ZAKI-UD-DIN, J.--Abdul Sattar son of Durray Khan, resident of Landi total, District Peshawar, has been found guilty under section 302, P. P. C. And sentenced to death by the Sessions Judge, Sahiwal, by his judgment dated 31-3-1971, for the murder of Ghulam Rasool son of Mir Sahib, resident of Mauza Haji Chand, District Sahiwal, at 8-30 p.m. On 9th of September 1967. The convict has filed appeal against his conviction while the learned Sessions judge has made a reference under section 374, Cr. P. C. For confirmation of the death sentence. This judgment will dispose of both the appeal and the reference.
2. The F. I. R. In this case was lodged on the basis of statement of Shah Muhammad son of the deceased, which was recorded by Muhammad Ibrahim A. S. I. (P. W. 14). The motive as described in the F. I. R. For the murder of the deceased was that Ghulam Rasool was the allottee of 12 -- acres of land in Mauza Haji Chand under Border Area Allotment Scheme and Durray Khan, father of-the appellant, was also allottee of 12 -- acres of land in the same village under the same Scheme.
Consolidation of the land was held in this village in 1961-62. During the consolidation operations, 4 kanals of land previously held by Durray Khan was transferred in the name of the deceased, but Durray Khan, father of the appellant, however, remained in possession of the same in spite of marry effort's of the deceased to get the possession. Durray Khan delivered possession of one kanal of land to the deceased, but refused to give possession of the remaining land. On the day of occurrence, i.e., on 9th of September 1967, Ghulam Rasool (deceased) was offering 'Isha' prayers in the mosque known as Meuwanwali mosque of the village alongwith many other persons and after 'Namaz' they were offering 'sunnats and 'nawafils' prayers when they heard gunshot which hit the deceased at his back. According to P. W. 9 Shah Muhammad, son of the deceased, a lantern was burning near the outer gate of the mosque at that time and in its light he saw the appellant entering the mosque. He was holding the pistol which he fired at his father Ghulam Rasool (deceased) after receiving the fire-injury fell down. The appellant ran away. All the persons, who were offering prayers in the mosque, discontinued the same and ran after the appellant. The deceased died after some time of this incident. Shah Muhammad (P. W. 9) went to the Police Station Mandi Hira Singh, but Muhammad Ibrahim A. S. I. (P. W. 14) met him at Bhana Sabiba bridge where he recorded the statement (Exh. P. A.) of Shah Muhammad (P. W.) and sent the same to the police station for the registration of the case. Muhammad Ibrahim, A. S. I.' (P. W.), thereafter', reached the spot. According to him, the dead body of the deceased at that time was lying in the mosque. He prepared the Injury Statement Exh. P. D. And the Inquest Report Exh. P. D/1. The appellant absconded and in spites of best efforts could not be traced out. He was declared a proclaimed offender and the relevant file was sent to the Magistrate concerned for proceedings under section 517, Cr. P. C.
3. Dr. Aftab Ahmad (P. W. 2) conducted the post-mortem examination on the dead body of the deceased at 6-30 a.m. On 11th of September 1967, The following injury was found on his dead body:-
(1) A gun wound 1/8' in diameter on the 8 inter-costal space on the lower part of the hack of right chest, 2 -- ' from the middle line, charring was present all around.
4. The ocular evidence in this case consists of P. Ws. 9 to 13. Except Shah Muhammad, (P. W. 9), who is son of the deceased, all the remaining eye-witnesses have deposed that they saw the appellant from his back and not from his face. They have further deposed that the lantern was not lying on the outer gate of the mosque from where the people-enter the premises of the mosque, They further deposed that when they saw the appellant from, his back, another man was also running along with him whom they could not identify. All these eye-witnesses admitted that they did not see the appellant, firing on the deceased, but after, the gunshot had been fired they recognized the appellant from his back, who was going out of the mosque. They further deposed that the appellant was holding the pistol in his hand. He was chased by them but he disappeared in the darkness after covering a distance of 3 to- 4 acres. Shah Muhammad (P. W. 9) admitted in cross- examination that after the police reached the spot and examined the dead body-of Ghulam Rasool, then his statement was recorded, which he signed. According to P. W. 9 add P. W. 14, the dead body was despatched to the mortuary on the day following the night of occurrence after sun rise. This statement was made by these two witnesses in reply to a question; whether the dead body was sent to Mortuary in the evening of 10th of September 1967. The remaining witnesses also admitted in the cross-examination, that the statement of Shah Muhammad (P. W. /9) was recorded by the police after its arrival on the spot, which was signed by him. It means, teat the case was not registered on the basis of alleged statement made y P. W. 9, immediately after the occurrence to the Investigation Officer (P. W. 14). , P. W. 9 further admitted in cross-examination that at some time before the occurrence, Durray Khan, father of the appellant, had left the village Haji Chand and had leased out his land to Bagh Din and Hussain Shah and had shifted to Buddabir village in District Peshawar along with his family. The appellant while examined by the Sessions Judge made a statement on 27th of March, 1971, that he never resided in village Haji Chand. He was running a shop at Landi Kotal and when he came to know about this case he appeared before the A. D. M., Sahiwal on his own accord. The learned Sessions Judge found in his judgment that the allegation; that the F. I. R. Was recorded after the preliminary investigation on the spot, was correct.
He rightly held that such F. I. R. Could not be relied upon and was not admissible in evidence. The learned Sessions Judge while convicting and sentencing the appellant to death relied upon two things motive as described in the F. I. R. And the abscondence of the appellant for more than l -- years after the occurrence. We are afraid, the conviction of the appellant on these two things mayth not be proper. Shah Muhammad (P. W. 9) son of the deceased, admitted in cross-examination that some time before, the occurrence, father of the appellant had left the village and shifted to Peshawar District along with his family and had leased, gut is land to other persons: It is admitted that the dispute in regard to the land was between the deceased and the father of the appellant.
Nothing has been brought on record to show that the appellant ever intervened in the matter or ever quarrelled with the deceased on account of this dispute. After Durray Khan had shifted to Peshawar intensity in the dispute obviously should have decreased: In the circumstances, the motive as described by the prosecution becomes very weak to be relied upon.
5. This is correct that the appellant was arrested after, about 1i years of the occurrence. However, according to law, abscondence is wholly insufficient by itself to hold the appellant responsible for the murder of the deceased. If there is no sufficient evidence on record connecting the accused with the murder of the deceased then abscondence by itself is wholly insufficient to hold the appellant as responsible for the murder of the deceased. Reliance in this respect can be placed upon Muhammad Humayun v. State (PLD 1971 Pesh. 182).
6. The ocular evidence produced in this case is quite insufficient as discussed above, to connect the appellant with the murder of the deceased. It is, therefore, not safe to convict the appellant on the basis of such evidence. We, therefore, giving benefit of doubt to the appellant accept his appeal, set aside his conviction and sentence under section 302, P P. C. For the murder of Ghulam Rasool and acquit him of the charge. He shall be set at liberty forthwith unless required to be detained lawfully in any other case. The reference is answered accordingly.