' The appellant alongwith four others was an accused in case: F.I.R. No,43 registered at Police Station Sumberyal, District Sialkot on 12-5-1976 under sections 302, 148/149, P.P.C. For the murder of Muhammad Hussain. The appellant absconded during the investigation and could not be sent up for the trial alongwith his co-accused who faced trial before the Court of Session at Sialkot and were sentenced to death, vide judgment of the learned Additional Sessions Judge, Sialkot, dated 6- 3-1978.
2. Sometime subsequent to the decision of the case of his co-accused, the appellant was arrested and he was also sent up for trial. On its conclusion he was convicted under section 302/149, P.P.C.
And sentenced to imprisonment for life and a fine of Rs,10,000 or in default to undergo two years' R.I.
He was also convicted under section 148, P.P.C. And sentenced to two years' R.I.
3. The prosecution story in brief is that in the background of land dispute, about a year prior to the occurrence, Muhammad Hussain (deceased) had fired at Hafiz Muhammad Alam co-accused in Mandi Samberial and at his instance a case of attempted murder was registered against the deceased but he absconded. Hafiz Muhammad Alam co-accused after some time came to know that Muhammad Hussain (deceased) was hiding somewhere in District Gujrat and he deputed Ali Muhammad co-accused and some other persons to kill him there. The assassins were arrested before they could succeed in attempting at the life of Muhammad Hussain (deceased). Persuant to this incident, another case was registered in which Hafiz Muhammad Alam was also cited as one of the accused. Two or three months prior to the main occurrence, Muhammad Hussain (deceased) was arrested in the case of attempted murder, in which he was absconding, but he was released on bail. However, with the intervention of the elders of the brotherhood they reached the compromise. Two days prior to the occurrence the deceased got married but despite the compromise Hafiz Muhammad Alam did not participate in the ceremony.
4. On 12-5-1976 Muhammad Hussain (deceased) was to appear in a Court at Daska in the case of attempted murder registered against him. To go there he alongwith Muhammad Alam complainant went to Bus Stand Samberial to catch a bus for Daska. When they reached there at about 7-00 a.m., and went over to the nearby tailoring shop of Sarfraz PW where he got the clothes stitched in connection with his marriage and was talking to him for the payment of stitching charges, all the five accused, including Arshad Mahmood appellant, suddenly appeared there in a white car. Hafiz Muhammad Alam and Muhammad Jargees co-accused were armed with rifles, Muhammad Hasqeel alias Shakeel accused armed with a dagger, Muhammad Ali alias Muhammada carying a .12 bore gun and Arshad Mahmood appellant herein holding a pistol, came out of the vehicle. Soon after coming out of the car, Hafiz Muhammad Alam and his co-accused raised Talkara' addressing Muhammad Hussain (deceased) that they would not allow him to escape alive. Hafiz Muhammad Alam then fired at him but the bullet, missing the target, hit a window of the shop. Muhammad Hussain (deceased) and Muhammad Alam complainant ran into the shop in order to take shelter, they tried to close the doors but the assailants did not allow them to do so. Entering the shop, Hafiz Muhammad Alam fired a second shot at the deceased and having been hit by it he fell down. Then Hafiz Alam, Muhammad Jargees and Arshad Mahmood fired more shots at him while Muhammad Hasqeel alias Shakeel struck him with the dagger. The victim died on the spot and the assailants drove away in the car towards Wazirabad. The matter was reported to Sumberial Police by Muhammad Alam complainant (P.W.13) and a case was registered against the appellant and his co-accused in the manner aforesaid. On the completion of investigation, a group of four accused was tried separately, as stated above, and the appellant was tried subsequently as he had absconded.
5. On the commencement of his trial the prosecution produced as many as 18 witnesses but prominent among those were Abdul Ghani (P.W.5) and Ghulam Nabi (P.W. 6), who had deposed about the motive; Muhammad Alam (P.W.13) and Muhammad Iqbal (P.W.14), who gave the eye- witness account, Dr. Muhammad Younus Chughtai (P.W.15) who gave the details of the injuries as incorporated by him in the post-mortem report, and S.I. Syed Muhammad Alam Shah (P.W.16) who gave the details of the investigation. Sarfraz Gill was another eye-witness but by the time the trial of the appellant commenced he had left abroad and his statement recorded during the trial of his co-accused earlier under section 512, Cr.P.C. Was separately transferred to the file of this case and was read in evidence.
6. The appellant in his statement recorded under section 342, Cr.P.C. Denied all the incriminating circumstances figuring against him in the prosecution evidence and alleging his false implication, professed innocence. He produced no defence. Explaining his involvement he stated that there were two political factions in Samberial, one led by Ch. Muhammad Nawaz, Ex-Chairman of the Town Committee, and the other by Ch. Muhammad Azam Ex-M.PA. And his maternal-uncle Muhammad Ali co-accused was falsely implicated on account of party faction. He alleged that he was Munshi of Ch. Muhammad Sarwar Lambardar of village Mojianwali of Police Station Mandi Baha-ud-Din, District Gujrat, for looking after his agricultural land and Ch. Muhammad Nawaz aforesaid got him falsely implicated in this case. According to him, when he came to know about the occurrence and the registration of the case, he appeared before the police and was arrested but later he was released on bail and went back to village Mojianwali to perform his duty as a manager and remained there till he came to know about the commencement of trial in the Court of learned Additional Sessions Judge where he surrendered. He denied having remained absconder.
7. On the conclusion of the trial the appellant was convicted and sentenced in the manner aforesaid and he came up in appeal to this Court.
8. It was argued on behalf of the appellant that the fact of his absconsion was not proved against him by the prosecution and could not be taken into account as a piece of evidence. It was contended that during the trial against the co-accused of the appellant three witnesses, namely, Muhammad Alam, Muhammad Iqbal and Sarfraz Gill PWs had given eye-witness account but during the course of trial against the appellant, Sarfraz Gill PW was not produced due to his having gone abroad and his statement recorded during the trial of appellant's co-accused was brought on the record with a view to be read as evidence against him (appellant) under section 512, Cr.P.C.
According to the learned counsel, Muhammad Alam and Muhammad Iqbal PWs, who have, during the trial against the appellant, appeared as PW-13 and PW-14, respectively, giving eye-witness account, were partisan witnesses and the only independent witness could possibly be Sarfraz Gill PW but he could not be examined due to his absence from the country and his statement recorded during the previous trial of the case against the co-accused of the appellant could not be legally used against the appellant under section 512, Cr.P.C. As the same was not recorded for the purpose of being so used. In support of his contention the learned counsel. Placed reliance on Emperor v.
Sherozaj Singh 1948 All.
375.
9. I am inclined to agree with the contention of the learned counsel for the appellant. Muhammad Alam and Muhammad Iqbal PWs, as it appears from their examination, were the partymen of Muhammad Hussain (deceased) and they all belonged to one faction in Samberial Town, while Hafiz Muhammad Alam, the main accused in the case, belonged to the opposite faction of the town and as such they cannot be termed as independent and disinterested witnesses. The only impartial witness in this case was Sarfraz Gill in whose shop the occurrence had taken place but, by the time the appellant was arrested and his trial commenced, he (witness) left abroad and his appearance for the purpose of evidence could not be procured. Therefore, the prosecution relied upon his statement recorded during the trial of appellant's co-accused a few years ago and brought the same on record in this case as a piece of evidence under section 512, Cr.P.C. To be read as his statement.
10. I have not been able to see eye to eye with the arguments of the learned counsel for the appellant that his absconsion has not been proved. He had not joined the trial conducted against his co-accused, who were ultimately convicted for the murder of Muhammad Hussain, on account of his having absconded and this fact stood amply proved on the record that he remained absconder during that trial and for quite some time after its conclusion till he was arrested and made to face trial.
11. However, there seems to be a good deal of substance in the contention of the learned counsel for the appellant that the statement of prosecution witnesses recorded during the previous trial of appellant's co-accused, including the statement of Sarfraz Gill PW, was not consciously and specifically recorded against the appellant in terms of section 512, Cr.P.C. And cannot be used against him (appellant) as such because those statements were recorded primarily for the purpose of trial of appellant's co-accused and the same were used accordingly. During the course of evidence in the previous trial no doubt the appellant also figured as an absconding co-accused, having played the role of killing Muhammad Hussain alongwith his co-accused but it was mentioned casually in the ordinary course of the case for the purpose of the trial of the appellant's co-accused and attention of the trial Court was not directed to the case of the appellant.
12. The general principle of law in criminal trial is that a statement made against a person in his absence cannot be used as evidence against him and exception to this rule was specifically created by the Legislature in section 512, Cr.P.C. Therefore, while applying the exception so created, it has to be construed strictly, particularly when there can be possibility of the co-accused's taking advantage of the absence of their alleged partner in the crime and shifting the liability on him by cross-examining the prosecution witnesses in a manner favourable to themselves and injurious to the absentee accused. This being so, I am not prepared to rely on the statement of Sarfraz Gill eye- witness recorded in the previous trial. With the exclusion of this piece of evidence, then remains the eye-witness account as deposed by Muhammad Alam and Muhammad Iqbal PWs, which without independent corroboration is not worthy of reliance and no such corroboration in this case is forthcoming. It is an admitted position that the appellant was not related to Hafiz Muhammad Alam, the principal accused. According to the prosecution, he was a mercenary but, as per stance adopted by the defence, he was private servant of some of the high-ups of the faction to which the accused party belonged and had been falsely implicated on that account.
13. Since the appellant had no direct interest in the land dispute between the complainant party and Hafiz Muhammad Alam, which eventually led to the reckless criminal litigation between them, nor he had any personal axe to grind in their controversy, the possibility of his false implication in the background of party politics cannot be excluded for that reason also.
14. For various reasons stated above, the appeal is accepted, the conviction and sentence of the appellant are set aside and he is acquitted. He shall be released forthwith if not required in any case.