SAHIBZADA ASADULLAH, J.- Through the instant criminal appeal, the appellant Kausar has assailed the judgment dated 05.12.2023, rendered by the learned Sessions Judge, Charsadda, in case arising out of FIR No.151 dated 23.05.2019, registered under Sections 302/34, P.P.C. at Police Station Mandani, District Charsadda. By virtue of the impugned judgment, the appellant was convicted under Section 302(b)/34 P.P.C. and sentenced to imprisonment for life as Ta'zir. He was also saddled with a fine of Rs.1,00,000/- (rupees one lac), payable to the legal heirs of the deceased within the contemplation of Section 544-A, Cr.P.C., and in default thereof, directed to further undergo simple imprisonment for a term of six months. However, the benefit of Section 382-B, Cr.P.C. was extended in his favour.
2. The backdrop of the prosecution case, as set forth in the Murasila (Exh:PA/l), is that the dead body of Mst. Mahiya was brought by her relatives to the casualty department of DHQ Hospital, Charsadda, where Imtiaz Khan (complainant) made a statement before Jamal Ullah Khan, ASI. He alleged that the deceased was his real sister who had contracted marriage with accused Kausar some fifteen months prior to the occurrence. It was further alleged that relations between the spouses remained strained and they frequently quarreled. On the fateful day, accused Kausar, accompanied by his father Ghafoor, committed the murder of Mst. Mahiya by resorting to firearm assault. The motive attributed to the occurrence was domestic discord. One Shah Hussain witnessed and verified the report. Consequently, the inquest report and injury sheet of the deceased were prepared and the dead body was dispatched to Lady Doctor Shehla for postmortem examination through police escort. The Murasila was thereafter transmitted to Police Station Mandani through Johar Muhammad, HC, hence, the ibid FIR.
3. It appears from the record that initially both the accused remained at large and the investigation was entrusted to Alamgir Khan, CIO. He conducted the preliminary probe and, in view of their absconsion, submitted a complete challan under Section 512, Cr.P.C. Subsequently, on the arrest of the accused, supplementary challan was submitted to the Court. The accused were produced before the trial Court on 07.10.2020, whereupon copies of the requisite documents were supplied to them in terms of Section 265-C, Cr.P.C. On 14.10.2020, charge was formally framed against the accused, to which they pleaded not guilty and claimed trial.
4. In order to discharge its burden, the prosecution examined as many as thirteen (13) witnesses, including the complainant, medical officer, and investigating officer, and thereafter closed its evidence. Upon closure of the prosecution evidence, statements of the accused were recorded under Section 342, Cr.P.C., wherein they refuted the prosecution allegations in their entirety, professed innocence, and claimed false implication. However, they neither opted to appear as witnesses under Section 340(2), Cr.P.C., nor chose to adduce any evidence in defence. The learned trial Court, after appraising the evidence on record and hearing the learned counsel for the parties, convicted the present appellant vide impugned judgment, while co-accused Ghafoor was acquitted of the charge by extending him the benefit of doubt. Being dissatisfied, the appellant has preferred the instant criminal appeal before this Court.
5. Heard. Record perused.
6. The complainant was informed about the tragic death of the deceased at her residence. Upon receiving this information, he rushed to the house and found the dead body of the deceased lying in the courtyard. The dead body was collected from the spot and shifted to the hospital, where the matter was formally reported. The injury sheet and inquest report were prepared, and thereafter, the dead body was sent for post-mortem examination. After receiving copy of FIR, the investigating officer visited the spot, prepared the site plan in the presence of the complainant, and conducted spot inspection. Blood stained earth was collected from the place where the deceased's body had been lying, and an empty of .30 bore pistol was also recovered. The accused went into hiding but, upon his arrest, he pointed out the place of occurrence to the investigating officer. On this basis, an additional entry was made in the site plan, showing the place from where he had allegedly fired at the deceased. The accused was committed for trial, and upon its conclusion, he was convicted and sentenced vide the impugned judgment.
7. The learned Trial Court dealt with the matter comprehensively and, after applying its judicial mind to the facts and circumstances of the case, found the appellant responsible for the murder of the deceased. It is true that no eyewitness account of the occurrence was brought on record; however, since the incident took place inside the house of the appellant, and the appellant himself being none other than the husband of the deceased, the Court was required to examine whether, in such an eventuality, the appellant could be held responsible for the commission of the offence.
True that there is no direct eyewitness account of the occurrence, but equally true that the complainant, upon receiving information, rushed to the house where he found the dead body of the deceased lying in the courtyard. Record further discloses that there existed a strained relationship between the spouses. According to the complainant, only a few days prior to the incident, the deceased had been subjected to beating and, as a result, had taken shelter in the house of her neighbors. These circumstances suggest that the strained matrimonial relationship could very well have been the basis for the tragic occurrence. The incident admittedly took place inside the house of the appellant during the odd hours of the night. The accused has failed to establish that at the time of occurrence he was neither present in the house, nor has brought on record any material showing where else he had gone. It is of particular significance that the deceased lost her life inside the house of her husband, yet neither the husband, nor the other inmates of the house made any effort to shift her to the hospital or to report the matter to the police. Instead, it was the co-villagers, accompanied by the complainant, who shifted the dead body to the hospital. Had the incident not occurred in the manner alleged by the complainant, and had it truly been a case of suicide, the natural conduct of the appellant and his family would have been to report the matter to the authorities and to arrange for immediate medical assistance.
Their failure to do so, coupled with their indifference in not accompanying the dead body, constitutes a strong incriminating circumstance. These circumstances, taken cumulatively, weigh heavily upon the judicial mind of this Court and point unmistakably towards the involvement of the appellant in the commission of the offence. The Investigating Officer visited the spot and, on the pointing out of the complainant, prepared the site plan. From the place of occurrence, bloodstains were collected alongwith an empty of .30 bore, and a bullet mark was noted on the wall behind the deceased, which was denoted as point "0" in the site plan. A disturbing factor emerges from the record that the incident occurred at about 03:30 AM., yet the matter was reported at 05:45 AM. For almost two hours the dead body remained inside the house, but neither the appellant, nor any other inmate of the house attempted to shift the deceased to the hospital, nor did they make any effort to inform the neighbors or the complainant, even if they believed the deceased had committed suicide. More alarming is the conduct of the appellant himself, as he did not remain present at the house after the occurrence, nor did he participate in the funeral ceremony of his own wife, instead, he chose to abscond. Such conduct is inconsistent with innocence. If the husband was truly innocent, the natural course of conduct would have been to remain with the family, to arrange immediate medical assistance, to inform the authorities, and to attend the funeral. His deliberate absence and subsequent abscondence provide a strong incriminating circumstance. The delay in shifting the dead body to the hospital, the failure of the appellant and his family to report the matter, and the appellant's own conduct after the occurrence, when taken cumulatively, point towards his guilty conscience and lend support to the prosecution case. In such circumstances, this Court cannot close its eyes to these essential aspects of the case, which constitute a decisive link in the chain of circumstantial evidence against the appellant. Reliance is placed on the judgment of the Apex Court reported as 2005 SCMR 1524 titled "Arshad Mehmood vs The State" wherein, it was held as under: "4. We have heard the learned counsel for the petitioner and perused the evidence produced by the complainant. It may be noted that dead body of deceased was recovered from the house of the petitioner where Mst. Safia was living with him as his wife. Therefore, it is not possible to disbelieve the story of the prosecution. Besides it medical evidence, fully corroborates to the statement of Mst. Zainab Bibi mother of deceased Mst. Safia Bibi and on her sole statement, conviction can be based in view of judgment of Allah Bakhsh v. Shammi PLD 1980 SC 225.
Wherein rule has been laid down that it is the quail!), of evidence not quantity which is required to prove against accused. Seemingly evidence of P.W. Mst. Zainab Bibi undoubtedly fulfils the test laid down in this judgment."
8. It was highlighted by the learned counsel for the appellant that neither any witness came forward to depose about any strained relationship between the parties, nor was any witness from the neighborhood examined to confirm that he had heard the fire shot from inside the house or that he had seen the accused firing upon the deceased. In such eventualities, according to him, the appellant could not, under any circumstances, be held responsible for the commission of the offence. It is true that the complainant was not an eyewitness and it is equally true that no neighbor came forward to support the prosecution version regarding the actual occurrence, but this Court cannot close its eyes to the fact that the house was in the exclusive control of the husband, and on the night of the occurrence he was admittedly present therein. Had he not been present, he would have taken such a plea, even in his statement under Section 342, Cr.P.C. He did not advance any specific defence, but merely pleaded innocence, which by itself is not sufficient to absolve him from liability. We are conscious of the fact that, under all circumstances, a husband cannot ipso facto be held responsible for the murder of his wife, however, in the present case, it stands established that the deceased lost her life inside the house of the appellant, and the time of occurrence, being the odd hours of the night, excludes the possibility of the appellant having been away from the house. Significantly, the appellant himself did not take such a plea in his defence.
When the incident occurred, both the deceased and the appellant were inside the house, which reasonably suggests the presence of the appellant at the relevant time. If indeed the deceased had committed suicide, then in the natural course of conduct the inmates of the house, including the appellant, would have immediately shifted the body and reported the matter as such. Instead, the dead body was left abandoned in the house, without any attempt either to take it to the hospital or to report the occurrence. Such conduct speaks volumes of a guilty conscience. This Court, therefore, cannot ignore the subsequent conduct of the appellant, both at the time of occurrence and thereafter. When viewed in this backdrop, the subsequent conduct of the appellant provides a strong circumstance connecting him with the offence, and in our considered view, the trial Court was justified in holding him responsible.
9. It is indeed a settled principle of criminal jurisprudence that the prosecution is under a bounden duty to prove its case beyond reasonable doubt, and that the burden of proof does not ordinarily shift to the shoulders of the accused. However, keeping in view the peculiar circumstances of the present case, which rests entirely upon circumstantial evidence, it becomes equally important to consider the conduct of the appellant in the aftermath of the occurrence. When all the circumstances are taken together and examined in their true perspective, coupled with the subsequent conduct of the appellant, this Court is persuaded to hold that the chain of events points unerringly towards the guilt of the appellant. Accordingly, we find no hesitation in affirming that it was the appellant who was responsible for the commission of the offence. It is well-settled that conviction can lawfully be based on circumstantial evidence alone, provided the chain of circumstances is complete and unbroken. In the present case, the circumstances so collected point consistently and unerringly towards the guilt of the appellant. It is true that there is no direct evidence with regard to motive; however, it is equally true that such like disputes usually arise within the domestic sphere, and incidents of this nature rarely take place in the presence of outsiders. The prosecution has, therefore, succeeded in bringing home the guilt against the accused beyond reasonable doubt.
10. The medical evidence also lends support to the case of the prosecution. Though the doctor noted certain charring marks on the dead body of the deceased, yet the possibility remains that she was fired at from a close range. The recovery of an empty from a place a little away from where the deceased was lying excludes the possibility of suicide, and rather indicates that the deceased was fired at. Had it been a case of suicide, the pistol would have been found lying by the side of the deceased, and in the natural course of conduct the inmates of the house, including the appellant, would have immediately shifted the dead body to the hospital and reported the matter as such. Instead, the unfortunate deceased lost her life due to firearm injury, and neither the appellant, nor the inmates of the house made any effort to shift her to the hospital. The medical evidence, the recovery of empty, the bloodstains, and the photographs showing the position of the dead body at the spot are the circumstances which connect the appellant with the commission of the offence. True that medical is confirmatory in nature and, it alone cannot confirm the identity of an accused, but equally true that once the prosecution succeeds in establishing the charge against an accused, that too, through trustworthy and confidence inspiring witnesses, then the medical evidence must be taken into consideration and, the present case is no exception. In similar circumstances, we derive wisdom from the judgment of the apex Court titled "Aqil Versus The State", (2023 SCMR 831), which reads as follows:- "The medical evidence available on the record further corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased and injured is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused."
11. Record tells that the appellant remained absconder for considerable time, as the occurrence took place on 23.05.2019 and the appellant was arrested on 02.12.2019, which he failed to explain, so the same can be taken into consideration in support of the other evidence on file. True that abscondance by itself is not sufficient to hold an accused guilty, but when the prosecution succeeds in connecting him with the tragic incident, then abscondance can be taken into consideration as a circumstance, keeping in view the peculiar circumstances of this case, this Court is confident in holding that the appellant failed to explain his abscondance and that keeping in view the direct charge, the prompt report and the eyewitness account, are the circumstance, which this Court is inclined to take the same into consideration. Reliance can be placed on the judgment of the Apex Court reported as 1992 SCMR 1036 titled "Mst. Roheeda Versus Khan Bahadur and another", wherein, it has been held as follows: - "No doubt, abscondance by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. In the instant case the accused/respondent No. I, Jahanzeb accused (since murdered) and their brother Aurangze remained fugitive from justice for a very long time without any plausible and reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case."
12. The cumulative effect of the discussion made hereinabove inevitably leads this Court to the irresistible conclusion that the prosecution has successfully brought home the charge against the appellant through cogent, confidence-inspiring and trustworthy evidence. The learned trial Court, while evaluating the material available on record, has undertaken a proper appreciation of the ocular as well as circumstantial evidence and has rendered findings which are well reasoned, supported by the record, and in consonance with the settled principles of law. The impugned judgment does not suffer from any illegality, irregularity, or misreading or non-reading of the evidence so as to warrant interference by this Court in the exercise of its appellate jurisdiction.
Consequently, finding no substance in the present appeal, the same, being devoid of merit, stands dismissed.