JUDGMENT RAJA ABDUL AZIZ BHATTI, J.- Through this judgment Crl. Appeal No. 62/90 and Crl:Revision No 105/90 are disposed of.
2. The facts of the prosecution case as per contents of the Ex.PB are that one Miran Bakhsh PW2 made statement before Muhammad Yousaf SI that his uncle Muhammad Yousaf son of Pir Bakhsh, resident of Mial PS Chauntra, Rawalpindi came to his house and stayed there for 3/4 days. He was returning to his home on 21-05-1984 at about Peshiwela. To see him of, the complainant, his sister's son and one Ghulam Shabhir accompanied him. When they reached near a place known as Kund, the accused Ghulab Khan armed with 7 MM, Samandar Khan armed with 7 MM, Meherban armed with 7 MM, Azim Khan armed with 7 MM, Imtiaz Shah armed with 12 bore gun, Riaz Shah armed with 12 bore gun, Ibrar Shah armed with 12 bore gun, Daldal Shah armed with 12 bore gun, Maddad Shah armed with 12 bore gun, Ghumgeen Shah armed with 7 MM, Bostan armed with 7 MM and Noor Khan armed with gun came there while raising lalkara, Bostan Areeat complainant/PW2 which hit him on the right flank. Ibrar Shah fired which hit Ghulam Shabhir (deceased) on the right left flank, while the shot fired by Ghumgeen Shah hit Muhammad Yousaf (deceased) on the left shoulder.
The other co-accused resorted to general firing. Ghulam Shabhir and Muhammad Yousaf died at the spot because of the injuries. The accused dragged the dead body of Muhammad Yousaf and lifted it upto the western dandi and then threw it there.
3. The motive for the offence is that for years back one Jahandad was murdered by Ghulam Shabhir the present deceased and the others, which case Was sub-judice with the Sessions Court, however the accused were on bail.
4. According to the complainant all the accused persons in furtherance of their common intention committed murder of Muhammad Yousaf. And Ghulam Shabhir while injuring them with fire weapons. It is also mentioned in the FIR that the accused persons had blocked the village till late night, due to which the complainant could not lodge the report immediately. The dead bodies of Muhammad Yousaf and Ghulam Shabhir were lifted from the spot and put in the courtyard of the house of Ghulam Shabhir, where the ladies guarded.
5. The present appellant along with Ibrar Hussain son of Amir Haider Shah sent to the Court of Sessions to face trial under Sections 302/307/148/149 PPC in the case FIR No.44 dated 22-05-1984.
Prior to this the other co-accused of this case namely Gulab Khan, Samandar Khan, Azim Khan, Meherban, Imtiaz Shah, Daldal Shah, Maddad Shah, Riaz Shah and Noor Khan were tried and acquitted, except Bostan accused, who has also been acquitted by this Court on appeal. In the 'present trial the Trial Court while convicting Ghumgeen Shah acquitted Ibrar Shah co-accused vide order dated 03-06-1990.
6. The prosecution has produced 11 witnesses namely Muhammad Yousaf, Patwari, PW 1, Miran Bakhsh PW 2, Muhammad Maqsood SHO IO, PW 3, Muhammad Nawaz ASI PW 4, Ahmad Khan HC PW 5, Muhammad Rafique FC PW 6, Muhammad Shoab SHO PW 7, Abid Faruq Record Keeper/Despenser PW 8, who proved the writing and signature of Dr. Mehmood. Tahir Ali DSP/SDPO, who affected the arrest of Ibrar Shah. Ghulam Murtaza SI PW 10 and Muhammad Yousaf SHO PW 11 both of them investigation the case.
7. The statement of CW1 Khan Zaman FC was also recorded by the Trial Court to the effect that he took the summons for the service of Dr. Mehmood Khan, who was not available and therefore PW 8 had to prove the handwriting and signature of Dr. Mehmood Khan.
8. The Trial Court acquitted Ibrar Shah and convicted the present appellant. The appellant has been convicted under Section 302 PPC and sentenced to imprisonment for life and a fine of Rs.20,000/-, in default of payment of fine, to further undergo R.I. For for years. The convict has also been directed to pay a sum of Rs.50,000/- as compensation to the legal heirs of the deceased persons, in default of payment of compensation, the same shall be recovered through the Collector and otherwise the accused/convict shall further undergo R.I. For six months. Benefit of Section 382-B Cr.P.C, has also been awarded.
9. Learned counsel for the appellant and for the complainant argued the case at length. Learned counsel for the appellant has contended that important piece of evidence in this case is the statement of Miran Bakhsh. As per story of the prosecution, he is injured eye witness. No other eye witness has been produced in this case. According to the learned counsel, the appellant may be acquitted on the following grounds:-
(a) There is no motive alleged in the FIR against the appellant. It has not even been asserted by the complainant or any other PW during the trial.
(b) There is no relationship between the convict and the deceased of the previous murder case.
Motive has been alleged against Bostan accused and not the appellant.
(c) There is no evidence on record to show the guilt of appellant.
(d) None of the prosecution witness has stated any reason what so ever, as to why the present appellant participated in this crime. Though on the other hand, the PW 2 Miran Bakhsh was suggested during cross examination that he impleaded Ghumgeen Shah as the instance of Zubdal Shah who is an opponent of Ghumgeen Shah and Ibrar Shah, after getting Rs.50,000\- from the said Zudbal Shah.
(e) There is undue delay in lodging report though the complainant tried to explain that the accused party blocked the village till late night and for this reason the complainant party failed to lodge the report immediately He contends that this explanation has been concocted with a view to cover the delay in lodging FIR.
(f) Miran Bakhsh PW 2 eye witness has been disbelieved by the High Court and acquitted Bostan.
The reasons mentioned by the High Court for disbelieving the statement of Mir an Bakhsh have strong bearing on the presence case, in appreciating the evidence of Miran Bakhsh.
10. On the other hand, learned counsel for the complainant opposed the appeal and sought that the appeal be dismissed and Crl. R-105/90 be accepted on the following grounds:-
(i) In this case the indent of murder and time of occurrence has not been denied by either side.
(ii) Ghumgeen Shah has no enmity with the complainant party. His implication in case is, not for any ulterior motive.
(i.e) PW 2 Miran Bakhsh though disbelieved vis-a-vis Ibrar Shah co- accused but the present appellant can not get benefit of that because there is consistent evidence about his participation in the commission of crime.
(iv) The appellant remained absconder for a long time i.e. Over three years, which itself is a strong corroboratory evidence against the appellant. The previous trial's judgment and the opinion expressed by both the Courts below can not be taken into account while dealing with the present appeal.
(v) Lastly, he contended that statement of Miran Bakhsh PW 2 is not in conflict with the medical evidence especially with reference to the injury allegedly caused to Muhammad Yousaf deceased.
However, he admits that there are certain discrepencies regarding injuries found on the person of Ghulam Shabhir deceased and Miran Bakhsh.
11. I have considered the arguments of the learned counsel for the parties and gone through the record. In the present case, there is only one statement of PW 2 Miran Bakhsh which needs critical analysis and appreciation because he is the only alleged eye witness produced by the prosecution. No other eye witness mentioned in the FIR appeared in support of prosecution. The solitary statement of Miran Bakhsh is insufficient to be relied "upon for number of reasons. He has already been disbelieved in the previous trial as against co-accused by Trial Court and the High Court. The evidence of Miran Bakhsh is in conflict with the medical evidence, especially with regard to the injury of Muhammad Yousaf deceased. There are two injuries on the person of Miran Bakhsh PW 2 and being complainant he failed to mention all his injuries in the FIR. During trial he has ot explained the presence of second injury, which as per medical report was caused with blunt weapon though simple in nature.
12. Miran Bakhsh has not been believed by the Trial Court even about his on injury caused by Ibrar Shah. During trial and cross examination Miran Bakhsh has been giving evasive answers to cover the lacuna left by him in the previous statement recorded by the trial court, which shakes his credibility. The solitary statement of Miran Bakhsh having already been disbelieved in the previous trial of the same occurrence against the other co-accused coupled with number of infirmities pointed out, it would be unsafe to rely upon his evidence for awarding punishment to the appellant for capital offence.
13. In the present case, though motive has been alleged in the FIR but it has no concern with the present appellant. Learned counsel for the prosecution contends that appellant/convict remained absconder from over three years and that fact be taken into account and it be considered as independent corroboratory piece of evidence in support of Miran Bakhsh PW 2. This contention has no force because the appellant was examined under Section 342 Cr.P.C, but this alleged piece of evidence was not put to the accused/appellant and he had no opportunity to explain. Additionally PW 3 who took warrant for the arrest of the present appellant has not stated anything regarding the alleged factum of fugitiveness on the part of appellant. Thus, the so called abscondence lends no support to the case of prosecution. No other piece of evidence is worth discussion.
14. For the foregoing reasons, I have no hesitation to accept the appeal of Ghumgeen Shah. He is accordingly acquitted. He shall be released from Jail if not required in any other case. The Criminal Revision has no substance. It is dismissed accordingly.