Muhammad Safdar Khan Sikandari, J.--We propose to dispose of the Criminal Appeal No, 59/2006 under Section 410 Cr.P.C. brought by Zarif Khan against his conviction and "Criminal Revision Bearing No, 17/2006 under Section 439 Cr.P.C. lodged by Hamidullah complainant against the convict-appellant Zarif Khan for enhancement of the sentence by this single judgment as both the appeal and criminal revision are arising out of one and the same judgment, dated 01.6.2006 passed by learned Additional Sessions Judge-V, D.I.Khan whereby the convict-appellant was convicted under Section 302(b) Cr.P.C. and sentenced to life imprisonment with payment of Rs, 1,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C., vide case FIR No, 378 dated 10.9.1990 registerdd under Sections 302/34 PPC at Police Station City, District D.I.Khaii.
2, Succinct facts forming the background of the present case are that Hamidullah complainant lodged the report in the shape of murasila in Civil Hospital, D.I.Khan wherein he alleged that he alongwith his father were going to Ustrana Hotel in Commissioner Bazar, D.I.Khan for taking lunch.
When they reached at the end of "Mohallah Hayatullah", the complainant was going ahead of his father and heard the scream of his father and on turning his face towards him, the complainant saw that the convict-appellant was catching .hold of the deceased and ordered accused Nazir to kill him and resultantly Nazir gave two dagger blows on his back with which he got injured. The complainant took him for medical treatment in a rickshaw to the hospital but the injured succumbed to his injuries on the way and hence the present case.
3. The convict-appellant was arrested on 13.7.2004 and supplementary challan against him was submitted for trial. After fulfilling the legal formalities, the trial Court framed charge against the accused and the prosecution produced the required evidence. Statement of accused under Section 342 Cr.P.C. was also recorded.
4. It is pertinent to mention that only PW-7 Hamidullah was produced as eye-witness to the occurrence whereas the other P.Ws including Doctor (PW-3) are formal in nature and as such placing reliance on the statement of PW-7 in particular and the other P.Ws in general, the learned trial Court determined to decide the case and accordingly arguments of learned counsel for the prosecution as well as defence were heard and impugned judgment was passed as referred to above which is now impugned in this Court by the accused on one hand and the complainant on the other.
5. Learned counsel for the. convict-appellant contended at the bar that there is considerable delay in lodging the FIR as the Police Station is lying at a distance of two furlongs from the place of occurrence which suggests consultations and deliberations on the part of complainant and his relatives. He further contended that the trial Court has convicted the appellant on the basis of solitary interested and related witness who happened to be the son of the deceased but the prosecution has not proved the case against the convict-appellant on the basis of his deposition adduced in the Court. He urged that PW Hamidullah was not present on the spot and his attendance was procured later on, therefore, the report was recorded after a considerable delay which carries on element of consultations and deliberations. Learned counsel for the convict- appellant urged that PW-7 is not a truthful witness for the reason that on one hand he has alleged the motive of previous blood feud with the accused party and on the other hand, he is interested to prosecute the accused being the son of the deceased. Learned counsel for the convict-appellant urged before us that the motive of dispute over the landed property as well as the previous animosity with the accused has not been proved by the prosecution as neither any document regarding the previous enmity nor any document regarding criminal or civil litigation has been produced in the Court. He urged that the medical evidence does not support the story of prosecution as the complainant has alleged in his statement that he and his deceased father were going to take lunch in the hotel but the doctor has opined that the stomach of the deceased was containing food.
6. On the other hand, learned State counsel assisted by privately engaged counsel for complainant argued that the complainant has lodged the report promptly and the delay of 45 minutes was consumed in arranging the conveyance for shifting the deceased then injured to the hospital which is not fatal for prosecution. State counsel contended that PW-7 is the son of the deceased who is a natural witness to the occurrence and he has not exaggerated the occurrence and has deposed against the convict-appellant whatever he has seen on the spot. He further urged that it is the quality and not the quantity of evidence which has been taken into consideration by the trial Court for the conviction of the convict-appellant and has dubbed the complainant being a truthful witness to the occurrence as he has correctly identified the points of blood and the availability of sheath of the dagger on the spot to the Investigating Officer. State counsel further urged before us that the medical evidence fully supports the story of prosecution as the complainant has attributed the role of two stab blows to the absconding accused and facilitating the inflicting of blows by catching hold of the deceased by the convict-appellant. He strenuously argued that through the solitary evidence of. Hamidullah PW-7 has not been corroborated by any independent witness because nobody comes forward to share in the enmities of others just for nothing and that is why nobody out of the public in a busy Bazar has come forward to depose against the convict- appellant, otherwise, ocular version finds support from medical and other circumstantial evidence which is sufficient proof of guilt of the accused. They further urged that the convict-appellant remained absconder for considerable long period of 14 years which is a corroborative piece of evidence supporting the deposition of PW-7 who is eye-witness to the occurrence.
7. We have given our thoughtful consideration to the above arguments and perused the material on record as well as the grounds considered by the trial Court for sustaining the conviction of convict-appellant.
8. As envisaged from the contents of FIR, the occurrence has taken place on 10.9.1990 at 1145 hours and the report has been lodged at 1230 hours and there is admitted delay of 45 minutes though the distance between the spot of occurrence and the Police Station is hardly two furlongs, however, the deceased then injured was taken to the hospital instead of taking him to the Police Station, therefore, the delay occurring in such like circumstances of the case is natural but here in this case, when the complainant Hamidullah came to know during transit that the injured succumbed to his injuries, then he was supposed to have taken the deceased to the Police Station, therefore, the delay in lodging the report promptly has not been sufficiently explained and thus the reporting of the matter in the murasila is not safe for the prosecution in view of verdict reported in 1999 AC 564 as indication towards consultations and deliberations on the part of complainant with his kith and kins as well as the local police cannot be ruled out.
9. Hamidullah complainant has lodged the report and he has recorded statement in the Court as PW-7 and his statement was relied upon by the trial Court and conviction of the convict-appellant was based on his ocular account. Evidently, Hamidullah is the sole witness to the occurrence without any corroboration from impeachable source, therefore, placing reliance on his statement for sustaining the conviction of convict-appellant will be unsafe. In such like situation caution should be taken at the time of assessment. It was the duty of the prosecution to procure the ocular evidence from the vicinity where the deceased was done to death but in view of general phenomenon of the locality, nobody independent comes forward before the police to depose against the accused in spite of the fact that many people of the general public see the commission of offence in the Bazar and streets but in this case nobody from "Mohallah Hayatullah" was produced to corroborate the evidence of the solitary witness. Hamidullah PW-7 has claimed that he was present with his father at some distance ahead and has claimed to have seen the convict-appellant catching hold of his father and facilitating the murder by the absconding co- accused but this factum of the case has not been proved by any impeachable source from the locality. Even, we doubt the presence of complainant on the spot because the prosecution was duty bound to produce the rickshaw driver in the Court about the presence of complainant taking his injured father to the hospital but the prosecution badly failed to prove it. PW Hamidullah is an interested witness of the occurrence for the reason that on one hand, he is on inimical terms with the convict-appellant and on the other hand, he is the son of the deceased and interested to bring the convict-appellant under the gallows while deposing against him in the Court falsely, therefore, in such like circumstances, it will be unsafe to rely upon the solitary evidence of an interested witness. Reliance in this regard is placed on PLD 2004 Peshawar 294 where the evidence of solitary interested witness was not considered for conviction.
10.Dr. Shah Jehan Baloch has been examined as PW-3 and he has opined the two injuries inflicted on the deceased on the scapula deep in chest but this cannot be taken as evidence against the convict-appellant because the weapon of offence has not been recovered and taken into possession by the police nor the prosecution has claimed these injuries inflicted by the convict-appellant. The doctor has opined in his report that the stomach of the deceased contained food material but the complainant has alleged that they were going to take meals in the hotel, meaning thereby that the stomach of the deceased at the time of occurrence was empty, therefore, the medical evidence does not support the version of PW-7 which shows that he is either telling lie or he was not present on the spot at the time of occurrence, therefore, he did not know about the taking of the food by his deceased father and as such, the medical evidence would not connect the convict-appellant with the commission of crime nor corroborates the statement of complainant PW-7. Reliance in this respect is placed on PLD 2008 SC 298 where it has been held that medical evidence may confirm the ocular evidence with regard to the locale of injury, nature of injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime. The contradiction arising out of the medical evidence and ocular account will make the prosecution episode doubtful and conclusion can be drawn about the failure of prosecution case.
11.As envisaged from the allegations put forth by the complainant and the vehement arguments of both the counsel at the bar for and against, the complainant claimed the motive for the occurrence as criminal and civil litigations between the complainant party on one hand and the accused party on the other, however, as alleged by the complainant (PW-7), after attending the District Courts in connection with proceedings under Sections 107/151 Cr.P.C. with the accused party, they proceeded to ' Commissioner Bazar, D.I.Khan but this factum of the case regarding the motive resulting into the murder of the deceased has not been proved either by way of producing any oral or documentary evidence to substantiate the same which could lead to the inference that actually the accused was interested to do away with the deceased. Neither any document about the presence of PW-7 participating in the proceedings in the District Courts has been produced nor any witness from that Court was produced to establish his presence on the day of occurrence in the city of D.1 Khan or any document showing the motive with the accused party, therefore, it is settled law that the motive once alleged is to be proved; otherwise, it will adversely affect the prosecution case because motive is a double edged weapon and cuts both ways.
12. It is an admitted fact on record that accused remained absconder for about 14 long years, however, when question was put to the convict-appellant about the abscondence, he categorically denied the same and averred that he had not absconded but was present in his village Kirri Shamozai lying at certain distance from D.I.Khan City and nobody has informed him about the summon or warrant issued against him. There is also plethora of authorities of superior Courts on this point that mere abscondence of accused is not a conclusive proof of the guilt of the accused. The value of abscondence depends upon the fact of each case and abscondence alone cannot take the place of guilt unless and until the case is otherwise proved on the basis of cogent and reliable evidence. The accused persons generally disappear due to fear of police or because of the feelings of the guilt, therefore, in view of the dictum handed down in PLD 2008 SC 298 mere abscondence would not be taken as a conclusive proof of guilt of accused. If any other authority in respect of abscondence is needed, reliance can also be placed upon 1999 AC 564 wherein long abscondence of four years of the accused was not taken as a ground for conviction of the accused and accordingly the conviction was set-aside.
13. In view of afore-mentioned observations, we have been led to the conclusion that the prosecution badly failed to prove the guilt of the convict-appellant on the basis of solitary evidence of PW-7 being an interested witness of the occurrence. Moreover, in view of the medical evidence, his presence on the spot has been rendered doubtful. The delay per se in lodging the report in the shape of murasila creates doubt in the prosecution case that the time of 45 minutes has been consumed in C deliberations either with relatives or police which is indicative towards doubt. The prosecution failed to prove the alleged motive on the record to avail it for the conviction of the convict-appellant. All these factors mentioned above show that the case against the convict-appellant is very much doubtful and not many doubts but only a single doubt will be sufficient for acquittal of the accused. Therefore, we do not agree with the findings of the trial Court holding the convict-appellant guilty of offence of murder of deceased Musa Khan.
14. In the light of above observations, we are constrained to accept the appeal, set-aside the impugned judgment of conviction and sentence and to acquit the appellant of the charges leveled against him. He be set free forthwith if not required in any other case.
15.So far as Criminal Revision No, 17/2006 for enhancement of the sentence is concerned, since the appeal has been accepted and appellant has been acquitted due to the failure of prosecution case therefore, question of enhancement of sentence of the appellant does not arise and hence, Criminal Revision No, 17/2006 is hereby dismissed.