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Criminal Appeal No. 37 of 1985, decided on 17th March, 1986.

‑‑ S. 302/307/324/34‑Appreciation of evidence‑Recovery‑No date mentioned on memos of recovery to show when empties were taken into possession by Investigating Officer and when blood‑stained earth was sealed into a parcel‑Recoveries of empties and blood‑stained earth thus not proved by prosecution‑Site plan prepared at pointa tion of eye‑witnesses but no mention of evidence made regarding points mentioned in site plan‑Prosecution witness on re‑cord not produced at trial and abandoned by prosecution‑ Cross firing having taken place in incident. wound of deceased could have been caused by a stray bullet‑In view of long distance at which eye‑witnesses were, it was not possible for eye‑witnesses to have correctly identified culprit‑Prosecution case mainly shattered by site plan which was prepared at instance of prosecution witnesses ‑ Co‑accused was acquitted by Trial Court on same evidence‑Prosecution, held, miserably failed to connect accused with commission of offence Conviction and sentence set aside.

‑‑ S. 302‑Abscondence ‑Abscondence of accused, held, in itself was of no avail to prosecution in absence of any other evidence against R absconding accused. ‑[Abscondence]‑‑

Farman Ali and 3 others v. The Stare P L D 1980 S C 207 and Hashmat Ali v. The State 1984 P Cr. L J 1234 rel.

Zahoorul Haq for Appellant.

Mian Muhammad Ajmal, A. A.‑G. for Respondent.

Date of hearing : 17th March, 1986.

.‑Ghulam Habib alongwith his son Hazrat Habib, Muhammad Shafique and, Muhammad Habib sons of Saifoor Khan residents of Sokhta‑Banda, Bazargai Tehsil Swabi District Mardan were tried by Sayed Yahya Zahid Gillani, Additional Sessions Judge, Mardan at Swabi on charges under section 302; 30 /324/34, P. P. C. registered against them vide F. I. R. No. 308, dated 1‑7‑7‑1981 of P. S., Kalu khan. The learned Additional Sessions Judge, vide order dated 11‑4‑1985. acquitted Muhammad Habib, Hazrat Habib and Muhammad Shafique from all the charges levelled against them. He, however, convicted Ghulam Habib accused under section 302, P. P. C. and sentenced him to death, to be hanged by the neck till his death and to pay a fine of Rs. 10,000 in default of which he shall undergo one year R, 1. Half of the fine, it was ordered. on realization was to be paid to the legal heirs of the deceased as compensa tion under section 544‑A, Cr. P. C. Ghulam Habib was further convicted under section 307, P. P. C. for ineffective firing at P. Ws. and was sentenced to three years' R. 1. and a fine of Rs. 5,000 in default of payment of which he was to undergo further six months' R. I. The trial Judge, however, acquitted Ghulam Habib accused of the charge under section 324/34, P. P. C.

2. The convict Ghulam Habib has preferred this appeal against his conviction and sentences and there has been also filed a Murder Reference No. 7./1985 for the confirmation of death sentence passed upon the appellant. By this single judgment we propose to dispose of both the appeal as well as the Murder Reference.

3. Briefly stated, the facts of the case are that on the basis of a report Exh,' P. A. registered at P. S., Kalu Khan, basal on the report of Jan Muhammad complainant Exh. P. A./1 on the day of occurrence at 'Deegar‑qaza‑wela' there was a dispute in between Ghu am Habib appel lant on one side and one Shamsul Qamar of Wand, Sokhta Bazargey on the other and in consequence of that both the parties had exchanged tiring on each other during which many people of the surrounding areas collected for bringing pacilttation: that Shamsul Qamar and his party took shelter in their house while Ghulam Habib and his patty encircled the house of Shamsul Qamar and continued the firing that in the meanwhile Said Nawab deceased came from the side of Matra where be had gone for grazing his cattle; that Ghulam Habib appellant fired at Said Nawab who got injured ; and that the occurrence was witnessed by Kachkol, Ramzan and Sher Zaman of village Nandrak Jalaloona.

4. At the trial the prosecution examined as many as fourteen witnesses out of whom P. W. 10 is Jan Muhammad complainant and P. W. 11 and 12, namely, Ramzan and Sher Zaman are the two alleged eye‑witnesses of the occurrence. P. W. 9 is Doctor Shahbaz while rest of the witnesses are formal and police official.

5. Doctor Shahbaz Khan (P. W. 9) was Medical Officer, Incharge civil Hospital Nowshera during the days of occurrence. He stated at the trial that on 18‑7‑1981 at 8‑00 a. m. he conducted the autopsy on the dead body of Said Nawab deceased aged about 15 years and found the following injuries on external examination

(1) A shattered wound on left side skull about 6"x3' and brain matter out. The bullet has passed out through the wound. Left parietal bone fractured. Brain tissue injured. Stomach empty.

In the opinion of the Doctor the death had occurred due to haemor rhage and shock caused by firearm causing injuries to brain tissue. Probable time between injury and death was within three hours and between death and post‑mortem examination within twelve hours.

6. Jan Muhammad (P. W. 10) complainant, father of the deceased, narrated the incident at the trial as given in his First Information Report referred to above. P. W. 11 Ramzan posing himself to be an eye‑witness stared that on the day of occurrence he alongwith P. W. Kachkol (aban doned witness) was sitting in the mosque at late Deegar time when on bearing the report of fire shots they came out of the mosque and heard the people saying a out firing in between Ghulam EIabib and one Shamsul Qamar. They started towards the houses of said persons and met Sher Zaman on the way. He saw Said Nawab, his nephew, coming from Maira with cattle. The witness saw Ghulam Habib appellant, Muhammad Habib, Muhammad Shafique and Hazrat Habib, the acquitted accused, alongwith other persons duly armed with Topaks. The elders present for pacification stopped Shamsul Qamar and Ghulam Habib alongwith their party from firing. They took companions of Ghulam Habib appellant but the appellant succeeded to release himself from the elders and came out from a narrow street near School towards the canal sidle. The appellant aimed his gun towards the P. W. and others and the P. W. raised his hand signaling the appellant not to fire but in spite of that he fired two shots at the witness and his companions with which Said Nawab deceased was hit on his head and fell down. The appellant then decamped from the spot and a cot was brought in which Said Nawab deceased. then injured, was placed and taken to his house but )n the way father of the injured met them who was informed of the Incident. Sher Zaman (P. W. 12) is the second alleged eye‑witness who had narrated the occurrence almost in the same manner as was done by P. W. 11 Ramzan.

7. At the close of the prosecution evidence the appellant alongwith the acquitted accused was examined under section 342, Cr. P. C. They took the plea of bare denial but produced no defence. After hearing the arguments of the learned counsel for the parties, the trial Judge passed the impugned judgment.

8. We have heard Mr. Muhammad Zahurul Haq, Bar‑at‑Law for the appellant and Mian Muhammad Ajmal, Assistant Advocate‑General for the State and have also perused the record with their assistance.

9. The learned counsel for the appellant took us through the various statements of the witnesses particularly the statements of P. Ws. 10, 11, 12, 13 and 14. First of all we would like to refer to the statement of P. W. 13, namely Qazi Inamullah S. I. He stated a: the trial that during the days of occurrence he was Incharge of P. P. Yar Hussain and on receipt of copy of F. I. R. he started investigation of the case. He prepared site plan Exh. P. B at the pointatton of the F. Ws. and took into possession blood‑stained earth from the place where Said Nawab deceased was allegedly injured and sealed the same vide memo. Exh. P. C. 2. He also recovered five empty shells of 7 m‑ m. Exh. P. 1 to Exh. p. 5 and an empty shell of 12 bore Exh. P. 6 vide memo. Exh_ P. C. He also took into possession three empty shells of 7 m. m. Exh. P. 7, Exh. P. 7/1 and Exh. P. 7/2 vide memo. Exh. P. C. 1. This witness recorded the statements of the eye‑witnesses and the witnesses to the recovery memos. and also conducted the house search of the accused. In cross‑examination this witness clearly admitted that he does not remember the time when he received the copy of F. I. R. from the concerned Police Station. At that time he was at village Dobian where from he proceeded to the spot and reached there at 3‑45 a. m. The P. Ws. were present there. He further admitted that in the copy of F. I. R. received by him there was specific mention of cross firing between Ghulam Habib on the one side and Shamsul Qamar on the other. He also admitted it to be correct that in the statements of P. Ws. Ramzan and Sher Zaman it is stated that Shamsul Qamar alongwith his companions Umar, Sher Gul and Sher Khaney were armed with Topaks and that there was cross firing between them on the one side and Ghulam Habib and his party on the other. He also admitted the fact that Sher Khaney son of Zabit Khan is the maternal‑uncle of Shamsul Qamar. He further admitted that neither Shamsul Qamar nor his brother Umar nor any of his above‑mentioned relations had come to P. P. Yar Hussain to make report regarding the incident of firing against the accused. He further admitted it to be correct that if a report is received to the effect that there was cross firing between 'A' and 'B' then it is a cognizable offence but he did not investigate the case from the angle of the cross firing. He also frankly admitted that he had not sent the empties of 7 m. m. recovered from the spot to the Arms Expert for the purpose of determining as to whether those were fired from one gun or different guns.

10. Coming to the statement of P. W. 14, namely Haji Gul, S. H. O. Police Station Batagram, we find that he had stated at the trial that during the days of occurrence he was posted as S. H. O. P. S. Akora Khattak. On 17‑7‑1081 at 2100 hours P. W. 10 Jail Muhammad complainant came to P. S. Akora and lodged the report which he entered in daily diary at serial No. 7 on 17‑7‑1981; that after recording the same it was read over and explained to him, who thumb‑impressed the same in token of correct ness; that Said Nawab injured was also brought to the P. S. in a motor car and the witness prepared his injury sheet Exh. P. D. and referred him to Civil Hospital, Nowshera under the escort of Sabar Gul F. C. for medical treatment. The witness further stated that he sent a copy of the said report to P. S. Kalu Khan as the occurrence had taken place within the territorial jurisdiction of that Police Station. In cross‑examination he clearly admitted that in the report recorded by him there was clear mention of cross firing between the .two parties. He also admitted it to be correct that in the report recorded by hiin no weapon of offence was mentioned with which Said Naw,b then in injured condition was hit, therefore, he did not mention any weapon of ofence in the injury sheet Exh. P. D. of Said Riavrab. Clt forth r admitted that no body present in the PJIice Station

oC

ffercd to give c len,:w either regarding the incident or about the fast to have stea the : ;:,: . r ;nce excepting the report of first infornnant. The above r, surnc c 11";t statement of the' Investigating Officer c;le,arly shows that P. 1N . 13, namely, Qazi Inamullah has not conducted the investigation of the case in a fair manner, rather he has miserably . failed to discharge his official duties by rot taking any action against Shamsul Qamar and his companions with regard to the cross firing.

1 1. The learned counsel appearing on behalf of the appellant then took us to the recovery memos. Exh. P. C. 1 and Exh. P. C. 2 and argued that no date has been mentioned on these two memos.,, therefore, it is not clear when the empties of 7 m. m. Exh. P. 7jl and Exit'. P. 7/1 were taken into possession by the Investigating Officer and wren the bloodzstaired eart was sealed into a parcel. The learned counsel three vehemently argued the the recovery of empties and blood‑stained earth has rot been proved by the prosecution. t:'‑ its re also perused these two memos. and we find no date thereon ., t tht resut thaf the argument of he learned counsel apa rarin& for the afp=Joant holds water. The learned counsel for the eppcllaai. l:4id C:eat t.ire:ss nit tloc site piau g 0.;. P. B. prepared. at the

a, lat CSC: . 'J '.W'ttnSS. ', ana arG";i that 6'klhv' C' ; '., i., '' '‑1

based on

site :;fan has riot beer; rrE_>due ed and ii:.:,. =a ..s‑., isi y ‑lie'

prosecution. We have perused, Oe

4:.',te plain aud keepiag

iL view the' evidence on rbcord we iiad that it4re i; no :i : ti. r ,‑f the a Madence regarding the points mentioned in the site plan i. e. points Nos. 1, .Z, 1 /A and 2,r"A. it xs olio important icy note here that P. W. KachKOl tvhose name is mentioned throughout the cvidense c;:.; .;;:car‑; 3 . > ie r ..dj

at the triai and was . ooa idonedoov the' 1370St".‑.Ji. . :;3r .'Et'S:; '; _. av':Y2' '.bs'

to them.' It is fl= v cal;e of "ho "",Usa:cuuor tbal, tsw de, V;'SGd =lad aaSVB

was bred at by i,,ihjs,Ar1 :Habit ap'i i n t at pOI%3t No. Iv ;l ., t i :a"' sAe plan

and blood‑stained earth was taken. into possession by the Investigating

Officer from this place while the appellant wag admittedly present at point

:'i.s. :)/13 frunn cs ce he i 0.:4iiy fired two shots ar Said Nawab deceased

VVw was et. poio= Na. l0rA cxnz, gait bim. The dista‑n:e between points

Nos. 3/B and 1V/A a‑Cordkig ,,) thb :r e p i ot . .. ,) feet. 1t is also the

cttie of th, proiecv:aon 'that iaokn: No. 7 is th4‑ place from where.the

witnesses saw the appellant Ghulam Habib and the three acquitted accused

alongwith I0j12 otl1cr persons .* o sere ; ng at r.;: T {;_' of Snamsul

Qarnar which is situated, at point No. l/A iii bite sic: ;% 1,a. It is in the

statement of P. W. 11 (Ramzan) that the e;ders of the village who were

present ‑ t‑',, q:.‑>t afta‑ twarrzng the report of fire sleets, for pacification,

hail succeeded to stop Shamsul Qzntar and his iompart.nns :: c ;; side and

Qhutam Habib .and his companions on "he c ti= ; i .; from firing but

Ghulam Habib appellant succeeded to release himself from them and

came out from a narrow street neat school towards the canal side i. e.

E at paint No. 3/B in the site plate and from there he fired two shots at the

deceased who was pres nt at point No. 10/r . 1t is also admitted in the

evidence that Sher Khaney is the maternal‑uncle of Shamsul Qamar whose

house is adjacent to Ghulam Habib a0pellant and also to paints Nos 7, 8,

9 arid 10. The site plan shows that from point No. 7 Ghulam Habib

.,, . .ppellant was firing at the 'Dhera' of Shamsul Qamar and from whero he,went to, a narrow street and reached at point No, 3/B and fired from this point at the deceased who was present at point No. 10‑A. Had the appellant been present at point No, 7 and proceeded to point No. 318 he had to pass in front of the house of Sher Khaney who was. according to the evidence on record, presently duly armed in his house, then the appellant should not have been spared by the said Sher Khaney from being tired at. Over and above, the distance given in between different points and particularly between points Nos, 3/B and 10,'A is such that a shot being bred from point No. 3/ B would not cause wound of 6" x 3 to a victim present at point No. 10 ;A. The learned counsel for the appellant vehe mently argue that as there was cross firing, therefore, this wound could have been caused by a stray bullet. The witnesses were allegedly present at the time of occurrence at points Nos. 7/13, 8;'B and 9/8 which are admittedly at a distance of 225 feet, 230 feet and 235 feet respectively from point No. 3/B where the appellant Ghulam Habib was allegedly present at the time of firing at the deceased. The learned counsel thus argued that it was not possible for the witnesses to have correctly identified the culprit from such a long distance with the result that the prosecution case is mainly shattered by the site plan Exh. P. B. which was prepared at the instance of the P. Ws.

12. Lastly the learned counsel for the appellant came to the factum of abscondence and argued that keeping in view the evidence on record the prosecution has miserably failed to connect the accused‑appellant with the commission of offence and as such mere abscondence of the appellant would not be sufficient to sustain conviction on a capital charge of murder. He also argued that on the same evidence co‑accused of the appellant have been acquitted by the trial Court. In support of his argument he cited a case‑law on the point of abscondence. The first authority in this respect is Farman Ali and 3 others v, The State (P L D 1980 S C 207) wherein their Lordships of the Supreme Court have held that abscondence by itself would be of no avail to prosecution in absence of any other evidence against absconding accused. The next authority relied upon by the learned counsel is Hashmat Ali v. The State (1984 P Cr. L J 1234) wherein this Court has held as under :‑

"Abscondence of accused charged with murder cannot be used as piece of evidence against him. Such a conduct can be equally consistent with his guilt or innocence. Mere absondence of accuse would be of no avail to prosecution."

The learned Assistant Advocate‑General could not controvert the arguments of the learned counsel for the appellant.

13. In view of the above discussion, we are of the firm view that the prosecution has failed to prove its case against the appellant. We would, therefore, allow this appeal, set aside the conviction and sentence of the appellant and acquit him of the charges. He shall be set at liberty forth with if not required in any other case.

14. As the appeal of the appellant succeeds, the Murder Reference is answered in the negative.

M. Y. H. Appeal accepted.

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