IJAZ NISAR, J.--Abdul Rashid alias Sheeda (25) son of Fazal Hussain was tried for the murder of Amjad Mujtahid (14). The learned Additional Sessions Judge, Gujrat vide his judgment, dated 31-7- 1983 convicted him under section 302, P. P. C. And sentenced him to death and a fine of Rs.10,000 or in default to undergo one year's R.I. Half of the fine was ordered to be paid to the heirs of the deceased.
2. Abdul Rashid appellant has filed an appeal against his conviction and sentence. The trial Court had made a reference under section 374, Cr.P.C. For confirmation of the death sentence.
Mohammad Boots, father of the deceased has filed a criminal revision for the enhancement of the amount of compensation. All the three matters shall be disposed of by this judgment.
3. The prosecution case is that Amjad Mujtahid deceased left his house on 26-3-1980 to play with his friends. He did not return till Khuftanwela. His father Muhammad Boota P.W. 5 conducted a search for him. On the following morning his dead body was found in a ditch towards north-east of the village. Muhammad Boota P.W. 5 went to police station Sarai Alamgir, District Gujrat and lodged the F.I.R. Exh. P.A. On 27-3-1980 at 10 a.m.
4. After recording the F.I.R. S.I. Malik Muhammad Safdar P.W. 9 visited the spot, prepared the injury statement Exh. P.F. And the inquest report Exh. P.E. And sent the dead body for post-mortem examination. He continued with the investigation but could not find any clue of the culprit. On 16-7- 1980 Mst. Ulfat Bibi P.W. 4, real sister of the deceased appeared before him and disclosed that it was the present appellant who had committed the murder of her brother. According to her the appellant as related to them and lived close to their house. On the relevant day at Khuftanwela she was on way to the house of her maternal uncle when Mst. Zohra Begum, sister of the appellant (since acquitted) met her and took her to her house The appellant who was present there caught hold of her and started embracing her Amjad Mujtahid deceased surprised them and declared that he would inform his father whereupon Mst. Zohra Begum caught hold of him from his neck and threw him on the ground. The appellant took out a knife and gave him a knife blow on the neck. She left that place immediately. The appellant threatened her not to disclose the matter to anyone failing which she would also meet the same fate. She kept silent out of fear and after three months narrated the story to her father who produced her before the police.
Mat. Zohra Begum (since acquitted) was arrested on 2-8-1980. The appellant was not traceable and absconded. S.I. Malik Muhammad Safdar P.W. 9 obtained his warrants of arrest under section 87, Cr.P.C. He was declared a proclaimed offender and proceedings under section 512, Cr.P.C. Were initiated against him. He was eventually arrested on 2-10-1981. In his absence his sister Mst. Zohra Begum was tried and acquitted by another Court on 19-9-1981.
5. Dr. Riaz Ahmad Chaudhry, P.W. 8 conducted autopsy on the dead body of Amjad Mujtahid deceased on 28-3-1980 and found the following injuries there on:- (1)Contusion 2" x 1/2" on left grown.
(2)Contusion 4" x 1" on lower part of left side of chest and epigastrium.
(3)Swelling with red colouration 4" X 2" on the front of left side of neck.
(4)Lacerated wound with abrasion 1/2" x 1/2" on left side of chin.
(5)Slight swelling around left eye.
(6)Lacerated wound 1" x 1/2" x bone deep on left side of scalp.
(7)Incised wound 3/4" x 1/4" x 1/4" behind left ear.
(8)Incised wound 1/2" x 1/4" x 1/4" behind lobule of left ear.
(9)Incised wound 1" x 1/4" x bone deep on the frontal part of left side of scalp. There was swelling on left side of face, blood was coming from the mouth and nostrils.
According to the doctor the death was due to asphyxia as a result of injury No. 3 and shock. Injuries Nos. 3 and 6 were individually fatal. Time between injuries and death was immediate and that between death and post-mortem examination 1 to 2 days. Injuries Nos. 3, 4 and 5 were grievous.
Injuries Nos. 3 and 6 were dangerous to life. Injuries Nos. 7, 8 and 9 were caused by sharp-edged weapons and the rest with blunt weapon.
6. The appellant pleaded not guilty to the charge and denied the prosecution allegations. As regards his abscondence he stated that he alongwith many other residents of the village had been joined in the investigation for about 15 to 20 days and after his discharge by the Investigating Officer left for abroad and on coming to know of the case came back and applied for bail before arrest and after its rejection was arrested by the police out side the Court premises. He stated that he had been involved due to enmity and on the night of incident he alongwith other relatives of the deceased had been searching for him. He did not produce any evidence in defence.
7. The prosecution case rests on the evidence of Mst. Ulfat Bibi and police officials who had got him declared as a proclaimed offender.
8. It is contended that it is virtually a case of no evidence and no reliance could be placed on the uncorroborated testimony of Mst. Ulfat Bibi real sister of the deceased who had kept silent for nearly four months.
9. The occurrence took place on the night between 26/27-3-1980 while Mst. Ulfat Bibi P.W. 4 appeared before the police on 16-7-1980. She is real sister of the deceased and her keeping silent for such a long period when hectic efforts were being made to trace out the culprit throws a strong cloud of disbelief on her testimony. According to her the deceased had surprised the appellant while embracing her and had declared to disclose the matter to her father which led to his murder.
She stated that she kept silent out of the fear of the appellant and for saving her own honour. This explanation is not appealing to reason. Being a real sister she would not have tolerated the murder of her brother at the hands of the appellant. According to her she had been deceitfully taken by Mst. Zohra Begum, sister of the appellant to their house where the appellant caught hold of her and embraced her. There appears to be no reason for hiding the said incident and she could have immediately informed her father and other members of the family about it. These circumstances require a along corroboration of her testimony but it is not forthcoming. No recovery was made either from the place of occurrence or at the instance of the appellant. No witness was examined who could say that he had seen Mst. Ulfat Bibi or the deceased going to the house of the appellant on the relevant night or the appellant taking away the dead body from his house. Even nobody was examined to show that the appellant was carrying on with Mst. Ulfat Bibi. Even if he had such relations with Mst. Ulfat Bibi he would not have used his sister Mst. Zohra as a tool. It is not believable that he would kiss or embrace Mst. Ulfat Bibi in the presence and sight of his real sister and that the latter would go to the extent of catching hold of the deceased on his declaring that he would bring the matter to the notice of his father. The medical evidence also doe not support her.
According to the version given by her the deceased died of knife injuries but according to the doctor who performed the post-mortem on the dead body the deceased had died of asphyxia.
The evidence of a witness not disclosing the occurrence to anyone for nearly 24 hours was considered of least value by the Supreme Court in Muhammad Sadiq and another v. The State PLD 1960 SC (Pak). 223. In Qabil Shah and others v. The State PLD 1960 (P.W.) Kar. 697 the veractiy of eye-witness examined 48 hours after the occurrence was considered doubtful.
10. As regards the abscondence of the appellant after the occurrence it may be stated that no documents were brought on the record by the prosecution to show that any proceedings under section 87, 88 Cr.P.C. Were initiated against him or that any warrant was issued for his arrest. Only oral statements have been made to this effect. According to the appellant he alongwith others had joined the investigation for many days and had gone abroad after discharge by the police. There is nothing on the record to rebut this plea. Assuming for the sake of argument that he had absconded after the occurrence this circumstance C by itself would not be sufficient to sustain his conviction. In this context a reference may be made to Mesal and another v. The Crown 1971 SCMR 239 where it was observed that "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." It was further observed that if direct evidence is considered to be suffering from infirmity as could only be cured by corroboration from independent sources, the conduct alleged would be wholly insufficient for providing such corroboration. A Full Bench of this Court in Nausher v. The State 1971 PCrLJ 811 had held that mere abscondence of accused could not directly connect him with the commission of an offence.
11. The upshot of the discussion, therefore, is that we are not convinced that the charge is fully brought home to the appellant in satisfaction of the legal requirements and in accordance with the well-established principles of the administration of criminal justice. The case is not free from doubt and the appellant is entitled to its benefit. We, therefore, allow the appeal, set aside the conviction and sentence of the appellant and direct that he be released forthwith, if not required in any other-case.
The sentence of death is not confirmed. 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.