M.A. Zaffar, J.--This judgment will dispose of Criminal Appeal No, 766 of 2002 filed by Abdul Razzaq appellant, who was convicted and sentenced by learned Addl: Sessions Judge, Gujrat vide impugned judgment dated 25.04.2002 as under:-- Abdul Razzaq appellant UJS 302(b) PPC Death as Tazir and to pay Rs, 100,000/- as compensation u/S. 544-A Cr.P.0 to the legal heirs of the deceased and in default thereof to further undergo six months SI. The compensation was ordered to recover as an arrear of land revenue.
2. Murder Reference No, 687 of 2002 for confirmation of death sentence or otherwise of the appellant shall also be answered through this single judgment.
3. Briefly stated the facts of the case as disclosed by Master Muhammad Rafigue complainant are that on 20.10.1995 at 8.45 a.m. he informed the police that a dead body of unknown person is lying near the Dera of Lal Khan of village Hajiwala, that upon the receipt of this information Muhammad Ashiq Inspector/SHO along with Khadim Hussain, Mazhar Iqbal, Ghulam Rasool and Nisar Ahmad reached the said place where the dead body was lying and upon examination of the dead body pellet wounds were found and near to the dead body two empty cartridges and one live cartridge of 12 bore gun were lying and the dead body could did not be identified by the nearby inhabitants; upon the search of the dead body an amount of Rs,232/- one slip and a wrist watch with chain were recovered, which were taken into possession. Later on, on 21.10.1995 Muhammad Feroze moved on application Ex.PJ before the police stating therein that on 19.10.1995 at about 12.00 noon his nephew Walayat (deceased) along with Ashfaq Ahmad Shaukat, Razzaq accused came to the house of Walayat Khan deceased in village and took meal there and afterwards Walayat Khan told him that he along with Shaukat and Razzaq were coming back after making a call to Mahlay Khan, Walayat Khan deceased did not come back during night, which suspected some foul play and on third day i.e 21.10.1995 he was present along with Bahadar Khan PW in the house where of about 12.30 noon Sabir Hussain Lineman Wapda informed that the dead body of Walayat was lying in the mortuary of ABS Hospital, Gujrat, he along with Bahadar reached there where Ashiq Inspector/SHO and other police employees were also present and the dead body was lying outside the dead house, which was identified to be that of Walayat Khan, his nephew, the two brothers of Walayat Khan, i.e Mahla and Akbar were the employee at Kotri Hyderabad where Ashfaq accused was running a hotel along with Razzaq as a labourer, in Khalid Textile Mill, Haji Rehmdad was also an employee and his son Alf Din was working at Diwan, one Safdar is also employee of. said Mills and there was a dispute of Safdar and Haji Rehmdad due to some family affairs upon which Haji Rehmdad managed to get out Safdar from the Mills, who was closely related, Muhammad Ansar was confident that there was the involvement of Walayat Khan deceased in the dispute mentioned above, Ansar with the conspiracy and abetment of Ashfaq and Razzaq in furtherance of their common intention had committed the qatl-e-amd of Walayat deceased.
4. After registration of the case, the matter was investigated, all the three accused namely, Ashfaq, Ansar (since acquitted) and present appellant Abdul Razzaq were arrested in this case, who were challaned being guilty and the challan was sent to Court where all the three were charge sheeted, who pleaded not guilty. The prosecution evidence was being recorded but after recording of statements of seven PWs the present appellant absented himself on 1.9.1998 and afterward did not join the trial so was proceeded u/S. 512 Cr.P.C. and declared as a P.O. He after re-arrest in this case was sent up to face the trial in this case.
5. The Prosecution in order to prove its case produced as many as 16 witnesses in all, out of them PW. 1 Muhammad Rafique just informed the police on telephone about the presence of dead body of an unknown person, PW.2 Bahadar Khan identified the dead body of Walayat Khan deceased at the time of post-mortem examination, PW.3 Ahmad Khan in whose hotel deceased along with accused had taken tea, PW. 4 Walayat Khan Patwari prepared site-plan, PW.5 Ghulam Rasool H.C., in whose presence blood-stained and crime empties were recovered from spot. PW.6 Nazar Hussain is recovery witness of Carbine P.1 from accused vide memo Ex. PA, Butwa P2, Telephone diary P.3. Identity Card P.4 and School Identity Card P.5 vide memo Ex.PB, PW.7 Zafar Iqbal is Moharrar H.C, PW.8 Walayat Hussain is witness of Waj-Takar, PW.9 Muhammad Ashraf constable escorted the dead body for Postmortem, PW.10 Feroze Khan gave the details of motive, PW. 11 Nazir Ahmad is witness of extra judicial confession, PW.12 Haji Muhammad Yousaf is Dispenser ABS Hospital, who proved postmortem report on account of non-availability of Dr. Khurshaid Zafar who conducted postmortem examination, PW.13 Muhammad Ilyas ASI arrested Razzaq accused on 20.11.2001, PW.14 Muhammad Afzal constable formal witness who was deputed to execute warrants of arrest issued against the appellant and -PW.15 Zafar Iqbal ASI/IO, PW. 16 Dr. Khurshid Ahmad conducted postmortem examination on the dead body of the deceased whereas Riasat Ali constable examined as CW.1, thereafter, learned D.D.A tendered in evidence report of Chemical Examiner Ex.PR, that of Serologist Ex.PS and closed the prosecution case, then, the statement of appellant u/S. 342 Cr.P.0 was recorded in which he pleaded innocence. The learned trial Court vide' impugned judgment convicted and sentenced the appellant as stated above.
6. After having read the entire prosecution evidence, statement of the appellant recorded u/S. 342 Cr.P.0 and other relevant material available on record, learned counsel for the appellant submits that it was an un-witnessed occurrence, the prosecution case revolves ground the evidence of last seen and extra judicial confession. According to learned counsel, it is a case of circumstantial evidence and in a case of such a nature, every link of the chain should be interlined with each other, which it is argued, is missing in the case in hand.
It is further submitted that the prosecution story is concocted one; mere abscondence during trial itself is no ground to record or maintain conviction without any other corroborative peace of evidence, the recovery of the firearm alone is not a corroborative evidence and that the prosecution has miserably failed to prove its case against the appellant.
Concluding his submissions, learned counsel submits that the prosecution story is full of doubts and the appellant is entitled to acquittal.
7. Conversely, the learned Deputy Prosecution General assisted by learned counsel for the complainant submits that no doubt it is a case of circumstantial evidence but the prosecution has proved its case through cogent evidence in the shape of last seen, extra judicial confession and the positive report of firearm expert. In nutshell he supports the judgment of the learned trial Court.
8. We have heard learned counsel for the parties at length and have gene through the record with their able assistance. The deceased in this case is Walayat Khan while Muhammad Feroze complainant is his maternal uncle. It is at 8.45 a.m. on 20.10.1995 that one Muhammad Rafique on telephone informed the police that a dead body of some unknown person was lying near the dera of Lal Khan upon which Inspector Muhammad Ashraf proceeded to the place where the dead body was lying and he sent the same to Hospital for postmortem examination.
On the next day, that is, 21.10.1995, Muhammad Feroze moved an application Ex.PJ stating therein that on 19.10.1995 at about 12.00 noon Walayat (deceased) along with Ishfaq and Razzaq accused came to his house (house of Walayat), took meal there and after some time Walayat told his maternal uncle that he along with Shaukat and Razzaq was going to make a phone call to Mahlay Khan. It was also stated in the complaint that when Walayat deceased did not come back even at night, the complainant was perturbed and it was on 21.10.1995, third day, when he was present in his house along with Bahadar Khan where at 12.30 noon, Sabir Hussain, Lineman WAPDA informed that the dead body of Walayat was in the mortuary of Abbassi Shaheed Hospital, Guj rat. According to complainant, SHO along with other police officials was present and the dead body was lying outside the dead house, which was identified to be that of Walayat Khan. The motive alleged was some monerdispute between Walayat Khan and Raham Dad.
Prosecution in order to prove its case produced evidence of last seen and extra judicial confession.
First of all, we would like to discuss the conduct of the complainant, who is real maternal nephew of the deceased and also witness of last seen. In complaint Ex.PJ, which was moved on 21.10.1995, it was stated by the complainant that Walayat deceased in the company of the accused left his house on 19.10.1995 after 12 noon and when he did not return till night he was tense. Here it is observed that the complainant did not take any step for the search of the deceased, who was his real maternal nephew for two days and remained waiting him in his house till 12.30 p.m. on third day, that is 21.10.1995 when he was informed by Shabbir Hussain that the dead body of Walayat was lying in hospital. In cross-examination, Feroze Khan while appearing as PW.10 deposed as under:-- "I met the deceased two days prior to this occurrence, in my house at about 8 in the night. At that time besides me and Walayat, my wife was also present. On the day when the deceased arranged meal in his house it was 12 in the noon, I saw Razzaq accused, Ishfaq and Walayat coming out of the house of the deceased."
According to case of the prosecution as set in the complainant Ex.PJ, (page 84 of the paper book) the deceased along with accused went to make a phone call from his house after being free from meal after 12.00 noon and did not return back. If it was so, how the deceased had met the complainant in his house at 8.00 in the night two days prior to the occurrence when the accused were coming out of house. We are not satisfied with the testimony of this related witness.
The other witness of last seen is Nazir Ahmad PW.
11. He in cross-examination at page 41 of the paper book deposed:-- "The accused were previously not known to me."
This admission during cross-examination of the witness is sufficient to discard his testimony because he did not know the accused prior to his last seen in the company of the deceased, how he could have recognized that it was Razzaq accused who was accompanying the deceased Walayat at the relevant time and the day.
The next witness and third in row of last seen is Ahmad Khan PW.3. He in his examination in chief deposed that on 19.10.1995 he was present in the hotel of his village Chakanwali where the accused and deceased came but in cross examination he stated as under:-- "On 25.10.1995 I got the knowledge that Walayat has been killed"
"I accompanied Mahlay Khan to police station for inquiry purposes on the same day"
"When we reached police station accused Razzaq and Ashfaq were confined in the Police Station."
A perusal of the police record shows that statement u/S. 161 Cr.P.C. of Ahmad Khan PW.3 was recorded on 25.10.1998 in the police station. The record also shows that the appellant was arrested on 28.10.1995. If the appellant was arrested on 28.10.1995 as per record, how the witness saw him confined in the police station on 25.10.1995, This witness also admitted in cross-examination at page 20 of the paper book that a brother of deceased Walayat was married in his village and the village of Walayat is also situated near to his village and that he had good relations with the family of Walayat Khan deceased. If it was so, how he remanded oblivious of the fact of murder of Walayat Khan deceased till 25.10.1995 when the investigator recorded his statement u/S. 161 Cr.P.C.
In our considered view, he is a cooked up witness and we disbelieve his testimony.
Nazir Ahmad PW. 11 furnished the evidence of extra judicial confession. He stated that on 28.10.1995 both the accused Razzaq and Ishfaq narrated to him and Mehdi Khan PW that on 19.10.1995 they had taken the deceased Walayat to village Jheendar Sharif and thereafter, when they reached near the Barsati Nala situated in between Hajiwala and Jheender Sharif accused Razzaq fired at Walayat Khan deceased, who succumbed to the injuries. In cross-examination the witness stated as under:-- "Both came jointly and sat there, and firstly said that both the accused sought forgiveness through me as they were not involved in the murder of Walayat Khan deceased. Both accused confessed before me for the murder of Walayat" The accused were not previously known to me, however, the accused went to my village twice or thrice before the occurrence".
A perusal of above quoted portions of cross-examination shows that firstly; it was a joint extra judicial confession, which is not admissible in evidence as laid down in case titled The State Vs. Kamal Khan alias Maloo (1993 SCM R 1378). Secondly; the PW was not know to the accused prior to the occurrence. How an accused of murder would go to a person not known to him end admit his guilt specially when he was not 'a person in authority to get him pardoned from the heirs of the victim. During the cross-examination of this PW, it was come on record that he was Ex-Councilor.
Now we take up the recoveries. Admittedly, the report of Forensic Science Laboratory Ex.PS is positive in nature but apart from the fact that the recoveries were not put to the appellant in his statement u/S. 342 Cr.P.C. It is observed that recovery of weapon by itself without any other corroboration is not a substantial piece of evidence as ruled in 2003 SCM R 868. (Ali Muhammad vs. Bashir Ahmad).
It is added that when there is no evidence of worth consideration to maintain conviction against the appellant, the abscondence also loses its significance and is no ground to prove the guilt, as it is a natural phenomenon that every person having the fear of being hanged move to save his life.
Abscondence of an accused never remedy the defects in the prosecution case as neither it is necessarily indicative of guilt nor is even sufficient by itself to prove the guilt. Reliance is placed on case titled Muhammad Khan vs. The State (1999 SCM R 1220). There is distinction between a case in which an accused absconds immediately after the commission of the offence and a case in which he absconds during the trial. Former being in close proximity with the commission of the offence and carry more evidentiary value as compared with the latter as held in case of Ch. Muhammad Yaqoob Vs. The State (1992 SCM R 1983). Different persons are differently constituted and some accused though innocent, deliberately abscond rather than face the or deal of a criminal trial as held in case of Ameen Ullah vs. The State (PLJ 1976 S.C. 283).
After having taken into consideration the submissions made by learned counsel from both the sides and going through the evidence on record in the shape of last seen, extra judicial confession, the recoveries and the abscondence, we are of the considered view that the prosecution has miserably failed to prove its case against the appellant. Resultantly we accept the appeal filed by the appellant, set-aside the conviction and sentence recorded against him by the learned trial Court vide impugned judgment and acquit him of the charge. The death sentence of Abdul Razzaq appellant is not confirmed and Murder Reference is answered in the Negative.