' SADAQAT ALI KHAN, J.---This single judgment shall dispose of Criminal Appeal No, 116 of 2010 filed by Muhammad Ajmal alias Aji and Allah Bakhsh alias Bakhshi present appellants and Murder Reference No,54 of 2010, arising out of the same judgment dated 4-3-2010 passed by learned Additional Sessions Judge, Ahmadpur East District Bahawalpur according to which both the present appellants were convicted and sentenced as under:--
(1) Muhammad Ajmal alias Aji was convicted under section 302(b) P.P.C. And sentenced to death as for committing Qatl-e-Amd of Ahmad All deceased along with compensation Rs,50,000 payable to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof three months' S.I.
(2) Muhammad Bakhsh was convicted under section 302(6), P.P. C. And sentenced to death as for committing Qatl-e-Amd of Ahmad Ali deceased along with compensation Rs,50,000 payable to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof three months'
S.I.
' Whereas their co-accused Muhammad Sabir was already acquitted in separate trial by the learned trial court vide judgment dated 28-4-2004 in case F.I.R. No, 199 dated 27-7-2003 under sections 302/34 P.P.C. Police Station, Noshehra Jadeed, District Bahawalpur.
2. Brief facts of the case as given by the complainant Ahmed Ali (since died) in his complaint (Exh.
PA) upon which F.I.R. (Exh.PA/3) was registered are that 06 years prior to the alleged occurrence, his son Khalil Ahmad (given up 'PW) was married with Sahib Bibi the sister of Muhammad Ajmal (present appellant). He stated that it was a (Watta Satta) exchange-marriage and in Watta Satta his daughter Faiz Mai was married with Muhammad Akmal, brother of Muhammad Ajmal present appellant. His son in law went for labour purpose at Rawalpindi and his daughter used to live in the house of brother in law Muhammad Ajmal present appellant. Before 15 days Muhammad Ajmal present appellant has given maltreatment to his daughter and she was residing in his house. He stated that 3/4 days prior to the alleged occurrence Muhammad Ajmal present appellant came to his house and asked him to send Faiz Mai his daughter, but he replied that his son in law is not present in the house. When he will come, he will send to her. Due to that grudge Muhammad Ajmal present appellant went away. He stated that on the fateful day i.e, 26-7-2003 at 09:00 p.m. Night time when he was going to offer Isha Prayer in the street Muhammad Ajmal, Allah Bakhsh (present appellants) Muhammad Riaz co-accused (since acquitted) armed with deadly weapons, Sabir (co-accused) armed with Sota came in front of him. Muhammad Ajmal present appellant stated that teach him a lesson for not sending Faiz Mai in his house. Muhammad Ajmal present appellant fired which hit on the right leg, Allah Bakhsh present appellant fired which hit between the testical, Riaz fired which hit him on his left foot and after getting the injuries, he fell down. On his hue and cry Muhammad Siddique (given up PW) Muhammad Afzal (P.W.10) came there. The injured was taken into Hospital. The F.I.R. Under sections 324/34 P.P.C. Was lodged on the statement of Ahmed Ali (since died) but later on Ahmed Ali complainant died and offence was converted into 302/34, P.P.C.
The motive behind the occurrence as narrated by P.W.10 Muhammad Afzal is that the daughter of the deceased Ahmad Ali was wife of brother Muhammad Ajmal present appellant who was in the house of Ahmad Ali (deceased). Ajmal present appellant went to the house of Ahmad Ali to bring his Bhabhi but Alunad Ali (deceased) said that when her husband will come, he will send his daughter along with her husband. Due to this grudge, the present appellants committed the murder of Ahmad Ali.
3. After registration of the case investigation started and on completion of the investigation, challan was submitted in the court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 13-9-2007 against present appellants Muhammad Ajmal alias Aji and Allah Bakhsh alias Bakhshi under sections 302/34, P.P.C. To which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Shabbir Ahmad P.W.1, Muhammad Abid Kamal P.W.2, Dr. Ejaz ul Haq, Medical Officer P.W.3, Shah Zareen A.S.-I. P.W.4, Abdul Hameed P.W.5, Waheed Akhtar P.W.6, Khizer Bilal P.W.7, Pervaiz Iqbal P.W.8, Dr. Rana Iftikhar Ahmad SMO P.W.9, Muhammad Afzal P.W.10, Ahmad Hassan P.W.11, Noor Muhammad P.W.12, Wali Muhammad Inspector P.W.13; Peer Bakhsh S.I. P.W.14, Muhammad Meraj SI P.W.15, Muhammad Anwar P.W.16 and Muhammad Afzal S.I. P.W.17 whereas Muhammad Siddique, Khaleel Ahmad, Shameer Ahmad, Karam Ali, Noor Ahmad, Muhammad Qasim and Zahid Rasool P.Ws. Were given up being unnecessary and tendered in evidence complaint Exh.PA, copy of F.I.R. Exh.P/3, postmortem report Exh.PD, injury plan Exh.PJ, last worn clothes of the deceased Exh.PL, recovery memo of empty cartridges Exh.PM, inquest report Exh.PN, application to Magistrate Exh.PO, statement of Wali Muhammad SI Exh.PP/1, report of Serologist Exh. PR recovery memo of rifle 7 MM Exh.PR/1, recovery memo of Sota (Baans) Exh.PH, site plan Exh. PQ and closed the prosecution evidence.
6. Medical evidence was furnished by doctor Ijaz-ul-Haq (P.W.3) who stated that on 27-7-2003 he conducted the postmortem examination on the dead body of deceased Ahmad Ali. The dead body was identified by Shamir Ahmad and Noor Muhammad and his observations are as under:-- A middle aged man with good health wearing chadar checkdar white green colour and patka white in colour. Chadar was blood stained lying on mortuary table, Rigor mortis developing Postmortem straining developing. Mouth and eyes were closed and whole body pale in colour.
' Following injuries noted:--
(1) Lacerated wound 0.75 diameter oval in shape in evened and blackening margin and into deep going on dorsum of left foot at the level of 5th matatoarsal bone. This is entry wound. Its exit wound measure 1.5 cm x I cm deep going with everted margin on sole of the foot at the same level,
(2) Lacerated wound 0.75 cm diameter oval in shape into deep going blackening and inverted margin on anterior aspect of right thigh 10 cm inferior from right iliac. This is entry wound. Its exit wound lacerated wound 5 cm. x 3 cm into deep going everted margin on postero lateral of right thigh. Same level as entry wound.
(3) Lacerated wound 1 cm diameter blackening and inverted margin into deep going this is entry wound. On anterior aspect of right aorotum. Its exit wound 5 cm x 1.5 cm deep going lacerated and in nature with everted margin on the dissection there was seen right indirect inguinal hernis. In jurnial sac small gut seen 18 inch in length is present in sac and there were three holes in small gut and small maeenteric vessels were ruptured and there was clotted blood and fecal matter present in sac and leaking from exit wound.
(4) Lacerated wound 1-1/2 cm x 1 cm deep going inverted and blackening margin on left buttock at the level of postric middle on lower half of buttock. This is entry wound, Its exist wound lacerated wound 6.5 cm x 3 cm deep going with evened margins on medial aspect of left hip at the level of 2 cm interior to left pubic bone.
(5) On dissection clotted blood sand inflammatory sign seen in all wounds. In injury No,1 seen fracture, of fifth metatarsal bone. All wounds are ante-mortem and caused by firearm.
SCALP, SKULL AND VERTEBRAE.
' All healthy.
Membranes, Brain sand Spinal Cord.
' All healthy. THORAX Healthy.
ABDOMEN ' Peritoneum. Healthy and peritoneum cavity full of clotted blood and fecal/ intestinal contents.
SMALL INTESTINES.
T' hree performations in small intestines.
ORGANS OF GENERATION EXTERNAL AND INTERNAL ' Right inquinal hernic intrightserotum already described in Injury No,3 and right testical also ruptured in injury No,3.
MUSCLES, BONES JOINTS. Already described.
REMARKS BY MEDICAL OFFICER.
' After thorough external and internal postmortem examination I am of the opinion that all injuries were ante-mortem and caused by firearm. Injuries Nos.3 and 4 are the cause of death which lead to hypovolumic shock resulting in the form of death. The injuries were sufficient to cause death in ordinary course of nature.
PROBABLE TIME BETWEEN INJURY AND DEATH.
' Within 12 hours to 20 hours.
PROBABLE TIME BETWEEN DEATH AND POSTMORTEM.
' More than three hours less then six hours. Postmortem report is Exh.PD which is true carbon copy of the original report which is before me and bears my signatures. Inquest report Exh.PC is before me and bears my signature Exh.PC/1. Pictorial diagrams are Exh.PD/1 and Exh.PD/2 which also bears my signature. Last worn blood stained clothes lungi P2, and Pagri P3 along with their relevant document were handed over to Police.
7. On the other hand, statements of present appellants were recorded under section 342, Cr.P.C.
Who refuted the allegations so levelled against them and have not opted to appear as a witness under section 340(2), Cr.P.C. And also did not produce any defence evidence and in reply to question "why this case against you and why the P.Ws. Deposed against you?" the appellant Muhammad Ajmal replied as under:-- "Actually it is a blind murder. It is transpired during the course of investigation that one Mureeda Chacharr actually murdered the deceased Ahmad Ali and the F.I.R. Was registered after due deliberation and consultation with the legal-heirs of the deceased and even according to the prosecution evidence the complainant/deceased was unable to give statement when he was received by the Doctor at the Hospital. I have been involved in this case due to family friction and have been falsely implicated by the prosecution witnesses and the 1.0. Conducted investigation in this case dishonestly.
' The P. Ws. Have deposed against me due to closely related to the deceased".
' Likewise, in reply to question "why this case against you and why the P. Ws. Deposed against you?" the appellant Allah Bakhsh replied as under:-- Actually it is a blind murder. It is transpired during the course of investigation that one Mureeda Chacharr actually murdered the deceased Ahmad Ali and the F.I.R. Was registered after due deliberation and consultation with the legal-heirs of the deceased and even according to the prosecution evidence the complainant/deceased was unable to give statement when he was received by the Doctor at the Hospital. Being the friend of Muhammad Ajmal accused, I used to help him in the family matters between the complainant party and Muhammad Ajmal and for this reason the complainant party falsely implicated me in this case.
' The P.Ws. Have deposed against me due to closely related to the deceased".
8. After conclusion of the trial learned trial court convicted the present appellants under section 302(b) of P.P.C. With above stated sentence through judgment dated 4-3-2010. Hence this appeal.
9. Learned counsel for the appellant contended that:--
(i) the judgment of the trial court dated 4-3-2010 is against law and facts on the file and is liable to be set aside.
(ii) that the prosecution has failed to prove its case against the present appellants as there are many major discrepancies in the statements of the PWs further there is conflict between ocular evidence and medical evidence and the learned trial court has convicted the appellants on the basis of surmises and conjectures;
(iii) it is contended that as per prosecution the alleged occurrence took place in the night but no source of light was given by the prosecution to prove his version before the trial court;
(iv) it is contended that as per prosecution, the case was registered on the statement of the deceased whereas the doctor while appearing before the trial court stated that the complainant was in drowsy condition and he was unable to give any statement;
(v) it is contended that the prosecution witnesses while appearing before the trial court were at variance and their statements were not corroborated with each other;
(vi) lastly submitted that appeal may be accepted and the judgment of the trial court dated 4-3- 2010 may kindly be set aside and appellants may be acquitted.
10. On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:--
(i) prosecution has proved its case beyond any shadow of doubt against the appellants with solid evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the parties and perused the record.
12. During the pendency of above said appeal and Murder Reference No, 54 of 2010, Allah Bakhsh appellant has moved an application i.e, Criminal Miscellaneous No,112 of 2014 under section 345, Cr,P.C. To effectuate the compromise arrived between the legal heirs of the Ahmad Ali deceased and the convict Allah Bakhsh on 16-1-2014, the matter of compromise was referred to learned Sessions Judge, Bahawalpur for submission of his report with regard to the genuineness and voluntary nature of the above said compromise with further direction that the interest of minors, if any, shall also be safeguarded. In pursuance of the above said order of this court, the learned Sessions Judge has submitted his report dated 1-2-2014 and as per report Ahmed Ali deceased was survived by his following legal heirs:-- 1.Amna Bibi Widow 2.Khaleel AhmadSon 3.Shameer AhmadSon 4.Nazeer Ahmed Son 5.Sagheer AhmadSon 6.Munir Ahmad Son 7.Nadeem AhmadSon 8.Qadeer AhmadSon 9.Faizan Bibi Daughter 10.Fazlan Bibi Daughter 11.Azra Bibi Daughter
13. Statements of all the above noted major legal heirs of the deceased Ahmad Ali have been recorded by the learned Sessions Judge, Bahawalpur and all the legal heirs have deposed that they had entered into compromise with the appellant/ convict Allah Bakhsh alias Bakhshi and they have forgiven him in the name of Almighty Allah without any duress, coercion and influence and have waived their right of Qisas. In the above stated report Qadeer Ahmad and Azra Bibi are minors and on their behalf Mst. Amna Bibi widow of the deceased has stated before the learned Sessions Judge that she had also forgiven the convict Allah Bakhsh alias Bakhshi on behalf of her two minor children Qadeer (son) and Azra (daughter) being guardian and as on behalf of convict Allah Bakhsh landed property measuring 01 Kanal 05 marlas amounting to Rs,3,75,000 has been transferred in favour of Qadeer Ahmad (minor son) and Azra Bibi (minor daughter) as a share of Diyat through mutation No, 1836 sanctioned on 29-1-2014 which is more than the total proportionate value of their share of 'Diyat' amounting to Rs,3,35,779 according to Notification of Federal Government regarding 'Diyat' and amount for the year 2013-2014 is Rs,21,74,577/ - thus the interest of the minors legal heirs has been safeguarded.
14. The learned Deputy Prosecutor General as well as learned counsel for the complainant have also confirmed the compromise being genuine.
15. In view of the above, by placing reliance on case titled "Jaffar Ali alias Jaffari v. The State" (2012 SCM R 606) the Appeal No, 116/2010 to the extent of Allah Bakhsh alias Bakhshi appellant is accepted on the basis of compromise. The conviction and sentence recorded by the trial court under section 302(b), P.P.C. Through judgment dated 4-3-2010 is set aside and he is acquitted in case F.I.R. No,199 dated 27-7-2003 under sections 302/34, P.P.C. Police Station Noshehra Jadeed District Bahawalpur and is directed to be released forthwith if not required in any other case. Death sentence of Allah Bakhsh, appellant is NOT confirmed and Murder Reference No,54 of 2010 to his extent is answered in NEGATIVE.
16. So far as, the appeal to the extent of Muhammad Ajmal alias Aji appellant/ convict is concerned, the same is being decided on merits.
17. The detail of prosecution case as mentioned in complaint Exh. PA recorded on the statement of Ahmad Ali complainant (since died) has already been given in paragraph No,2 of this judgment, therefore, there is no need to repeat the same.
18. According to statement Exh.PA recorded by Ahmad Ali complainant (since died) occurrence took place on 26-7-2003 at about 09:00 p.m. Whereas F.I.R. Was B registered on 27-7-2003 at about 02:10 a.m. (night) with an unexplained delay of six hours. Muhammad Afzal P.W.10 is real Bhanja of Ahmad Ali deceased claims himself as eye-witness of the occurrence and stated that on 26-7- 2013 at about 09:00 p.m. he along with Siddique (given up PW) and Khaleel were sitting in the house of Khaleel. On hue and cry of Ahmad Ali deceased they went in the street and saw Ajmal present appellant while armed with Kalanshnikov, Allah Bakhsh (since acquitted in para No,15 of this judgment on the basis of compromise), Riaz (since discharged by the Magistrate) armed with pistol, Sabir (accused since acquitted on 28-4-2004 in a separate trial) armed with Soti were present and in their view Ajmal present appellant made fire to Ahmad Ali deceased which hit on his right leg. Allah Bakhsh made fire which hit Ahmad Ali deceased on his testicle, Riaz made fire which hit Ahmad Ali on his left foot and Ahmad Ali after receiving injuries fell down and accused fled away, they took injured Ahmad Ali deceased to RHC Mubarkpur from where he was referred to THQ Hospital Ahmadpur East where police came there and recorded the statement of Ahmad Ali deceased which was read-over to him and he remained present at the time of these proceedings.
He further stated that on the morning, police came at the spot and collected blood stained earth, 8 empties of Kalanshnikov and, one empty of .22-bore from the spot and prepared the site plan. He further stated that police also prepared parcels of empties and obtained his signatures and all other PWs and motive behind the occurrence was that daughter of deceased was wife of brother of Ajmal present appellant who was in the house of Ahmad Ali deceased and Ajmal present appellant went to the house of Ahmad Ali deceased to bring his Bhabi, Ahmad Ali said that when her husband will come, he will send her daughter with her husband. Muhammad Afzal P.W.10 stated that his statement was recorded by the I.O. Under section 161, Cr.P.C. And he had recorded that Ajmal present appellant was armed with Kalanshnikov, Allah Bakhsh was armed with Kalanshnikov, Riaz was armed with pistol in his statement which was confronted to him as Exh.DA where it was not so recorded. He further stated that he had recorded in his statement under section 161, Cr.P.C.
That when `Thanedar' recorded the statement of the deceased, he was present at that time which was confronted to him with his statement Exh.DA where it was not so recorded. He further stated that he had not recorded in his statement under section 161, Cr.P.C. Regarding story of the motive as stated by him in the trial court and further he admitted that he had not recorded that he took Ahmad Ali deceased in injured condition to the hospital. Further he stated that his residence is 3/4 acres away from the place of occurrence and the occurrence took place in the street and not in front of the house Ahmad Ali deceased and he further admitted that occurrence took place in front of the house of Khaleel Ahmed and admitted that there is distance of 100/ 150 feet in between the door of Khaleel Ahmed and place of occurrence. He further admitted in cross-examination that he does labour in brick-kiln at Rawalpindi. Admittedly, this witness Muhammad Afzal P.W.10 is not the resident of Mohallah/ street where occurrence took place and his house also has not been shown in the site plan Exh.PQ. He himself stated in examination in chief that he was sitting in the house of Khaleel who is not P.W. In this case and this witness is a chance witness as per routine he should not be present near or at the place of occurrence at relevant time and further he could not establish his presence in the house of Khaleel on the day of occurrence at relevant time because he did not utter a single word that why he had come in the house of Khaleel on the day of occurrence i.e, 26-7-2003 and further he has made dishonest improvements regarding story of motive which he had not stated in his statement earlier during the investigation recorded under section 161, Cr.P.C. Likewise, weapons of the accused. Further he stated in cross-examination that the occurrence took place in the street and not in front of house of Ahmad Ali deceased. Whereas according to Exh.PQ site plan occurrence took place in front of the house of Ahmad Ali deceased.
Further this witness has stated that Ahmad Ali deceased received three fire shots one from Ajmal accused, second from Allah Bakhsh and 3rd from Riaz and gave specific seat of injuries but according to P.W.3 Doctor Ijaz-ul-Haq, SMO there were four injuries on the person of Ahmed Ali deceased and injury No,4 was lacerated wound 1-1/2 cm x 1 cm deep going inverted and blackening margin on left buttock at the level of postric middle on lower half of buttock and this injury was not attributed to any accused and has not been explained by this witness Muhammad Afzal P.W.10 in his statement. So it is our confirmed view that this witness Muhammad Afzal P.W.10 is a chance witness who could not establish his presence at the place of occurrence at relevant time and he had not seen the occurrence and he deposed falsely being real Bhanja of Ahmad Ali deceased so in view of that his evidence is hereby disbelieved and reliance is placed on case titled Mst. Zahida Bibi v. The State (PLD 2006 SC 255) in which Hon'ble Supreme Court of Pakistan has observed at page 261 as under:-- "the presence of Shahzad Hussain P.W.11, the sole eye-witness of the occurrence, a resident of Kachi Abadi, Mehmoodabad, situated at a reasonable distance from the house of deceased located in main Bazzar, Garih Shahu in the area of Police Station, Haveli Haji Moosa at the relevant time, was not satisfactorily explained therefore, notwithstanding the fact that witness had no enmity or grudge against the petitioner or the acquitted accused, his presence at the scene of occurrence being doubtful, it would not be safe to place reliance on his evidence".
19. Muhammad Afzal was a sole eye witness whereas the other eye-witness Muhammad Siddique was not produced who was independent witness and no reason has been shown by the prosecution that why his evidence was withheld and he was not examined so presumption can fairly be drawn, had said witness Muhammad Siddique been examined in the court, he would have deposed against the prosecution. And this was the reason that he was given up being unnecessary on 14-11-2009 by the prosecution and same witness had been given up by the prosecution being won over in the trial of Muhammad Sabir (acquitted co-accused) who was acquitted on 28-4- 2004 by the Additional Sessions Judge, Ahmadpur East. Reliance is placed on case Riaz Ahmed v.
State 2010 SCM R 846 in which honourable Supreme Court of Pakistan has observed at page 840 as under:-- "One of the eye-witnesses Manzoor Hussain was available in the Cburt on 29-7-2002 but the prosecution did not examine him, declaring him as unnecessary witness without realizing the fact that he was the most important, only serving witness, being an eye-witness of the occurrence.
Therefore, his evidence was the best piece of the evidence, which the prosecution could have relied upon for proving the case but for the reasons best known, his evidence was withheld and he was not examined. So a presumption under illustration (g) of Article 129 of Qanun-e-Shahadat Order; 1984 can fairly be drawn that had the eye-witness Manzoor Hussain been examined in the Court his evidence would have been unfavourable to the prosecution"
20. The other important element in this case is that according to prosecution, occurrence took place on 26-7-2003 at 09:00 p.m. In the dark hour and P.W.10 Muhammad Afzal admitted in cross- examination that there is no electricity in their village till now and no source of light is given in the F.I.R. Or in the statement of P.W.10 Muhammad Afzal. So the identification of the appellant in the darkness of the night is also not free from doubt.
21. The motive given by Ahmad Ali deceased in his statement Exh.PA is that Mst. Faiz Mai real daughter of Ahmad Ali deceased was married with Muhammad Akmal real brother of Muhammad Ajmal accused/present appellant and Muhammad Akmal son in law of Ahmad Ali deceased was living at Rawalpindi in connection with his work and his daughter Mst. Faiz Mai was living with Muhammad Ajmal present appellant (Dewar of the daughter of Ahmad Ali deceased) and 15-days prior to present occurrence Ajmal present appellant had expelled the daughter of Ahmad Ali deceased from his house after beating her and she was present in the house of Ahmad Ali deceased and 3/4 days prior to the present occurrence Ajmal present appellant came to the house of Ahmad Ali deceased for taking the daughter of Ahmad Ali deceased but he refused the same on the ground that Muhammad Akmal the husband of the daughter of Ahmad Ali deceased can take his wife to his house and this made grudge in the mind of Ajmal present appellant. In support of motive, only Muhammad Afzal P.W.10 appeared and narrated the motive story in his statement before the trial court but same was the result of his dishonest improvement and he did not state the same in his statement before the police under section 161, Cr.P.C. And same was confronted to him with his statement Exh.DA where the motive part was not recorded and evidence of said witness has been disbelieved by us as stated above whereas the best evidence to prove the motive was Mst. Faiz Mai real daughter of Ahmad All deceased as according to the prosecution story, Ajmal present appellant had come in the house of Ahmad Ali deceased for taking Mst. Faiz Mai and on refusal of Ahinad Ali deceased, this occurrence took place. Mst. Faiz Mai could explain the motive story in a best manner if motive story was correct and it is our confirmed view that due to non-production of Mst. Faiz Mai real daughter of Ahmad Ali deceased before the trial court as well as before the I.O. During the investigation to prove the motive part, the motive is not proved.
22. The arguments of learned counsel for the complainant that there is unexplained long standing abscondence of Ajmal appellant as occurrence took place in the instant case on 26-7-2003 whereas Ajmal was arrested on 4-10-2005 after about two years is not tenable because mere absconsion is not sufficient to proof of guilt of an accused person and it could be only a suspicious circumstance against the accused that he was found guilty of the offence and same cannot take the place of proof and further it depends upon the facts of each case. In this respect, reliance is placed in case titled Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53) in which Hon'ble Supreme Court of Pakistan at page 57 observed as under:-- "Adverting to the question of abscondence, it may be stated that mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent which is to be decided keeping in view overall facts of the case. In. The instant case, the respondents appeared before the investigating officer of their own and they were not arrested".
23. Further, admittedly the abscondence of Ajmal appellant had not been put to him at the time of recording of his statement under section 342 Cr.P.C. And same cannot be read against the Ajmal appellant. Reliance is placed on case titled "Muhammad Payyaz v. The State" (2012 SCM R 522) in which Hon'ble Supreme Court of Pakistan has observed at page 524 as under:-- "The appellant had statedly made himself scarce for about two years after registration of this case and, thus, he had been branded by the learned courts below as a fugitive but the learned courts below had failed to appreciate that the appellant had not been nominated in the F.I.R. And no evidence had been brought on the record to establish that his absence or avoidance of arrest was intentional. Be that as it may the fact remains that no question had been put to the appellant at the time of recording of his statement under section 342, Cr. P. C., regarding his alleged abscondence".
24. Meraj S.I./I. O. Of this case (P. W. /5) stated that on 4-10-2005 he arrested present appellant and recovered rifle from the possession of Ajmal accused. Admittedly, rifle .7 MM was not sealed at the spot and there is no report of FSL so recovery has become inconsequential in the instant case.
25. Ahmad Hassan S.I./I.O. (P.W.11) of this case stated that on 27-7-2013 he was posted as ASI at Police Station 'Hatheiji' and was present at Abbasia Chowk for highway patrolling duty when he was received a wireless message at 01:00 am night that Ahmed Ali deceased had received injuries and was admitted in THQ hospital Ahmadpur in injured condition then he proceeded to the hospital and found Ahmad Ali injured in Male Ward of the hospital and he recorded the statement of injured Ahmad Ali Exh.PA and same complaint through Ghulam Abbas Constable was sent to police station for registration of the case. It is important to note here that alleged statement of Ahmad Ali deceased was marked as Exh.PA (Exh.PH) according to statement of Ahmad Hassan S.I./I. O. P.W.11 whereas we have seen the original statement of Ahmad Ali deceased Exh.PA and Exh.PH both are mentioned and at the bottom of the complaint Exh.PA or Exh.PH in the proceedings of the police time of recording of statement of Ahmad Ali is mentioned 01:00 a.m. (night) in the hospital Ahmadpur Sharkia and date is mentioned 27-7-2003 whereas occurrence took place on 26-7- 2003 at 09:00 p.m. According to the statement of Ahmad Ali deceased. Ahmad Hassan S.I./I.O. Of this case (P.W.11) stated in cross-examination that RHC Mubarakpur is at a distance of 15/16 Km.
Place of occurrence and THQ hospital Ahmadpur is at a distance of 25/30 Km from THQ Mubarakpur and further stated that when he reached THQ Ahmadpur injured Ahmad Ali was being given first medical aid by doctor Rana Iftikhar Ahmed in the Ward. He further admitted in cross- examination that he did not obtain permission for recording the statement of the injured from the doctor in the THQ hospital Volunteered that he made statement that injured was in a position to make statement. He further stated in cross-examination that he had mentioned three injuries in the injury statement Exh.PJ but after examining MLR, it was found that there were four injuries on the body of the injured. P.W.9 is Doctor Rana Iftikhar Ahmed SMO who had examined Ahmad Ali deceased in injured condition on 27-7-2003 at about 01:00 a.m. And stated that patient was received drowsy, his B.P was 100/60, Pulse 100/ P.M. Cold sweating was present and further observed as under:-- "at this stage his condition is may be dangerous to life"
26. In cross-examination, he stated that injured was in semi-conscious condition and further admitted in cross-examination that in drowsy condition injured was not in a position to make statement and this witness was a witness of prosecution and was not got declared hostile by the prosecution and it is not the case of the prosecution that Ahmad Ali deceased had recorded his statement much before his medical examination i.e, 01:00 a.m. Night on 27-7-2003 and his statement was not recorded in the hospital. Rather it is mentioned in statement of Ahrnad Ali deceased in the police proceedings time of recording of the statement is 01:00 a.m. Night on 27-7- 2003 and according to P.W.9 Rana Iftikhar Ahmad, Ahmad Ali deceased was drowsy and his condition was dangerous to life and further admitted that in drowsy condition injured was not in a position to make statement and that was the reason that P.W.11 Ahmad Hassan S.I./I.O. Had not obtained permission from medical officer to the effect that whether Ahmad Ali deceased was capable to make statement or not. Further Doctor Ijaz-ulHaq P.W.3 is a witness who had conducted the post mortem examination on the dead body of the deceased Ahmad Ali on 27-7-2003 stated in cross-examination that when a person is in drowsy condition he is unable to give statement although he stated in cross-examination that the injured was in a position to make the statement irrespective of sustaining these injuries but stated in volunteered portion that the facts may be cleared by the doctor who issued medico legal report and was cleared by doctor Rana Iftikhar P.W.9 who had examined Ahmad Ali deceased in injured condition and stated in clear term that patient was in drowsy condition when he received him and his condition was dangerous to life and injured was in semiconscious condition and admitted that in drowsy condition injured was not in a position to make statement.
27. In view of that it is our confirmed view that the so-called dying declaration is a concocted story of the prosecution and same statement of Ahmad Ali deceased Exh.PA or Exh.PH has been procured by the prosecution through concoction and Ahmad Ali deceased was not in a position, to make the statement and the statement was not verified by any member of the hospital staff to the effect that statement was actually made by the deceased Ahmad Ali. The Dying declaration is a statement of a person without test of cross-examination and is a weak type of evidence and its credibility certainly depends upon the authenticity of the record and the circumstances under which it is recorded and rule of criminal administration of justice is that the dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell a lie. In the present case in the manner in which the statement of Ahmad Ali was recorded by P.W.11 Ahmad Hassan S.I./I.O. Would seriously effect its correctness and consequently could not be considered worthy of any credit to be relied upon as dying declaration. Reliance is placed on case titled Mst. Zahida Bibi v. The State (PLD 2006 SC 255) in which Hon'ble Supreme Court of Pakistan has observed at page 262 as under:-- "that except the dying declaration of the deceased, no other evidence, direct or circumstantial, was available. This is an admitted fact that the statement of the deceased was not recorded by the Sub-Inspector of Police in Hospital in presence of the doctor and further neither any member of the hospital staff was associated at the time of recording the statement nor it was got verified by any official of the hospital that the statement was actually made by the deceased. Be that as it may, the status of such a statement would be hardly a statement under section 161, Cr.P.C. And not a dying declaration of the deceased. This may be seen that the dying declaration or a statement of a person without the test of cross-examination is a weak kind of evidence and its credibility certainly depends upon the authenticity of the record and the circumstances under which it is recorded, therefore, believing or disbelieving the evidence of dying declaration is a matter of judgment but it is dangerous to accept such statement without careful scrutiny of the evidence and the surrounding circumstances, to draw a correct conclusion regarding its truthfulness. The rule of criminal administration of justice is that the dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell lie. This is a matter of common knowledge that in such circumstances in preference to any other person, a doctor is most trustworthy and reliable person for a patient to depose confidence in him with the expectation of sympathy and better treatment to disclose the true facts. In the present case, in the manner in which the statement of deceased was recorded by the Sub-Inspector would seriously reflect upon its correctness and consequently, could not be considered worthy of any credit to be relied upon as dying declaration.
28. Similar view has been taken by the Hon'ble Supreme Court of Pakistan in case titled Tahir Khan v. The State (2011 SCM R 646) and Farhan Ahmed v. Muhammad Anayat (2007 SCM R 1825). P.W.3 Doctor Ijaz-ul-Haq SMO had observed following four injures on the person of Ahmad Ali deceased at the time of post mortem examination:--
(1) Lacerated wound 0.75 diameter oval in shape in everted and blackening margin and into deep going on dorsum of left foot at the level of 5th, matatoarsal bone. This is entry wound. Its exit wound measure 1.5 cm x 1 cm deep going with everted margin on sole of the foot at the same level.
(2) Lacerated wound 0.75 cm diameter oval in shape into deep going blackening and inverted margin on anterior aspect of right thigh 10 cm inferior from right iliac arrest. This is entry wound. Its exit wound lacerated wound 5 cm x 3 cm into deep going everted margin on postero lateral of right thigh. Same level as entry wound.
(3) Lacerated wound 1 cm diameter blackening and inverted margin into deep going this is entry wound. On anterior aspect of right acrotum. Its exit wound 5 cm x 1.5 cm deep going lacerated and in nature with everted margin on the dissection there was seen right indirect inguinal hernis. In jurnial sac small gut seen 18 inch in length is present in sac and there were three holes in small gut and small maeenteric vesserls were ruptured and these was clotted blood and fecal matter present in sac and leaking from exit wound.
(4) Lacerated wound 1-1/2 cm x 1 cm deep going inverted and blackening margin on left buttock at the level of postric middle on lower half of buttock. This is entry wound, Its exit wound lacerated wound 6.5 cm x 3 cm deep going with everted margins on medial aspect of left hip at the level of 2 cm interior to left pubic bone.
' And according to the said witness injuries Nos.
3. And 4 are the cause of death which leads to hypovolernic shock resulting in the form of death.
Injuries were sufficient to cause death in ordinary course of nature and injury No,4 has not attributed to any of the accused mentioned in the F.I.R. And has not been explained by the prosecution whereas injury No,3 was attributed to Allah Baldish alias Bakhsi appellant who has been acquitted through this judgment on the basis of compromise. Injury No,1 is attributed to Muhammad Ajmal appellant was not the cause of death although prosecution has failed to prove case against the present appellant Muhammad Ajmal. However, it is important to note here that Doctor Rana Iftikhar Ahmed P.W.9 in cross-examination stated that he had not noted any hole on the cloth of the injured and name of Shameer Ahmed real son of Ahmed Ali deceased is depicted from inquest report Exh.PN but he had not appeared even to support the motive story given by his father Ahmed Ali deceased in his statement and we think that there were suspicious circumstances in which Ahmad Ali deceased was murdered and doctor Iftikhar Ahmed P.W.9 stated that he had not noted any hole on the cloth of the injured. Further Riaz co accused of the present appellant was discharged by the Magistrate on 15-12-2004 and there was specific allegation of fire against him which hit the deceased on his left foot but during the whole trial, no request or application was made to the trial court for summoning of him to face the trial.
29. From the facts and circumstances narrated above. We are persuaded to hold that prosecution has badly failed to bring home guilt of the appellant to the hilt and the learned trial Court was not justified in convicting him while basing upon untrustworthy/uncorroborated evidence deposed by interested witnesses which even otherwise is full of material contradiction especially unreliable story disposed by P.W.10. Muhammad Afzal. The Criminal Appeal No,116 of 2010 filed by Muhammad Ajmal, present appellant is accepted and conviction and sentence awarded by the learned trial Court vide judgment dated 4-3-2010 is set aside and the appellant is ordered to be acquitted of the charge in case F.I.R. No, 199 dated 27-7-2003 under sections 302/34, P.P.C. Police Station, Noshehra Jadeed, District Bahawalpur. He shall be released forthwith if not required in any other case. Death sentence of Muhammad Ajmal appellant is also NOT CONFIRMED and Murder Reference No,54 of 2010 is answered in NEGATIVE.