1. ' MANZOOR HUSSAIN SIAL, J.---Shaukat Ali, appellant was charged for the murder of Abdul Zahir. He was tried by learned Additional Sessions Judge, Quetta, who found him guilty and vide judgment dated 28-11-1991, convicted him under section 302, P.P.C. And sentenced him to imprisonment for life and fine of Rs,25,000 or in default to suffer R.I. For two years. Anwar Masih co-accused was acquitted. Zulfiqar co-accused was shown as absconder by the police.
2. The appellant challenged the order of his conviction and sentence, in appeal, which was dismissed on 4-1-1992, by Division Bench of the Balochistan High Court.
3. Aggrieved by the impugned order, the convict filed petition for leave to appeal, through Jail, wherein, leave to appeal was granted by this Court to consider whether it would be safe to base conviction on the evidence available on the record.
4. The incident took place on the intervening night between 30th September, and 1st October, 1989, in the under construction house of the deceased situated at Bilal Colony, Satellite Town, Quetta.
2. Abdul Ghani who resided in front of the house of the deceased, lodged first information report on 1- 10-1989, at 2-05 p.m. At Police Station Satellite Town, Quetta.
3. ' According to the prosecution, the appellant used to work as mason with Abdul Zahir. Both of them lived in one room of the under-construction house. The deceased had advanced some amount to the appellant. A dispute arose between Abdul Zahir and the appellant, on the adjustment of the amount. The appellant sought permission from Abdul Zahir to leave for Punjab, where he had his permanent residence. Abdul Zahir did not permit him to leave until the appellant had finished the construction work. On the day, following the night of occurrence, when the complainant came back from Bazar, he found the gate of the under-construction house of Abdul Zahir still closed and the construction work had not started. He scaled over the wall, with the help of a mason and saw Haji Abdul Zahir lying dead on a cot with blood on the back of skull. He lodged the F.I.R. On 1-10-1989, at Police Station Satellite Town, Quetta.
4. ' Dr. Abdul Sattar, Police Surgeon, medically examined the dead body of Haji Abdul Zahir at 3-45 p.m. On 1-10-1989, and noted following injuries thereon:--
(1) Depressed fracture with haemotoma on right side of skull.
(2) Bruise on abdomen.
(3) Blood stain skull (back).
(4) Profusion and deformity of right eye.
5. ' He appeared at the trial as P.W.4, and testified the examination of the deceased and issuance of medical certificate Exh. P/4-A in that regard. According to him, the probable cause of death was injury suffered by the deceased on the vital organ. In cross-examination, he admitted that such injury could be caused by fall on the hard substance. He also admitted that exact time of death cannot be ascertained without post-mortem of the dead body.
6. ' The appellant was arrested on 19-10-1989, from Chicha-Watni, District Sahiwal. Anwar Masih was also arrested on 24-1-1990. The third accused, namely, Zulfiqar had absconded. On 24-10-1989, the appellant led to the recovery of blood-stained hammer, Exh.P/5, from a heap of wood, with broken handle Exh.P/6. The appellant's confessional statement under section 164, Cr.P.C. Exh.P/9-B was recorded on 30-10-1989 by Muhammad Aslam Jamali, Magistrate, P.W.9, wherein the appellant implicated Anwar Masih and Zulfiqar accused.
7. ' At the trial, appellant as well as Anwar Masih pleaded not guilty. The appellant, however, got recorded his statement on oath, under section 340(2), Cr.P.C. He deposed that he had been working with Haji Abdul Zahir, for nine months and after completing his work he went to Punjab, by 16th of September, 1989. It was further stated by him, that police arrested him from Chicha-Watni and brought to Quetta, where he was tortured. He was unconscious, when his signatures were obtained. He denied the recovery of hammer at his instance.
8. ' The prosecution examined ten witnesses, but admittedly none of them is eye-witness of the occurrence. The prosecution ease rests on circumstantial evidence alone, which was provided by Abdul Ghani, P.W.1. The complainant, Abdullah Jan, P.W.2, Haji Abdul Wahab, P.W.5, and Haji Shadi Khan, P.W.6, besides Mr. Muhammad Ayub, P.W.7, who testified recovery of blood-stained hammer.
9. ' The admitted fact is that, the appellant was employed as Mason, by Haji Abdul Zahir for the construction of his house. He was living with him in a room of the under-construction house. He was found dead on 1-10-1989, while the appellant disappeared and was arrested from Chicha- Watni (Punjab). While in police custody he led to the recovery of blood-stained hammer in presence of Muhammad Ayub, P.W.7. The nature of the injury suffered by the deceased on the skull, finds sufficient corroboration from the blood-stained hammer recovered at the instance of the appellant.
10. ' The learned trial Court as well as the Balochistan High Court, rightly discarded the exculpatory confessional statement of the appellant and acquitted Anwar Masih.
11. Learned counsel for the appellant laid great emphasis on the point that it was night occurrence and had gone unwitnessed. He, however, was unable to shatter the prosecution evidence emanating from the witnesses, who C had no animus against the appellant. The appellant's sudden disappearance from the incomplete under-construction house fortifies the irresistible conclusion that the appellant had murdered Haji Abdul Zahir.
12. ' The learned trial Court finding the appellant guilty had rather taken lenient view in awarding lesser penalty with benefit of the provision of section 382-B, Cr.P.C.
13. The upshot of the above discussion is that this appeal has no merit and it is accordingly dismissed.