' MUHAMMAD AHSAN BHOON, J.--- I, decide Criminal Appeal No,1490 of 2005 and Criminal Revision No,747 of 2005, as both are directed against the same judgment, dated 14-7-2005 passed by learned Additional Sessions Judge, Samundri, District Faisalabad, whereby the appellant was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life and he was also directed to pay Rs,2,00,000 to the heirs of the deceased as compensation under section 544-A, Cr.P.C. And in default whereof, to further undergo six months' S.I. In case F.I.R. No,230 of 1992 dated 3-9-1992 offence under section 302(b), P.P.C. Registered with Police Station Saddar Samundri District Faisalabad.
2. Brief facts, as per F.I.R. (Exh.P.C.) recorded on the statement of P.W.4 Babu Khan (complainant) by P.W.10, Allah Bukhsh, Inspector/S.H.O. On 3-9-1992, are reproduced below, to avoid any mistake:-- "I am resident of Chak No,484/G.B. And an employee of Agriculture Department. Today morning my brother Muhammad Hanif went to Dhari to bring milk. Later on, at about 7 a.m. I along with Vakeel Ahmad (P.W.5) son of Niaz resident of Kamalia who was our guest went towards Dhari and when reached outside the village, we saw Muhammad Hanif brother coming after fetching milk.
Meanwhile, Abdul Sattar son of Abdul Majeed armed with Chhuri was sitting in the field of Saeed falling in Killa No,23 Sq. No,21 towards the West of same Charri crop, stood-up and exhorted to Muhammad Hanif that today he will teach him lesson for getting the land in his name by way of Hiba. Haji Muhammad Yameen son of Abdul Rahim also reached near us and within our seeing.
Abdul Sattar gave first Chhuri blow on his right flank, second blow hit on the right side of abdomen and third blow was given on Muhammad Hanif who moved his hand ahead, therefore, received injury on his palm. I attempted to go near but accused raised Lalkara, whoever came near he would be dealt in the same manner, and escaped the scene by raising Lalkara. Muhammad Hanif succumbed to the injuries at the spot. I have come to report the matter leaving behind the dead body of my brother under the custody of Vakeel Ahmad. Proceedings be initiated. The motive is that real brother of grandfather of Abdul Sattar Haji Rehmat Ullah (late) who was issueless transferred his land to Muhammad Hanif deceased by way of Hiba, in lieu of his services. Accused took it ill and due to that reason he has murdered my brother Muhammad Hanif by inflicting him Chhuri blows."
3. P.W.10, Allah Bukhsh, S.-I. After recording the statement of complainant (Exh.P.C.), proceeded to the place of occurrence and started with the investigation of the case, inspected the dead body, prepared injury statement (Exh.P.H.), inquest report (Exh.P.J.) and dispatched the dead body for autopsy. He then inspected the spot and prepared site plan Exh.P.F./1 (unsealed), collected blood- stained earth vide memo. Exh.P.D. And recorded the statement of P. Ws. Subsequently on 7-9-1992 he visited the place of occurrence, along with Muhammad Ishaq, Patwari (P.W.6) and got prepared site plan Exh.P.E. On pointation of P. Ws. He searched for the accused but could not arrest him and obtained warrant of arrest of accused, he obtained proclamation Exh.P.B. And entrusted the same to Muhammad Yaqoob, Constable. The proclamation was returned unserved as the accused could not be arrested so he submitted challan under section 512, Cr.P.C. Against the accused.
4. Learned trial Court after declaring accused P.O. Summoned prosecution evidence under section 512, Cr.P.C. After recording the statement of P.Ws., consigned the file to record till the arrest of the accused.
5. The accused (appellant) was arrested on 27-9-2003 by Fazal Hussain, S.-I. (P.W.8) and recovery of Chhuri was effected through memo. Exh.P.F. And finally the challan was submitted. Learned trial Court framed charge against the accused to which he pleaded not guilty and claimed trial. The prosecution produced as many as 10 witnesses, to prove its case against the accused and also tendered in evidence, the reports of Chemical Examiner Exh.P.M., and Serologist mark "A" of blood- stained earth and closed the- prosecution evidence.
6. The statement of accused Abdul Sattar aged 36 years was recorded under section 342, .Cr.P.C.
And in answer to question No,7, he replied as under:-- "The murder of Muhammad Hanif was blind one. It was well-known that the dead body was found from the Charri crop after 3 to 4 hours of his death. The P.Ws. Knew nothing about actual culprit as they never witnessed the occurrence. And falsely implicated me in this case due to suspicion and enmity."
' The accused (appellant) opted not to depose on oath, as his own witness under section 340(2), Cr.P.C. On conclusion of the trial the learned trial Court convicted and sentenced the accused (appellant) as aforesaid in para. No,l.
1. The learned counsel for the appellant/convict has argued that alleged eye-witnesses are closely related with the deceased and they are interested witnesses; there are material contradictions in the ocular account; that the medical evidence is in conflict with the ocular account; that the occurrence was a blind murder taken place in the field of Charri crop having height of 6/7 feet which could not be seen by the eyewitnesses, as per Exh.P.E. Site plan; that motive was disbelieved by the learned trial Court and, when prosecution is failed to prove the motive in peculiar circumstances, then whole prosecution case falls on the ground. As regard the abscondence of accused, he submitted that during this period, the accused was residing at Jataoi District Muzaffargarh as admitted by P. W.10 and even otherwise the prosecution has failed to prove abscondence because the author of warrant, Magistrate, has not been produced and mere abscondence was no proof of guilt. He contended that recovery of Chhuri after eleven years of the occurrence in violation of section 103, Cr.P.C. Is of no significance, as the same was not stained with blood. The learned counsel relied upon the case-law reported in 1986 PCr.LJ 1723, PLD 1976 SC 695, 1971 SCMR 239, 1995 SCMR 1373, PLD 1964 SC 26, 1997 SCMR 89, 1983 PCr.LJ 429, 1968 SCMR 161, 1978 PCr.LJ 24, 1973 PCr.LJ 675 and 2003 PCr.LJ 1778, and prayed for acquittal of the accused.
8. Learned counsel for the complainant has argued that this is a case of prompt F.I.R. Lodged at 8- 40 a.m. When the occurrence took place at 7-00 a.m. At a distance of 9-00 K.M. From police station, this is a case of single accused and substitution is a rare phenomenan in suchlike cases; the motive was proved and learned trial Court erred in law, while disbelieving the motive in presence of the evidence of P.W.4 and P.W.5, who were also the eye-witnesses. He further argued that both eye- witnesses are independent and natural witnesses, they had no motive for false implication, against accused, and they cannot be termed as interested witnesses mere for their close relationship with the deceased, unless they are found inimical to the accused/convict. He further submits, that site plan is not a corroborative piece of evidence, rather it is a mere supportive document and if there is any concession by P.W.6 Muhammad Ishaq, Patwari, that would not be fatal to the prosecution.
He has emphasized on the point that it does not make any difference whether deceased was killed in the crop or out side the crop, because the fact remains that deceased was killed by the accused.
He went on to argue that accused remained fugitive from law for 11 years and he has taken a very weak plea that he was living some where in Jataoi District Muzaffargarh. According to the learned counsel, the accused was bound to explain about his long abscondence, and same would be relevant as a proof of guilt of accused under Article 21 of the Qanun-e-Shahadat Order, 1984. He submitted that non-production of the witness, who took the blood-stained earth to the Chemical Examiner is not fatal to the case of prosecution because the blood-stained earth is only for the determination of the place of occurrence, and whether it is blood of human or not but these facts are not disputed. The learned counsel for the complainant, to substantiate his points, has relied upon the case-law reported in 2005 SCMR 1568, 2000 SCMR 1805, PLD 2001 SC 458, PLD 1972 Pesh.
92, 2005 SCMR 427, 2004 PCr.LJ 1697, PLD 2004 SC 44, 2006 SCMR 1744 and 1998 SCMR 1823.
9. I have considered the submissions of the learned counsel for both sides and perused the record.
Keeping in view settled principles governing the appreciation of evidence and dispensation of justice in criminal matters. I find good grounds to interfere with the impugned judgment of the trial Court. The learned trial Judge disbelieved the recovery of crime weapon and motive. However, he believed ocular account and evidence of abscondence, therefore, convicted and sentenced the appellant as aforesaid.
10. There are three material points in the instant case, which require deeper analysis for just conclusion. These points are ocular account, medical evidence and place of occurrence. I take up first of all ocular account which was furnished by complainant Babu Khan (P.W.4) and Wakeel Ahmad (P.W.5); that complainant is real brother of the deceased whereas P.W.5, Wakeel Ahmad is also son of sister-in-law of the complainant and he is resident of Mauza Ghulam Hussainwala situated in other Tehsil and District known as Kamalia District Toba Tek Singh.
11. While considering the ocular account produced in this case I see that Babu Khan complainant (P.W.4), alleged in F.I.R. That his deceased brother Muhammad Hanif was coming back from his Dharee, when accused was sitting in a field but improving his statement in the Court stated that accused Abdul Sattar was sitting in the field in hiding manner, who was duly confronted in cross- examination. Similarly, while giving number of injuries caused by accused, he stated, that the accused inflicted first Chhuri blow upon the deceased landed on his right flank, second Chhuri blow by accused hit the deceased on front of his abdomen right side, and he then gave third Chhuri blow, which, the deceased tried to defend and received injury on his right palm, whereas P.W.9 Doctor Hafeez Ullah found four injuries on, the person of deceased, which are as under:-- "(1) On external examination I found following injuries. An incised wound 8 c.m. x 2 c.m. Going deep x abdominal cavity on right side. It was 2 c.m. Away from the umbilicus.
(2) An incise wound 5 c.m. x 2 c.m. Going deep into abdominal cavity at right hpochondrium.
(3) An abrasion 3 c.m. x 1 c.m. x 1/2 c.m. At palmer side of right hand.
(4) An abrasion 1 c.m. x 1/2 c.m. x 2 c.m. Chest on right side near nipple."
' The injuries Nos.1 and 2 are incised wounds caused by sharp-edged weapon, whereas injuries Nos.3 and 4 are blunt weapon injuries, so the complainant as well as P.W.5 are unable to explain the absence of third injury with sharp-edged weapon, as the injuries 3 and 4 are abrasions caused by blunt weapon. However, those might be result of fall but the contradiction with regard to third blow by Chhuri is apparent, because there is no third sharp-edged injury on body of deceased, and eyewitnesses are not able to furnish true account of occurrence. Now, again, coming to the medical evidence, it appears that on opening the abdomen, bladder was found containing about 150 cc urine and according to the Medical Officer/P.W. The probable duration between injuries and death was about 2 to 3 hours, whereas time of death and post-mortem was about 6 to 9 hours.
The doctor also found rigor mortis and post-niortem staining present on the dead body, and deposed in his cross-examination, that if at a proper time the proper treatment had been given, there was possibility, that deceased might have survived. The above mentioned medical evidence belies the ocular evidence, because according to the A eye-witnesses the deceased died at the spot immediately. Similarly presence of 150 cc urine in the bladder seems to be very unusual in ordinary course of routine, because in villages, someone, who gets up early and goes to fetch milk, first of all, he will evacuate himself, before doing any other business. From the above analysis it seems that the deceased went outside just before the sunrise and was attacked by some one in a millet crop and remained lying there due to severe injured condition and died.
12. Another important aspect of the case is the place of occurrence. P.W.4 tried to improve the case, while deposing before the trial Court in his examination-in-chief as under:-- "I told the Investigating Officer that I was tensed so I could not tell that my deceased brother tried to run towards western side and accused overpowered him while chasing him."
' P.W.4 was duly confronted with improvement made as he had tried to fill the lacuna, as to how his deceased brother reached in center of Millet grass at the place of occurrence. The Investigating Officer P.W.10, who inspected the spot after occurrence was specifically asked a question that whether he had seen any smashed crop between points Nos.1 and 2, he replied as under:-- "The dead body was lying in the western half of Killa No,23 sq. No,21 which belongs to one Saeed.
There was Millet crop in this land. In the adjoining half of the said Killa on eastern side there was also millet crop belonging to same person. The dead body was lying 12 Karams inside from the road in the Millet crop. The P.Ws. Pointed out the presence of accused at Point No,2 which is also inside the millet crop while P.Ws. (EWS) pointed out their place of presence at Point No,3 which is a thoroughfare. The height of the millet crop may be 6/7 feet approximately. I have not pointed out the crop between points Nos.1 and 2 was smashed. Had I noticed the same I would have mentioned in the inspection note or other notes. I have not depicted the passage which the accused adopted after the occurrence."
' Babu Khan (P.W.4, complainant) also admitted this fact that site plan was prepared by Patwari and police on his pointation and he deposed as under:-- "The site plan was prepared by the Patwari and police on my pointation. The point where the accused was sitting at the time of occurrence and the point where the deceased sustained injuries were situated in Charri crop and the point from where we witnessed the occurrence was outside the crop. My brother Muhammad Hanif expired on the spot immediately after the occurrence."
' He stated that deceased was also having bicycle but neither the cycle nor any container of milk was taken into possession from the place of occurrence. Site plan Exh.P.E. Would show that point No,1 is the place from where dead body of deceased Muhammad Hanif was found, and blood- stained earth was taken from the same place, and Point No,2 is the place, where accused Abdul Sattar (appellant) was shown to be present, which is at a distance of eight Karams (44 feet) from the place of occurrence. Points Nos.1 and 2 are in the field of millet crop, whereas Point No,3, where the eye-witnesses were shown to be present, is a place in Abadi Deh and Point No,3 is 15 Karm (82- 1/2 feet) away from Point No,1 in Millet crop field with 6/7 feet height. It appears from perusal of site plan Exh.P.E. That there was absolutely no possibility for alleged eye-witnesses to see the occurrence while standing at Point No,3 as alleged by, the prosecution. Muhammad Ishaq, Patwari (P.W.6) also deposed in his cross-examination as under:-- "I had not observed the smashed Charri crop near the place of occurrence. The Charri crop situated at the place of occurrence was of 7/8 feet of height and was situated in both the Adhwars."
' P.W.6 also said that it is not possible to see the occurrence from Point No,3 by the eye-witnesses.
13. In view of above discussion I disbelieve the presence of the complainant/P.W.4 at the scene of occurrence. Even P.W.5, who admittedly, as mentioned in the F.I.R. Is resident of Village Ghulam Hussainwala of Tehsil Kamalia District Toba Tek Singh (other District) and had come to the house of complainant, was unable to explain any object to justify his presence in the village, as well as the scene of occurrence. He deposed in line with the complainant P.W.4 but he was confronted with regard to the improvements made by him before the trial Court. The relevant portion of his statement during cross-examination is reproduced below:-- "Both the points where, the accused were hiding himself and where the deceased sustained injuries were inside the crop. We all the three P.Ws. Were outside the said crop and were in the street. I was not present at the time when the police prepared the site plan or when the Patwari prepared the site plan. Just after the death of the deceased, I left the place of occurrence. After that I came on the Khatim ceremony. The deceased expired on the spot immediately after sustaining injuries. The deceased sustained injuries on the three places and blood had fallen on all the places. The accused inflicted all the three injuries at one and the same place. The deceased neither tried to move nor ran away from point where he sustained injuries. The complainant is my Khalu."
14. The above statement of P.W.5 would show that he was a chance C witness and he was not present at the spot, so I disbelieve the presence of P.W.5 also on the spot.
15. Learned counsel for the complainant has mainly relied upon the judgment by the Honourable Supreme Court of Pakistan reported Haroon Rasheed v. The State and another 2005 SCMR 1568 at:- - "Besides, it may be observed that in fhe instant case ocular testimony of both P.Ws. Is confidence inspiring and unimpeachable, therefore, the site plan which is not substantial piece of evidence (Reference may be made to decision of this Court in Sardar Khan and 3 others v. State 1998 SCMR 1823) in presence of reliable ocular version as such would be confirmatory evidence. The ocular version coupled with medical evidence proved beyond shadow of doubt guilt of the appellants and mere inaccuracy in site plan would not take away probative force of testimony in the case, considering also the fact that F.I.R. Was promptly lodged and there was no strong reason to falsely implicate the appellants in the case, instead of real assailants of the deceased."
The above quoted judgment would show that site plan is not a substantive piece of evidence, nor it can take away the probative force of reliable eye-witnesses, whose statement appears to be truthful and natural. But 'at the same time, site plan is not a piece of waste paper so it cannot be lightly ignored, when no inaccuracy is attributed because the site plan is prepared by draftsman, on pointation of the eye-witnesses. It, therefore, is referred to for determining the respective position of the assailant, deceased and the eye-witnesses and it also reveals the circumstances, which have been noticed by the Investigating Officer at the place of occurrence after his immediate arrival. Reliance can be placed on, Muhammad Ahmad and another v. The State and others 1997 SCMR 89 at page 106(g) and Muhammad Khan v. The State 2003 PCr.LJ 1778.
16. Similarly, in case reported as Mehr Ali and others v. The State 1968 SCMR 161 at page 169 it was held that "the omission to indicate in site plan, position of witnesses at the time of occurrence, reflects on the possibility of witnesses not being present at the time of occurrence". The same judgment of august Supreme Court was relied upon in case reported as Khan and another v. The State 1978 PCr.LJ 24.
17. Some broad legal principles enunciated by the superior Courts should be kept in mind while deciding the case involving capital punishment. One such principle is that if an interested witness claiming to be an eye-witness charges a person with commission of an offence, the first thing which the Court has to determine, is, whether he saw the occurrence and was in a position to identify the accused, whether he should be believed for convicting the offender without corroboration, if such interested witness charges only one person for the commission of crime, nothing and in the absence of any thing in evidence, which renders it unsafe to rely on his evidence, his evidence is to be relied upon even without corroboration. As substitution is the thing of rare occurrence, but in the instant case, the evidence on record would show, that the eye- witnesses account is not worth reliance, because it seems that eye-witnesses have not seen the occurrence. Even if their presence at the spot is believed, they were unable to see the occurrence and identify the accused from a place, where their presence was shown. There is no cavil to the proposition that mere relationship is no ground to discard the testimony of a witness because intrinsic worth of the testimony is to be kept in view, while assessing its evidentiary value, including with accused. In the instant case, it was defence version that it was a blind murder, and accused had been involved due to suspicion. The eyewitnesses who have not seen the occurrence might nominate any person, against whom, they had some suspicion.
18. As regard the motive same was disbelieved by the learned trial Court. Motive alleged was that accused had a grudge, that Haji Rehmat Ullah alienated some land in favour of deceased, but he was not able to explain when it was alienated and whether accused would be a beneficiary of property of above said Haji Rehmat Ullah, in case of his I death, and whether the above transaction prompted accused to murder Muhammad Hanif, but no evidence was brought on record by the prosecution. The allegation qua the motive part of the occurrence was never put to accused in his statement under section 342, Cr.P.C. Whereafter, there is no need of discussion on the question of motive, because any incriminating evidence not put to accused for its rebuttal cannot be used for the purpose of corroboration. However, the learned counsel for the complainant has contended that motive was a guess of the prosecution witness and need not to prove to award the normal penalty of K death. It is well-settled proposition of law that insufficiency or weakness of motive would not come in the way of prosecution, if there is, otherwise strong, confidence inspiring, unimneachable and reliable evidence, because the motive is always the state of mind of an accused which cannot be proved by ocular testimony, but at the same time it is also, well-settled proposition of law, that motive is a double-edged weapon and on the basis of same guess, when someone, who has not seen the occurrence can involve an innocent person.
19. As far as the abscondence of the accused/appellant is concerned, no doubt that abscondence has been considered as a strong corroborative evidence, to support the other piece of evidence for the involvement of any accused in the commission of crime, but at the same time, it is settled proposition of law that abscondence per se is not proof of guilt of an accused person. The disappearance of a person named as murderer/culprit after the occurrence is natural, whether named rightly or wrongly. Reference can be made to judgment of Honourable Supreme Court reported as Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373:--- "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 . "
20. In the present case appellant in his statement under section 342, Cr.P.C. In answer to question No,5 said, as under:--- "Ans. It is incorrect as submitted above I was at Jatoi. I knew nothing about the registration of case against me. Nobody intimated me nor any service was effected upon me. I was falsely got declared P.O. By misleading the Court giving wrong address."
' P.W.8 Fazal Hussain, S.-I., in his cross-examination admitted this fact that brother of the accused resided at Jatoi. Similarly Allah Rakha, P.W.10 was the Investigating Officer of the case, he said in his cross-examination as under:-- "Later on there was a rumour in the village that the accused resided in Jatoi District Muzaffar Garh, I do not search for the accused from Jatoi."
' He also said, that, as the accused did not join the investigation, therefore, he did not, and could not opine about his guilt or innocence.
21. As far as the contention of learned counsel for the appellant that the P.W., who took the blood- stained earth for depositing of same was not produced is not relevant in the case because the same is always for the purpose of the determination of the place of occurrence, and, in instant case, the place of occurrence, which is millet crop is not disputed one and similarly the unnatural death of deceased is proved through postmortem.
22. As far as the medical evidence is concerned same has been discussed in detailed above, that, there is apparent contradiction between medical and ocular evidence.
23. The above appraisal of evidence would show that prosecution has failed to prove its case against appellant, beyond any shadow of doubt, so this appeal, filed by the accused/convict is allowed and the conviction and sentence awarded to him vide impugned judgment, dated 14-7- 2005 passed by the learned Additional Sessions Judge, Samundri is hereby set aside and accused is acquitted from the charge. He shall be released forthwith, if not required in any other case.
24. For the reason stated above Criminal Revision No,747 of 2005 for enhancement filed by the complainant is dismissed.