' TARIQ PERVEZ, J.---Appellant Iqbal Shah (36/37) son of Gul Badshah was tried by the Sessions Judge Batagram and found guilty of committing culpable homicide amounting to murder for causing death of Pir Ali Shah (45/50) son of Ghulam Haider Shah and was sentenced to death under section 302, P.P.C., with direction to pay penalty of Rs,30,000 which if recovered, Rs,20,000 were to be paid to the legal heirs of the deceased Pir Ali Shah under section 544-A, Cr.P.C.
' The learned Trial Court also found him guilty for effectively firing at Mst. Gul Frizoon and sentenced him to 10 years' R.I. And a fine of Rs,20,000 and in default of payment of fine to undergo 2 years' simple imprisonment. The benefit of section 382-B, Cr.P.C. Was extended to the appellant. The amount of fine for causing injuries to Mst. Gul Farizoon if recovered was to be paid to her.
2. Aggrieved of the above conviction and sentence, the appellant has filed the instant appeal. A Murder Reference No,3 of 1995 under section 374, Cr.P.C. Has also been sent by the learned Sessions Judge Batagram.
3. The brief facts of the case, as appearing in F.I.R. No,22, dated 6-5-1978 of Police Station Batagram, were furnished by Syed Rafiq Shah (25/30) son of Tahir Shah P.W.7. According to his report, he alongwith his father had gone to a place known as Khabal and having returned to his village was informed by his uncle namely Muzarab Shah about the occurrence, and that he was directed by his uncle to go to the police station for making the report. He was informed by the uncle, that on the day of occurrence i,e,, 6-5-1978 at 9-00 a.m. Pir Ali Shah deceased, (grandfather of the complainant), his two aunts Mst. Parveza and Mst. Gul Frizoon, grandmother Mst. Bibi Maryam and uncle Muzarab Shah were all present in the field known as 'Nullah' within the limits of village Kakti and were busy, preparing heap-of mustard stack. It was during this time, that Iqbal Shah appellant a nephew of the deceased and also son-in-law came armed with a 'Bandooq' and having talked with the deceased left the spot. Having gone at some distance, he took shelter behind heap of stones and fired a shot at the deceased which hit him and in result thereof the deceased Pir Ali Shah died. It was further stated that the appellant fired second shot which hit Mst. Gul Frizoon who got wounded. The accused-appellant was further said to have fired four more shots at Muzarab Shah who escaped unhurt but, however, received an injury on his foot. No motive was disclosed in the F.I.R., but, it was stated, that the same would be known to the father of the complainant or his uncle who were present on the spot when the report was being recorded in the police station.
4. On the report of Syed Rafiq Shah Muhammad Yousaf Khan the then, S. .0. , proceeded to the spot and enroute met Mst. Gul Frizoon who was injured and her injury sheet was prepared as Exh.P.W.10/1 whereafter she was sent for medical examination. Reaching the spot the site plan was prepared.
During spot inspection some blood-stained earth was taken into possession and also two empties of .12 bore.
5. The prosecution led evidence at the trial and examined Iltaf Hussain I.H.C. As P.W.1 who is a witness to recovery memos. Exh.P.C. In respect of shirt and 'Chadar' of Mst. Gul Frizoon. This witness is also a marginal witness of recovery memo. Exh.P.D. Through which a shirt and trousers belonging to deceased Pir Ali Shah and also a bottle containing pellet recovered from the dead body of the deceased were taken into possession.
6. P.W.2 is Muhammad Bashir I.H.C. Who is also witness to the memos. Exh.P.C. And Exh.P.D. Nisar Muhammad Khan Inspector appeared as P.W.3, testifying the factum of arrest of accused- appellant, on 25-12-1991 during a raid and has Ilso submitted supplementary challan against the accused.
7. Dr. Juma Khan of R.H.C. Havelian appeared as P.W.4 who has carried out autopsy on the dead body of Pir Ali Shah, on 7-5-1978 at 7 a.m. And has found the following injuries on external examination:
(1) Six entrance wounds about 1/4" x 1/4", 1/2" x 1/4", 1/2" x 1/4", 3/4" x 1/2" x 1/4" and 1/2" x 1/10" with scorched margin over an area five inches x 3 1/2" occupying the right side of the abdomen and the right chest wall, 4" from the mid line and 3-1/2" below the right nipple.
(2) Six exit wounds of which five measuring 1/2" x 1/2" and one 1" x 1/2" over an area of 4 1/2" x 3" occupying left iliac fossa and the left buttock, 6-1/2" from the mid line and 5" below the costal margin with fracture of the under line hip bone.
(3) Abrasion 1-1/2" placed on the upper 1/3" lateral side left thigh 2" below the anterior sup iliac spine and 7" from the middle line.
(4) A patch of surchion surface 1" x 1/2" placed on the front of right forearm 5" above the wrist joint.
(5) Entrance 3/4" x 1/2" with schorched margin placed on the back of right forearm 1" above the wrist joint with fracture of the under line ulna bone.
(6) Three exit each 1/4" x 1/4" on the inner side right forearm over an area of, 3" x 2" above the writs joint.
' On internal examination thorax walls, abdomen walls Peritoneum, Diaphragm, Pancreas, small and large intestines and liver were found injured. The injuries were stated to be caused by fire-arm, time between injury and death about 5 to 15 minutes and between death and postmortem examination 24 hours. The death occurred as a result of excessive haemorrhage and damage to the vital organs.
8. Idalat Shah P.W.5 is the author of memo. Exhs.P.C. And P.D. And also received the Report of Chemical Examiner which is Exh.P.G. P.W.6 is Shabir Ahmed a police official who had gone alongwith the dead body of Pir Ali Shah to the mortuary for safe transit.
9. The facts of the case were furnished by P.W.7 Syed Rafiq Shah who has made the report and in his Court statement has confirmed the making of the same and acknowledged his thumb- impression on the report Exh.P.A. By admitting the contents thereof, to be true and correct.
' As Syed Rafiq Shah, was not an eye-witness but mere informer, the prosecution produced Mst. Gul Frizoon (injured) as P.W.8 and Mst. Parwaz Jan as P.W.9. The two lady witnesses have furnished the eye-witness account of the occurrence and their statements in examination-in-chief are reproduced below: "P.W.8 (Mst. Gul Frizoon)
' Pir Ali Shah was my father, while accused Iqbal Shah is my cousin, and brother in law as well. My sister Mst. Taj Afzoon married to Iqbal Shah accused. On the day of occurrence my father was busy in making mustard stack over the roof of his house, it was morning time. Apart from me, my sister in law Mst. Pervez, and Mst. Maryum my mother were present at the time of occurrence. My brother Muzarab Shah was also present in front of the house who was ploughing in the fields. The heap of mustard stack had raised up to 2 feet. I was helping my father in making mustard heap so my sister in law and mother who were bringing bundles of mustard stack. In the meanwhile accused Iqbal Shaft duly armed with shot gun came there, abuse my father and fired with which he was hit and died on the spot. He fired second shot on me with which I was injured on my left shoulder and fell to the ground. He also fired 4 shots at Muzafrab Shah but I do not know its results. The motive for the occurrence was that the relation between accused and his wife i,e,, my sister were strained due to which she left the house of accused, her husband, and went to an unknown place. The accused after the occurrence decamped from the scene. He remained disappeared for quite sufficient time.
I was medically examined."
"P.W.9 Mst. Parvaz Jan.
' On the day of occurrence Pir Ali Shah deceased who was my father in law was busy in making mustard stack over the roof of his house. P.W. Gul Frizoon was helping him in giving mustard while I and P.W. Mst. Maryum were in the field bringing the mustard. At the time of firing we were in the field on the back side of the roof of the house where deceased Pir Ali Shah was busy in making mustard stack. P.W. Muzarab Shah was ploughing the field in front of the house. In the meanwhile accused Iqbal Shah appeared at the scene of occurrence armed with shot gun. On his arrival he abused my father in law and said that his wife was with the deceased and then, fired a shot which hit Pir Ali Shah. At the time of firing at the deceased he was sitting over the mustard stack. Pir Ali Shah was fired at by the accused while the accused was standing over a stone situated in the field on back of the house. The height of the stone was 2/3 feet from the mustard stack. The accused fired at my father in law in standing position. After receiving fire shot deceased Pir Ali Shah fell to the ground, it was late morning time when the present occurrence took place. After it accused fired at P.W. Mst Gul Frizoon. Accused fired only one shot at the person of P.W. Mst. Gul Frizoon who received fire shot injury over her left shoulder and she fell to the ground. Then the accused fired four shots on Muzarab Shah P.W. After firing I entered the house to save myself. Accused after the occurrence disappeared from the spot and remained in the area of Black Mountain. The motive of the offence is that Mst. Taj Afzoon was married to accused Iqbal Shah and during her period of her stay in the house of accused he used to beat her at the instigation of her mother. Iqbal Shah accused was annoyed over the dessertion of Mst. Taj Afzoon from his house and he was of the view that my father is responsible for her desertion. At the time of firing the accused was at a distance of 3/4 paces from where the deceased was sitting. At the time of. Occurrence Rafique Shah was at place known Khabal, he was informed by one Sajawal Shah."
10. Muhammad Yousaf Khan P.W.10, who was I.H.C. Of Police Station Batagram has recorded the F.I.R. Exh.P.A. At the instance of Syed Rafiq Shah. He also has prepared the site plan Exh.P.B. He is the author of injury sheet Exh.P.W.10/1 in respect of Mst. Gul Frizoon, injury sheet Exh.P.J. And inquest report Exh.P.H. In respect of deceased Pir Ali Shah. He has also carried out investigation on the spot by effecting recovery of the blood-stained earth vide Memo. Exh.P.E. And taken into possession two empties of .12 bore vide memo. Exh.P.F. Through application Exh.P.W.10/2 and Exh.P.W.10/3 he has secured warrants under sections 87 and 204, Cr.P.C. Against the accused-appellant. P.W.11 Usman Zar Shah is a witness to the memos. Exhs.P.E. And P.F. Vide which the Investigating Officer took into possession blood-stained earth and 2 empties of .12 bore.
11. P.W.12 Lady doctor Tanveer Chaudhry of D.H.Q. Hospital Mansehra has examined Mst. Gul Frizoon aged 17-17/18 years daughter of Pir All Shah, on 6-5-1978 at 7 p.m. And has found the following injuries on her person:--
(1) Seven fire-arm entrance wounds three on the scapular region of the diameter of 1-1/2 three behind the head of the humerous, while middle on his 1-1/2" away and medial to it while third one is 1/2" medial to the middle one.
(B) Another fire-arm entrance wound 1" above the third one. Two fire arm entrance wounds on the top of the left shoulder with a diameter of 1-1/2" apart and are 1-1/2" in diameter. All the wounds are cavity and muscle deep. Two fire arm entrance wounds on the front of the shoulder and of 3/4" diameter with a distance of 1/2" apart and 2" lateral to the clavical. Another fire arm exit wound of 3/4" in diameter on the front medial aspect of the left upper arm within alinement of the wound No,
1. Fire arm exit wound of 3/4" in diameter on the left upper memor region.
12. After the close of the prosecution evidence the accused was examined under section 342, Cr.P.C.
And the stance taken by the appellant was the effect "I am innocent and I was not present when the alleged occurrence took place. There is no independent evidence to show, that I was present in or near the place of occurrence, or any other place near the occurrence before the present occurrence. In fact this story was created to get divorce of Mst. Taj Afzoon and the deceased and others were fired upon by some other person and I have nothing to do with this occurrence".
13. We have heard learned counsel for the appellant and learned Assistant Advocate-General are counsel for the complainant. The learned counsel for the appellant attacked the conviction and sentence and submitted that the very beginning of the case of prosecution is doubtful and stands on very week footings. He submitted that the lodger of the F.I.R., namely Syed Rafiq Shah is not an eye-witness and to his own 'admission he was away from the spot to a place known as 'Khabal'.
14. The learned counsel for the appellant while arguing this case submitted that there is delay in making the report, that, P.W. Muzarab Shah allegedly present on the spot and who had sustained fire-arm injury did not go to make the report. He also submitted that beside Muzarab Shah there were two other female eye-witnesses, namely, Mst. Gul Frizoon and Mst. Bibi Maryam of which, the former was injured should have lodged the report. He also criticised that none from the inmates of the house present on the spot have moved towards the police station and waited for the arrival of complainant Syed Rafiq Shah P.W.7. The conduct of Tahir Shah father of Syed Rafiq Shah complainant also was taken exception to on the ground that if he and his son namely, the complainant, were both present in 'Kabal' and were informed about the occurrence then what stopped the father (Tahir Shah) not to make the report.
' The next point taken by the defence was that the medical evidence does not support the case of the prosecution as, per medical report of the doctor scorching was found on the injuries of the deceased Pir Ali Shah whereas the distance given in the site plan, where from the firing was allegedly made, is beyond scorching range. It was also argued that Mst. Gul Frizoon who also sustained fire-arm injuries allegedly at the hands of the appellant, was on the same distance from the accused, as the deceased was but no charring or scorching was found on her injuries. The diamension of the injuries on 'the person of the deceased and Mst. Gul Frizoon were different and in the opinion of the learned counsel for the appellant were not possible from the weapon and as such the prosecution has failed to explain different diamensions, though allegedly caused from same distance with one weapon.
' The other objection with regard to the medical evidence was in respect of, non recovery of blood from the alleged place of Mst. Gul Frizoon, although there were exit wounds. The defence has also taken exception to the statements of Mst. Gul Frizoon and Mst. Parveen Jan which are at variance on material particulars. The non-recovery of 4 empties from the point of the accused-appellant, wherefrom he has allegedly fired at Muzarab Shah has also not been explained by the prosecution.
It was also argued that it was out, impossible that if 4 shots were made with a shot gun there was no question that the appellant would miss Muzarab Shah without hitting him a single pellet.
15. Strong exception was taken to the non-examination of Muzarab Shah who was the sole male member present at the venue of the crime and has allegedly sustained fire-arm injuries as indicated in the F.I.R. It was also argued that the factum of Mst. Gul Frizoon having received fire-arm injuries can only establish her presence but in no manner prove, that what she has stated is true.
16. The long abscondence of the accused-appellant was of no help to the prosecution in absence of reliable convincing evidence directly involving the accused with the commission of the offence.
In support of submissions made by the learned counsel for the appellant reliance was placed on PLD 1973 SC 418, 1985 SCMR 1573, PLD 1986 Peshawar 188 and PLD 1960 Lahore page 42.
17. The learned counsel for the complainant while arguing this case submitted that the F.I.R. Has been made by a person who was not an eye-witness hence, omission of details was not fatal. The site plan is not substantive evidence, and the same having been prepared on the pointation of illiterate villagers the distances could not be given with aptitude. That the eye-witness having been examined after 16 years there was every likelihood that they would not remember all the details and omissions, variations and contradictions were rather natural. It was also argued that a single accused has been charged which leaves no room for substitution of the real culprit. The accused- appellant being related with the deceased and the complainant party is not expected to be falsely charged when there was no previous blood-fued enmity. The occurrence having taken place inside the house the women-folk who normally occupy the abode are the most natural witnesses. In view of the learned counsel for the complainant the delay in lodging the F.I.R is of no consequences when there no enmity exist between the parties and single accused was charged more particularly, when the defence has failed to lay a foundation in the cross-examination for the substitution of real culprits. The prosecution, according to the complainant's side had no motive to falsely charge the accused-appellant. The venue of the crime said to have been established beyond the shadow of doubt because the blood was recovered from the place of the deceased and two empties of .12 bore recovered was sufficient corroboration to the testimony of the eye- witness.
' It was also argued that prolonged and unexplained abscondance will go a long way to prove the guilty mind of the accused-appellant.
18. The learned State counsel has adopted the arguments of the learned counsel for the complainant and added that the site plan is not substantive evidence and it cannot destroy the case of the prosecution. The medical evidence supports the prosecution case as pellets were recovered from the dead body of deceased Pir Ali Shah at the time of postmortem examination. He supported the case of the prosecution that a shot gun was used. In support of the arguments advanced by, the learned counsel for the complainant and the Assistant Advocate-General reliance was placed on 1966 SCMR 1587, PLD 1974 SC page 65, 1983 PCr.LJ 429, 1995 PCr.LJ 1192, 1986 PCr.LJ 2954 and 1995 SCMR 693.
19. We have heard learned counsel for the parties and have gone through the record. In this case the report has been made by Syed Rafiq Shah P.W.7, who admittedly is not an eye-witness. The occurrence has taken place at 9-00 a.m. On 6-5-1978, the report whereof has been made at 14-5 p.m. Hence there is considerable delay in making the report. There is in the F.I.R. That the complainant was directly by his uncle Muzarab Shah to go to the police station for making the report and that all the necessary details of the occurrence were supplied to him before the departure for the police station strangely enough, in the said F.I.R. The complainant has categorically stated that Muzarab Shah, his uncle has also received fire-arm injury on his foot. We also noticed that according to the report the deceased Pir Ali Shah who is the grandfather of the complainant, Mst. Gul Frizoon paternal aunt of the complainant were stated to be lying on the spot.
It is inconceivable that by the time the complainant reached the house of crime, the deceased and injured were stated to be lying on their respective positions. The prosecution has tendered no explanation much less a reasonable or plausible explanation as to way Muzarab Shah did not go to the police station for making report, nor did the other injured Mst. Gul Frizoon or P.W. Mst. Parwaz Jan.
20. We agree with the proposition that the site plan is not substantive piece of evidence but, being the first reflection of the spot, indicated/pointed by the eye-witnesses, furnishes a panoramic view to the occurrence to scrutinize the evidence of the prosecution witnesses tendered at the trial. It cannot be said that the site plan is a waste paper. It consists of two parts the one which is prepared at the pointation of the eye-witnesses and the other which is posed observation of different points, personally observed by the Investigating Officer. The pointation made by witnesses as to their respective position or that of the accused-appellant or their statement to the police during investigation but, what actually observe the person who goes to the spot definitely constitutes substantive evidence. In this case the Investigating Officer has himself noticed blood at point No,1 which the place of the deceased and was on the roof top of the house. No blood was recovered from point No,2 which is alleged place of Mst. Gul Frizoon. From Points Nos.6 and 8 one empty each, of .12 bore had been recovered. The recovery memo. Exh.P.F. In respect of the empties does not indicate the same to be freshly discharged.
' The accused-appellant is alleged to have fired from Point No,5 at Point No,1, one shot hitting the deceased whereas from the same position he is alleged to have fired second shot with which Mst.
Gul Frizoon was hit and wounded. We do not find blood at Point No,2 though Mst. Gul Frizoon has more than one exit wounds with different dismentions. We also notice that she has sustained injury on the scapular region which is on the back. The distance between points Nos.1 to 5 has not been given in the site plan but, the note given by the Investigating Officer at the foot of the site plan indicates that the distance has been given in the ' Zimini'. We are wonder that what type of investigation was conducted when the distance has not been brought on the judicial file. However, an order to satisfy our judicial mind, we took up the relevant Zimini' and found the distance to be 9 paces. If this distance is taken to be correct as the same has been given by the eye-witnesses on the very day of the occurrence, then the prosecution has to explain the scorching marks on the two injuries of the deceased particularly, when the deceased was on the roof top.
21. A perusal of the site plan shows that Muzarab Shah (abandoned witness) was at point No,10 while the accused was making firing from point No,5 at the deceased and injured witness. The inter se visibility of the two points is impossible as house of occurrence intervenes in between the two points. The said witness namely Muzarab Shah has been brought to Point No,9 where, he was allegedly fired at from Point No,7. Four numbers of shots are attributed towards Point No,7 but no empty, card board disc or pellet have been found in between two points nor any pellet struck on the southern wall of the courtyard of the house of occurrence.
' We have made some observations with regard to the presence of scorching marks and the distance of firing while discussing the medical evidence. The deceased has received a bunch of 6 entrance wounds of different diamentions with corresponding exit wounds. He has also received another entrance wound at Serial No,5 the size of which is 3/4" x 1/2".
' Coming to the injuries of Mst. Gul Frizoon she has also received a bunch of 7 fire-arm entrance wound each of 1/2" diamention with exists of 3/4" diameter. The Lady Doctor Tanveer Chaudhry P.W.12 has opined that the injuries on the person of P.W. Mst. Gul Frizoon are possible from bullet and not by pellet. There is yet another circumstance in the medical evidence which requires clarification, is that, according to Mr. Juma Khan P.W.4 the direction of injury was from above downward. This position cannot be explained on any apothesis when the deceased was on the roof and the accused has been shown outside the house, though on a ranged plateform.
22. Taking-up the evidence of two eye-witnesses namely Mst. Gul Frizoon and Mst. Parvaz Jan it is stated by P.W.8 at page 40 of the print book in the 5th line of cross-examination "Iqbal Shah accused had fired from the back of the 'Kotha' while standing on a stone". She has stated at page 41 of print book in line 2 from the top" I have not told to Rafiq Shah P.W. About the occurrence on his arrival. My mother informed him about the occurrence." At page 42 she has stated "I had no seen Muzarab Shah on the spot". Similarly, on the same page she accepts that her injuries were bleeding and in the same breath says that Muzarab Shah was not injured as result of firing. At page 43 she has stated" accused was firing at Muzarab Shah in quick succession". These few pieces of narration, as stated by her have been taken up to demonstrate that she is not a trustworthy witness because according to the F.I.R. It was Muzarab Shah who has informed the complainant about the occurrence. Similarly, in the report Muzarab Shah is alleged to have received fire-arm injuries.
23. Mst. Parvaz Jan has also stated that the accused at the time of firing was standing in the field on the back of their house. She has been confronted with sections 161 and 164, Cr.P.C. Statements wherein she has disowned material facts having earlier stated and has improved upon.
' At page 48 this witness, admits, that it was Muzarab Shah who has narrated the story of the occurrence to the complainant.
24. P.W.1 Iltaf Hussain I.H.C. Is witness to the memo. Exh.P.C. And PD. He has stated that the articles, to which he is witness in the memo. Are not available in Court at the time of his examination and the same is the position of P.W.2 Muhammad Bashir. The non-exhibition of the empties at the trial is material omission on the part of the prosecution which recoveries could have been taken as piece of corroboration.
25. The emphasis was more led on the fact, that a single accused has been charged. Conversely, there are cases in which people intentionally charge single accused though offence is committed by more than one person with a view, to secure conviction of single accused and to deal with others outside the Court.
' In a reported judgment Sauliheen and others v. The State 1996 SCMR 482 it was observed" Number of injuries suffered by the deceased clearly showed that the participants in the offence were more than one person". Seeking guidance from the aforesaid observation of the august Supreme Court of Pakistan and keeping in view the nature and diamentions of injuries it cannot be said that the offence has definitely been committed by one person and not more. In Jahaz Khan and others v.
The State 1987 SCMR 351 it was observed" Doctor finding blackening around entry wounds of deceased which showed that deceased was shot at from a much closer range than what eye- witnesses had stated--Eye witness account, held, could not, in circumstances, be safely accepted without corroboration". In case of Muhammad Hussain v. Pabib Ahmed 1987 SCMR 567 it was observed by their Lordships "The version of these witnesses that the shots were fired while Habib Ahmed was standing towards the foot of the deceased was not consistent with the injuries found on Ghani Muhammad which were from downward". In Guldad Khan v. The State 1986 PCr.LJ 2960 a Division Bench of this Court observed "Portion of statement of eye-witness which is not supported by medical evidence cannot be accepted as evidence against accused".
26. Reverting to the proposition, that injuries on the person of a witness are proof of his presence.
The case-law as laid down by the august Supreme Court of Pakistan in Said Ahmad v. Zumured Hussain 1981 SCMR 795 is in the following words: "Fact of eye-witness being injured and injuries being not self- suffered---Not by itself indicative of witness having told truth-witness closely related to deceased while other persons mentioned in F.I.R. Not examined---Acquittal, has rightly not interfered with by the High Court."
Similarly, in Ghulam Sarwar v. State PLD 1983 Pesh, 152 another Division Bench of this Court observed" witness bearing injuries on his person, held, by itself does not indicate that he has stated truth". Reliance was placed on PLD 1986 Peshawar 141 and 150.
27. The abscondance in this case, no doubt, is for a very long time for about 14 years. Abscondance alone, cannot be a substitute for real evidence. People do abscond though falsely charged in order to save themselves fro agony of protracted trial. Sometime they disappear, because of fear of the police and even of the complainant party. Abscondance as not evidence by itself but is a state of mind of a person who after being charged either rightly or wrongly reacts in a particular way. In a reported judgment Siraj Din v. Kala and others PLD 1964 SC 26 "disappearance of person named as murderer---Natural whether named rightly or wrongly". In Frman Ali and others v. State PLD 1980 SC 201 it was held" Abscondance by itself wound be of no avail to prosecution in absence of any other evidence against absconding accused". In Taj Muhammad v. Pesham Khan 1986 SCMR 823 it was held that" Mere abscondance of accused; was not enough to sustain conviction of accused".
28. The above is the case-law which leads one to the conclusion that abscondance will be taken as corroborative piece of evidence, only when there is j convincing and unchallenged evidence led by the prosecution. In this case the prosecution had not produced any witness who should have deposed that he was entrusted with warrant of arrest and consequently with Proclamation notice for service on the accused. In the absence of any such evidence, the prosecution has thus, failed to prove the factum of absence of the accused appellant from the village.
29. Keeping in view all the facts and circumstances of the case we are of the considered view, that the prosecution has miserably failed to bring home to charge against the appellant. The case is full of contradictions and improvements. The manner of occurrence also appears to be doubtful. In these circumstances, we accept this appeal, set aside the conviction and sentence of the appellant and order that he shall be released forthwith if not required in any other case.
30. Murder reference is answered in negative.