' QAZI MUHAMMAD FAROOQ, J.---On 17-12-1990 at about 8-45 a.m. One Ahmed Bakhsh was gunned down within the limits of Mouza Rakh Azamatwala, located at a distance of about 12 kilometres from Police Station Dajal, District Rajanpur. The F.I.R. Was drawn upon the basis of the statement of a relative of the deceased named Gul Muhammad recorded at Adda Mir Nagar at about 10-30 a.m. By Syed Sher Shah S.H.O. Police Station Dajal.
2. It was alleged in the F.I.R. That on the fateful day at about 8-45 a.m. The complainant, Gul Muhammad and the deceased Ahmed Bakhsh ' while present in their fields heard the reports of fire-arms from the side where the house of their relative Rasul Bakhsh was situated. They rushed towards the spot. When they were about 1-1/2 squares away from the house of Rasul Bakhsh they saw Khuda Bakhsh alias Khudi, armed with a Kalashnikov, and Raheeman Bakhsh, armed with a rifle, heading towards the Southern side and firing in the air. Khuda Bakhsh on seeing Ahmed Bakhsh raised Lalkara that he had come to teach a lesson to his brother-in-law Rasul Bakhsh for getting a theft case registered against him but he had disappeared. He asked Ahmed Bakhsh to recite Kalima and simultaneously opened fire as a result of which Ahmed Bakhsh sustained a fire- arm injury on his neck and lost his life. The complainant stood still out of fear but Bashir Ahmed, Abdul Sattar and a few others who were attracted to the spot and had witnessed the occurrence chased the accused and surrounded them when they entered the house of their relative Faqir. The accused were seen in the house of Faqira on the night preceding the occurrence and had killed the deceased at his behest. The motive for the occurrence was that about 9/10 months prior thereto Rasul Bakhsh, brother-in-law of the deceased, had got registered as case of theft of their cows against Khuda Bakhsh and his companions.
3. Both the accused nominated in the F.I.R. Were tried by the learned Judge Punjab Special Court No,VII under the Suppression of Terrorists Activities (Special Courts) Act, 1975 Dera Ghazi Khan who, vide judgment, dated 26-11-1991, acquitted Raheeman Bakhsh but convicted Khuda Bakhsh under section 302, P.P.C. And sentenced him to death as Qisas. However, the appeal preferred by Khuda Bakhsh was accepted by a learned Division Bench of the Lahore High Court Multan Bench on 5-4- 1995 and he was acquitted of the charge levelled against him.
4. The judgment of the Lahore High Court was challenged by the complainant through a petition for leave to appeal as a result of which leave was granted to consider whether on facts and circumstances of the case the respondent Khuda Bakhsh was rightly acquitted by the High Court.
5. As a corollary to the leave granting order, bailable warrants in the sum of Rs,30000 each, to the satisfaction of the Ilaqa Magistrate, were issued against respondent Khuda Bakhsh but without any success as he had made himself scarce. Subsequently, non-bailable warrants of his arrest were issued but his arrest did not materialize despite hectic efforts made by the police in compliance with the orders passed by this Court from time to time. Thereafter, pursuant to the order, dated 8- 11-2001 perpetual non-bailable warrants of arrest were issued against him by the learned Sessions Judge Rajanpur and proceedings under sections 87/88, Cr.P.C. Were also undertaken and completed. When the appeal came up for hearing on 25-2-2003 the learned counsel for the appellant submitted that it may be decided on merits as the respondent having become a fugitive from law had lost his right of hearing. In order to take the submission to its logical conclusion notice was issued to the learned Advocate-General Punjab who in turn placed reliance on Hayat Bakhsh and others v. Muhammad Ali and others (PLD 1981 SC 265) to submit that the appeal may be decided on merits notwithstanding absence of the respondent who had lost his right of hearing on account of absconsion. The appeal is hanging fire since 1996 and if it is kept pending sine die till the arrest of the respondent the process of law is likely to come to a halt for an indefinite period. Be that as it may, a case for decision of this appeal on merits in absence of the absconding respondent is made out in view of the following observations made in the case cited by the learned Advocate-General Punjab:-- ' "However, there is considerable force in the argument of Mr. Zafar that an acquitted accused cannot be convicted by the Supreme Court without a decision on merits, justifying the reversal of judgment of acquittal. And although in an appeal against acquittal it would not be illegal or even improper to hear the counsel of an acquitted accused who is on bail, it is not so for a fugitive. It would be the negation of the principles enunciated by this Court (that a fugitive from justice loses right of hearing if he defies the orders of the Court for his surrender and or otherwise abuses its process), if, while he remains fugitive, he is allowed to be represented by another person so that his plea might be heard. In order to maintain consistency, in such a situation, although the Court would be obliged itself to examine the merits of the case for setting aside the acquittal, if need be the absconding acquitted accused would not be entitled to be heard, even through a counsel. It is a different matter if the Court for its own benefit seeks assistance from one or the other counsel appearing for the parties before it, including a co-accused of the absconding respondent, or from any other counsel, but the absconding accused would not be entitled, as of right, to a hearing.
Reliance of the learned counsel on the provisions contained in section 512, Cr.P.C. Is of not much help in this behalf. While the present controversy relates to the hearing of or otherwise determination of a appeal, section 512, Cr.P.C. Deals with trials. Moreover, the said provision is not attracted to the form and procedure of this Court. It would not be possible at all to adjourn an appeal against acquittal even against a single acquitted accused/absconding respondent, for an indefinite period, although the office of the Court would make efforts to secure his surrender/arrest in obedience to the process of the Court, for a reasonable period before fixing the appeal for hearing; and if he remains fugitive, the Court would proceed to determine the appeal in his absence. If after examination of the case the acquittal merits to be reversed, there would be no impediment to decide the appeal accordingly, but in case the judgment of acquittal merits to be maintained, the same would not be reversed on account of the abscondence of the accused/respondent. This would apply to both the situations whether the appeal is against one acquitted or more."
6. The respondent was convicted by the learned trial Court on the basis of ocular evidence furnished by three close relatives of the deceased, namely, complainant Gul Muhammad (P.W.4), Abdul Sattar (P.W.5) and Allah Bachaya (P.W.7), his arrest from the house of Faqira, recovery of a Klashinikov from his possession and a crime empty from the spot, positive report of the Fire-arms Expert, motive and medical evidence. He was acquitted by the High Court with the following observations:-- ' "The motive is absolutely far fetched and shrouded in mystery and is not directly linked to the deceased. Had it been true Khuda Bakhsh alias Khudi would have killed Rasool Bulchsh or his son Allah Bachaya P.W.7, present at the spot. Medical evidence is in direct conflict with the ocular account. Gul Muhammad P.W.4 stated that Ahmed Bakhsh deceased was fired upon at the distance of 25 Karmas, while Allah Bachaya P.W.7 stated that the distance of fire was 40 Karams.
Dr. Ali Asghar P.W.1 stated that fire was shot from a distance of 5/6 feet. We therefore, hold that the witnesses are interested, being related to deceased and inimical towards the appellant.
Independent witnesses though present at the spot were not produced in Court during trial. As such, the eye-witnesses do not inspire confidence and cannot safely be relied upon. We found weight in the submission of the learned counsel for the appellant that witnesses had not witnessed the occurrence, and appears to be an unseen murder."
7. The learned counsel for the appellant and the learned counsel appearing for the State addressed lengthy arguments to assail the impugned judgment and support the judgment of the learned trial Court.
' The main thrust of their arguments was that the respondent was wrongly acquitted by the High Court as the ocular evidence was not only confidence inspiring and reliable but was also fully corroborated by the motive, the medical evidence, incriminating recoveries, positive report of the Fire-arms Expert and arrest of the respondent from the house of Faqira where he had taken refuge after enacting the tragedy, that the impugned judgment was altogether silent about the reasoning of the learned trial Court and some of the corroborative pieces of evidence, that there was no dearth of case-law on the point that absence or, weakness of the motive or the same being shrouded in mystery can have no bearing on the direct evidence and the prosecution case, there was no evidence about enmity between P.Ws. Gul Muhammad and Abdul Sattar and the respondent and mere relationship of the eye-witnesses with the deceased was not sufficient to discard their statements.
8. The contentions have not impressed us. Having examined the ocular as well as corroborative evidence with care we have come to the irresistible conclusions that the prosecution has failed to prove its case against the respondent beyond any reasonable doubt and the grounds of his acquittal recorded by the learned Judges in the High Court cannot be termed as perverse, fanciful and speculative which is a pre-condition for reversal of judgment of acquittal. The eye-witnesses are closely related to the deceased and in view of the background of enmity established on record stand branded with interestedness but apart from these features of the case there are certain inherent improbabilities in regard to their presence at the place of occurrence which indicate that none of them is a natural and probable witness. The deceased was done to death in a field situated at a considerable distance from the house of Rasul Bakhsh. The explanation given by the complainant Gul Muhammad (P.W.4) about his presence at the place of occurrence is that it was the season of cotton picking and sowing of wheat and he and Ahmed Bakhsh were working in the land on lease with Ameer Muhammad Qaisrani which was in their possession as tenants. Having heard reports of fire-arms from the side where the house of Rasul Bakhsh was located they set out towards that direction. They saw the respondent and his co-accused, armed with a Kalashnikov and rifle respectively, coming towards them. On seeing Ahmed Bakhsh, the respondent raised a Lalkara and fired a fatal shot at him from a distance of 20/25 Karams. Abdul Sattar (P.W.5) has stated that on hearing the sound of firing he had left his house, located at a distance of 1-1-/4 square from the spot, and while proceeding towards the house of Rasul Bakhsh behind the complainant had witnessed the occurrence. The explanation given by the third eye-witness Allah Bachaya (P.W.7) is to the effect that while he and his father Rasul Bakhsh were present in their house both the accused came there to kill his father. The respondent raised Lalkaras and both the accused fired at his house and went away when his father did not come out of the house. He followed the accused and in the process witnessed the occurrence. The explanations given by all the three eye-witnesses lack plausibility. There is no tangible proof on record that the respondent and his co-accused had fired at the house of Rasool Bakhsh. As a matter of fact this part of the prosecution story clearly smacks of fabrication on account of non-recovery of any empty from outside the house of Rasul Bakhsh and the unequivocal admission contained in the statement of the Investigating Officer, namely, Syed Sher Shah, S.H.O. (P.W.9) that he had not seen any bullet mark on the walls or door of the house of Rasul Bakhsh. The complainant and the deceased do not own any land near the spot of occurrence and there is nothing on the record from 'which it could be gathered that they were in possession of four squares of land of Ameer Muhammad Qaisarni as tenants. It is in the statement of the complainant that their names did not figure in the Khasra Girdawari as tenants of the said land. Moreover, the assertion that the complainant was picking cotton seems false in view of the statement of Muhammad Haider, Patwari (P.W.2) that there was wheat crop of height of one foot in the fields. Abdul Sattar (P.W.5) had allegedly set out for the house of Rasul Bakhsh on hearing reports of fire-arms. Firing on the house of Rasul Bakhsh has not been established on record, therefore, there was no occasion for him to proceed towards the house of Rasul Bakhsh. Besides, his house is not situated near the spot of occurrence. As regards the third eye-witness Allah Bachaya (P.W.7) suffice it to say that he had admittedly hidden himself in the house when the accused had come there to kill his father and made firing at the house for about 10/15 minutes, therefore, it does not stand to reason that when the accused went away he had followed them empty handed. The conflict between the ocular and the medical evidence also excludes presence of the eye-witnesses at the spot of occurrence. According to the complainant and Allah Bachaya the respondent had fired at the deceased from a distance of 20/25 Karams and 40 Karams respectively whereas Dr. Ali Asghar (P.W.1), who had held autopsy on the dead body of the deceased, has opined that in view of burning and scorching around the wound the shot was fired from a distance of about 6 feet. The reasoning of the leaned trial Court that a shot fired from a Kalashnikov can cause burning and scorching from the distance given by the eye-witnesses is rather fallacious. There is yet another reason which makes the presence of the eye-witnesses at the spot highly doubtful. It is that the deceased was a cousin of the complainant, brother-in-law of Abdul Sattar and uncle of Allah Bachaya, whose father was the main target, therefore, had these witnesses been present on the spot at the crucial time they would not have escaped unscathed.
9. The ocular evidence is too weak and unreliable to sustain conviction and its defects cannot be cured by corroborative evidence. In any case it is not supported by the medical' evidence. No doubt motive is not an essential component of murder but the motive set up in the F.I.R. Is not directed against the deceased. The respondent and his acquitted co-accused were armed wish formidable weapons and it is in the statement of Syed Sher Shah, S.H.O. That he had not seen any person present outside the house of Faqira armed with a fire-arm and none of the persons who had surrounded the house of Faqira was examined at the trial, therefore, the story that after the occurrence the respondent and his co-accused were chased and besieged in the house of Faqira does not appeal to reason. The story appears to have been coined to bolster the prosecution case on the one hand any lay down foundation for charging Faqira for abetment. This circumstance, therefore, cannot serve as a corroborative piece of evidence. Same is the case with the incriminating recoveries. As admitted by Syed Sher Shah, S.H.O. Many independent persons were present outside the house of Faqira but surprisingly neither any one of them was associated with the recovery of the Kalashnikov from the respondent and 39 empties from the spot nor any explanation has been given for their non-association. All the recovery memos are signed by Abdul Sattar (P.W.5) and Muhammad Bashir, abandoned eyewitness, who is nephew of the deceased. It was held in Asghar Ali v. State (1992 SCM R 2088) that recoveries effected in the case cannot play any decisive role where the ocular evidence is disbelieved. As regards the contention that the Judges in the High Court had ignored the reasons given by the learned trial Court in believing the eye-witnesses suffice it to say that the omission cannot be blown out of proportion inasmuch as the stereotype reasons recorded by the learned trial Court stand repelled in the face of the reasons leading to the acquittal of the respondent which, as stated earlier, are not perverse, fanciful or speculative.
' For the reasons stated above, the appeal is dismissed.