' FAIZ MUHAMMAD KHAN, J.-- Mir Dad son of Gul Badshah, aged 45, faced trial in the Court of Additional Sessions Judge, Nowshera on charges under sections 302/307/34, P.P.C. And on conclusion of the trial, having been found guilty of committing the offence he was charged with, was sentenced to death under section 302/34, P.P.C. And to pay a fine of Rs,30,000, which on recovery was directed to be paid as compensation to the legal heirs of the deceased, and to 7 years' R.I. Under section 307/34, P.P.C. And to pay a fine of Rs,20,000, which on recovery was directed to be paid to the legal heirs of the complainant who died before the trial commenced. No order was, however, made by the learned trial Judge as to what punishment the accused would suffer if he failed to pay the fine imposed on him. Mir Dad is before us in appeal, and so is the reference made by the learned trial Judge for confirmation of the death sentence awarded to the accused.
The charges against the accused were that he alongwith his co-accused Sher Wali (still absconding), in furtherance of their common intention, committed on 10-9-1976 at about 1700 hours, within the limits of Mera Khweshki, Police Station, Nowshera Kalan, the murder of Roman Ali, by firing at him fatally, and attempt on the life of Marjan Ali P.W. By firing at him ineffectively.
2. The prosecution case at the trial was that while Roman Ali (deceased) and Marjan All P.W. , brothers inter se, were, on the fateful day at about 1700 hours, returning to their house from the well of Sarwar Khan carrying pitchers full of drinking water, the appellant and the absconding accused Sher Wali, who waylaid them, both effectively fired at Roman Ali killing him on the spot. The appellant also fired at Marjan Ali P.W., who was following Roman Ali deceased, but the shot proved ineffective. The motive for the crime was a quarrel between the parties a year ago over the turn of irrigation water, which was said to have been patched up later. The gun-fire and the cries of Marjan Ali P.W. Attracted Bunir Khan (P.W. 4), father of Roman All and Marjan Ali, to the spot from his house nearby. He was said to have seen the occurrence. The assailants decamped from the spot thereafter.
3. Marjan Ali P.W. Had lodged the first report at Police Station, Nowshera Kalan, wherein he mentioned almost the same story which was disclosed at the trial. It was recorded by Hassan Khan, A.S.I. (P.W. 1), who was then Moharrir Head Constable. Marjan All P.W. Testified to the correctness of this report in his statement recorded under section 512, Cr.P.C.
' Dr. Khurshid Ahmad, who was then Medical Officer, Civil Hospital, Nowshera Kalan, had examined the dead body of Roman Ali. The injuries found by him were:- ' External Examination:-
(1) A firearm entrance wound on the lateral aspect of upper part of left chest (about 2" to 3" lateral to left nipple), size about 1" x 1/6" and more than skin deep.
(2) A firearm exit wound on the back of upper part of right chest, size about 2" x 3" and more than skin deep.
(3) A firearm entrance wound with charring on the front of lower part of right chest, size about 24" x 2 1/2" and more than skin deep.
(4) Six foreign body (pellets) were palpable on the back of upper part of left chest which were removed and handed over to the police.
' On internal examination vital organs of the body, i,e, right lung, left lung, peritoneum, stomach and liver, were also found injured. The cause of death, in the opinion of the doctor, was injuries to vital organs of the body leading to severe haemorrhage and shock.
5. During those days Abdul Ghaffar Khan (P.W. 8), Inspector Police, was S.H.O., Police Station, Nowshera Kalan. He investigated the case. He visited the spot same day the report was made, but being late at night he could not carry out inspection of the spot, which he did the following day early in the morning. He recovered from the spot bloodstained earth, an empty pitcher (P.1) and a .12 bore empty cartridge (P.2), vide recovery memo. Exh. P.C. He prepared the site plan Exh. P.B. At the instance of Marjan Ali P.W. He also took into possession, vide recovery memo. Exh. P.C./1, blood-stained shirt (P.3) of the deceased, a bottle (P.4) containing six pellets and a match box (P.5) containing one cardboard of .12 bore cartridge sent by doctor through Hayat Khan F.C. No,2651. The pellets and the cardboard were recovered from the dead body of Roman Ali.
He searched for the accused but in vain. He then applied to Illaqa Magistrate for warrants under section 204, Cr.P.C., which were returned with the report that the accused were avoiding arrest. He then moved Illaqa Magistrate, vide application Exh. P.E./1, for the issuance of proclamations under section 87, Cr.P.C., which were also returned with similar report. The warrants and the proclamations were entrusted for execution to D.F.C. Inamullah. After completion of the investigation, S.H.O. Submitted challan to the Court under section 512, Cr.P.C.
6. On receipt of challan under section 512, Cr.P.C., the Illaqa Magistrate, believing that both the accused were absconding and that there was no immediate prospect of their arrest, proceeded to examine the witnesses for the prosecution. The statement of Marjan All P.W., and of Bunir Khan P.W.
Were recorded by the Magistrate. Other prosecution witnesses, namely, Ali Haider, Mohammad Akbar, A.S.1. Mohammad Hassan Khan, A.S.I. And Hayat Khan F.C.No,2651 were also examined by the Illaqa Magistrate. All in absence of the accused.
7. At the trial the prosecution relied on the eye-witness account furnished by Marjan Ali P.W. And Bunir Khan (P.W.4), the medical evidence, the recoveries made from the spot, the evidence of motive and the abscondence of the appellant. The learned trial Judge, relying on this evidence, found proved the charges against the appellant, and while convicting him sentenced him to death, imprisonment and fine as mentioned in first paragraph of this judgment.
8. At this stage we would like to point out some salient features of this case. Roman Ali deceased was having on his body bullet and pellet injuries which proved that more than one weapons of different calibre were used by the assailants who could also be more than one. There was no previous blood-feud enmity between the parties, nor was the complainant-party, according to the record, having enmity with anyone else. There was delay in lodging the first report. Both the accused charged in the first report were reported to be absconding and challan under section 512, Cr.P.C. Was submitted to the Illaqa Magistrate who recorded the statements of the witnesses, whose names appeared in the calendar of witnesses, in absence of the accused. During those proceedings Illaqa Magistrate recorded on 26-6-1978 the statement of Marjan Ali P.W., who claimed to be an eye-witness to the occurrence and was also the first informant. Some time later, however, Marjan All P.W. Was done to death, charge for which was laid at the door of the appellant before us and others, one of whom (Gul Badshah) was tried by the Additional Sessions Judge but was acquitted. It was, therefore, an established fact that Marjan Ali P.W., having died before this trial commenced, was not available for recording statement at the trial. The Additional Public Prosecutor conducting the prosecution case, therefore, requested the trial Judge for transferring the statement of Marjan All P.W. Recorded under section 512, Cr.P.C. To the Sessions' file. The request was allowed. No objection or exception was taken by the defence to this course and the statement of Marjan All P.W. Recorded during those proceedings was transferred by the learned trial Judge to this file. When the warrants under section 204, Cr.P.C. Were not served, because both the accused named in the first report had made themselves unavailable to the Police Agency, the S.H.O., vide application Exh.P.E./1, applied to the Illaqa Magistrate for issuance of proclamations under section 87, Cr.P.C. At that time and before issuing proclamations the Illaqa Magistrate recorded the statement of Inamuilah D.F.C., to whom the warrants were entrusted for execution, who deposed to the fact that the accused were absconding and there was no immediate prospect of their arrest.
The Illaqa Magistrate, finding that both the accused (which included appellant) had made themselves inaccessible to the process of law, recorded on 18-9-1976 an order to that effect wherein it was specifically mentioned that there was no immediate prospect of the arrest of the accused. After recording this finding in the form of an order, Illaqa Magistrate directed proceedings under section 87, Cr.P.C. Challan under section 512, Cr.P.C. Was submitted before the Illaqa Magistrate a few months after recording of this order by him. The appellant was arrested by the police (Shaukat Ali P.W.6) on 16-8-1981 and his co-accused is still absconding.
9. M.Zahurul Haq, Advocate appeared on behalf of the appellant. The State was represented by Mian Mohammad Ajmal, Assistant Advocate-General and the complainant had engaged Mr. Jamshed Khan, Advocate. They were heard and the record of the case perused with their assistance.
10. The first contention of the learned counsel for the appellant was that since no effort was made by the prosecution to prove before the learned trial Judge that Marjan Ali P.W. Was dead, his statement recorded by the Magistrate under section 512, Cr.P.C. Could not be transferred to the Sessions' file so as to form evidence against the appellant. Since the necessary requirement of law was not satisfied, the order, dated 30-4-1983 made by the learned Additional Sessions Judge bringing the statement of Marjan All P.W. On the Sessions' file was of no legal consequence, the learned counsel urged. This statement could not, therefore, be used as evidence against the appellant, the learned counsel contended. At this stage, the learned counsel representing the complainant informed us that Marjan Ali P.W. Was murdered by the appellant herein and his associates, one of whom (Gul Badshah) was tried by Additional Sessions Judge, Nowshera for that murder but was acquitted. We adjourned the case and summoned the relevant record, which disclosed that what was stated by the learned counsel for the complainant was correct. After seeing the record the learned counsel for the appellant did not press this contention.
11. The other contention of the learned counsel for the appellant was that since it was not proved by legal evidence before the recording Magistrate that the accused were absconding and that there was no immediate prospect of their arrest, the learned Magistrate had no jurisdiction to proceed in the case and record the statement of Marjan Ali P.W. Under section 512, Cr.P.C. For that reason, the learned counsel argued, the statement of Marjan All P.W., being inadmissible in evidence, could not be used by the trial Judge for convicting the appellant for the crime. In support of his contentions, the learned counsel cited AIR 1944 Nag. 274, AIR 1941 Lah. 361, AIR 1956 Mysore 1, AIR 1947 Sind 122, 1981PCr. L J 165 and PLD 1981 SC (A J & K)
25. The contention of the learned Assistant Advocate- General was that the proceedings conducted by the learned Magistrate under section 512, Cr.P.C.
Were proper and in accord with law, as there was available on the record before him legal evidence to show that the accused had absconded and that there was no immediate prospect of their arrest. The learned Magistrate, believing that the conditions precedent to recording of statements under section 512, Cr.P.C. Were satisfied, proceeded thereunder to record the statements of witnesses, which exercise was completely in accord with law, the learned Assistant Advocate-General urged. For that reason, the learned Assistant Advocate-General contended, the statement of Marjan All P.W. Recorded under section 512, Cr.P.C., being a good and legal evidence, could be relied upon by the learned trial Judge for convicting the appellant for the crime. AIR 1918 All. 60, AIR 1926 Lah. 83, AIR 1933 Lah. 561 and AIR 1936 Pattan 34 were cited by the learned Assistant Advocate-General in support of his contentions.
12. We have considered the arguments of the learned counsel for the parties and have carefully gone through the authorities cited by them in support of their contentions. The consensus of the authorities appears to be that before recording statements under section 512, Cr.P.C., the recording Court must have before it legal proof that the accused were absconding and that there was no immediate prospect of their arrest. These are the prerequisite to recording of statements under section 512, Cr.P.C., which is an exception to the rule that the statements of the witnesses must be recorded in presence of the accused if such statements are desired to be used against him. Once these prerequisite are believed by the recording Court to have been satisfied, then the Court would be fully competent to record the statements of witnesses under section 512, Cr.P.C., which can later be used against the accused in the circumstances further mentioned in this section. Such belief would rest on the legal evidence placed before the recording Court, which would be judge in the matter, subject, of course, to the scrutiny by the trial, the appellate or the revisional Court, as the case may be. The question which arises for determination, therefore, is whether or not there was available to the recording Magistrate legal evidence on the basis of which he could, and he did, arrive at the conclusion that the accused were absconding and that there was no immediate prospect of their arrest. The learned counsel for the appellant tried to persuade us to hold in the negative, but the learned Assistant Advocate-General suggested a positive view. It is true that the normal procedure followed in such like situations, which we approve, is that the recording Court examines search witnesses and records finding to the effect that the prerequisites of section 512, Cr.P.C., already mentioned by us, are satisfied and then proceeds to examine the witnesses. In this case, however, while going through the record we found that when the police was unable to arrest the accused in this case, an application was moved by the S.H.O. To Illaqa Magistrate for issuance of warrants under section 204, Cr.P.C. Those warrants were entrusted for execution to Inamullah D.F.C. Who returned them unserved with a report that the accused were making themselves inaccessible to law. On receipt of this report on the warrants, the S.H.O. Applied on 18-9-1976 to Illaqa Magistrate for initiating proceedings against the accused under section 87, Cr.P.C. This application was taken cognizance of by the Illaq Magistrate, who, after examining Inamullah D.F.C., recorded on 18-9-1976 an order to the effect that the accused were intentionally making themselves inaccessible to the process of law and that there was no immediate prospect of their arrest and that proceedings under section 87, Cr.P.C. Be initiated against them. The record further shows that challan under section 512, Cr.P.C. Was submitted to the Illaqa Magistrate after a few months of this order and the Court consistently mentioned the fact in the orders recorded in the order-sheets that the accused were absconding. Prosecution witnesses (including Marjan Ali) were examined by the Court during those proceedings. All this would show that when the Court recorded the statements of prosecution witnesses under section 512, Cr.P.C. There was present on the record a judicial verdict given by the Illaqa Magistrate that the accused were absconding and that there was no immediate prospect of their arrest. This judicial verdict was based on the statement of the witness who was entrusted with the execution of warrants issued under section 204, Cr.P.C. The statement of Inamullah and the judicial verdict aforesaid of the Illaqa Magistrate, in our opinion, constituted legal evidence for the Court which proceeded to record the statements of prosecution witnesses under section 512, Cr.P.C. We are also of the opinion that the learned Illaqa Magistrate consciously mentioned in the order-sheets the fact that the accused were absconding, and the prerequisites of section 512, Cr.P.C. Having been satisfied, the learned Magistrate could legally proceed to record such statements which constituted legal evidence to be used against the absconding accused at a subsequent trial if other conditions prescribed in section 512, Cr.P.C. Were satisfied. Since it was established on the record, as already held by us, that Marjan All P.W. Was dead at the time of trial, his statement recorded by the Magistrate under section 512, Cr.P.C. Could, in our opinion, be transferred to the Sessions' file and could be used as evidence against the appellant.
13. The next contention of the learned counsel for the appellant was that if the statement of Marjan Ali P.W. Recorded under section 512, Cr.P.C. Was excluded from consideration, then the first report lodged by him and proved in that statement shall have to be kept out of consideration. This argument, in view of our finding already given that the statement of Marjan All P.W. Was admissible in evidence, is without substance.
14. Attacking the evidence furnished by Bunair Khan (P.W.4) at the trial, the learned counsel for the appellant contended that he was not a truthful witness and for the story which he narrated at the trial he could hardly be believed. He argued that this witness made many improvements in his statement at the trial and has thereby rendered his version as unacceptable. The learned counsel pointed out that he was not an eye-witness to the occurrence, and that he may have reached the spot after the affair was over. Referring to the site plan (Exh.P.B.) prepared by the Investigating Officer, the learned counsel urged that the house of Bunair Khan (P.W.4) was situated at a distance of 83 paces from the spot. The witness deposed to the facts that while he was inside his house, he heard three gun-shots and the cries of his son Marjan All P.W., hearing which he went to the spot and saw both the accused (appellant and the absconding accused) standing near the deceased and his son Marjan Ali P.W. Standing at the place shown as point No, 4 in the site plan. The learned counsel contended that it was totally unbelievable that after doing their job the accused might have remained on the spot in order to permit Bunair Khan (P.W.4) to come near them from a distance of about 83 paces so as to identify them as assailants. The learned Assistant Advocate- General, however, urged that such things do happen and that it was not always that after doing the job the assailants immediately disappear from the spot. He argued that the statement of Bunair Khan (P.W.4) taken as a whole was confidence inspiring and that in absence of previous blood-feud enmity between the parties, this statement could not be ignored.
15. Bunair Khan (P.W.4) has said that his house was situated at a distance of 50 paces from the spot. The Investigating Officer has put this distance at 83 paces in the site plan. Whichever be the correct position, the undeniable fact is that the house of Bunair Khan (P.W.4) was situated near the spot. His statement was that while he was sitting in his house he heard three gun-shots. His coming out of the house and proceeding towards the place of occurrence after hearing the gunshots, which were fired near his house, was quite a natural conduct on his part, even if his claim to the effect that he heard cries of his son Marjan All P.W. Was kept out of consideration, being an improvement made at the trial, as was urged by the learned counsel for the appellant. Quite natural was his conduct when reaching the place of occurrence he inquired from Marjan All P.W. As to who were the assailants. He deposed to the fact that Marjan Ali P.W. Informed him that the appellant and the absconding accused had done to death Roman All by firing at him effectively. To this extent, therefore, the statement of Bunair Khan (P.W.4) appeared worthy of credence. He has, however, gone further and stated that when he reached the spot he saw the appellant and the absconding accused standing near his deceased son. This portion of his statement does not appeal to reason as the natural behaviour of the accused after committing crime of this nature is that he immediately tries to escape from the place of occurrence, if circumstances do not force him otherwise, which in this case did not exist. We are, therefore, of the opinion that in this case the assailants, after committing the crime, must not have remained on the spot so as to facilitate their identification by the father of the deceased whom they could expect to arrive at the place of occurrence from his house nearby situated. Bunair Khan's statement that when he reached the spot he saw the appellant and the absconding accused standing near the dead body of his son was, to that extent, unbelievable, and so was his statement to the effect that he had seen the occurrence. The statement of Bunair Khan (P.W.4), in our opinion, could be used by the prosecution only to tell that he had reached the spot soon after the occurrence, that Marjan All P.W. Was present on the spot at the relevant time near Roman All deceased and that Marjan All P.W. Had informed him, immediately after the occurrence, that the appellant and the absconding accused were the assailants responsible for the crime. We would, therefore, consider the statement of Bunair Khan (P.W.4) against the appellant only to that extent.
16. The other contention of the learned counsel for the appellant was that the Investigating Officer had reached the place of occurrence at about 10.30 p.m. He could not carry out inspection of the spot being a night. The spot was inspected by him next day early in the morning. No one was posted by the Investigating Officer to guard the spot. In such circumstances, the recoveries made of incriminating articles could have been planted by the complianant-party at night time. Such recoveries, the learned counsel urged, were, therefore, of no significance and could not be relied upon. It is true that the spot remained unguarded by the police throughout the night. But the argument of the learned counsel for the appellant that a .12 bore empty and the pitcher recovered from the spot may have been planted by the complainant-party at night time has no substance because had it been so, the complainant-party would have also planted an empty of the rifle which was undisputedly used by the assailants while committing the crime.
17. The learned counsel for the appellant further contended that there was a delay of more than four hours in lodging the first report. In this respect he invited our attention to the time of occurrence and the time of lodging the report mentioned in the first report. The learned counsel contended that the report was delayed because it was an unwitnessed occurrence and the assailants were to be picked out after discussions and deliberations. He argued that the charge could, therefore, be false, or at least doubtful. True, as already pointed out by us, that the first report was lodged with delay. If we look at the time of occurrence mentioned in that report, the delay was more than four hours. But if we look at the statement of Bunair Khan (P.W.4) given at the trial, there was a delay of about three hours. The question to be determined, however, is whether the delay in lodging the report was of any benefit to the prosecution case? In our opinion it was not. The record was totally silent about any previous blood-feud enmity between the parties. No question was put to Bunair Khan (P.W.4), nor was any suggestion made to him by the defence in that respect. The enmity mentioned as motive was apparently of trivial nature. That being so, false charge or false substitution of the appellant and his co-accused for the real culprits was out of question. In such circumstances, and when seen in the light of medical evidence which proved that the assailants were two persons, the delay in lodging the first report brought no benefit to the prosecution, hence was of no significance. 1970 SCMR 797 is authority on this point.
18. The other contention of the learned counsel for the appellant was that Bunair Khan (P.W.4) stated that the appellant had fired at the deceased with a 7 M.M. Rifle, but from the place from where the appellant was said to have fired at the deceased one .12 bore empty was recovered. This belied the prosecution story, the learned counsel urged. He also contended that if the appellant had fired at the deceased with his rifle, then in view of the places shown in the site plan the injury caused to the deceased by bullet should have been on his right side and not on his left side, as was revealed by the medical evidence.
' He contended that the site plan and the place given therein to the appellant ran counter to the prosecution version disclosed at the trial, which made the prosecution case doubtful, if not available. We find no substance in these arguments. We have already held that Bunair Khan (P.W.4) had reached the place of occurrence after the incident was over and that he had neither seen the assailants nor the attack with his own eyes. That being so, the statement of Bunair Khan (P.W.4) was of no value when he said that the appellant had fired at the deceased with a 7 M.M.
Rifle. His statement in that context was, therefore, not damaging to the prosecution case, nor could the defence derive any benefit out of it. We may here add that the only eye-witness to the occurrence (Marjan All P.W.) did not state that the appellant had fired with a rifle. Keeping in view the distance mentioned in the site plan between the appellant and the deceased at the time of assault, the medical evidence and the recovery of .12 bore empty from the place where the appellant was, we are of the opinion that the appellant had effectively fired at the deceased with a shotgun. Viewed from this angle, the recoveries made from the spot and the site plan rather corroborated the prosecution story.
19. The learned counsel for the appellant next contended that if the deceased and the assailants at the time of attack were at the places as shown in the site plan Exh.P.B., then the inlet wounds on the body of the deceased should have been on the right side and the back whereas, in fact, they were not so. The site plan and the medical evidence, according to the learned counsel, belied the prosecution story. This argument is also without substance because the site plan was a sketch prepared in hand and the positions of the assailants and the deceased shown therein were not shown with geometrical exactness. The injuries found on the body of the deceased show that the missiles had travelled cross-wise and this circumstance, seen in the light of the positions occupied by the assailants at the time of attack, supported the prosecution story.
20. Roman An was murdered on 10-9-1976. The appellant, after having bee, claimed as offender in due course of law, was arrested by the police on 16-8-1981 (Ainuddin Khan S.H.O., P.W.9). He remained in abscondence for about five years without any plausible explanation offered at the trial. The learned counsel for the appellant urged that the abscondence of the appellant for a long time did not constitute substantive evidence so as to become basis for his conviction. We do not dispute this legal proposition. However, it is well-settled that this circumstance can be used to corroborate other substantive evidence available on the record against the accused. Where the abscondence of the accused is for a long time and is not properly explained at the trial, as was the case here, then it also points towards the guilt of the accused.
21. The motive for the crime was furnished by Marjan All P.W. And Bunair Khan (P.W.4). The motive was alleged at the earliest opportunity and the prosecution stuck to it at the trial. No question was put to Bunair Khan (P.W.4) by the defence in that respect. That being the case, the motive for the crime alleged by the prosecution stood proved at the trial.
22. Marjan Ali P.W. Was seen on the spot by Bunair Khan (P.W.4) when immediately after the occurrence he reached there. Marjan All P.W. Claimed to have seen the occurrence. His statement recorded under section 512, Cr.P.C., which was transferred to the Sessions' file, went unquestioned.
He charged the appellant and his co-accused for killing Roman Ali by effectively firing at him. He also claimed that he was fired at by the appellant ineffectively. There is nothing on the record to disprove his assertions. The testimony of Marjan Ali P.W. Was supported by the statement of Bunair Khan (P.W.4) to the extent already indicated. The medical evidence, the evidence of motive and other circumstantial evidence (including the abscondence of the appellant for a long time) already enumerated corrobroated the eye-witness account furnished by Marjan Ali P.W. We are, therefore, of the opinion that the prosecution had succeeded at the trial in establishing the guilt of the appellant beyond reasonable doubt. The learned trial Judge, therefore, rightly convicted him, and since there was no mitigating circumstance, rightly sentenced him to death for the murder of Roman Ali. His conviction is maintained and so is the sentence of death. His conviction and sentence under section 307/34, P.P.C. Is also maintained. This appeal is dismissed and the Murder Reference is answered in the affirmative. We may, however, add that if the sentence of death is commuted, then in default of payment of fine on each count the appellant shall suffer further R.I.
For six months.