Tariq Saleem Sheikh, J:- Through Criminal Appeal No.626 of 2012 Appellants Baqir Hussain, Muhammad Junaid and Jalil Ahmad have assailed their conviction and sentence in case FIR No.149/2010 dated 22-6-2010 which was registered at Police Station Choti, District D.G. Khan, for offences under Sections 302/34/109 PPC. Besides this appeal, we also have Murder Reference No.82 of 2012 which has been sent to this Court by the learned trial Court under Section 374 Cr.P.C for confirmation of death sentence awarded to the Appellants. Then, we have Criminal Appeal No.590 of 2012 whereby the Complainant, Ghulam Hassan, has challenge d the acquittal of Khalil Ahmad, one of the accused in the aforesaid FIR. We propose to decide all these matters through this consolidated judgment.
2. Briefly , the prosecution case is that on 22-6-2010 the Complainant, PW-5 Sabz Muhammad, went to Choti alongwith Ghulam Mustafa (nephew), Muhammad Ismail (son), Muhammad Mohsin (nephew) and Mansoor Ahmad (nephew) for purchasing groceries. They were on two motorcycles. At about 11.00 a.m. when on their way home they reached near Kausar Link Metalled Road, Khalil Ahmad (the acquitted co-acc used) and Appellant Baqir , who were armed with Kalashnikovs, emerged and started firing at Motorcycle No.DGL-4920 which Mohsin was riding with Ismail and Mansoor behind him at the pillion. Mohsin was hit and he fell down with his motorcycle. Pillion riders Ismail and Mansoor ran backwards. In the meanwhile, Appellants Jalil Ahmad and Junaid, who were also armed with Kalashnikovs, came there on a motorcycle and started firing at Ismail as a result of which he was also injured and he fell down. Mansoor Ahmad ran towards the East to save his life. Appellants Khalil and Baqir continued firing at Mansoor but he escaped a hit. The fire shots of Khalil Ahmad (the acquitted co-accused) had struck Mohsin on the right side of his abdomen and the back of his head whereas the fires made by Appellant Baqir hit Mohsin on the right flank and lower abdomen. Besides, they also caused injurie s on other parts of his body . On the other hand, the fire-shots of Appellant Jalil Ahmad hit Ismail in his chest and back while the shots of Appellant Junaid landed on his right shoulder and left flank. The Complainant and Ghulam Mustafa tried to step forward but the assailants threatened that they would meet the same fate if they came close. Mohsin and Ismail succumbed to their injuries on the spot and the Appellants and their co-accused fled away . The Complainant claimed that Dur Muhammad (the acquitted co-accused) was the abettor of these murders. The motive for this crime was 15/20 years old enmity between the parties. It was alleged that once a Jirga was consti tuted to settle the issue and the complainant party had given Rs.1,25,00,000/- in cash and 35 Bighas of land to the accused party by way of Qisas which the latter had accepted. It was stated that despite accepting the Qisas the accused party did not bury the hatchet.
3. Appellant Baqir , Junaid and Jalil absconded after the occurrence. Appellants Junaid and Jalil were declared proclaimed offenders. Appellant Baqir was arrested on 28-7-2010 while Appellants Jalil and Junaid were arrested on 5-10-2010 and 25-1 1-2010 respectively .
4. The police found Appellants Baqir and their co-accused Khalil and Dur Muhammad innocent during the investigation. On the other hand, they found Appellants Junaid and Jalil guilty . They submitted their report under Section 173 Cr.P.C. accordingly . The learned Sessions Judge summoned the Appellants and their co-accused for trial and indicted them on 4-11-201 1 for offences under Sections 302/34/109 PPC. The Appellants and their co- accused all pleaded not guilty and claimed trial.
5. The prosecution examined a total of 16 witnesses. While every witness has its own importance to prove the charge, some of them require special mention. These are: PW-5 Sabz Muhammad, the Complainant, who reaffirmed the contents of his statement Ex.PH and the FIR Ex.PH/1 and furnished the ocular account; PW-6 Muhammad Mustafa (named in the FIR as Ghulam Mustafa), who was one of the eye-witnesses of the occurrence and corroborated the testimony of PW-5 Sabz Muhammad; PW-1 Dr. Muhammad Jamal, the Medical Officer who performed autopsy on Mohsin and Ismail deceased; PW-14 Ijaz Hussain S.I., who deposed that on 7-12 2010 Appellant Junaid got recovered in his presence Kalashnikov P-9 alongwith 12 live bullets P- 10/1-12 and two empties of Kalashnikov P 11/1-2 from an iron chest in his house; and finally PW-12 Muhammad Ayub S.I., PW-15 Abdul Rasheed Inspector and PW-16 Muhammad Iqbal S.I., who investigated this case. The learned Public Prosecutor gave up PWs Ghulam Sarwar Constable, Manzoor Ahmad and Sajjad Hussain being unnecessary.
6. When the prosecution completed its evidence the learned trial Court recorded the statements of the Appellants and their co-accused under Section 342 Cr.P.C. and confronted them with all the incriminating evidence that was brought against them during the trial. The Appellants and their co-accused refuted the said evidence and pleaded innocence. When the learned trail Court asked them as to why the case in hand was registered against them, their reply was almost identical. They said that the PWs were closely related to each other. The relatives of the complainant party had killed five of their men and the Complainant had falsely implicated them in this case on the asking of his relatives who were inimical towards them. They contended that they did not have any enmity with the deceased persons because they were not involved in the aforesaid murders. Neither the Appellants nor the other accused recorded their statements under Section 340(2) Cr.P.C. in disproof of the charge levelled against. Except the acquitted co-accused Khalil Ahmad, none of them opted to produce evidence in their defence. Khalil Ahmad had taken the plea of alibi so he produced two witnesses, DW-1 Ghulam Yaseen Ilyani, Advocate, and DW-2 Muhammad Ali Channar, Advocate, to prove it.
7. After the conclusion of the trial, learned Sessions Judge, D.G.Khan, vide judgment dated 2-7-2012, convicted Appellants Baqir Hussain, Muhammad Junaid and Jalil Ahmad under Sections 302/34 PPC and sentenced each of them to death on two counts. They were held liable to pay an amount of Rs.200,00 0/- each to the legal heirs of two deceased persons, namely , Mohsin and Muhammad Ismail, under Section 544-A, Cr.P.C. In case of non-payment of compensation, it was ordered, the Appellants shall undergo simple imprisonment for further period of six months.
The Complainant, Ghulam Hassan, had filed case FIR No.149/2010 against five persons. While the learned trial Court convicted the Appellants as aforesa id, it acquitted their two co-accused, namely , Dur Muhammad and Khalil Ahmad, through the impugned judgment. The Complainant has filed Crl. Appeal No.590 of 2012 against the acquittal of Khalil Ahmad only .
8. The learned counsel for the Appellants argued that the Appellants were innocent and had been falsely implicated in this case because of enmity . He contended, firstly , that the prosecution version was improbable and did not ring true to the ears. Secondly , PW-5 Sabz Muhammad and PW-6 Mustafa, the alleged eye-witnesses, were not present at the place of occurrence at the relevant time. Thirdly , there were material contradictions in the statements of the prosecution witnesses and that the medical evidence was in conflict with the ocular account. Fourthly, PW Mansoor Ahmad, who was allegedly sitting on the motorcycle with Mohsin and Ismail deceased, was a material witness of this case. The prosecution deliberately withheld him for which an adverse inference should be drawn against it. Fifthly, the motorcycle of PW Mustafa was neither taken into possession by the police nor was it produced during the trial. Sixthly, the police did not join any independent person of the locality to witness the recovery of Kalashnikov, live bullets and crime empties which were allegedly recovered on the pointation of Appellant Junaid. Seventhly, the Appellant and their acquitted co-accused had no motive to murder the deceased.
And lastly, Appellant Baqir Hussain and the acquitted co-accused Khalil Ahmad were found innocent during investigation by the police inasmuch as they were not present at the place of occurrence.
9. In rebuttal, the learned Deputy Prosecutor General assisted by the learned counsel for the Complainant contended that the prosecution had proved its case against the Appellants beyond reasonable doubt. He submitted that the Complainant had promptly lodged the FIR Ex.PH/1 attributing specific roles to the Appellants.
As such, the question of false implication did not arise. He next submitted that it was a day-time occurrence and, as such, there was no question of mistaken identity of the assailants/Appellants by the eye-witnesses. He further argued that the Post mortem Reports of the deceased Ex.PA and Ex.PD-D/1 fully corroborated the ocular account and that the motive behind the occurrence was also effectively proved. Lastly, the crime weapon, Kalashnikov, used by Appellant Junaid in the commission of the offence was recovered and the report regarding the empties recovered from the place of occurrence was positive. The police were dishonest in not recovering crime weapons from the other two Appellants and their acquitted co-accused Khalil Ahmad. Likewise, they dishonestly declared Appellant Baqir and the acquitted co-accused Khalil innocent during the investigation.
10. In support of his Criminal Appeal No.590 of 2012, the learned counsel for the Complainant argued that the learned trial Court misread the evidence to the extent of the acquitted co-accused Khalil. He contended that DWs Ghulam Yaseen and Muhammad Ali Channar (Advocates) failed to give plausible justification for the presence of the said accused in their office when the occurrence took place. As such, he urged, the learned trial Court misdirected itself in relying on their testimonies and accepting the plea of alibi raised by the said accused.
11. We have heard the arguments of the learned counsel for the parties and have scrutinized the record with their able assistance.
12. The occurrence took place on 22-6-2010 at 11.00 a.m. and the FIR was lodged on the same day at 11:30 a.m.
The prosecution argued that since the FIR was promptly lodged, there was no chance of false implication. After a careful appraisal of the evidence, we express our inability to agree with this submission. We note that the presence of the Complainant, PW-5 Sabz Muhammad, and PW-6 (who stated during his cross-examination that his name was Muhammad Mustafa and not Ghulam Mustafa) at the place of occurrence was doubtful. According to the FIR Ex.PH/1, the purpose of the sojourn of the PWs and the two deceased to Choti was business and purchase of groceries/eatables. At the very outset, it is pointed out that there is a contradiction in this regard in the FIR and the testimony of the PWs. During his cross-examination, the Complainant, PW 5 Sabz Muhammad stated that he purchased two kilograms of sugar and one pack of tea while Mohsin deceased went to a tailor's shop for getting his clothes stitched because he had to go to Dubai. PW-6 Mustafa also made a voluntary statement during his cross-examination that PW-5 purchased these two items from Choti. There is no mention of any "business" in their statements that was averred in the FIR. Further, nothing has come in evidence as to why the other three men went there when they had nothing to do. None of the PWs produced sugar or tea before the police during investigation. Admittedly, there was a bazaar near the house of the Complainant. It does not stand to reason as to why five persons would go all the way to Choti to purchase these petty things.
13. Next point in the prosecution' s case is that the PWs and the deceased were on two motorcycles. Mohsin, Ismail and PW Mansoor Ahmad were on motorcycle No.DGL/4920 while PWs Sabz Muhammad and Mustafa were on the second one which the latter was driving. This second motorcycle was neither taken into possession by the police nor it was produced during the trial. Even its particulars were not revealed at any time. PW-6 Mustafa did not even have a driving licence for motorcycle.
14. The prosecution says that the Appellants and Khalil Ahmad,their acquitted co-accused, were armed with Kalashnikovs and they made indiscriminate firing with them which killed Mohsin and Ismail. It is surprising that PWs Sabz Muhammad and Mustafa who were stated to be just 100 yards behind the deceased persons did not sustain even a minor injury.
15. There is an additional argument with respect to PW-6 Mustafa which makes his presence at the scene of occurrence all the more doubtful. He was about 25 years old and was stated to be a student. According to PW 5 Sabz Muhammad, he used to go to school regularly but absented himself only on the day of occurrence. This statement lacks credibility for two reasons: one, a 25-year old person would be college-going and not school-going and, two, the prosecution has not produced any school certificate/attendance register to prove this fact.
16. Now we advert to other aspects of this case. According to the prosecution , Mohsin deceased was driving motorcycle No.DGL/4920 and Ismail deceased and PW Mansoor Ahmad were seated behind when Khalil Ahmad (the acquitted co-accused) and Appellant Baqir attacked them. Mohsin deceased was hit in the first instance and he fell down while the pillion riders Ismail and Mansoor ran backwards to save their lives. This seems improbable.
The pillions could not escape a hit in such a situation, direct or indirect, particula rly when fire-shots were coming from deadly weapons like Kalashnikovs. In the meanwhile, it is stated, Appellants Jalil Ahmad and Junaid, who were armed with Kalashnikovs, joined in and started firing at Ismail and killed him. It is most surprising that none of the assailants attacked PW Mansoor, who was also a nephew of PW-5 Sabz Muhammad like Ismail deceased, despite the fact that he was very well within their range. It is also strange that he was not even injured in such a heavy firing.
17. PW Mansoor Ahmad was by all means an important witness of this case who was withheld by the prosecution without sufficient cause. The question is what is the effect of not bringing PW Mansoor Ahmad to the witness-box and whether any adverse inference could be drawn against the prosecution under Article 129(g) of Qanun-e- Shahadat, Order , 1984. Similar question arose in the case of Fazlul Haque vs. The State (PLD 1959 Dacca 931) wherein Hamoodur Rahman, J., answered it as under: "It is no doubt true that the prosecution is not bound to examine each and every witness cited in the indictment of the charge-sheet. But nevertheless, it takes the risk that if any one of these witnesses is shown to be material witness, then the Court may, having regard to the facts and circumstances of the case, draw a presumption that if such a material witness had been examined, he would not have supported the prosecution case".
The dictum laid down in Fazlul Haque case was subsequently also followed in Idris Ali and 7 others vs. The State (PLD 1971 Dacca 254 ).
18. PW-5 Sabz Muhammad attributed specific injuries to the Appellants and their acquitted co-accused Khalil Ahmad in his complaint Ex.PH (and the FIR Ex.PH/1) and thereafter in his statement under Section 161 Cr.P.C. before the Investigation Officer. PW-6 Mustafa did the same in his statement before the police. However , when both these PWs recorded their testimonies in the Court, without making any specific attributions, they made a general statement that the Appellant Baqir and Khalil (the acquitted co-accused) fired upon Mohsin deceased and Appellants Junaid and Jalil fired upon Ismail deceased which took their lives. This was done purposely . The Post- mortem Report Ex.PA and Ex. PD-D/1 were not in line with the FIR Ex. PH/1. In the circumstances, notwithstanding the trick that the prosecution has tried to play by improving its case, we are constrained to hold that the medical evidence does not corroborate the ocular account.
19. Now we advert to the recovery of crime empties and crime weapons. At the very outset, it may be pointed out that no weapon of offence was recovered from Appellants Baqir and Jalil. According to PWs Sabz Muhammad and Mustafa, the Appellants and their co-accused Khalil made heavy firing at the place of occurrence with their Kalashnikovs. However , PW-16 Muhammad Iqbal S.I., the Investigation Officer, recovered only six empties from there which he secured through Recovery Memos Ex.PJ and Ex.PK. In the first instance, recovery of such a small number of empties contradicts the prosecution claim of heavy firing. Secondly , the Forensic Report Ex.PAB shows that the said crime empties were of 7.62 mm bore which obviously did not relate to the weapon (Kalashnikovs) allegedly used in the occurrence.
20. PW-15 Inspector Abdul Rasheed deposed that on 7-12-2010 he recovered Kalashnikov P.9 alongwith 12 live bullets P.10/1-2 and two crime empties of Kalashnikov P.11/1-2 at the pointing of Appellant Junaid from an iron chest in his house. PW-3 Ghulam Haider had deposited the crime empties recovered from the place of occurrence in the Forensic Science Laboratory at Lahore on 19-7-2010. PW-4 Zubair Shahza d 285/C deposited Kalashnikov P.9 and two crime empties in the FSL on 21-1-201 1. However , the weapon and the empties examined by the Forensic Expert for preparation of his report Ex. P AB was rifle of .44 and two empties of 44 bore.
21. PW-12 recovered motorcycle P.8 from Appellant Jalil. This recovery also has little significance because it cannot be said with certainty that it was this motorcycle that was used in the occurrence inasmuch as no colour , make or other particulars of the motorcycle were mentioned in the FIR.
22. In a nub, all the recoveries relied upon by the prosecution are inconsequential and do not advance its case in any manner .
23. Finally , we come to the motive. The prosecution alleged that there was an old enmity between the parties.
Although a Jirja tried to broker a settlement between them and even though the complainant party had given Qisas to the accused party , the latter did not make peace from the heart. On the other hand, the Appellants and their acquitted co-accused admitted in their statements under Section 342 Cr.P.C. that the relatives of the Complainant, PW-5 Sabz Muhammad, and the two deceased had killed five members of their party.
Nevertheless, they maintained that they had no animosity with any of the deceased persons because they were not directly involved in any of those murders. These stances establish beyond reasonable doubt that there existed deep-rooted enmity between the parties which was the motive for the occurrence under discussion. Law relating to motive is pretty well-settled in our country. It is a double-edged weapon: it can prompt false implication and can also prompt revenge in the form of aggression. Reliance is placed on "Sahib Masih and others vs. The State (1982 SCMR 178), Riaz Hussain vs. The State" (2001 SCMR 177), "The State vs. Muhammad Sharif and 3 others" (1995 SCMR 635), "Muhammad Riaz vs. Muhammad Zaman and another"
(PLD 2005 SC 484) and "Sahib Khan vs. The State" (2008 SCMR 1049). Since motive in the instant case was proved, we hold that in the peculiar circumstances of this case, the possibility of false implication on the part of the complainant party could not be ruled out.
24. During the course of arguments, the learned counsel for the Complainant time and again tried to highlight the fact that the Appellants absconded after the occurrence and two of them, namely , Appellants Junaid and Jalil, were even declared proclaimed offenders. According to the learned counsel, it was a conclusive proof of guilt of the Appellants.
25. It is a common perception that when a person is named as a murder , whether rightly or wrongly , he usually makes himself scarce [See: "Siraj Din vs. Kala and another" (PLD 1964 SC 26) and "Muhammad Shafi and others vs. The State and others" (2016 SCMR 1593 )].The question as to whether absconsion is a conclusive proof of the guilt of an accused person has been debated by jurists in our country and there is a general consensus that it is not. In his book Law of Evidence (1974 Edition), Munir wrote: "The conduct of a person in absconding after the commission of the offence is evidence to show that he was concerned in the offence, but it is usually a very small item in the evidence on which a conviction can be based.
Absconding is equally consistent with innocence and guilt. It is a proper matter to be considered along with the other facts of the case, whether they bear upon guilt or upon innocence. It is well known that different persons are differently constituted, and that some accused persons, through innocent, deliberately abscond rather than fear the ordeal of a criminal trial."
26. The above question also came up for consideration before the august Supreme Court of Pakistan in a number of cases. In "Aminullah vs The State" (PLD 1976 SC 629), Muhammad Yaqub Ali, C.J., approved the aforementioned statement of Munir .
27. In "Aminullah vs The State" (PLD 1982 SC 429 ), the Supreme Court further explained: "30. Before dealing with the evidence of abscondence, it may at once be stated that this Court in Mesal and another v. The Crown (1971 SCMR 239) stated the law as to the evidentiary value of the evidence of abscondence in the following words:- 'While the fact of an alleged offender having absconded may be regarded as providing some kind of support to another evidence which in itself is strong enough to sustain a conviction for the crime charged such conduct by itself never has the effect of remedying defects in the other evidence led to show participation in the crime. The reason is simple, namely that a man may wish to avoid the consequence of being reported against for the commission of a serious crime as ardently if he is not guilty as he might if he is guilty .'
"The aforesaid view had been followed in a number of cases by the Supreme Court and although there were judgments in which abscondence had been held to furnish corroboration of the prosecution evidence, but the view taken in Mesal' s case was never overruled by the Court. As such, the question whether abscondence does provide corroboration to the other prosecution evidence would be a question to be decided on the facts and circumstances of each case."
26. In Sardar Khan and 3 others vs The State (1998 SCMR 1823),the Apex Court further dilated on this issue and held: "There can be no cavil with the proposition that abscondence by itself is never sufficient to prove the guilt of the absconder . However , it would not be correct to say that abscondence in no case provides corroboration to the other evidence and circumstances proving the guilt of the absconder . Therefore, what would be the value and place of the evidence regarding absconsion of the accused in a case would largely depend on the facts and circumstances of that case."
29. In "Liaqat Hussain and others vs. Falak Sher and others " (2003 SCMR 61 1), the Supreme Court held: "14. Disappearance of an accused perso n could have ordinarily offered useful corroboration to the prosecution case. But this is so only in a situation where the prosecution case is reasonably believable to some extent and requires some corroboration for proof of the same."
30. In "Rahimullah Jan v Kashif and another" (PLD 2008 SC 298) and "Haji Paio Khan Vs. Sher Biaz and others"
(2009 SCMR 803 ) the Supreme Court ruled: "Insofar as the abscondence of respondent Kashif is concerned, it may be stated that mere absconsion is not conclusive proof of guilt of 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 abscondence, 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 with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case."
31. Again, in "Muhammad T asaweer vs Hafiz Zulkarnain and 2 others " (PLD 2009 SC 53 ), it was held: "13. 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 circumstances 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."
32. Applying the above principles to the facts of the instant case, we hold that since the ocular and medical evidence adduced by the prosecution does not inspire confidence, the conviction of the Appellants cannot be sustained on the mere ground that two of them absconded after the occurrence.
33. After a thorough reappraisal of the evidence, we conclude that the prosecution has failed to prove its case beyond reasonable doubt. Therefore, we allow Crl. Appeal No.626 of 2012. The conviction and sentence is set aside. The Appellants are acquitted of the charge and they shall be released from jail forthwith, if not required to be detained in any other case.
34. As a sequel, death sentence awarded to Appellants Baqir Hussain, Muhammad Junaid and Jalil Ahmad is not confirmed . Murder Reference No.82 of 2012 is answered in the negative .
35. Now we take up Crl. Appeal No. 590 of 2012 whereby the Complainant has assailed the acquittal of the Respondent/Accused Khalil Ahmad. The said Respondent took the plea of alibi during investigation which was accepted by the Investigation Officer. He produced two witnesses, DW-1 Ghulam Yasin and DW-2 Muhammad Ali Channar , who were Advocates, to prove his plea. The learned trial Court believed their testimonies and acquitted the Respondent. Since we have already held that the prosecution has entirely failed to prove the case it had put forth, this appeal does not call for any further deliberation. Accordingly , this Criminal Appeal is also dismissed .