Manzoor Ahmad Malik, J.--For committing murder 'of Muhammad Nawaz son of Lal Khan, Mumtaz son of Salat (appellant) along with Mazhar Ali, Sikandar Hayat sons of Salat and Muhammad Hayat son of Muhammad Yar was tried by learned Additional Sessions Judge, Jhang in case F.I.R. No, 4, dated 6.1.1998, registered under Sections 302/109 P.P.C. with Police Station Lalian, District Jhang. The learned trial Judge by virtue of his judgment dated 22.12.2003 found him guilty of the said charge, convicted him under Section 302(b) P.P.C. and sentenced him to death with further direction to pay a sum of Rs, 1,00,000/- to the legal heirs of the deceased as compensation or in default of payment thereof to undergo simple imprisonment for six months. The said learned Judge by giving benefit of doubt to Mazhar Ali, Sikandar Hayat and Muhammad Hayat acquitted them of the charge: 2, The convict/appellant-by filing Criminal Appeal No, 114 of 2004 has called in question the conviction and sentence awarded to him through the impugned judgment, whereas the learned Additional Sessions Judge has sent Murder Reference No, 18 of 2004 seeking confirmation or otherwise of the death sentence awarded to the appellant. Nasir Ali-complainant has also approached this Court by filing a Criminal Revision (No, 76 of 2004) and has sought enhancement in the compensation amount. We propose to dispose of all these matters together through this single judgment.
3. The event, giving rise to the charge, took place on 6.1.1998 at 1.00 p.m., within the revenue estate of Thatha Chandu Kalan, falling within the territorial jurisdictions of Police Station Lalian, District Jhang. Distance between the two places is about fourteen kilometres. The matter stood reported by Nasir Ali (P.W.12), maternal nephew of Muhammad Nawaz deceased, to Muhammad Aslam, SI/SHO (P.W.16) on the same day at 1.30 p.m. at Police Station, who as per dictation of the complainant drew up F.I.R. (Exh.PM) without any addition or alteration on his part.
4. Prosecution version as revealed through contents of F.I.R. (Exh.PM) is that Nasir Ali-complainant is resident of Thatha Chandu Kalan and is an agriculturalist by profession; on the fateful day, at about 1.00 p.m., he along with Khizar Hayat son of Muhammad Yar was going to Kot Qazi in order to fetch diesel for the peter engine; when they reached near Dhari Ahmad son of Muhammad Yar, they saw Muhammad Nawaz son of Lal Khan (maternal uncle of the complainant) while coming on a motorcycle after getting an amount of Rs, 60,000/-from United Bank Rabwa and on his reaching near Dhari of Ahmad, Mumtaz-appellant, who - as sitting in ambush in a pit near metalled road, emerged at the scene raising Lalkara that he will not let Muhammad Nawaz alive and fired a shot through his, rifle, which hit him' on his left arm; on receipt of injury, Muhammad Nawaz fell down from his motorcycle, when the appellant made second shot while coming near to the deceased, which hit him on the left side of his neck and went through and through; on hearing report of firing, Sarang son of Rehma and Rehmat son of Dara attracted to the venue of crime; the appellant raised a Lalkara that if anyone comes near, he will be done to death; the appellant while decamping from the scene also took away motorcycle and Rs, 60,000/- from pocket of the deceased; when the complainant along with his companions reached near the deceased, he had breathed his last. According to the complainant, his maternal uncle Muhammad Nawaz, who was with fast, had been murdered with the conspiracy of Mazhar, Sikandar Hayat sons of Salat and Muhammad Hayat son of Muhammad Yar. Motive behind the occurrence, according to the complainant, was that a parcel of agricultural land was mutated in name of wife of Muhammad Nawaz and others were demanding return of the said land, but Muhammad Nawaz refused to do so. Hence, registration of the instant F.I.R. (Exh.PM).
5. Succeeding registration of the case, investigation into the crime commenced and after completion thereof, the appellant along with his co-accused was challaned to Court.
6. The learned trial Judge on receipt of challan completed all legal formalities and after framing charge put the same to he appellant and his co-accused, who pleaded not guilty and claimed to be tried. The prosecution in order to prove its case got examined as many as eighteen witnesses, namely, Dr.Muhammad Sharif (P.W.1), Dost, Muhammad, Revenue Patwari (P.W.2), Allah Dad, constable (P.W.3), Muhammad Iqbal, constable (P.W.4), Muhammad Anwar, constable (P.W.5), Amjad Hussain, HC (P.W.6), Noor Muhammad, constable (P.W.7), Naeem Ahmad, Manager, UBL (P.W.8), Karim-ud-Din Ahmad, Manager, Shah Taj Sugar Mills (P.W.9), Maqsood Ahmad, Cashier UBL (P.W.10), Ghulam Shabbir (P.W.11), Nasir Ali-complainant (P.W.12), Rehmat Ali (P.W.13), Khizar Hayat (P.W.14), Muhammad Idrees, SI (P.W.15), Muhammad Aslam, SI/SHO (P.W.16), Muhammad Nawaz Gondal, SI (P.W.17) and Amjad Hussain, HC (P.W.18). One Riaz Ahmad, MCO was also examined as A.W.1. Learned prosecutor after giving up remaining witnesses being unnecessary and after tendering in evidence reports of the Chemical Examiner, and Serologist (Exhs.PV & PV/1), ,closed the prosecution case.
7. All the incriminating material was put to the accused under Section 342 Cr.P.C. to seek their explanation with regard to accusations brought against them and also to know their version. They claimed their absolute innocence in the matter and alleged their involvement in the case due to enmity. However, the appellant while answering question No, 11, Have you anything else to say?", stated as under :-- "It was un-witnessed occurrence. Some unknown persons chased Nawaz, deceased from the Bank with a view to commit robbery.
They took away the cash and motorcycle from deceased Nawaz. The prosecution falsely involved me and my entire family in this case for the reason that after death of Mst Daulan, Mutation No, 490, was entered on 05.08.1982 half of her land (62-K 14- Marlas) was transferred in the name of her sister, Mst. Gulan and remaining half was mutated in the name of late Salat my father. The said mutation was got cancelled on the plea that Mst. Daulan was Shieah by faith. Mst. Gulan was another sister of Mst. Daulan and was mother of Mst.Fateh Bibi widow of Nawaz deceased. He had only two daughters namely said Mst. Fateh Bibi and Manzooran. After the death of Mst. Gulan in 1983 the land owned by her was mutated in the name of her daughters Mst. Mazooran, Mst. Fateh Bibi as well as 1/3rd was mutated in the name of late Salat my father. My father had filed two civil suits against Mst. Manzooran and Mst. Fateh Bibi to challenge the cancellation of the mutation of the land of Mst. Daulan. Both these civil suits were withdrawn/filed as I and my brothers did not want to pursue these cases. A land mutated in the name of my father vide Mutation No, 505 still exists in the name of our father. The complainant party insisted that we should relinquish that land but we disagreed with this. For that matter Mst.Fateh Bibi and her husband Nawaz deceased has. grudged against. Nawaz deceased and Mst.Fateh Bibi managed and conspired with the Revenue Officials regarding the entry of the said land inherited from Mst. Gulan, for this reason I, my brothers and sisters filed a civil suit on 27.02.1999 in the Court of Civil Judge, Chiniot which is pending decisions. These suits were filed after being registered of the instant murder case. Mst.Fateh Bibi and the complainant party with a view to avoid the entitlement of said land situated in Khasra No, 178/511 measuring 8-Kanal Marlas, fictitiously made different transactions initially exchanged this land with Farid son of Muhammad Lali. R/O Chak No, 115 Janubi, Sargodha for his land situated in Khasra No, 134/511, measuring 6-Kanal, 14-Marlas. This land was sold in favour of Amir Bukhsh and Salhoon brothers of Rehmat Ali PW, which they got in exchange of said Farid and was transferred of Rehmat Ali son of Dari PW. These mutations were got recorded fictitiously."
All the accused opted not to make statements on oath under Section 340(2) Cr.P.C. in disproof of the allegations levelled against them, however, the appellant opted to produce evidence in defence and got examined Muhammad Riaz son of Muhammad Yaqoob as D.W.1, who deposed that on the day of occurrence the appellant was present at his Dera in village Kadhar, as he had taken land from him on lease since 1997.
8. Upon culmination of trial, the learned trial Judge proceeded to pronounce verdict of guilt against the appellant and punished him as aforementioned.
9. Learned counsel for the appellant in support of this appeal contends that actually it was an un- witnessed occurrence; that there had been a dishonest collusion between Dr. Muhammad Sharif (P.W.1) and the Investigating Officer (P.W.16) on the one hand and the complainant and eye- witnesses of the case on the other hand; that false, interested and partisan witnesses have been set up by the prosecution, which is clear from the prosecution documents i,e, injury statement (Exh.PB), inquest report (Exh.PC), site-plan (Exh.PQ), recovery memo. of bloodstained earth (Exh.PN), because these documents were required to be prepared by the Investigating Officer himself but were not prepared by the said Investigating Officer, who has admitted the same in his cross-examination and scribe of these documents is not known; that from the circumstances, it is crystal clear that the FIR. was not recorded at the time as being claimed by the prosecution because the occurrence as per prosecution took place at 1.00 p.m. and the distance between the place of occurrence and the police station was fourteen kilometres and it is village area and the prosecution has not stated that there was an easy access to the police station from the place of occurrence and in such circumstances it is highly improbable that the case was registered at 1.30 p.m.; that similarly in these circumstances, it was not possible for the prosecution to despatch the dead body from the place of occurrence to the mortuary on the same day and the post-mortem examination as per prosecution was conducted at 4.00 p.m., which is highly improbable and shows extra efficiency on the part of the prosecution, which, in the circumstances, is not believable; that doctor (P.W.1) has given a favour to the prosecution, which is clear from the inquest report (Exh.PC) as on the first two pages of the said report, he has put his stamp on the top of the paper so that the prosecution may add anything whatever it likes; that under Section 174 Cr.P.C, it is incumbent upon the Investigating Officer to get signed the report by other persons, but no person from the locality was associated as is evident from the record; that no one has signed the requisite paper of the report at the place specified for the purpose and even at that page stamp of the doctor is available, which in the ordinary course should not have been there because the paper was blank; that in the column meant for particulars of the case it is mentioned that "after registration of the case, he along with other police officials and the complainant had reached the spot", but the number of F.I.R. is not mentioned in this report, which shows that it was prepared even prior to the registration of the case; that in the post-mortem report though the date of death is given as 6.1.1998, but the time of death, which was required to be mentioned in the same column is missing, which was not mentioned because the same at that time was not certain, which shows that deliberations were made before the registration of the F.I.R. The learned counsel further contends that as far as motive part of the occurrence is concerned, the case of the prosecution is that the appellant was claiming return of land, which was transferred in the name of wife of Muhammad Nawaz deceased, but no detail of the land, nature of the transaction etc. have been given in the F.I.R. or even in the statement recorded before the Court, no documentary evidence in this regard was produced by the prosecution to show that which was the land, how it was transferred in favour of the wife of the deceased and why the appellant was claiming return of that land and in which capacity; that on the contrary, it is clear from the record that the appellant and his father had got land through inheritance from Mst.Daulan; that father of the appellant, namely, Salat had instituted a civil suit for declaration on 4.9.1989 against some persons including wife of the deceased, which was subsequently withdrawn by the father Of the appellant on 2.3.1991 i,e, seven years prior to the present occurrence and in these circumstances there was no occasion for the appellant to kill the deceased for this reason and even no criminal case of any sort was registered between the deceased on one hand and the appellant side on the other hand right from death of Mst. Daulan in the year 1982; that even if the motive part as alleged by the prosecution is accepted, it is a double edged weapon, as if it could be the reason for commission of the crime on the part of the appellant, it could at the same degree be the reason for the false implication of the appellant by the complainant side even on suspicion and it became more probable if the circumstances of the incident are taken into consideration as the deceased was done to death at a deserted place; that the prosecution has not proved the abscondence of the appellant in accordance with law as no respectable, such as Lambardar, Chaukidar or respectable was associated in the proceedings, which were conducted for declaring the appellant as absconder, more over Noor Muhammad, constable (P.W.7) has admitted that he did not know house of the appellant and in such circumstances no reliance can be placed on the report of the Process Servers, who were entrusted with the execution of warrants and proclamation, thus, the reports are fictitious on the face of it and cause serious doubt about their authenticity. The learned counsel further contends that even if this evidence is accepted as correct it can at the most be a corroborative piece of evidence, which can only be relied upon if other evidence, i,e, ocular account furnished by the eye-witnesses is confidence inspiring and trustworthy. In this respect, the learned counsel has relied upon Rahim Ullah Jan v. Kashif etc. (P.L.D. 2008 S.C. 298), wherein it has been held that mere abscondence does not prove the guilt of the accused.
As far as ocular account is concerned, the learned counsel vehemently argued that this occurrence had taken place at a place, which was away from the Abadi of the village on a thoroughfare and the witnesses are chance witnesses because they have given a reason for their presence at the spot, which is not natural because it is to be seen whether the reasons for their presence at the spot appear to be probable and a prudent mind -would believe that they were present at the spot as far as the complainant and Khizar Hayat (P.W.14) are concerned as they had given a reason that they were going to fetch diesel for peter engine; that they were duly cross- examined on this aspect of the matter, wherein they had admitted that they had the facility of going to Kot Qazian from Thatha Chandu by Kacha road and the distance between the two is one kilometre, whereas from the metalled road, the distance is two kilometers and a prudent mind would not believe that when the facility of a pathway, which is nearer, why they chose the way which is longer in distance, especially when they were on foot; that in the villages, such like works are normally done by the servants of the farmers and that they admitted that they Have servants, then there is no reason for them to go for taking oil; that they have also admitted that they were taking oil from Bakhtawar on credit basis but it was stated in the volunteered portion. It has been argued 'by the learned counsel that insofar as Rehmat Ali (P.W.13) is concerned, he is a liar and no reliance can be placed on his statement as he is not only a chance witness as he claims that he along with Sarang son of Rehman was going to buy buffalo, but he also denied having made statements in certain civil suits, his such statements were , proved through Exhs.DC & DD; that he was asked certain questions, which shows that he had made those statements, thus, no reliance can be placed on the statement of such a witness; that the story set out by the prosecution is improbable and in such circumstances benefit of doubt goes to the accused not as a matter of grace but as a matter of right. It has lastly been argued by the learned counsel that the witnesses had neither seen the occurrence nor were reliable in any manner and that evidence in its entirety requires reappraisal by this Court, because it has not been appreciated in its true perspective by the trial Court.
10. Conversely, learned Additional Prosecutor General Punjab for the State assisted by learned counsel for the complainant opposed this appeal on the grounds that it is a case of unique nature where not only the F.I.R. was promptly lodged, but the post-mortem examination was conducted without any delay as the occurrence had taken place at 1.00 p.m., the matter was reported at 1.30 p.m. and the autopsy was conducted at 4.00 p.m. on the same day, therefore, there was no chance for any concoction or occasion for deliberations as asserted by the appellant side; that the postmortem examination is possible only if the relevant documents are received before the start of the said examination and in absence thereof the doctor cannot perform this job; that Dr. Muhammad Sharif while appearing as P.W.1 has stated on oath that he started post-mortem at 4.00 p.m. after receiving all the documents and there is no reason to disbelieve this witness, who is neither related to the complainant nor has any enmity against the appellant; that even No, of the F.I.R. is written on the top of the document i,e, injury statement (Exh.PB); that date and time of lodging of the F.I.R. is mentioned in column No, 3 of the inquest report (Exh.PC) and the same particulars are mentioned in the post-mortem examination report, which clearly establishes the fact that the occurrence had taken place at J.00 p.m., it was reported at 1.30 p.m. and post- mortem examination was conducted at 4.00 p.m.; that as per post-mortem report (Exh.PA), the time between injury and death was half an hour and that between death and post-mortem was three to four hours, which exactly coincides with the assertion of the prosecution regarding time of the occurrence, reporting thereof to the police and the conducting of post-mortem examination; that it is a daytime occurrence, which took place on a thoroughfare and in the normal circumstances it cannot be expected that it would be an un-witnessed occurrence; that there was no reason for false implication of the appellant by the complainant and nothing is available on the record to show that he had enmity with the appellant; that the real bone of contention between the parties was the land left by Mst. Daulan, which as per complainant side was 'Shia' and as per appellant side 'Sunni' and in this respect even civil suits were instituted against each other; that though the civil suits were withdrawn but the fact remains that there was a dispute between the parties regarding the land left by Mst. Daulan; that if the complainant had any real intention to falsely implicate the appellant, he could also implicate another person from the family of the appellant, as the deceased had admittedly received two fire-arm injuries; that the injuries sustained by the deceased were one on the knee and the second on the neck and the medical evidence suggest that both were fired from different distances and it can only be described by the persons, who had actually witnessed the occurrence; that the eye-witnesses have given explanation for their presence at the spot, which is probable and moreover it is established from the other circumstance i.e: registration of the F.I.R. at 1.30 p.m. at the police station; that if the complainant and Khizar Hayat (P.W.14) were not present at the spot and have not witnessed the occurrence, then the F.I.R. could not have been registered at 1.30 p.m., which is clear from the record; that the prosecution proved its case through natural, confidence inspiring evidence, which is not only being supported by the medical evidence but also from the abscondence of the appellant because he admittedly remained fugitive from law and was arrested on 19.10.2000, whereas the occurrence had taken place on 6.1.1998 and no plausible explanation has been given by the appellant for his abscondence and Muhammad Anwar and Noor Muhammad, constables (P.W.5 & 7) have duly proved the issuance of warrants of arrest and proclaimation for the arrest of the appellant, therefore, this is very strong piece of corroboration against the appellant in the circumstances of the case; that the appellant even did not surrender himself before the authorities, but was arrested in another case i,e, F.I.R. No, 177 of Police Station Qadirpur, wherefrom he was arrested in the instant case and prior to that he was also involved in another case of police station Lalian, as such, explanation offered by the appellant for his absence for such a considerable time is not convincing and cannot be relied upon, which even otherwise is belied by the other attending circumstances of the case.
11.We have heard learned counsel for the appellant and learned Additional Prosecutor General Punjab assisted by learned counsel for the complainant at length and have also gone through the record with their able assistance.
12.The main points for determination, in this case are:-- (a)Whether the matter was reported to Police at 1.30 p.m. on 6.1.1998 and the post-mortem examination was conducted on the same day at 4.00 p.m.?
(b)Whether the eye-witnesses are chance witnesses and as such have not seen the occurrence?
(c)Whether the appellant remained absconder for more than two and half years and this abscondence can be considered as a corroborative evidence against him?
(d)Whether the prosecution has proved the motive?
As far as the first point is concerned, it has been noted that occurrence in this case had taken place on 6.1.1998 at 1.00 p.m. within the revenue estate of Thatha Chandu Kalan, situate at a distance of fourteen kilometres from the concerned police station, i,e, Police Station Lalian, District Jhang. Nasir Ali-complainant (P.W.12), maternal nephew of Muhammad Nawaz deceased reported the incident on the same day at 1.30 p.m. The post-mortem examination of the deceased was conducted at 4.00 p.m. on the same. The deceased had suffered two fire-arm injuries, one on the left arm and the other on the left side of neck, which went through and through, at the hands of the appellant and had breathed his last instantaneously. Learned counsel for the appellant while pointing out certain omissions on the part of the Investigating Officer and the doctor who prepared the inquest and post-mortem reports, respectively, has argued that these omissions suggest that the incident was not reported to the police at 1.30 p.m. and the post-mortem was not conducted at 4.00 p.m. We have gone through the inquest report (Exh.PC) as well as post-mortem report (Exh.PA) and have noted that all material particulars are mentioned in both these documents. The omissions and discrepancies pointed out by learned counsel for the appellant are so trivial in nature, which have no bearing on the merits of the case. Even otherwise, no malice or enmity was suggested to Dr. Muhammad Sharif (P.W.1), who has stated on oath that postmortem examination on the dead body of the deceased was conducted at 4.00 p.m. on 6.1.1998. Another relevant and important point in this respect is that time of occurrence (1.00 p.m.) has not been disputed by learned counsel for the appellant. Though the distance between the place of occurrence and police station is fourteen kilometres, but the complainant (P.W.12) has given a very plausible explanation for reaching at the police station at 1:30 p.m., when in cross-examination he has stated that he reached police station on a motorcycle, which was owned by one Aslam Mochi, therefore, after consideration of all these points, we hold that the incident was reported to the police at 1.30 p.m. and post-mortem examination was conducted at 4.00 p.m.
13.The next point for determination is whether the eyewitnesses are chance witnesses and as such their testimony is not reliable. The eye-witness account has been furnished by Nasir Ali (P.W.12), Rehmat Ali (P.W.13) and Khizar Hayat (P.W.14). As far as Rehmat Ali (P.W.13) is concerned, we are not inclined to accept his testimony because during cross-examination he was asked that he appeared as a witness in two civil suits and made statements but he, denied this suggestion, however, he was duly confronted with his previous statements, which were produced as Exhs.DC & DD. The perusal of these two documents (Exhs.DC & DD) reveals that he (Rehmat Ali) had appeared as a witness in those civil suits and made statements, but has denied this fact in cross- examination, therefore, his statement cannot be relied upon.
14.As regards other two eye-witnesses, i,e, Nasir Ali (P.W.12) and Khizar Hayat (P.W.14), they both have stated that they were going to Kot Qazian to fetch diesel for peter engine and they witnessed the occurrence. The statements of Nasir Ali-complainant and Khizar Hayat (P.W. 12 & 14) are in line with each other on all material facts as narrated in the F.I.R. The statements of these two witnesses with respect to identification of the accused, place and time of occurrence are also found to be in consonance with the details given in the. F.I.R. and their statements do not suffer from any discrepancy or dishonest improvement. It is also not out of place to mention here that these two witnesses are residents of the area and that the occurrence had taken place on a thoroughfare and not at a deserted place Though it has been argued by the learned counsel for the appellant that they are chance witnesses, but in the circumstances their presence at the spot cannot be doubted as they were going to Kot Qazian to fetch diesel for their peter engine on credit basis from some shopkeeper of their choice and confidence, when they witnessed the occurrence. It is common in our village culture that the farmers/landlords purchase seeds, oil etc. on credit basis from the shopkeeper of their choice and confidence. Their presence at the spot is also proved from other circumstances, because had they been not present at the spot, the incident could have not been reported to the police at 1.30 p.m. and the post-mortem examination could not have been conducted at 4.00 p.m. on the same day.
Moreover, the medical evidence, which has been provided by Dr. Muhammad Sharif (P.W.1), is in line with the ocular account. The doctor found the following injuries:--
1. A lacerated wound 8 cm x 3 cm x muscle deep on the outer side of left upper arm near left elbow.
2 A lacerated rounded wound of 1 cm x 1 cm with inverted edges on the left side of neck on the lower part (entry wound). The edges were slightly black in colour.
3. A lacerated wound of 6 cm x 3.5 cm with everted edges on the right side of upper neck, below the right ear. It was an exit, wound.
4. An abrasion 3 cm x 1 cm on the front of right knee.
5. An abrasion of 5 cm x 2 cm on the front of left knee.
6. An abrasion of 2 cm x 1.5 cm on the front of left leg lower part.
According to the doctor, death in this case had occurred due to haemorrhage and shock resulting from injury, to right caroited artery by Injury No, 2, which was sufficient to cause death in the ordinary course of nature. Injuries No, 1, 2 and 3 were caused by fire-arm weapon. whereas Injuries No, 4, 5 and 6 were caused by a blunt weapon. He further opinion that the time which elapsed between injury and death was half an hour and that between death and post-mortem was three to four hours.
15. Nasir Ali, maker of the first information report, is maternal nephew of Muhammad Nawaz deceased. Both the eye-witnesses, namely, Nasir Ali-complainant and Khizar Hayat (P.W. 12 & 14) are not only closely related inter-se, but also with the deceased. Such close relatives are not expected to falsely involve an innocent person for the real culprit. The contention of the learned counsel for the appellant that the complainant party had intentionally involved the appellant does not seem to be probable because it is on record that the deceased had suffered two fire-arm injuries, one on his left-arm and the other on his neck, therefore, if the complainant party had any malice, they would have involve another one from the appellant's family attributing him the second fire shot injury.
16.As regards motive part of the occurrence, it is mentioned in the F.I.R. that some agricultural land was transferred in the name of the wife of the deceased and Mumtaz and others were demanding return of the land. The attestation of mutation in the name of wife of the deceased has not been denied by the appellant. It has been argued by the learned counsel for the appellant that motive is a farfetched idea of the complainant to involve the appellant in this case as civil suits filed with regard to above said disputed land were withdrawn way back in the year 1991, as such, the appellant had no motive whatsoever to commit the murder of the deceased. Be that as it may, the fact remains that there was a dispute of property lingering on between the parties, mere withdrawal of the civil suits does not extinguish the grudge regarding the loss of ancestral property.
In these circumstances, it cannot be said that prosecution has not been able to prove motive. Even otherwise, the Hon'ble Supreme Court in case of Mirza Khan and another v. The State (2005 S.C.M.R.
1110) has held that proof of motive is not a legal requirement in the presence of other convincing and unimpeachable ocular version. In another case of Liaqat v. The State (2006 SCM R 33), it has been held by the Hon'ble Supreme Court that substitution is a rare phenomenon. Since the motive is not an essential ingredient for the crime, its absence or weakness may not reflect upon the direct evidence.
17.Insofar as abscondence of the appellant is concerned, the prosecution has produced Muhammad Anwar, constable (P.W.5) and Noor Muhammad, constable (P.W.7) to prove this fact.
The appellant was in judicial lock up in case F.I.R. No, 177/2000, registered at Police Station Qadarpur and was formally arrested in this case on 16.10.2000, i,e, after about two years and ten months of the occurrence. The argument of the learned counsel that mere abscondence could not be considered as a conclusive proof of the guilt of the accused is correct. However, it is certainly a relevant factor in the circumstances of the case, which proves the fact that the appellant intentionally absconds to save his skin from the clutches of law particularly so when his real brothers were also apprehended in the instant case. Reference can advantageously be made to the case of Sardar Khan and 3 others v. State (P.L.J. 1998 S.C. 1398), wherein the accused had absconded for about sixteen months and their sentence of death remained confirmed upto the Hon'ble Apex Court and at page 1413 .of the report, the Hon'ble Court while concluding observed as under:- "The explanation offered by Sardar Khan and Muhammad Akram accused for their long absence of about 16 months from their normal place of residence without even informing their family members, was a strong circumstance, which supported the prosecution case against them. The learned Judges of the High Court after detailed discussion reached the conclusion that two accused after the incident had absconded and found their abscondence as a circumstance corroborating the ocular testimony in the case. We do not find any infirmity in the reasoning of the learned Judges of the High Court."
18.The standpoint of the appellant, in his statement recorded under Section 342 Cr.P.C, was that he was not present at the spot at the time of occurrence and he was residing in village Kadhar, District Mandi Baha-ud-Din, where he was cultivating the land of Riaz son of Yaqoob on lease. To prove his plea of alibi he had got examined Muhammad Riaz as D.W.
1. The version of the appellant does not carry any weight because he has not been able to bring on record any proof in the form of a `Khasra Girdawari', which could show that he was actually in possession of the land which he got on lease from Muhammad Riaz (D.W.1). Therefore, it has been held that the appellant intentionally absconded after the occurrence.
19. After taking everything into our full consideration and studying the case from all angles, we are fully satisfied that the prosecution has proved its case against the appellant beyond any doubt, We also do not find any mitigating circumstance in this case, therefore, for all these reasons, while maintaining the conviction and sentence of the appellant, this appeal is dismissed.
20.Death sentence awarded to the appellant by the learned trial Court is confirmed and Murder Reference is answered in the affirmative.
21.As regards Criminal Revision No, 76 of 2004, the same is also dismissed in view of the observations made hereinabove.