' MAZHAR IQBAL SIDHU, J.---This judgment will dispose of above captioned Criminal Appeal filed by Shahid Mehmood appellant who was convicted and sentenced by learned Additional Sessions Judge, Gujrat in case registered vide F.I.R. No.138 dated 14-4-1990 under sections 302/307/148/149, P.P.C. Registered at Police Station Kunjah and vide impugned judgment dated 27-1-2011, infra conviction and sentence was imposed on the appellant:--
(i) Life imprisonment under section 302(b), P.P.C. With compensation to the tune of Rs.200,000, under section 544-A, Cr.P.C., in default whereof to further undergo S.I. For six months.
' He was also extended with the benefit of section 382-B of Cr.P.C.
' Likewise Criminal Revision No.268 of 2011 filed by Qurban Ali, petitioner/complainant against respondent No.1, Shahid Mehmood (appellant) for enhancement of his quantum of sentence, shall also be disposed of by this single judgment.
2. The facts in brief as disclosed by Qurban Ali complainant (P.W.12) in F.I.R. (Exh.PA) are that he was employee of WAPDA Department. On 14-4-1990 at 7 a.m. Muhammad Ali, his maternal uncle (Maamun) employee of WAPDA Lalamusa, left his house for going on duty and the complainant also came out of his house for the same purpose; when his uncle reached in front of house of Pir Muhammad, Shahid (appellant) while armed with rifle .7 mm and, co-accused (since acquitted) namely Walayat armed with Sota, Riaz son of Qutab armed with Sota, Muhammad Aslam armed with Sota, Hakam Ali armed with Sota, Bahadur Khan armed with Sota, Muzaffar Khan, empty- handed, Basharat Ali armed with gun, who were sitting ambush, emerged there, Muzaffar Khan raised Lalkara to catch hold of Muhammad Ali and kill him, upon which Shahid fired a shot with his gun .7 mm, hitting Muhammad Ali on his right ear; second shot fired by Basharat Ali hit his right shoulder on his falling on ground; Muhammad Aslam and Muhammad Riaz, co-accused started beating him with Sotas. Hakam Ali inflicted Sota blow on the head of mother of the complainant who had come there on his yelping; Bahadur Khan inflicted Sota blow to Muhammad Bashir, brother of the complainant; Walait inflicted Sota blow to Muhammad Ramzan; then Qurban Ali son of Muhammad Ali, Pir Muhammad son of Shahab Din were injured by Aslam and Riaz by Sota blows who tried to save Bahadur Khan, Muhammad Riaz and Basharat.
' The flashpoint behind the occurrence was that one day earlier to the occurrence, at morning time, complainant had gone to his Tube-Well to switch it on, upon which Aslam accused etc. Said that they had to irrigate their land from canal, so he should switch the motor off, which led to an altercation and the complainant returned to home and thereafter he went to bus stand where accused etc. Grappled him and due to this grudge, the occurrence took place.
3. On registration of case, investigation was completed, Shahid Mehmood (appellant) was declared proclaimed offender whereas his co-accused were tried to conviction and sentence on 28-4-1991 and on appeal, were acquitted by the Lahore High Court, Lahore.
' On 19-11-2009 Shabbir Hussain SI P.W.14 arrested the appellant of his house and on physical remand, got recovered rifle .7 mm, P.4 along with two live bullets P.4/1-2 took them in his possession vide memo Exh.PD by recording statements of witnesses under section 161, Cr.P.C. In this respect.
4. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellant to which he pleaded non-culpable and claimed trial. Then on asking, the prosecution produced 16 P.Ws. To prove its case.
' Dr. Nusrat Riaz, Medical Superintendent, Aziz Bhatti Shaheed Hospital, Gujrat (P.W.11) performed post mortem examination on the dead body of Muhammad Ali (deceased) on 14-4-1990 at 3-30 p.m. And observed following injuries on his body:-- INJURIES
(1) A large cavity shape penetrating wound measuring 6 x 7 cm and cavity deep at right temporal area. Upper half of the Pinna of right ear was absent and margins were teared. Skull bone was absent under the wound. Brain matter was visible from the wound.
(2) A rounded 1 cm square lacerated wound with everted margins at the upper part of right posterior aspect of the neck.
(3) A small superficial lacerated wound measuring 1 x 2 cm at the top of right shoulder with 3 small wounds superficial around it. Corresponding tears were also present on the Kurta.
' REMARKS ' He was of the opinion that after external and internal examination of the dead body, all three injuries were ante-mortem and caused by fire-arm weapon. Injury No.1 was sufficient to cause death due to extensive brain damage, haemorrhage and ultimate cardio respiratory failure.
' The probable time between injury and death was immediate whereas the time between death and post mortem was about 7 to 10 hours. Post mortem report Exh.PK was the correct carbon copy of post modem report whereas Exh.PK/1 and Exh.PK/2 were sketch of injuries, which were prepared and signed by him.
' Learned prosecutor ceded P.Ws. Namely Nigahi Bukhsh and Qutab being gone astray in the Garden of Eden, Pir Muhammad owing to his having grown to second childhood, Muhammad Aslam, Mushtaq and Feroz as being unnecessary, Arshad Inspector/SHO being expired, Nafasat Ali 664/HC being gone abroad and by tendering in evidence reports of Chemical Examiner Exh.PY, Serologist Exh.PZ and Forensic Science Laboratory Exh.PAA, shut the prosecution evidence.
6. Then statement of the appellant was recorded under section 342, Cr.P.C. Wherein he denied the charges by professing innocence. In reply to the question as to why the case against him and why the P.Ws. Deposed against him, the appellant maintained infra:- ' My father Muzaffar Khan who was a nominated accused in this case was a Chairman of the village. My father was supporter of Muhammad Aslam, Riaz Ahrnad accused (since acquitted).
There was a litigation civil and criminal nature in between Muhammad Aslam, Riaz etc. With Muhammad All deceased, Pir Muhammad P.W., Farman All P. W., Muhammad Ramzan and Muhammad Akram P. Ws. My father was a supporter of Aslam and Riaz etc. Against the complainant party. The present complainant party and Aslam and Riaz above mentioned all as Mohajar (refugees). When this occurrence took place I was out side the country in Italy in connection with my bread-winning. During the investigation Muzaffar Khan my father was declared innocent by the police and got discharged from the competent Court. When the trial of this case against the other co accused conducted by Rai Muhammad Zafar Bhatti, the then learned A.S.J., Gujrat who after recording evidence acquitted all my co-accused and all the version and story of prosecution was disbelieved by the Court. It was also mentioned in that judgment that in fact the complainant party along with deceased attacked upon Aslam, Riaz, Behadur Khan, -Walayat and Basharat Ali co-accused since acquitted were attacked by Muhammad AL deceased, Bashir, Qurban, Ramzan, Pir Muhammad anc Muhammad Akram and present complainant party suppressed the injuries on the person of my co-accused namely Bahadur, Riaz, Aslam, Basharat All and Walayat. It was also held in that judgment that the complainant party was aggressor and the story given by Nazir Ahmad complainant in the F.I.R.
And P. Ws. Is false one. The present complainant party also. The then learned A. S. J, Gujrat acquitted all the accused persons on 28-4-1991. The judgment and the file is on the original file and is available in the Court along with present case. Against this judgment delivered by learned Gujrat Rai Muhammad Zafar Bhatti went to the High Court under section 417, Cr.P.C. Filed an appeal against the acquittal order of my co-accused which was dismissed by the honourable Lahore High Court, Lahore on 18-7-2001 in which the honourable Lahore High Court, Lahore maintained the judgment of learned trial Court and honourable Lahore High Court, Lahore also disbelieved the story of prosecution. I produced attested copy of the judgment delivered by the honourable Lahore High Court, Lahore dated 18-7-2001 Criminal App., No.1165/91 as Exh.DA. I being a son of Muzaffar have been implicated in this case falsely and at the time of occurrence I was out of the country. P. Ws. Have deposed against me being close relative of the deceased. Two honourable courts have disbelieved the story of prosecution. Further no attempt has been made from the side of the complainant to challenge the acquittal order of the co-accused in Supreme Court. I too deserve the same relief as have been granted to my co-accused."
' The appellant neither opted to defence evidence nor to appear as his own witness on oath in disproof of allegations and charges levelled against him, under section 340(2), Cr.P.C.
7. The trial concluded yielding in punishing the appellant.
8. To crave acquittal, selective arguments have been addressed adbarram that all the co-accused whom specific roles of causing injuries to the deceased as well as injured P.Ws., were alleged, were acquitted by the learned trial Court vide judgment dated 28-4-1991 and the same was upheld by the Lahore High Court, Lahore on appeal against the said judgment vide 18-7-2001 and now again the prosecution has relied upon the same evidence, which had already been declared incredible, this fact has explicitly been admitted during cross-examination by all the P.Ws. And moreso, in the statement under section 342, Cr.P.C. The appellant has also relied upon the earlier judgment of acquittal notwithstanding the injured P.Ws. Have testified against him, mauger the prolonged abscondence of him does not make him responsible for the commission of occurrence and the same cannot be equated to his guilt; lastly the alleged recovery is featherless on account of non- positive report of Forensic Science Laboratory cannot make the case advanced, therefore, relying upon the following presidential references, has prayed for acquittal.
(i) Muhammad Akram v. The State (2012 SCM R 440)
(ii) Ziaullah alias Jajj v. The State (2008 SCM R 1210)
9. Adversarially, submissions have been opposed endeavorly, putting maximum stress upon the prolonged unexplained abscondence of the appellant, explaining further that the evidence recorded in absence of the appellant in the first round of trial and the judgment of acquittal rendered so, cannot be relied upon to extend benefit to the appellant for this reason whereas the appellant is responsible for the murder of deceased Muhammad Ali by inflicting him injury on the right side of his head; according to the doctor this injury No.1 was sufficient to cause his death and thus dismissal of appeal has been prayed for.
10. Heard intently and devoured the record.
11. The case was registered against eight persons, during the trial Muzaffar Khan co-accused proceeded to Eden. Except the appellant, all A other accused persons were acquitted on 28-4-1991 by the then learned Additional Sessions Judge, Gujrat (learned trial Court) and then the said judgment was upheld by this Court vide judgment dated 18-7-2001. The appellant was arrested on 19-11-2009, obviously after about 19 years, then he was prosecuted to conviction. During the trial, five eye-witnesses were examined, four of five are the injured P.Ws. Partway cross-examination, they had admitted acquittal of the co-accused and the same evidence exists against the appellant which has already been disbelieved. Prolonged abscondence has been explained by the appellant in his statement under section 342, Cr.P.C. That he was in Italy during the days of incident and as soon as he came to the homeland, he was arrested Shabbir Hussain SI, Investigating Officer, while appearing as P.W.14 has admitted in the cross-examination as follows:-- "The version of the accused was that he was residing in Italy prior to this occurrence and when he dame back was apprehended by the police. During the investigation first version of the accused was that deceased sustained injuries by the hand of Hakam. Ali accused since acquitted and in fact the complainant party was sitting ambushed in the house of Pir Muhammad P. Ws. And the complainant party assaulted on the accused persons Riaz etc. In that scuffle he received injuries.
During investigation so many persons appeared on 24-11-2009 in the defence of accused Shahid and they all stated that the accused did not participate in this occurrence and no injury was inflicted by him at the time of occurrence at the place of occurrence."
' Of course, the injured P.Ws. Appeared in the Court against the appellant but the damn fact is also that co-accused Bahadur Khan, Riaz and Basharat Ali (since acquitted) were also caused injuries during the incident by the complainant party as evident from text of F.I.R. Testimonies of the injured P.Ws. Have been disbelieved twice and injuries of these P.Ws. May not be taken as gospel truth that whatever they have said is based upon truthfulness. No independent corroboration exists against the appellant. Abscondence may be longer or the shorter, is not penalable under the P.P.C. It has been noticed that innocent person opt to abscond to avoid maltreatment of the police. The prosecution led no evidence to prove the fact of abscondance.
' For what has been discussed above, the Court is of the humble view that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt therefore, the instant appeal is allowed and by setting aside the judgment of conviction and sentence rendered by the learned trial Court, the appellant is acquitted of the charges imputed. The appellant is in jail, be set at liberty in a trice provided required in some other case.
' Criminal Revision No.268 of 2011 instituted by the complainant for the enhancement of quantum of sentence has gone infrucuous owing to acceptance of appeal, therefore, the same is accordingly disposed of.