' SYED SAJJAD HASSAN SHAH, J.---Appellant-Convict Javed Khan, has filed the instant appeal against the judgment dated 7-12-2009, passed by the learned Additional Sessions Judge-III, Bannu, whereby he was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with payment of compensation of Rs.50,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C, and in default thereof, to suffer further six months' S.I. The benefit of section 382-B, Cr.P.C. Was extended to him.
2. The brief facts of the prosecution case are, that on 13-10-2007, complainant Sultan Ayaz Khan reported the matter in the Casualty of D.H.Q Hospital Bannu, to the effect that on 12-10-2007 at 1730 hours, he was present in his house with other inmates, when the appellant-convict knocked at the door of his house and called his son Raqiaz to come out. He also came out of his house and saw the appellant standing there, who asked Raqiaz to accompany him to Bannu Bazaar and both of them proceeded towards Bannu Bazar. On 13-10-2007, somebody informed the complainant that the dead body of his son Raqiaz, was lying in the Tarang Graveyard. The complainant went there and noticed that the dead body of Raqiaz was lying in a. Pool of blood. On the report of the complainant, case vide F.I.R. No. 349, dated 13-10-2007, was registered at Police Station Mandan, District Bannu.
3. After completion of investigation and arrest of the appellant on 18-10-2008, supplementary challan was submitted against him, in the trial Court. The appellant was formally charged, to which he pleaded not guilty and claimed trial. In order to prove the guilt of appellant, the prosecution examined nine witnesses. The appellant was also examined under section 342, Cr.P.C. Wherein he denied the prosecution allegations and professed his innocence. He, however, neither wished to be examined on oath as his own witness as required under section 340(2) Cr.P.C, nor opted, to produce evidence in his defence. After hearing the arguments of learned counsel for the parties, the learned trial Court convicted and sentenced the appellant as mentioned above, vide impugned judgment dated 7-12-2009.
4. The learned counsel for the appellant-convict contended that there is no eye-witness of the occurrence and the complainant who has furnished last seen evidence, is interested witness being related to the deceased, therefore, his testimony is not worthy of credence. He further contended that the case of prosecution is full of doubts, the benefit of which should have been extended to the appellant. He further submitted that except abscondence of the appellant-convict, there is no evidence on record to connect the appellant-convict with the commission of offence and mere abscondence, by itself, is nothing but a corroborative piece of evidence and would not be sufficient to warrant conviction of the appellant.
5. As against that, the learned State counsel assisted by learned counsel for the complainant defended the impugned ' judgment and contended that it is a case of single accused, who is directly charged in the F.I.R. And in such cases, false implication or substitution is a rare phenomenon. It was next contended that the complainant of this case has given truthful account of the occurrence and there is no reason to discard his testimony. They further contended that after the occurrence, the appellant-convict went into hiding and remained absconder for about one year, which is a strong corroboration of his guilt; therefore, he has rightly been convicted and sentenced by the learned trial Court.
6. We have considered the arguments of learned counsel for the parties and carefully perused the record.
7. Admittedly, there is no ocular testimony in the instant case. The last seen evidence has been furnished by complainant. He has given truthful account of the occurrence. He was subjected to lengthy cross-examination but the defence failed to shatter his credibility. Merely on this score that he is related to the deceased, his testimony cannot be discarded.
8. It is true that nobody has witnessed the occurrence but there are certain circumstances, brought on record by the prosecution, which led to the conclusion that it is the appellant-convict who had committed the crime. While coming to this conclusion, we have gone through the record of the case and the law laid down by the worthy Superior Courts, with the assistance of the learned counsel for the parties.
9. The appellant-convict on 12-10-2007 at about 1730 hours went to the house of the deceased Raqiaz, who accompanied the appellant-convict from his house, in presence of his father (complainant), whereafter he did not come back. Father of the deceased was informed about the death of his son, whose dead body was lying in Tarang graveyard. Thus, he reported the occurrence on the following day i.e. 13-10-2007, at 1730 hours.
10. Briefly stated the contents of the report are, that Javed Khan (appellant-convict) came to the house of the complainant and took away his son (now deceased) namely Raqiaz, in his presence, whereafter, he did not turn up. During last night, despite hectic efforts of his father (complainant) to search the deceased, he could not get any information regarding the whereabouts of the deceased, however, on next morning, he was told about the death of his son. He thus charged the appellant-convict for the murder of his son. It is pertinent to note that complainant did not claim that he had seen the occurrence.
11. It is on the record that the appellant-convict was hot seen by any person while committing the murder of the deceased, however, there are certain strong circumstances, appearing on the record, which are sufficient to take the matter to the neck of the appellant-convict, because no plausible explanation and reasonable circumstance is brought on the record to B prove that the complainant charged the appellant-convict for the murder of his deceased son on account of certain plausible enmity, or for any sinister motive. Thus the question of false implication of the appellant-convict by the complaint is not arising in the circumstances of the instant case.
12. It is also worthwhile to say that the appellant-convict, being friend of the deceased, neither apprised the complainant about the place and time of his separation from the deceased nor visited his house nor bothered to participate in his funeral prayers. Rather went in long and unexplained absconsion of one year, which manifestly leads to the conclusion that the appellant- convict played a pivotal role in the occurrence.
13. During the course of trial, the complainant in his statement has highlighted the departure of his son in the company of the appellant-convict along with date and time and has also narrated the other circumstances relating to the facts of the case, however, his above statement has not been cross-examined by the defence. Even the defence has not put a suggestion to the complainant that the deceased had not accompanied the appellant-convict from his house and also that he did not see the deceased in the company of the appellant-convict while leaving his house. By now it is well-settled principle that if a statement or portion of a statement of a witness has not been cross-examined by the other party, deemed to have been admitted. The above cited uncross- examined statement of the complainant is one of the circumstances which can be read in favour of the prosecution as it fortifies the testimony of the complainant, being truthful and trustworthy.
Even otherwise, the complainant was cross-examined at length on behalf of the appellant-convict but nothing has been extracted from his mouth which could be considered as beneficial to the stance taken by the appellant-convict. In the light of above cited statement of the complainant and absence of cross-examination on material points, we can safely conclude that the appellant- convict was the last person who had accompanied the deceased.
14. As stated hereinabove, that it was incumbent upon the appellant-convict to inform the complainant about the place where he separated from the deceased whereafter the deceased was done to death. His simple denial from the charge and opting not to be examined on oath so as to face the test of cross-examination or to produce evidence in his defence coupled with other circumstances available on record is virtually leading the trail of the blood of a young boy, towards the appellant-convict. The complainant in his statement has charged none from the family members of the appellant-convict, as such the question of consultation and false implication does not arise. The testimony of the complainant cannot be brushed aside for the simple reason that he has deposed against the appellant-convict, being father of the deceased. Despite the fact that the deceased accompanied the appellant-convict from his house in presence of his father (complainant) but even then the complainant did not claim himself to be the eye-witness of the occurrence. The portion of his statement is re-produced as under:-- I did not see with my own eyes that accused Javed had killed my son but as my sonj left his house with accused Javed and did not return to home nor accused Javed give me any information about my son. Therefore, I charge him for the commission of offence."
Moreso, the testimony of the close relative and friend of the deceased is not to be discarded due to their relationship, if their testimony is adjudged on the touchstone of the principle of the appraisal of evidence and found to have fulfilled the criterion laid down under the law. The deposition of father of the deceased could not be shattered by defence in anyway; therefore, we find no reason to disbelieve his evidence which is quite natural and confidence-inspiring.
15. The medical evidence also supports the case of the prosecution, inasmuch as, with regard to proximity of the time when the deceased and the appellant-convict were last seen together at the time when the deceased was killed. In order to substantiate this aspect of the case, we refer the testimony of Doctor Muhammad Ismaeel Khan P.W.1, who stated as follow:- I, after completion of the requisite formalities, conducted autopsy on the dead body of the deceased Raqiaz Khan son of Sultan Ayaz aged about 19/20 years, brought by Constable Ihsanullah No.153 and found the following:--
(1) Firearm entry wound size 1/4" x 1/4" with blackish margins on left side of lower end of chest.
(2) One firearm exit wound right side of lower end chest.
(3) One firearm same bullet entry wound on right lower end of arm medially size 1/4" X 1/4".
(4) One firearm exit wound on right lower end of arm laterally size 1/2" x 1/2".
(1) One firearm entry wound on right thigh size 1/4" x 1/4".
(2) One firearm exit wound on right thigh medially and posteriorly at the middle of thigh. Cranium and Spinal Cord: Scalp, skull and vertebrae intact rest, healthy. Thorax: Blood vessels are injured rest are healthy. Abdomen: Walls, peritoneum, diaphragm, stomach, pancreas, liver, spleen are injured while rest healthy. Muscles, bones and joints: Muscles, injured at the site of injuries. Right humerus fractured at the lower end. Remarks: In my opinion the deceased has died due to firearm injuries on vital organs like liver, spleen and excessive bleedings.
Probable duration between injuries and death: 02 to 05 hours. Between death and PM.I0 to 15 hours"
16. While calculating the time of injuries and death in juxtaposition with the time of departure of the deceased from his house, it fully specifies that after leaving the house, the deceased was killed after about two to five hours. There is no cavil to this proposition of law, that last seen evidence without any supporting substantial evidence has never been considered as a valid piece of evidence, however, in the instant case, the same is supported by circumstantial evidence namely the recovery of blood-stained garments etc., proximity of time when the appellant-convict and deceased were last seen together, and the time when the deceased was murdered as well as the medical evidence. Now the circumstances were available to compel the appellant-convict to give an explanation of the deceased who was last seen alive in his company. The august Supreme Court in a case of "Khurshid v. The State" PLD 1996 SC 305, at page No.315, the conclusion is spelled out as under:-- "From the above reports it is evident that the circumstances, namely, that the deceased was last seen with the appellant-accused person, is a reliable piece of evidence if corroborated by other pieces of circumstantial evidence, which are interlinked and which clearly connect the appellant- accused persons with the commission of offence."
' It is further observed in the said judgment that:-- "The simpliciter denial on the part of the appellant-accused will not be sufficient to nullify the circumstantial evidence of the nature which directly connects him with the commission of the offence charged with. But he should raise a plea of the nature which on being tested on the touchstone of probabilities warrants a reasonable hypothesis of the appellantaccused's innocence".
"I may further observe that in criminal cases though the Courts are supposed to follow the well- settled principles of Criminal Jurisprudence, namely that an appellant-accused person is presumed to be innocent and that the prosecution is to prove a criminal case against the accused person, e beyond reasonable doubt and in case two views are possible, the view which favours the appellant-accused person, should be preferred and that all benefits of doubts should be extended to the appellant-accused, but at the same time, the Court should also take notice of the changing circumstances of the present days. Even in cases where eye-witnesses are available, they refuse to appear as witnesses in support of the prosecution case, either because of fear or on account of being won over by the appellant-accused party. The approach of the Courts while appraising the evidence should be dynamic and not static. It should keep in view, all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the Investigating Agency/prosecution, provided the same have not prejudiced the appellant-accused in the fair trial. The people are losing faith in the criminal judicial system for the reason that in most of the criminal cases, the criminals get away without being punished on the technicalities."
17. In a case titled, "Binyamin alias Khari and others v. The State" 2007 SCMR 778 (Shariat Appellate Jurisdiction), while deciding the above referred case, wherein the question of departure of deceased and last-seen evidence was under consideration in circumstances that at 7 p.m., the accused took away the son of the complainant, who did not come back. The complainant was told by Muhammad Yousaf (P.W.9) that he has seen Asif Ali in the company of three accused and on the following morning at about 8-00 a.m, the complainant was informed that his son was lying dead in a room of Government Boys Primary School of Chak. In the above cited case, father of the deceased was examined who has narrated the facts of departure of his son from the house along with the accused. Muhammad Yousaf (P.W.9) stated that he had seen the deceased along with accused at Bus Stop. The witnesses had faced lengthy cross-examination but the defence failed to shatter their veracity. In the instant case, though the deceased has not seen in the company of the appellant-convict but fact of his noticeable and un explained absconsion, after the occurrence, is an important aspect, which cannot be oversighted. Moreso, in the above cited case, the accused persons, after the occurrence have not absconded but were arrested. In the above background, leave was refused by the Hon'ble Supreme Court (Shariat Appellate Jurisdiction) and maintained the conviction and sentence of life imprisonment awarded to the petitioners by the learned trial Court, in this regard following observations made in Para No.6 of the judgment:-- "The aforesaid pieces of evidence are normally considered as weak evidence yet capital punishment can be awarded if an unbroken chain of circumstances from the stage of last-seen evidence till death of the victim is established by conclusive evidence. In the present case, as mentioned above, there is a double presumption of last-seen evidence consisting of departure and lastly seen which was duly corroborated with the pieces of evidence on record in the shape of recovery of dead body and medical evidence which were believed by the Courts below in the impugned judgment. It is a settled law that capital punishment can be awarded on the basis of circumstantial evidence subject to the condition that it connects the accused person with the offence as law laid down by this Court in various pronouncements, See Sarfaraz Khan's case 1996 SCMR 188, Jaffar Ali's case 1998 SCMR 2669 and Khurshid's case PLD 1996 SC 305. Since long circumstantial evidence is one of the recognized modes to find out the guilt or innocence of the accused person. Awareness has been given to the world 1400 years ago by the. Almighty Allah in the Holy Book of Qur'an in Sura-e-Yousif in Verses Nos.26, 27 and 28. The relevant Urdu translation of the said Verses are as follows:- {{URDU TEXT}} It means in case the circumstantial evidence appeals to logic and reason then it is sufficient piece of evidence to connect the accused with the commission of offence."
18. Perusal of the above cited judgment, the importance of the last-seen evidence is extensively discussed by his lordships by referring the instance of "Hazrat Yousif" Alaihis. Salam" as enunciated in the Holy Qur'an in Sura Yousaf" and it was stressed that when the circumstantial evidence appeals to logic and reason then the same is sufficient piece of I evidence to connect the accused with the commission of offence. As stated herein above, the deceased left the house of the complainant in his presence in the company of the appellant-convict at the time short of "Aftari" and as per Postmortem report of the deceased, the time between injury and death is 2 to 5 hours. It was incumbent upon the appellant to explain that wherefrom and at what point of time, he was separated from the deceased but instead he opted to abscond, as referred to above.
These are the strong and un rebutted circumstances which convinced a prudent mind that the appellant-convict is involved in the murder of the deceased.
19. A close scrutiny of the evidence as discussed herein above would reveal that the prosecution has established the following prerequisite of last seen evidence:--
(a) That the appellant-convict on 12-10-2007 at 1730 hours, called the deceased from the house of his father and the deceased on his call, came out of his house along with his father and left with the appellant-convict and proceeded towards Bannu road. This fact has not been cross- examined on behalf of the appellant.
(b) It is evident from the record that the appellant-convict and the deceased were friends, thus he accompanied the appellant-convict, that too in the month of Ramadan, at 5-30 p.m. "Aftaar time".
(d)(sic) The time of leaving the house by the deceased with the appellant-convict as given in the F.I.R and reported by his father as well as from the time of his death given in post mortem report by the Medical Officer, it is crystal clear that the proximity of time has been established by the medical evidence.
(e) The appellant-convict did not visit the house of the deceased in order to tell his father regarding his departure and thereafter his murder or to clarify as to whether the death of the deceased had been caused in his presence or otherwise. Furthermore, he did not offer any condolence to the bereaved family of his friend.
(f) No enmity worth the name was existing or proved in between the parties which may have prompted the complainant to falsely implicate the appellant-convict for the murder of his son.
20. In the instant case the prosecution has established the proximity of time of death with reference to the time when the deceased was lastly seen in company of the appellant-convict while the appellant-convict has failed to furnish a plausible explanation that on which point and where the deceased was separated from him and thus, he could not discharge the burden of proof lying on his shoulder, in view of the provisions as contained in Article 21 of the Qanun-e-Shahadat, Order 1984, (1969 PCr.LJ 1108, PLD 1977 SC 515). As held in Muhammad Amin case supra, in Paragraph 15, in the same circumstances as follows:-- "A careful perusal of the statement of appellant-accused got recorded under section 342 Criminal Procedure Code, would indicate that he has not denied acquaintance with the deceased and his family and thus, visit to the house of deceased family is not something strange or unusual. He has pleaded denial simpliciter which cannot be considered in view of the incriminating evidence which has come on .Record and as discussed hereinabove".
Whereas in the instant case one year noticeable and unexplained absconsion of the appellant- convict is an additional circumstance which lends support to the instant case. He has thwarted the possibility of any incriminating recovery by his absconsion, for which he cannot be rewarded any premium. Had he been innocent, he might have come and informed the father of the deceased and have participated in the funeral prayer of the deceased. But he opted to remain fugitive from law as such inference may legitimately be drawn from his conduct that he was involved in the murder of the deceased.
21. In view of the above material available on record, we are fully convinced that the murder of deceased Raqiaz was committed by the present appellant-convict and consequently the learned trial Court, awarded the punishment which is in conformity with the .Law and no illegality or irregularity or any other legal error is committed by the learned trial Court.
Therefore, the impugned judgment is upheld. This appeal is hereby dismissed.