strange that no pellet or bullet or marks of bullet or pellet were found by the investigating officer on the spot. (7) The strangest thing is that the deceased had fallen on the spot and bad been taken away there from after quite some time but not a drop of blood was found on the spot. (8) According to the V. W. he and the deceased took meals at Shabqadar at 12 noon. The occurrence according to him took place at 2 pm but it is again very strange that the stomach of the deceased was found by the doctor to be empty. (9) According to the P. W. the deceased had purchased guess papers al Shabqadar before starting for his village but no guess papers were found either on the spot or on his person. No explanation has bean given by the P. W. as to what happened to the guess papers. (10) It is in evidence that the deceased had gone to Matta distant 2 1/2 furlongs from his village to appear in his matriculation examination under the circumstances after the examination he could never have gone to Shabqadar which was distant more than 2 miles from Mitts. He had naturally to go to his house distant only 2 1/2 furlongs from Matta and then to go to Shabqadar if he wanted to do so. This would also suggest that the deceased was going home from Matta when he was shot by some body. (11) The manner in which the accused found the deceased, accompanies him and then separated him from the P. W. for shooting him as deposed to by the P. W. seems to be a highly improbable story. (12) It ii in evidence that the deceased and his family had enmitied which could have been the cause of the murder. Jamshed uncle of the deceased was charged for the murder of one Wahan and acquitted. This Jamshed was murdered for which Sharaf, Sultan and Sartaj were charged out of whom Sartaj was convicted. Taking all these circumstances into consideration I am of the opinion that it is highly unsafe to place reliance on the statement of Nasim Iqbal brother of the deceased. I would, therefore, hold that the charge has not been brought home to the accused beyond a reasonable doubt. As a result thereof I therefore accept this appeal, set aside the conviction and sentence' of the accused and acquit him. ANWABUL HAQ, C. J.‑I agree. MOHAMMAD HALEEM, J.-‑I agree. NASIM HASSAN SHAH‑J. --I agree. Appeal accepted.