' The appellant namely Muhammad Mumtaz son of Muhammad Hanif was tried for the charge under section 302, P.P.C. For the allegation of committing the murder of Muhammad Akhtar on 25- 11-1991 in the area of Police Station Saddar, Jhelum, by the learned Sessions Judge, Jhelum, who having found the appellant guilty of the charge convicted him under sections 302(b)/34, P.P.C. And sentenced him to imprisonment for life with a fine of Rs,50,000 and in default of the payment of fine to undergo R.I. For two years. Half of the fine on recovery was directed to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
2. Brief facts of the case in the background, as contained in the F.I.R. Lodged by Qurban Hussain P.W.9 are that on 25-11-1991 at about 2-00 p.m. Muhammad Akhtar deceased while proceeding on a motorcycle from Jhelum City towards his Village Kantrili on the Pacca road leading through the house of Muhammad Azam co-accused of the appellant was intercepted by the said Muhammad Azam and Muhammad Pervaiz (since absconder) who were armed with .12 bore carbine and gun respectively and the appellant who was also carrying .12 bore gun with him. The co-accused of the appellant while raising Lalkara gave a push to the deceased when he was crossing the speed breaker on the road in front of the house of Muhammad Azam, as a result of which the deceased fell on the ground. Muhammad Azam (since absconder) and the appellant fired one shot each at the deceased but only the shot fired by Muhammad Azam accused hit the deceased on his right thigh whereas the shot fired by Muhammad Mumtaz appellant was missed. Muhammad Pervaiz (since absconder) inflicted a blow with the butt of his gun on the left leg of the deceased.
Muhammad Shafique and Muhammad Iqbal P.Ws. Who were following the deceased on another motorcycle witnessed the occurrence whereas Qurban Hussain complainant soon after the occurrence while reaching there saw the accused running from the scene with their respective weapons. He was told by his deceased brother that he sustained injuries at the hand of Muhammad Azam and his companions namely Muhammad Pervaiz and the present appellant.
' The motive behind the occurrence as disclosed by the complainant was that four years prior to the occurrence, the accused picked up a quarrel with Imam Masjid of the village and caused him injuries as a result of which a case was registered against them and the complainant extended support to Imam Masjid in the said case as against the accused. Thereafter, in a quarrel of the complainant party with the accused party, Muhammad Azam sustained arm fracture and additionally the complainant party being political opponents of the accused was extended threats of life by the accused before the occurrence.
3. The accused being not traceable were proceeded against under sections 87/88, Cr.P.C. And the S.H.O. Of the concerned police station on completion of investigation in absentia submitted the challan against the accused. The learned trial Judge after recording the statements of the witnesses under section 512, Cr.P.C. Postponed the trial against the accused sine die. However, Muhammad Mumtaz the present appellant was arrested on 30-11-1996 and trial against him was concluded.
4. Kamil Shah, Inspector P.W.10 on receiving the information of the occurrence while reaching in D.H.Q. Hospital, Jhelum, recorded the statement (Exh.P.B.) of the complainant in the hospital and after sending the same for registration of case dispatched the dead body through a constable for post-mortem examination. During the spot inspection, he collected bloodstained earth from the place of occurrence and on completion of formal investigation submitted the final report under section 173, Cr.P.C.
5. Dr. Khalid Mahmood, Medical Officer, D.H.Q. Hospital, Jhelum conducted the post-mortem examination of the deceased on 25-11-1991 at 4-00 p.m. In D.H.Q. Hospital, Jhelum. Qurban Hussain complainant was examined as P.W.9 whereas the statement of Muhammad Iqbal P.W.12 which was recorded on oath under section 512, Cr.P.C. Who died before commencement of trial against the appellant, was brought on record to be read as evidence in the case. The remaining witnesses being of formal nature and their evidence having no importance for the disposal of this appeal need not to be discussed in detail. The learned Sessions Judge, Jhelum, during the absconsion of the accused recorded the statements of two eye-witnesses namely Muhammad Shafique and Muhammad Iqbal under section 512, Cr.P.C. Muhammad Iqbal died much before the arrest of the appellant, therefore, his statement under section 512, Cr.P.C. Was brought on record as evidence against the appellant whereas Muhammad Shafique, the other eyewitness was given up by the prosecution being won-over. The statement of Qurban Hussain P.W.9, the first informant, is confined only to the extent of having seen the accused running from the spot with their respective weapons after the occurrence. Thus, in addition to the absconsion of the appellant and medical evidence, the only evidence in the form of the statements of Qurban Hussain P.W.9 and Muhammad Iqbal P.W.12 was available with the prosecution to connect the appellant with the crime.
6. Learned counsel for the appellant contended;
(a) That the appellant allegedly played the role of ineffective firing and that except the sole statement of P.W.12 under section 512, Cr.P.C. And absconsion of the accused, there was no other supporting evidence in proof of the charge and thus, the conviction was not sustainable for want of sufficient evidence.
(b) That as per version of the F.I.R. And statement of Qurban Hussain, the deceased only disclosed the name of Muhammad Azam and his two companions including the appellant as assailants, which would show that none else was present at the spot at the time of occurrence except the assailants and the deceased and thus, it was an unseen occurrence.
7. Conversely, learned counsel representing the complainant argued that since the appellant and his co-accused were declared proclaimed offenders and during their absconsion Muhammad Iqbal died, therefore, his statement which was recorded by the learned Sessions Judge under section 512, Cr.P.C. Was brought on record and the same being corroborated by the story of F.I.R.
And the statement of Qurban Hussain P.W.9 was confidence inspiring which was sufficient to sustain the conviction. He argued that due to the absconsion of the accused, the learned trial Judge after completing the legal formalities recorded statements of the witnesses under section 512, Cr.P.C., therefore, the appellant while getting benefit of his absconsion could not raise objection to the admissibility of the evidence of Muhammad Iqbal on the ground that the witness was not available for cross-examination at the trial. He submitted that notwithstanding the fact that the shot fired by the appellant was missed, but he while playing an active role in the occurrence shared the common intention to commit the murder. Learned counsel argued that the facts contained in the statement of Muhammad Iqbal P.W.12 stood confirmed by the statement of Qurban Hussain P.W.9 who had seen the accused including the appellant while running from the spot with their respective weapons after the occurrence and added that since Muhammad Shafique was given up as won-over, therefore, his non-production at the trial was not fatal to the prosecution.
8. I have heard the learned counsel for the parties and gone through the record with their assistance. The perusal of the evidence would show that neither it was a sudden occurrence nor the role assigned to the appellant was that of ineffective firing. As per story given in the F.I.R., the appellant in further of his common intention to commit the crime while actively participating in the occurrence fired at the deceased which was missed. Undoubtedly, the fatal injury is attributed to the co-accused of the appellant but his presence at the spot with fire-arm and its effective use was an overt act in proof of his common intention, which was established through the statement of Muhammad Iqbal P.W.12. The criminal act done by the appellant would essentially be found an element for the existence of common intention and consequently the contention that section 34, P.P.C. Was not applicable in the given facts was without any substance. The appellant tried to explain his long absconsion after the occurrence by taking the plea that he was not available in the country during the days of occurrence and, therefore, the statements of the witnesses recorded under section 512, Cr.P.C. In his absence could not be used against him as evidence. The plea of alibi taken by the appellant was not established through any evidence, therefore, mere general assertion of being out of country at the time of occurrence was not sufficient to undo the evidence of absconsion. The learned trial Judge after satisfying himself that there was no immediate prospect of arrest of the accused recorded the statements of the witnesses under section 512, Cr.P.C. Which could be used as evidence at the trial. This is correct that the absconsion by itself is not sufficient to convict an accused but it is always a strong piece of corroborative evidence of ocular and circumstantial evidence if an accused remains fugitive from justice for a long time without any plausible and reasonable explanation. The conduct of the accused after the occurrence being indicative of his guilt is a ways relevant which can be used as corroboratory circumstance. The appellant with a view to counter the evidence of absconsion without placing any evidence on record pleaded alibi, which would be a direct source of corroboration to the unrebutted evidence of absconsion. A fugitive from law while loosing some of normal rights granted by the procedural and substantive law also disentitles himself to the grant of any discretionary relief and consequently the Court is not supposed to act in aid of such person and exclude the direct evidence from consideration on the strength of technical objections and pleas.
9. Since there was sufficient justification for the learned trial Judge to record the statements of eye- witnesses under section 512, Cr.P.C. In the given circumstances, therefore, no adverse presumption could be raised against the prosecution. However, the Court should always scrutinize such evidence carefully and should cautiously see that no prejudice was caused to the accused at the trial. The use of the evidence which are recorded under section 512, Cr.P.C. Being not objectionable; the statement of Muhammad Iqbal P.W.12 who was not available at the time of commencement of trial could be legally used against the appellant but the prosecution being duty bound to place all available evidence likely to throw any light on the crime before the Court is not supposed to withheld the evidence, the production of which is necessary in the interest of administration of justice and non-production can be prejudicia to the interest of the accused. The prosecution is not supposed to withheld a witness from producing before the Court, whose deposition is important for just decision of case and thus, such abandoned witness must be called to the witness-box by the Court as a Court-witness in the interest of justice. In the case in hand, two eye-witnesses namely Muhammad Iqbal and Muhammad Shafique were examined under section 512, Cr.P.C. And at the time of commencement of trial, Muhammad Iqbal being dead was not available whereas Muhammad Shafique was not produced by the prosecution at the trial on the ground of being won-over. The non-production of Muhammad Shafique, the sole eye-witness of the occurrence who was available and whose deposition was very important for just decision of the case was not fair. The failure of the prosecution to place before the Court such material and important evidence would amount to deprive the Court from arriving at correct decision and would also cause prejudice to the accused in making his defence properly and thus, in such circumstances, it is the duty of the Court to call such person as Court-witness whose evidence is important and essential for just decision of the case. The power under section 540, Cr.P.C. Available with the Court is not necessarily to be invoked on an application of the prosecution or defence, rather it is mandatory for the Court to summon and examine or recall and re-examine any person if his evidence appears to be essential for just decision of the case. In the present case, the exclusion of evidence of Muhammad Shafique, the sole eye-witness who was available at the time of trial in addition to causing prejudice to the accused would also reflect on the truthfulness of the statement of Muhammad Iqbal.
10. I, therefore, keeping in view the special features of the present case, without details scrutiny of evidence lest prejudice either party, allow this appeal and while setting aside the conviction and sentence of the appellant remand the case to the learned Sessions Judge, Jhelum, for retrial and decision afresh after recording the statement of Muhammad Shafique, an eyewitness of the occurrence within three months. The trial Court may either on an application of any party or itself if feel necessary recall and re-examine any witness who has already been examined. The appellant, however, will be entitled to produce evidence, if any, in his defence. The connection Criminal Revision bearing No,54 of 1998 also stands disposed of accordingly.