' RAJA MUHAMMAD SABIR, J.---Through this appeal Muhammad Latif alias Tifa appellant has challenged his conviction awarded by the learned Additional Sessions Judge, Minawali vide judgment dated 10-9-1999 whereby he sentenced the appellant to death under section 302(b), P.P.C. As Tazir for the murder of Khan Baig deceased. He was also directed to pay Rs,25,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. And in case of default in the payment of said compensation, he shall suffer six months S.I. And then the compensation shall be recovered from him as arrears of land revenue. However, he was acquitted from the charge under section 324, P.P.C. The learned trial Court has sent Murder Reference No,420 of 1999 which is also being disposed of through this. Judgment.
2. Brief facts of the case as narrated in the F.I.R. Exh.P.A. Are that complainant had constructed a separate Dera at Wandha Nainwala, Dakhli Wanbhachran. On 19-2-1994 at about 10-00 a.m. He alongwith his brother Khan Baig, nephew Zafarullah and one Muhammad Aslam Khan were going to Village Nari Miana. When they reached near the tubewell of Muhammad Akbar, Muhammad Latif accused armed with 303 rifle and Muhammad Khan co-accused (since acquitted) armed with 12 bore gun came out of ambush and Muhammad Khan accused raised a lalkara saying that they were waiting for them and will not let them alive that day. Thereafter Muhammad Latif fired with his 303 rifle at Khan Baig, brother of the complainant who was going a few paces ahead of them which hit him on his forehead.. Khan Baig fell on the ground. Muhammad Latif accused and Khan Muhammad co-accused continued firing at them and thereafter, made good their escape from the place of occurrence brandishing their weapons towards north to their homes. After their departure complainant and his companions attended Khan Baig injured and they found him having succumbed to his injuries at the spot. The occurrence was witnessed by the complainant, said Zafarullah and Muhammad Aslam.
' The motive of the occurrence as stated by complainant is that about three years back Muhammad Latif accused and others committed murder of his brother Saeed Ullah at Lorry Adda Wanbhachran and now they apprehended that the deceased Khan Baig would take revenge of murder of his brother and for this purpose the accused persons had committed the murder of Khan Baig deceased.
' The complainant left the dead body of his brother Khan Baig under the guard of Zafarullah (P.W.3) and himself proceeded to the police station to get the. Case registered against the said accused persons. Saif-ur-Rehman S.-I. (P.W.12) recorded F.I.R. Exh.P.A. On the dictation of the complainant.
After registration of the F.I.R. Saif-ur-Rehman S.-I. Proceeded to the place of occurrence and prepared injury statement Exh.P.F., insquest report Exh.P.G. Of the deceased and sent the dead body to the mortuary under the escort of Muhammad Khan Constable No,794 (P.W.6). He then inspected the spot and collected blood-stained earth from underneath the dead body of the deceased, which was sealed into a parcel and taken into possession vide memo. Exh.P.B. He also prepared rough site-plan Exh.P.H. Of the place of occurrence and recorded statements of the witnesses under section 161, Cr.P.C. After the post-mortem examination. Muhammad Khan constable produced before him the last worn clothes of the deceased shirt P.1 and Chaddar P.2 which he took into the possession vide memo. Exh.P.D. He got prepared the site-plan Exh.P.C. And Exh.P.C./1 from Ghulam Shabbir Halqa Patwari. After his transfer Farhat Mehmood S.-I. Took the investigation of the case. He arrested Muhammad Khan accused who got recovered rifle alongwith its license from an iron box lying in the house of Muhammad Khan which was taken into possession by him.
' After completion of the investigation the police submitted challan against the accused persons showing Muhammad Latif as an absconder and the trial Court vide order dated 27-2-1996 ordered that Muhammad Latif accused was absconder and there was no likelihood of his arrest, therefore, proceedings under section 87/88, Cr.P.C. Were conducted against him and he was proceeded under section 512, Cr.P.C., as such, his case was separated from that of Muhammad Khan. After trial Muhammad Khan was acquitted of the charge by giving him the benefit of doubt.
3. Muhammad Latif alias Tifa accused was arrested on 8-7-1998 and while in police custody he led to the recovery of gun P.3 alongwith Dhoti P.5 which were secured alongwith three live cartridges P.4/1-3 vide recovery memo. Exh.P.E. Rizwan Manzoor S.I. Prepared the site-plan Exh.P.E./1 of the place of recovery. After the completion of proceedings supplementary challan was submitted against Muhammad Latif alias Tifa accused.
4. On receipt of the challan learned trial Court charge-sheeted Muhammad Latif alias Tifa accused to which he pleaded not guilty and claimed trial. Prosecution examined as many as 11 witnesses in all. Abdul Majeed H.C. No,192 appeared as P.W.1 and deposed about the safe custody of blood- stained earth and blood-stained clothes of the deceased which he handed over to Fateh Sher 254/C on 26-2-1994 for their onward transmission to the office of Chemical Examiner Lahore.
' P.W.2 Muhammad Sher and Zafarullah Khan P.W.3 are the eyewitnesses of the occurrence and supported the complainant.
' Ghulam Shabbir Khan Patwari Halqa Muzaffarpur Janubi appeared as P.W.4 and deposed about the preparation of site-plan Exh.P.C. And Exh.P.C./1. Hakam Khan who identified the dead body of Khan Baig deceased before the doctor at the time of post-mortem examination appeared as P.W.S. ' Muhammad Khan Constable No,794 who escorted the dead body of Khan Baig deceased to the mortuary for autopsy appeared as P.W.6. After post-mortem examination he handed over to the Investigating Officer the last worn clothes of the deceased which he took into his possession vide memo. Exh.P.D.
' Fateh Sher Constable No,254 who delivered the parcel of bloodstained items in the office of Chemical Examiner appeared as P.W.7. Khizar Hayat Constable No,522 who is the witness of recovery of gun P.3, Dhtoi P.5 and live cartridges P.4/1-3 taken into possession by the Investigating Officer vide memo. Exh.P.E. Appeared as P.W.B.
' Dr. Muhammad Khan Medical Officer DHQ, Hospital Mianwali appeared as P.W.9. He stated that Dr. Munawar Hussain Tabassum M.O. DHQ, Hopistal Mianwali used to work with him at the DHQ Hospital Mianwali. He has proceeded abroad and his early return in the country is not expected. He is fully conversant with the identification of his handwriting and signatures. Exh.P.J. Is the correct carbon copy of the post-mortem report of Khan Baig .Deceased.
' Ghulam Qadar Constable No,805 who was entrusted with warrants of arrest of Muhammad Latif alias Tifa accused appeared as P.W.10. Rizwan Manzoor S.I. Who arrested Muhammad Latif accused and made recoveries on his pointation appeared as P.W.11.
' Learned A.D.A. Tendered in evidence the statement of Saif-ur-Rehman A.S.-I. Dated 11-4-1996 recorded by the learned Additional Sessions Judge Mianwali under section 512, Cr.P.C. As P.W.10. The original statement of the witness be read as evidence as P.W.12 who has proceeded abroad and his attendance cannot be procured without any undue delay and expense. He gave up Ghulam Shabbir S.-I. He closed the case for prosecution after tendering report of Chemical Examiner Exh.P.K.
And that of Serologist Exh.P.Z.
5. After the conclusion of the prosecution evidence the statement of Muhammad Latif alias Tifa accused was recorded under section 342, Cr.P.C. In which he denied the charge of Qatl-i-Amd of Khan Baig and murderous assault upon the P.Ws. He also denied the allegation of abscondance.
He stated that he was at Karachi in connection with earning of his livelihood and as soon as he came to know about the case he surrendered himself before the police. He also denied the recoveries and in reply to a question 'why this case against him and why the P.Ws. Deposed against him', he stated that the witnesses are inimical to him and they have falsely implicated him in this case. He has further stated that in fact the deceased and his companions were the aggressors and the deceased received injuries during cross firing which was done in self-defence by those persons who exchanged firing with the deceased. He did not opt to appear as his own witness under section 340(2), Cr.P.C. In disproof of the allegations against him. He tendered copy of judgment dated 30-7-1996 as Exh.D.1 and made an application for summoning Farhat Mehmood Investigating Officer as a Court witness. Consequently Farhat Mehmood was summoned and examined as C.W.1. After the conclusion of statement of C.W.1 again the statement of. Muhammad Latif accused was recorded under section 342, Cr.P.C., but he stated that he did not want to add anything to his previous statement recorded under said section.
6. Learned trial Court after hearing learned counsel for the parties vide judgment dated 10-9-1999 convicted and sentenced the accused as stated above.
7. Learned counsel for the appellant contends that both the eyewitnesses Sher Muhammad and Zafarullah are brother and nephew of deceased Khan Baig, their testimony without corroboration from independent sources cannot be relied upon. Eye-witnesses have been disbelieved regarding Muhammad Khan co-accused and their evidence cannot be believed qua the appellant. Learned trial Judge has not properly appreciated the evidence while convicting him. Abscondence itself is not sufficient to hold accused guilty on a capital charge. Prosecution failed to prove its case beyond reasonable doubt against him and, as such, he is entitled to acquittal. Plea of self defence raised by appellant supported by C.W.1 has not been given due weight by trial Court.
8. Learned State, counsel has supported the impugned judgment.
9. Heard. Record perused. Occurrence took place at 10-00 a.m. On I 19-2-1994 and the report was lodged promptly at 10-40 a.m. By Muhammad Sher P.W.2. Complainant is brother of deceased and Zafarullah Khan P.W.3 another eye-witness is son of the deceased. Both A of them were present at the time of occurrence alongwith one Muhammad Aslam Khan given up P.W. Their presence at the spot is natural. They have categorically stated that appellant armed with rifle 303 fired at Khan Baig deceased on his forehead. Muhammad Khan co-accused and Latif appellant have been firing on P.Ws. But they escaped. Both the eye witnesses stated that Saadullah brother of complainant was murdered by Muhammad Latif appellant and his co-accused but he was acquitted. Latif accused apprehended that Khan Biag will take revenge of his brother, therefore, after planning he killed Khan Baig deceased. P rosecution evidence consists of ocular account, motive, medical evidence and abscondence. The ocular account is furnished by Muhammad Sher P.W.2 and Zafarullah P.W.3. Both of them entirely supported the prosecution case as set up in the F.I.R. It is a day light occurrence. The accused were known to them as he was co-accused in murder case of Saadullah. There is no ambiguity about the identification of the accused. The narration of facts given in the promptly lodged B F.I.R. And deposition of eye-witness in the Court clearly established the prosecution case. Lengthy cross-examination by defence has not shattered their testimony.
Their statements do not suffer from any material contradiction. The evidence of aforesaid eye- witnesses is corroborated by medical evidence. Appellant was armed with rifle 303. According to the injury statement Exh.P.F. And inquest report Exh.P.G. Deceased received fire-arm wounds on front of his forehead and blood was oozing from same and in the same way he had a wound on rear side of his head as well. According to the post-mortem report Exh.P.J. Dead body contained a wound of entry 1/2 c.m. x 1/2 on left forehead 1 c.m. From the midline and 6 c.m. From left eye and also wound of exit 5 c.m. x 4 c.m. On mid line over back of skull, 8 c.m. From posterior hair line of skull. Brain matter was coming out of this wound and the said injuries caused by the fire-arms were sufficient in the ordinary course of nature to cause death of the deceased. The ocular account is fully corroborated by medical evidence.
10. The prosecution case is further corroborated by absconsion of the accused. Occurrence took place on 19-2-1994. Appellant became absconder, could not be traced out for about 4 1/2 years, he was declared a proclaimed offender which has been proved through P.W.10 and after taking necessary steps his case was separated from his co-accused Muhammad Khan since acquitted by the trial Court. Appellant was arrested on 8-7-1998 by Rizwan Manzoor S.-I. P.W.11. He has not furnished any justification for such a long absonsion whereas his co-accused faced the trial and was acquitted prior to his arrest. The absconsion on the part of the appellant is a corroborative piece of evidence in circumstances of the case.
11. Argument of the learned counsel for the appellant that deceased lost his life in cross firing and accused acted in self-defence is mainly based on statement of Farhat Mehmood Inspector C.W.1.
The said Inspector deposed in answer to the question put by the defence counsel that "it is correct that in my previous statement dated 9-6-1996, I had stated before the Court "during investigation, I concluded that Khan Baig deceased alongwith other persons armed with fire-arms attacked the accused and then they started firing on them, in return the fire made by Muhammad Latif absconder hit the deceased." On the strength of aforesaid portion of the statement of C.W.1 learned counsel argued that accused acted in self-defence, therefore, his conviction under section 302(b), P.P.C. Is not warranted but in case it is maintained capital sentence is not called for. We have considered the entire statement of aforesaid C.W. He was examined on 9-6-1996 during the trial of co-accused of the appellant. This witness partially investigated the case, when cross examined by the defence counsel he deposed that Muhammad Khan and Muhammad Latif were found guilty of the offence alleged against them. He admitted that Muhammad Latif accused had not appeared before him because he was absconded in those days. No one was injured on the side of the accused, no empty was recovered from the place of occurrence to substantiate the plea of self- defence of the accused that he fired in relations to the firing made by the complainant side. In the absence of any empty or injury to anyone on the side lead us to believe that it is concocted and afterthought plea. C.W.1 has formed an opinion without any material on the record. It is also note worthy that Muhammad Sher and Zafarullah Khan eye-witnesses have not been put even any suggestion of this plea during the cross-examination. The defence finds mention in his statement under section 342, Cr.P.C. And the statement of C.W.1 alone. There is no material on the record to believe the stand of the accused. The argument of the learned counsel is not supported by any evidence on the record, therefore, the same is repelled.
12. Besides ocular, medical evidence and absconsion of appellant yet there is evidence of motive against him. Saadullah brother of complainant was earlier murdered by the appellant and his co- accused and he having been acquitted apprehended that Khan Baig deceased may not take revenge of his brother, he finished the deceased. The aforesaid pieces of evidence clearly prove the prosecution case. He used rifle 303 and hit at forehead of the deceased and killed him. The prosecution successfully proved its case against him through evidence which inspires confidence.
The conviction is maintained and there being no mitigating circumstance, he is awarded normal sentence of death. The appeal is dismissed and the murder reference is answered in affirmative.