' REHMAT HUSSAIN JAFFERI, J.---On 10-1-1994 at 5-40 p.m. The complainant Asif Khan lodged the F.I.R. That on that date at 4-40 p.m. He along with his sister was returning from hospital when he reached near Police Line some boys informed him that his father Shahzado was shot by a boy namely Riasat in Buffalo Piri. On such information the complainant went to Bakra Piri where he found his father lying dead with firearm injuries. The background of the incident was that the deceased complained to the police against the respondent Riasat that he indulged in the offence of sodomy. On account of said enmity the incident took place.
2. The police immediately reached at the place of incident, after receiving information, where they met with the complainant and recorded his statement. The police sent the said statement to police Station for incorporating it in 154, Cr.P.C. Book. The police, after usual investigation, challaned the respondents Riasat and Muhammad Fayyaz (hereinafter would be referred to as 'respondents') before the trial Court where they were tried but acquitted under the impugned judgment. The complainant Asif Khan was dissatisfied with the said judgment, therefore, he has preferred the present acquittal appeal.'
3. We have heard the advocates for the complainant, A.-A.G for the State and perused the record of this case very carefully.
4. In pursuance to the order dated 20-10-1998 the respondent Riasat furnished surety in the sum of Rs,500,000 and P.R. Bond in the like amount for his regular attendance before the Court but he failed to appear before the Court hence non-bailable warrants for his arrest were issued against him. The same were not being executed. As the respondent Riasat absconded, therefore, notice to his surety was issued. On 25-6-2004 proceedings under sections 87/88, Cr.P.C. Were initiated and it was further ordered that the question as to whether the respondent Riasat had a right of audience through his advocate was to be considered at the time of hearing of appeal.
5. In pursuance of the said order Mr. Ch. Iftikhar Ahmed, learned advocate submitted that he had no contact with the respondent but as this is an acquittal appeal, therefore, he may be allowed to represent him and argue the matter. It is well-settled that the Court should not act in aid of a person who is fugitive from justice and he loses right of hearing, therefore, the learned advocate for the respondent cannot be heard on behalf of the respondent Riasat. However, the Hon'ble Supreme Court of Pakistan in the case of Hayat Bux v. State (PLD 1981 SC 265), while dealing with the case of accused who remained absent in acquittal appeal observed as under:-- "In order to maintain consistency, in such a situation, although the Court would be obliged itself to examine the merits of the case for setting aside the acquittal, if need be the absconding acquitted accused would not be entitled to be heard, even through a counsel. It is a different matter if the Court for its own benefit seeks assistance from one or the other counsel appearing for the parties before it, including a co-accused of the absconding respondent, or from any other counsel, but the absconding accused would not be entitled, as of right, to a hearing.
"It would not be possible at all to adjourn an appeal against acquittal even against a single acquitted accused/absconding respondent, for an indefinite period, although the office of the Court would make efforts to secure his surrender/arrest in obedience to the process of the Court, for a reasonable period before fixing the appeal for hearing; and if he remains fugitive, the Court would proceed to determine the appeal in his absence. If after examination of the case the acquittal merits to be reversed, there would be no impediment to decide the appeal accordingly, but in case the judgment of acquittal merits to be maintained, the same would not be reversed on account of the abscondence of the accused/respondent. This would apply to both the situations whether the appeal is against one acquitted or more. The submission of the learned counsel that while dealing with the controversy the Court should keep in view its power to do complete justice is undoubtedly weighty, but as already indicated, this power is concomitant with the power of the Court to pass such orders as are necessary for the ends of justice and also for the prevention of the abuse of the process of the Court. These aspects of rendering justice cannot be visualized and considered in isolated water tight compartments. They have to be put in juxtaposition because they react upon each other and that is the only course to keep the stream of justice flowing uninterrupted and unsullied "It is clarified that the appeal against acquittal when fixed for hearing shall be heard in absence of Bakhsha respondent, if he remains fugitive till then, and he would not be entitled, as of right, to hearing through his representative. The Court would, however, when hearing the appeal against his co-respondents, consider the case against him on merits with or without assistance then available."
6. Thus, it is clear that a fugitive from law has no right of hearing even through his counsel.
However, the Court for its own benefit can ask the advocate for absconding accused to assist the Court. Such appeal is not required to be adjourned indefinitely even against single accused.
Nevertheless, efforts should be made to secure the attendance of such accused but for a reasonable period depending upon the facts and circumstances of each case. If efforts fail for a reasonable period, then the Court can determine the appeal in his absence. If after examination of the case, if the acquittal merits to be reversed then it can be decided accordingly. Nevertheless, if the judgment of acquittal merits to be maintained, then the same could not be reversed on account of the abscondence of the accused. The above rule will be applicable in the case of appeal filed against single accused or more. However, if there are two or more accused and if one or two are absconding then till the time of hearing of appeal, if they appear then they can be heard after granting such permission. If they fail to appear, then appeal can be heard in their absence and they will be having no right of hearing through their advocate. However, their case can be considered on merits, if any relief can be given to them, then there is no impediment to grant such relief to them.
7. As the case involves capital punishment, therefore, we asked Mr. Ch. Iftikhar Ahmed to assist the Court in arriving at proper and just conclusion because he has already prepared the case.
8. The learned advocate for the appellant has stated that there were three eye-witnesses in the case but the trial Court did not appreciate their evidence in accordance with the settled principles of law; that there was corroborative piece of evidence in the shape of recovery of pistol with matching ballistic expert report with the crime empties; and thirdly there was motive with the respondent Riasat for committing the crime but the learned trial Judge misread the evidence, hence a miscarriage of justice has occurred, therefore, he has stated that the case has been proved against the respondent Riasat only but he has not supported the case against respondent Fayyaz.
9. The learned counsel for respondent Fayyaz and Mr. Ch. Iftikhar have stated that the two eyewitnesses namely Altaf Hussain son of deceased and Mir Afsar were not shown as eyewitnesses in the F.I.R. Nor they were present at the place of incident when the police arrived there immediately after the incident so as to facilitate the police in recording their 161, Cr.P.C. Statements but their statements were recorded after 10 days of the incident without any explanation. Therefore, the said evidence is not sufficient to convict the respondents. They have further stated that the evidence of third eyewitness namely Ghulam Naseer shows that he did not identify the respondents at the scene of incident nor any identification test was held. Therefore, his evidence of identifying the respondents in Court is not sufficient to convict them. They have further stated that the recovery is a corroborative piece of evidence which cannot be safely relied upon without the substantive piece of evidence and that the trial Court has rightly appreciated the evidence in accordance with the settled principles of law. As such, no miscarriage of justice has occurred.
10. The learned A.A.-G. Has supported the arguments of the learned counsel for respondent Fayyaz and Mr. Ch. Iftikhar and has supported the impugned judgment.
11. We have given due consideration to the arguments, gone through the evidence with the help of learned advocate for the appellant and found that the case of prosecution rests upon ocular testimony consists of three eyewitnesses namely P.W.2 Altaf Hussain son of the deceased; P.W.4 Mir Afsar, nephew of the deceased; and P.W.3 Ghulam Naseer. The P.W.2 son of the deceased.
Disclosed that when he reached the place of incident he saw the respondent Riasat causing firearm injuries to the deceased and respondent Fayyaz was present there. Similar is the evidence of P.W.4 Mir Afsar. The names of both the witnesses are not mentioned in the F.I.R. The complainant reached the place of incident immediately after hearing the news of the murder of his father but he did not find both these witnesses present at the place of incident. The police already reached at the place of incident but they also did not find both these witnesses present there so as to record their statements. It is not appealing to the common sense that both the witnesses being closely related to the deceased would disappear from the place of incident after witnessing the same. The natural conduct of both these witnesses would have been to be present at the scene of incident. All these facts clearly demonstrate that both the witnesses were not present at the place and time of the incident. Furthermore, their evidence was recorded after 10 days of the incident but the prosecution did not furnish any explanation for such delay. As such, the evidence of these witnesses cannot be safely relied upon.
12. The Hon'ble Supreme Court of Pakistan examined the question of delay in recording the statement under section 161, Cr.P.C. In the case of Muhammad Khan v. Moula Bakhsh (1998 SCM R 570) in which it was observed that statement under section 161, Cr.P.C. Recorded with delay without any plausible explanation causes serious suspicion on the credibility of witnesses, therefore, such evidence was not relied upon. In the case of Muhammad Sadiq v. State (PLD 1960 SC 223) there was delay of 24 hours. The witness was friend of the deceased but he did not disclose to any one for the said period that he saw the murder, therefore, such evidence was not relied upon. In the case of Sahib Gul v. Ziarat Gul (1976 SCMR 2361), there was delay of four days in recording the statement by the police when the P. Ws. Were running shops near the place of incident and also going with the complainant to the police Station, therefore, the evidence was not relied upon. In the case of Saeed Muhammad Shah v. State (1993 SCM R 550) statement under section 161, Cr.P.C. Was recorded after delay without explanation of such delay. The said statement was ruled out of consideration.
13. As regards the evidence of P.W.-3 Ghulam Naseer, his evidence reveals that he was present at the place of incident when he saw the deceased and ohe person fighting with each other. He saw the said person firing at the deceased and then the said person ran away. He further disclosed that culprit was unknown to him. In such a situation it was incumbent upon the prosecution to have got the culprit identified through P.W.-3 in an identification test supervised by Magistrate but the Investigating Officer did not do so. The witness identified the respondent Riasat in the Court to be the said culprit. The identification of Riasat in Court was held after 10 months of the incident. A Division Bench of this Court considered the above point in the case of Asif Jameel v. State (2003 M LD 676). The Judgment was authored by one of us namely Rahmat Hussain Jafferi, J., and at page 682 it has been observed as under:-- "This point is being agitated since long. In the year, 1945 a similar question arose before the Honourable Federal Court in a case of Shadeo Gosain v. Emperor reported in 46 Cr.LJ 1945. The facts of the case are that several persons participated in the commission of offence of rioting.
' The witnesses identified some of the rioters. Some of the persons, who were not identified, were also challaned along with the persons who were identified by the witnesses. During the recording of evidence witnesses identified the rioters whose identification test was not held in the Court to be the rioters. The trial Court convicted those persons. The conviction was maintained by the High Court and then the matter went to the Federal Court where the appellants were acquitted by holding that such identification of accused was of no value. It was observed by the Federal Court that where a witness had not named the accused in his evidence at the trial as a person already known to him who had participated in the riot, but had merely picked him out as one of the rioters while identifying those accused persons in the dock whom he had already named in his evidence as participants in the riot, the evidence of this witness against the accused is of no value whatever.
It was further observed that failure of the witness of mention the accused's name in his statement to the Magistrate robs his subsequent statement against such accused made at the trial nearly four months later of all value.
' Similar point was also raised before the Hon'ble Supreme Court of Pakistan in a case of Asghar Ali v. The State (1992 SCM R 2088). In that case an accused was not identified, therefore, not named in the F.I.R. After his arrest an identification test was held. At the trial, the trial Court discarded the identification test but relied upon the identification of the accused in the Court by the witness and convicted him. In such situation the Hon'ble Supreme Court of Pakistan did not approve such type of identification of the accused by the P.Ws. In the Court and observed at page 2097 as under:- "The identification in Court of a person produced produced as an accused months after the event could not satisfy the requirements of law for proving by identity of the culprits."
' In another case of Tayyab v. The State reported in 1995 SCM R 412 similar view was taken and at page 414 it was observed as under:-- "As far as the statement of Muhammad Moosa is concerned he did not appear when the identification parade was arranged and was called for recording his statement at the trial. It was at the time of recording such evidence that he stated, pointing towards Tayyab, that he was the man who abducted him. Such evidence can hardly be relied upon as identification of the accused and corroboration to other evidence and made basis for conviction."
' Thus, the identification of the appellants in Court by the P.Ws. Without holding identification test through the P.Ws. Is of no value, therefore, it cannot be made the basis for conviction."
14. Following the said principle it is held that the evidence of P.W.3 with regard to identification of respondent Riasat in Court alone cannot be safely relied upon.
15. We have gone through the impugned judgment and found that the learned trial Judge has rightly appreciated the evidence in accordance with the settled principle of law and discarded the ocular evidence. We do not find any reason to interfere with the said findings.
16. As regards the recoveries, suffice it to say that it is a corroborative piece of evidence, therefore, no conviction can be based solely on such piece of evidence. The said piece of evidence can corroborate the substantive piece of evidence but when the substantive piece of evidence is disbelieved then there is nothing on record to which the recoveries can corroborate, hence the said piece of evidence is of no help to the prosecution.
17. After considering the material available on the records we are of the considered view that the impugned judgment does not require any interference. The benefit of the decision can be given to the respondent Riasat, in view of rule laid down in the case of Hayat Bux (supra), which is accordingly given to him.
18. Above are the reasons of our short order dated 27-1-2006, by which we had dismissed the appeal.