' SHAHID HAMEED DAR, J.---This judgment will dispose of Criminal Appeal No, 446 of 2003 and Murder Reference No, 30-T/2003 for confirmation of the death sentence of the accused, which arises out of a judgment dated 31.3.2003 passed by the learned Special Judge Anti-Terrorism Court, Sargodha, whereby the appellant-Rohtas Khan was convicted/sentenced as under:- ' Under section 302(b), PPC. Death sentence and Rs, 50,000/- as compensation to the legal walls of the deceased Asmat Ullah, under section 544-A, Cr.P.C., in default whereof to further undergo six months' S.I.
2. The appellant Rohtas Khan son of Amir Khan aged 36/37 years was sent up to face trial for the murder of Asmat Ullah. The prosecution case' as revealed from the FIR (Exh.PK) No, 403/2000, dated 6.10.2000 under section 302/34, PPC registered at Police Station City, Mianwali, on the complaint of Atta Ullah, is that complainant, his brother Asmat Ullah deceased, Dawood Anwar and Haji Aziz Ullah were present at the shop of Asmat Ullah, being run in the name of Rehan Tent. Service, at 8:00 a.m. On 6.10.2000; Rohtas Khan armed with 30-bore pistol automatic, Ghulam Rasul and Nazir Ahmad alias Munna reached there raising noise and alarm at about 8:30 a.m. And started terrifying the people, as they used to do earlier as well; Asmat Ullah forbade them whereupon, Rohtas Khan fired straight a burst at him with his pistol 30-bore (automatic) which landed at his lower abdomen and left thigh, as a result of which, he fell down; Asmat Ullah was shifted to DHQ Hospital Mianwali by the complainant and his companions, where Asmat Ullah succumbed to the injuries. The motive behind the occurrence was that Rohtas Khan being armed, used to terrify the poor people, who was usually intercepted by Asmat Ullah, due to which Rohtas Khan committed his murder. Rohtas Khan-appellant absconded after the occurrence and was finally arrested by Muhammad Farid, Inspector (PW16) on 4.9.2002. In the meantime, the co-accused of the appellant, namely, Nazir Ahmad alias Munna and Ghulam Rasul faced the trial in this case in the first round, and were acquitted by the learned Trial Court, whereas, the appellant was declared a proclaimed offender vide order dated 21.3.2001.
3. Dr. Arif Hayat, Medical Officer, DHQ Hospital, Mianwali had conducted autopsy oil, the dead-body of the deceased on 6.10.2000 at 11:30 p.m. Vide post-mortem examination report (Exh.PG). Dr. Arif Hayat did not appear as a prosecution witness in this case as he had gone abroad before he could appear before the learned Trial Court and testify the proceedings of post-mortem examination. In his place, the prosecution adduced secondary evidence by producing Hafiz Muhammad Hanif, Junior Clerk, DHQ Hospital, Mianwali as PW11, who produced original postmortem examination register during his statement and testified that he had worked with Dr. Arif Hayat, Medical Officer PW and that he could identify his handwriting and signatures. He verified and identified the signatures and handwriting of the Medical Officer in his testimony, which were available on the post-mortem examination report. During the course of his testimony, a carbon copy of the post- mortem examination report was received in evidence as Exh.PG and pictorial diagrams as Exh.PG/1-2. PW11 endorsed the carbon copies of the post-mortem examination report Ex.PG and the sketches attached therewith in token of their comparison and correctness with the original.
According to the post-mortem examination report Exh.PG following injuries were found on the dead-body of Asmat Ullah deceased:-- "(1) A fire-arm wound of entry measuring 1/2 x 1/2 cm, 6-cm infro-lateral to the umblicus on the left side of front of abdomen, 4-cm from the mid line.
(2) A fire-arm wound of exit measuring 1/2 x 1/2 cm, 8-cm from the mid line, 6-cm infro-lateral to the injury No, 1 on the left side of abdomen (on the front).
(3) A fire-arm wound of entry measuring 1/2 x 1/2 cm on antro-medial aspect of left thigh, 4-cm below the groin and 6-cm from the public tubercle.
(4) A fire-arm wound of exit. Measuring 1/2 x 1 cm on the postro-lateral aspect of left buttock, 30- cm from the anterior superior iliac spine and 15-cm from the mid line (posterioly).
' All the fire-arm injuries had been caused with fire-arm and were anti-mortem in nature. The cause of death was haemorrhagic shock resulting from injuries Nos. 3 and 4.
4. The prosecution produced as many as 16 witnesses to prove the guilt of the appellant during the course of the trial. Nasrullah 431-C appeared as PW1, and stated about the execution of non- bailable warrants of arrest of accused Rohtas Khan/appellant, Exh.PA and the proclamation Exh.PC qua the appellant; Ghulam Yasin, ASI appeared as PW2, who stated that he delivered the sealed parcel of blood-stained earth to Azmat Ullah Constable PW3, to deliver it to the office of Chemical Examiner; Azmat Ullah 1078-C appeared as PW3 deposed that he deposited said sealed parcel in the concerned office at Lahore, intact on 13.10.2000; Muhammad Ramzan Constable (C-1033) appeared as PW4, who escorted the dead-body to the mortuary and attested recovery memo.
Exh.PD for last worn clothes of the deceased; Abdul Ghaffar Moharrar appeared as PW5, who dispatched the sealed parcel of pistol to the office of Forensic Science Laboratory, Lahore; Habib Ullah Constable (C-231), appeared as PW6 to depose that he deposited the said parcel in the office of Forensic Science Laboratory, Lahore intact; Sahib Khan, S.I. Appeared as PW7, who stated to have recorded statements of a couple of prosecution witnesses under section 161, Cr.P.C.; Shakil- urRehman PW8 identified the dead-body of Asmat Ullah deceased at the time of post-mortem examination; Sher Muhammad PW9 is a witness of recovery of pistol P3, licence P4, vide recovery memo. Exh.PE, at the instance of the accused/appellant; Muhammad Shafique Khan PW10 prepared site plan in scale Exh.PF and Exh.PF/1; Raees Khan Constable (C-41) CW1 deposed about his efforts for effecting the service of summons upon Dr. Arif Hayat, Medical Officer through summons Exh.CW1/A, his reports Exh.CW1/B, Exh.CW1/C, Exh.CW1/D and Exh.CW1/E were available, he also mentioned about making efforts for the service of Hashmat Ali, S.I. PW through summons Exh.CW1/F and on learning about his death, he made a relevant report Exh,CW1/G; Atta Ullah PM12/complainant deposed about his version, contained in the FIR Exh.PK; Aziz Ullah PW13 and Dawood Anwar PW14 also gave an account of the occurrence being the eye-witnesses; Muhammad Azhar Yaqoob, Inspector appeared as PW15, who took over the investigation in this case on 12.10.2000 and arrested accused Ghulam Rasul and Nazir Ahmad alias Munna, he obtained the warrant of arrest of Rohtas Khan/appellant Exh.PA and proclamation of the appellant Exh.PC, after completion of investigation, he challaned Nazir Ahmad alias Munna and Ghulam Rasul and placed the name of Rohtas Khan/appellant in the same challan under section 512, Cr.P.C., he also deposed about the investigation conducted by Hashmat Ali, S.I. Who had died earlier, and stated that he identified his handwriting and signatures; on his statement, FIR Exh.PK, injury statement of the deceased Exh.PN, inquest report Exh.PJ, visual site plan of the place of occurrence Exh.PM, recovery memo. Of bloodstained earth Exh.PL, the recovery memo. Qua last worn clothes of the deceased Exh.PD and the red ink notes Exh.PF/1 were received in evidence on the file of this case, Muhammad Farid, Inspector PW16 arrested the appellant on 5.9.2002, effected recovery of a pistol P3 alongwith licence P4 through recovery memo. Exh.PE with visual site plan of place of occurrence Exh.PE/1; he got dispatched pistol to the Forensic Science Laboratory, Lahore and challaned the accused/appellant under section 173, Cr.P.C.
5. Learned DDA for the State gaye up certain PWs and tendered in evidence the report of Chemical Examiner Exh.P0, report of Serologist Exh.PQ, report of Forensic Science Laboratory Exh.PR and closed the case of the prosecution.
6. Thereafter, the appellant was examined under section 342. Cr.P.C., wherein he, in reply to a question as to why this case against him and why the PWs had deposed against him; replied as under:-- ' The PWs have made false statements by twisting the real facts of the case to give me more grief and serious touch to the occurrence."
' He opted not to appear on oath in his defence under section 340(2); Cr.P.C. To rebut the allegations against him. He however, submitted photo-copies of certain documents which were received as Mark D1 to D7.
7. After hearing the learned counsel for both the parties and the learned Public Prosecutor, the impugned judgment was passed by the learned Trial Court, in aforementioned terms.
8. We are going to dispose of Murder Reference No, 30-T of 2003 alongwith Criminal Appeal No, 446 of 2003.
9. Learned counsel for the appellant submits that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt; that the impugned judgment has been passed on conjectures and surmises and it suffers from misreading and non-reading of evidence; that the prosecution witnesses of ocular account are interested and inimical towards the appellant and their statements could not fetch corroboration from any unflinching source; that the learned Trial Court despite having disbelieved the motive and the recovery of pistol, passed the impugned judgment by way of capital punishment to the appellant, which is against the settled norms of dispensation of justice; that the medical evidence has not been legally injected to the case of the prosecution and even otherwise, it is inconsistent with the ocular account; that the defence plea of the accused/appellant, though, not mentioned by him in his statement under section 342, Cr.P.C., that it was a sudden affair and the fire accidentally made by the accused first landed on against the metalled road, which rebounded and hit the deceased, is more plausible and nearer to truth than the prosecution version; that the appellant had never absconded and the proceedings conducted thereto are fake; he further contended that the complainant party was very powerful and their many persons, posted at high ranks, were inimically disposed to the appellant, so he had no other option but to get into hideout, to save his life; that the impugned judgment has resulted in miscarriage of justice and hence not sustainable in the eyes of law.
10. Learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently controverted the arguments of the learned counsel for the appellant, raised at the bar and submits that the impugned judgment has been passed strictly in accordance with law; that the prosecution has proved its case beyond any shadow of doubt; that the impugned judgment does not suffer from any misreading or non-reading of evidence nor it suffers from any infirmity; that the appellant has been awarded the sentence/con% iction on the basis of sound reasoning by the learned Trial Court and that the impugned judgment is sustainable.
11. We have heard learned counsel for the parties and have perused the record with their able assistance.
12. The prosecution case rests upon the testimony of three eye-witnesses Atta Ullah PW12, Aziz Ulah PW13 and Dawood Anwar PW14. All the three PWs have categorically deposed about the fact, in their testimonies, that it was Rohtas Khan/appellant, who used his pistol effectively qua the deceased at the time of occurrence and caused two fire-arm injuries on his body, one on the abdomen and other on the left thigh. According to the post-mortem examination report Exh.PG the injury No, 1 was on the lekside of the frontal abdomen and injury No, 3 on antro-medial aspect of left thigh, whereas injuries Nos. 2 and 4 were the exit wounds of injuries Nos. 1 and 3. The locale of injuries Nos. 1 and 2 as shown in pictorial diagram Exh.PG/1. And Exh.PG/2, indicates track, obliquely connecting the two injuries, is descending in nature. The witnesses of ocular account have corroborated each other on all material aspects of the case and the mode of occurrence mentioned by them is impeccably in line with the story contained in the FIR Exh.PK. Despite searching cross-examination, the witnesses of ocular account have stood the test of cross- examination. The defence plea, suggested to the PWs of the ocular account, that during a scuffle, the pistol went off in the hand of the appellant, the bullet struck against the metalled road and with a ricochet, accidentally hit the deceased, does not appeal to a ,prudent mind as the medical evidence indicates two fire-arm entry wounds on the body of the deceased and as (*Served earlier, the obliquely connecting track between injuries Nos. 1 and 2, is in diagonally downwards direction. The appellant did not like to come up with this version while recording statement under section 342, Cr.P.C. The contention of the learned counsel for the appellant that the factum, in relation to; a deviation of the bullet from the road to the body of the deceased, was mentioned by many ,before the I.O. On the first day of the occurrence, as manifest from the first case diary, be gone through and believed as corroboration to the afore-mentioned defence plea, is hardly entertainable as the appellant shelved the said plea during trial, otherwise, it must have been mentioned in his statement under section 342, Cr.P.C. And secondly, the medical evidence altogether negates it as two independent entry wounds on the body of the deceased suggest that he had been fired at repeatedly by the appellant.
13. The appellant remained absconder for almost two years. At the time of submission of first report under section 173. Cr.P.C. His name was shown as an absconder and he remained a fugitive from law throughout the first round of the trial of his co-accused and he opted to come to the surface when, the trial of his co-accused had already been decided by the learned Trial Court. The longstanding unexplained abscondence of the appellant is a piece of corroboratory evidence for prosecution case. The reasons given for such a prolonged abscondence have not satisfied the learned Trial Court dealing with the matter, Relevance and the corroborative evaluation of abscondance cannot be denied on any interpretation of law applicable to it. The reliance is placed in this regard on an esteemed judgment of the august Supreme Court of Pakistan in a case titled "Ali Khan v. The State" reported as 1980 SCM R 474. The relevant lines, full of wisdom, are reproduced as under-- II . ....His sudden disappearance for a short while could possibly he explained as an impulsive act of "sheer timidity", aimed at avoiding "risk of disgrace", torture of police, or the "ordeal of a criminal trial". Such a long absence, in this case of over a year, could not possibly be explained by reference to an ephemeral emotional reaction when the parties were already accustomed to serious criminal litigation. He turned up or was apprehended only after his property was attached and was in the process of being auctioned. The reasons given for such a prolonged abscondence have not satisfied any of the Courts, dealing with the matter. The relevance and the corroborative value of abscondence cannot be denied on any interpretation of law applicable to it. Its strength or weakness, sufficiency or otherwise can be a matter of debate in a given case. It is therefore, the facts of each case which will finally determine the place and the weight to be given to abscondence for proving a case beyond reasonable doubt. In evaluating the factors, the antecedents of the absconder, his occupational habits and limitations, the period of abscondence, the specific explanation for it have all to be considered in juxtaposition with the other evidence on the record. ..."
' In another glittering judgment passed in a case titled "Muhammad Din alias Manna v. The State" reported as 1976 SCM R 185, the august Supreme Court has observed as under:-- is corroborated by the fact that the appellant absconded from the village for nearly seventeen months. The explanation given by him has been rightly rejected by the Courts below, as it was not supported by any evidence on the record. The absconsion of the appellant was proved by A.S.I. Barkat Ali (P.W. 13) who had been entrusted with the task of apprehending the appellant. It also finds mention in the opening paragraph of the commitment order recorded by the Magistrate, in which the appellant has been described as an absconder during the commitment proceedings.
' In another case titled "Mst. Roheeda v. Khan Bahadur and another" and reported as 1992 SCM R 1036, the Hon'ble Supreme Court has observed as under:-- ' "No doubt, abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. In the instant case the accused/respondent No, 1, Jahanzeb accused (since murdered) and their brother Aurangzeb remained fugitive from justice for a very long time without any plausible and reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case."
14. The firing at the spot has been admitted frankly by the appellant but with a different version and in a different scenario. Though, the onus to prove the defence plea did not rest upon the accused in as strong terms as it is upon the prosecution to prove its case against the accused beyond any shadow of doubt yet, the accused/appellant has taken a specifics plea so he is required to show certain circumstance(s) to make his plea prima facie, believable. But not only, the appellant has not led any evidence in support of his plea nor any circumstance is shown from the prosecution case, which could show a sense of believability of the defence plea. The learned Trial Court has not passed the impugned judgment in a mindless or a mechanical manner but has dealt with the matter judiciously and with uncanny legal approach.
15. It is a daylight occurrence, the matter was reported to the police with promptitude by excluding hypothesis of deliberation on the part of the prosecution, as many as three credible eye-witnesses of ocular account, truthfully deposing about the event, the medical evidence lending unflinching corroboration to the ocular account, coupled with the long ahscondence are the points which prove decisive in this case to bring home The guilt of the accused/appellant beyond any shadow of doubt. All these factors are worth the proof, the law requires in such-like cases. To reach a justifiable conclusion as to the guilt of the accused. The prosecution case has been rightly believed and accepted by the learned Trial Court at the expense of the defence plea, to record the conviction/sentence of death to the appellant.
16. We do not find any extenuating or mitigating circumstance in this case to commute the sentence of death to a lesser sentence. The normal penalty in a criminal case is death which has been rightly awarded to the appellant in attending circumstances of the case, by the learned Trial Court.
17. For the foregoing reasons, we dismiss the instant appeal, moved by the appellant and confirm his conviction sentence of death, awarded to him by the learned Trial Court in the impugned judgment.
The death reference is replied in affirmative.