MUHAMMAD ISHAQ KHAN, J.-Ansar Khan, aged 25/26 years, son of Zarin Khan of Village Hund, Tehsil Swabi, District Mardan, within the jurisdiction of Police Station Lahore, was tried by the Additional Sessions Judge, Mardan at Swabi, on a charge under section 302, P. P. C. He was convicted under the said section of law and sentenced to imprisonment for life and to pay a fine of Rs. 2,000 as compensation payable to Mir Zaman, husband of the deceased, under section 544-A, Cr. P. C., or in default, to suffer further R. I. For two years, vide judgment dated 17-12-1980.
2. Feeling aggrieved with the above judgment, the convict has preferred the present appeal (Cr. A.
No. 5/81) against his conviction and sentence and there is also a revision petition (Cr. R. No. 20/81) by Mir Zaman, complainant, for the enhancement of the sentence passed on Ansar Khan from life imprisonment to death and also confiscation of his property and enhancement of the compensation amount. This judgment will, however, dispose of both the appeal and the revision- petition together.
3. The facts, out of which the present appeal arises, are that on 21-6-1978 at 11-15 a,m. The complainant, Mir Zaman son of Jaffar Khan, lodged a report in P.-S. Lahore to the effect that he was present outside of his, house in godown alongwith Muhammad Iqbal, his co-villager when he heard report of shots in quick succession from the side of his house ; that he imme--diately rushed towards his house and saw that Ansar Khan son of Zarin Khan resident of Hund, his brother-in-law, appearing from the door of the courtyard of his house duly armed with a shot-gun and a revolver, who, on seeing him, aimed his D. B. Shot-gun towards him and threatened him not to come near him ; that on this he saved his life and the accused after coming out of the door of the house, decamped ; that the accused was also seen duly armed while decamping from his house by Muhammad Iqbal ; that on his hue and cry his uncle Firdaus Khan also came and when they went in the house, they saw that wife of complainant was laying murdered ; that later on many other people gathered on the spot ; that he says with certainty that his w4e was murdered by Ansar Khan accused. Motive for the offence, as given in the first information report, is that the deceased had eloped after the complainant for whose abduction and alleged murder a report was lodged against the complainant by his father-in-law but the case was rejected ; that the accused in those days was in Karachi and had returned to the village a few days ago ; that today he found an opportunity and killed the deceased, who was his sister.
4. The report of the occurrence was lodged at about 13-15 hours by the complainant in the police station which was recorded by Samiuddin, S. I., P. W. 13, who after recording the same set out for the spot in a Suzuki and reached there at 14-00 hours. He found the dead body of Mst. Zahir Taja lying in the 'kotha' of the house of the complainant. He then prepared her injury sheet Exh. P. D./1 and inquest report Exh. P. D./2 and despatched the dead body to the mortuary for post-mortem examination, under the escort of Raz Muhammad F. C., P. W.
8. Then the I. O. Prepared the site plan, Exh. P. B., at the instance and pointing out of the complainant and his brother, Khalid Khan. He recovered blood-stained earth from the spot vide recovery memo. Exh. P. W. 2/3, in presence of the marginal witnesses. Wali Babadar and Dilawar Khan P. W.
3. He sent the same to the Chemical Examiner for examination and report, whose report in this respect is Exh. P. F., which contains that the blood-stained earth is stained with blood of human origin. The I. O. Also recovered 9 pellets, Exh.
P. 6, from the spot and put them into a bottle vide recovery memo. Exh. P. W. 3/4. Vide recovery memo. Exh. P. W. 2/2 the I. O. Recovered two empties of 12 bore, Exh. P. 4, having smell of fresh discharge and sent the same to the Forensic Science Laboratory. F. C. Raz Muhammad, P. W. 8, brought from the hospital a blood-stained shirt, Exh. P. 1, blood-stained Banyan, Exh. P. 2, three pellets E:h. P. 3, which the I. O. Took into possession vide memo. Exh. P. W. 3/1. Since the accused was not available in the village, the I. O. Obtained warrant of arrest under section 204, Cr. P. C:, Exh. P. W.
1/1, and proclamation 'under section 87, Cr. P. C. Exh. P. W. I/2 and entrusted the same to F. C. Ajmal Khan P. W. 1, for execution. The 1. O. Also recorded the statements of P. Ws. Firdaus Khan (since dead), Khalid Khan, Muhammad lqbal and Mir Zaman, and some others, and then handed over the investigation to Ghulam Muhammad Khan S. H. O., who submitted complete challan against the accused in the Court.
5. Lady Dr. Farkhunda Jadoon, P. W. 7, performed the post-mortem examination on the dead body of the deceased on 21-6-1978 at 5 a.m. And found the following injuries on external examination
(1) Fire-arm entrance wound 4" x 4" situated on the chest just above left breast at the level of axillary fold.
(2) Fire-arm entrance wound 4" x 4" situated on lateral aspect of chest 3 below left axillary.
(3) Exit fire-arm wounds three in number at a distance of 8" from each other situated In right lumber region 3" away from mid-vertebral column, measuring One pellet extracted.
(4) Exit fire-arm wounds (five in number) --" x --", at a distance of Y from each other situated on lateral aspect of chest, 3' below the right arm pit. Two pellets extracted from under the skin.
On internal examination the doctor found that pleura, right lung, left lung and blood-vessels were injured. Abdominal walls, peritoneum, small intestines, large intestines, right kidney were also injured. Stomach and bladder were empty. The doctor also found the deceased seven months' pregnant. Death was caused due to shock and. Haemorrhage and injuries to the vital organs, i.e. Lungs etc. Time between injuries and death was instantaneous and between death and p.m. 6 hours.
7. At the close of the prosecution evidence, the appellant was examined under section 342, Cr. P. C.
And he pleaded not guilty to the charge. He, however, denied having absconded from his village after the occurrence and stated that in fact he was in Karachi when the occurrence took place and when he learnt about the same, he returned to the village and surrendered to the police. However, be produced no defence.
8. In order to establish the guilt of the appellant, the prosecution examined at the trial as many as thirteen witnesses, but the so-called ocular account has been furnished only by Mir Zaman P. W. 10, Khalid Khan P. W. 11 and Muhammad Iqbal P. W.
12. The learned trial Judge relying on the material placed on record before him, convicted and sentenced the appellant, as mentioned in the earlier paragraph of this judgment.
9. Learned counsel appearing for the appellant contended that there is no corroboration from independent source to the testimony of the prosecution witnesses; that in any event, the facts of the case would suggest that it is not a case of culpable homicide amounting to murder, and, therefore, too the conviction and sentence of the appellant are not sustainable; that the appel-- lant has been falsely involved in the case and is innocent ; that the medical evidence does not support the prosecution case ; and that the prosecution has failed to prove its case beyond reasonable doubt against the appellant.
10. We have also heard the learned counsel for the complainant and the Assistant Advocate- General for the State and with their help gone through the evidence of the prosecution witnesses.
In this case, we have two versions furnished at the trial by the three witnesses, i.e. One by Mir Zaman, P. W. 10 and Muhammad Iqbal P. W. 12, and the other by Khalid Khan, P. W.
11. It is in the statement of Mir Zaman, P. W. 10 that he was present in the godown outside his house alongwith Muhammad Iqbal P. W. 12, when he heard report of shots from the side of his house and when he rushed towards his house, he saw the appellant emerging out of his house duly armed with a D. B.
Shot-gun and a revolver ; that on seeing the complainant, the appellant, threatened him not to come near him and aimed his gun towards complainant, on which the complainant threw himself on the ground and the appellant passed by him and went away ; that the com--plainant informed Muhammad Iqbal, P. W. 12 of the incident and also some other people present alongwith Muhammad Iqbal ; that brothers and step-mother of the complainant are also residing in the same house in which the occurrence took place ; that the deceased had eloped after the complain--ant a few days after the death of Shah Afzal, former husband of the deceased, and started living with him without any 'Nikah'; that father of the deceased as well as the appellant Zarin Khan lodged a report against the complainant for the abduction of the deceased and on this account enmity started between the complainant and the accused party ; that uncle of the complainant, namely, Firdaus Khan, whose house is situated close to the house of the complainant and who had also come to the spot after the occurrence, was murdered- pending the trial and for his murder the appellant alongwith his two brothers were charged and the complainant was an eye-witness in that case. But a reference to the statement of Muhammad Iqbal, P. W. 12, which is a shot one, will show that he contradicts him on material points. He stated-that he was present in the godown of the complainant alongwith him when he heard the report of only one fire ; that the complainant then went . To his house and he went to his own house ; and that he did not see anyone after the fire shot. In cross-examination, Muhammad Iqbal clearly stated that the godown is situated at a distance of 300 paces from the house of the complainant and 4/5 houses intervene in the street between the house of Mir Zaman and the godown ; that the complainant left the godown 10!15 minutes after hearing the report of the shot to enquire as to what was that fire about ; and that he never went towards the house of Mir Zaman P. W., nor the latter apprised him of any thing.
11. The second version furnished by Khalid Khan P. W. 11, who stated that he was present in the 'Ghujal' (manger) watering the calves of the buffalo when he heard the report of fire shot ; that he came out of the 'Ghujal' and saw the appellant armed with a D. B. Shot-gun and a pistol in his hand ; that the appellant fired the second shot at the deceased with the shot-gun ; that being empty handed, he ran towards the house of his uncle Firdaus Khan, lying adjacent to their house ; that from there he went out in order to search for Mir Zaman, his brother, but could not find him. In cross-examination, this withness admitted that 10/15 days after the death of Shah Afzal former husband of the deceased. Mst. Zahir Taja, she was abducted by the complainant and taken to some unknown destination ; that when the appellant fired the second shot, he was at a distance of 4/5 paces from him ; that the lands where the witness went in search of his brother Mir Zaman were at a distance of one and a half miles from his louse ; that he spent one or half an hour in the field and then came back to this house on foot ; that the police had arrived at the sppt at 11.15 hours.
12. The above version of Khalid Khan, P. W. 11 shows that he poses himself to be an eye-witness of the occurrence because he stated that the appellant fired the second shot at the deceased when he was only at a distance of 4/5 paces from him and that being empty handed; he ran from the spot. On the other band, Mir Zaman P. W. 10 bad stated that when he came out the godown after hearing the report of shots, he saw the appellant emerg--ing from the thresh-hold of his residential house duly armed with shot-gun and a pistol. Had Mir Zaman P. W. Seen the appellant emerging out of the thresh-hold of his house, which is situated at Point No. 4 in the site plan, he must have seen Khalid Khan P. W. 11 who had come out the Point No. 10 and claims to have seen the appellant firing the second shot at the deceased from Point No. 4, as has been given in the footnotes of the site plan Exh. P. B. It is also important to note that Mir Zaman, who has made the report of the occurrence in the police station, has not named Khalid Khan, P. W. To be present on the spot at the time of occurrence. The I. O. In his statement has stated that after recording the report of the complainant, he left for the spot in a Suzuki reaching there at 14-00 hours, whereas Khalid Khan, P.W. 11 stated in his cross-examination that after spending one or half an hour in search of Mir Zaman complainant, he returned to the spot from the field lying at a distance of one mile and a half, covering the distance on foot, and it was 11-15 hours when the police had arrived at the spot. These contradictions in the statements of Khalid Khan and Mir Zaman P. Ws. Clearly show that Khalid Khan P. W. 11 was not present on the spot, nor he has seen the ap--pellant actually firing the second shot at the deceased.
13. As stated earlier, the statement of Muhammad Iqbal, P. W. 12 and Mir Zaman P. W. 10 destroy each other on material points. Both the wit--nesses were allegedly present in the godown of the complainant, plucking tobacco leaves at Point No. 8 of the site plan. Mir Zaman claims to have beard report of fire shots while Muhammad Iqbal P. W. Specifically mentions only a shot; Mir Zaman, P. W. Stated that after the occurrence he went to his house and saw the deceased lying murdered and on return he informed about the incident Muhammad Iqbal P. W. But the latter clearly contradicts him by saying that he never went towards the house of-Mir Zaman P. W., nor he apprised him of any thing. The complainant claims that when he reached at Point No. 5 of the site plan, he saw the appellant emerging out of his house from Point No. 4 and when the complainant reached at point No. 6, the appellant aimed his gun at him from Point No. 7 and threatened him not to come otherwise he would also meet the same fate. The com--plainant further stated that he threw himself on the ground and the appel--lant passed by him and went away. It is also in the statement of the complainant that for the murder of his uncle, Firdaus Khan, the appellant and his two brothers are charged and the complainant is an eye-witness in the said case against the appellant. Had the complainant not the appellant, who had allegedly murdered the wife of the complainant and who was armed with a shot-gun and a pistol, would not have; 'spared him to become an eye-witness against him. The complainant was equally responsible for having played with the honour of the accused family by allegedly abducting Mst. Zahir Taja deceased soon after the death of her former husband Shah Afzal, which fact is borne out from the copy of F. I. R. No. 235, dated 21-12-1976, lodged by Zarin Khan, father of the appellant and the deceased, against Mir Zaman complainant. Besides above, the complainant has stated in the first informa--tion report that he is certain that the appellant had killed his wife, which goes a long way to show that he had not seen the appellant firing at the deceased, or coming out of the house of the complainant, duly armed with a shot-gun and a pistol.. The contradictions pointed out above in the statements of Mir Zaman complainant P. W. 10 and Muhammad Iqbal P. W. 12 also show that the complainant was not present at the spot, nor he had seen the occurrence.
14. No doubt, motive is there for the appellant to have killed the deceased. But motive is always a double-edged weapon. 1t cuts on both sides. In this case, the prosecution has miserablly failed to prove its case b1-t producing evidence of disinterested nature or unimpeachable character and the witnesses examined by the prosecution have contradicted each other on material points, which bad destroyed the whole case of the prosecution. In a case reported in Bhag Ali and 4 others v. The State (PLD 1973 SC 321) their Lordships have held that "The appraisement of the evidence of eye-witnesses has to be based upon a full consideration and evaluation of all the circumstances appearing in the case where there is a total absence of physical circumstances to connect the accused persons with the crime, and there is a back-- ground of enmity. In such a situation the ocular evidence must, in order to carry conviction on a capital charge, came from an un--impeachable source. If such a source is not available, then it must be supported by some strong circumstances which would enable the Court to overcome the inherent doubt which such evidence must necessarily create."
Mumtazuddin v.- The State (PLD 1978 SC 114) is another authority which lays down that conviction, as a rule of prudence, can be based on evidence of solitary eye-witness. Courts, however, don't base conviction on evidence of solitary eyewitness unless such witness absolutely reliable or his evidence corroborated by reliable evidence. In the case in hand as has been remarked earlier, the pro--secution has produced two sets of witnesses but none has found favour with us on account of material contradictions. Therefore, the motive alone is not sufficient to base conviction on a capital charge, the punishment of which is the forfeiture of life.
15. Lastly we come to the abscondence of the appellant, and hold that mere abscondence is not sufficient by itself to remedy defects in evidence led o to show absconding accused's participation in crime. It has been laid down, in Masal and another v. The Crown (1971 SCMR 239) as under :- ---------..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 remedy--ing defects in the other evidence led to show participation in the crime."
In the case in hand, the prosecution has failed to produce any evidence worth the same to prove the guilt of the appellant beyond reasonable doubt, the benefit of which shall go to the appellant.
As such, his mere abscon--dence is not sufficient to sustain his conviction- on a capital charge of murder.
16. The net result of the discussion gone before is, that the case against the appellant is not free from reasonable doubt. As such, giving him the benefit of such doubt, we accept this appeal, set aside his conviction and sentence and acquit him. He shall be set at liberty forthwith provided he is not charged for any other offence.
17. The revision petition for enhancement of sentence passed on the appellant, in view of the above, automatically fails and is hereby rejected. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.