' Appellant Muhammad Mumtaz son of Muhammad Hanif was tried by the Sessions Judge, Jhelum, for an offence under section 302/34, P.P.C. In the case registered vide F.I.R. No,351, dated 25-11-1991, Police Station Sadar, Jhelum, and was convicted under section 302(b)/34, P.P..C. And sentenced to imprisonment fcr life vide judgment dated 29-9-2001. It was ordered that he shall also pay an amount of Rs,20,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, or, in default of payment of the said amount, he shall undergo six months S.I. Benefit of section 382-B, Cr.P.C. Was also extended to the convict.
2. Brief facts of the case, as contained in complaint Exh.P.B. Made by Qurban Hussain (P.W.9) are that on 25-11-1991 at about 2 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 appellant.
' The motive behind the occurrence, as disclosed by the complainant, was that four years prior to the present occurrence, the accused had picked up a quarrel with Imam Masjid of the village and caused him injuries as a result of which a case was got 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 reached the D.H.Q.
Hospital, Jhelum and recorded the statement (Exh.P.B.) of the complainant in the Hospital and after sending the same to the police station for registration of the case dispatched the dead body through a Constable for post-mortem examination. During the spot inspection, he collected blood- stained earth from the place of occurrence and on completion of formal investigation he submitted the final report under section 173, Cr.P.C.
5. The charge was framed under section 302/34, P.P.C. Against the appellant, who pleaded not guilty and claimed to be tried.
6. P.W.1 Dr. Khalid Mehmud, M.O., D.H.Q. Hospital, Jheium who conducted the post-mortem examination on the dead body of Muhammad Akhtar on 25-11-1991 at 4 p.m., found the following injuries on the dead body of the deceased:--
(1) Lacerated wound 2 c.m. x 2 c.m. With inverted margins, (depth was not probed) on front of right thigh, 11 c.m. Below the right inguinal lingament. (wound of entry. One pellet and two pieces of cartridge were removed from the wound and handed over to police).
(2) Four small wounds with inverted margins closely cited just medial to injury No,1, size 1/2 c.m. x 1/2 c.m. (wound of entry).
(3) A lacerated wound 1-1/2 c.m. x 1 c.m. With inverted margins just below to injury No,1.
(4) Lacerated wound 1 c.m. x 1 c.m. With everted margins on the back of right thigh, 24 c.m. Above to the right knee-joint (wound exit).
(5) Six small lacerated wounds with everted margins, 1/2 c.m. Diameter at the back of right thigh., surrounding the injury No,4 in an area of 10 c.m. Radius.
(6) Lacerated wound 1 x 1/2 c.m. Skin deep on right scrotum, just below to injury No,6.
(7) Lacerated wound 4 c.m. x 3 c.m., bone exposed and fractured, on front of left lower leg, 10 c.m.
Above to left medial malleolus. (Corresponding holes were present on the clothes).
' In the opinion of the Doctor, all the injuries were arfte-mortem. Injuries Nos.1 to 7 were caused with tire-arm weapon whereas injury No,8 was with blunt weapon. Cause of death was excessive haemorrhage leading to shock and the death was caused by injuries Nos.1 to 3. Probable time between the injuries and death was 30 minutes and between death and post-mortem was 6 hours.
7. Lehrasib Khan, A.S.-I., Police Station Sarai Alamgir, the then M.H.C. Posted at Police Station Sadar, Jhelum, appeared as P.W.2. He stated that he had recorded the formal F.I.R. Exh.P.B.1 on 25-11-1991 on receipt of the complaint Exh.P.B.
8. Maqbool Hussain, Draftsman, who had prepared the site-plan Exh.P.C., Exh.P.C.1 and Exh.P.C.2 on the direction of police and on the pointation of the witnesses, appeared as P.W.3. Arshad Mehmud, appeared as P.W.4 and stated that he was entrusted with the non-bailable warrants of arrest of the accused persons by the Magistrate 1st Class, Jhelum, which he, returned unserved and his statement was recorded by the Magistrate, and thereafter proclamation under section 87, Cr.P.C.
Was issued in respect of the accused persons. Muhammad Afzal, P.W.5 identified the dead body of the deceased at the D.H.Q. Hospital, Jhelum. Muhammad Riaz, Constable P.W.6, escorted the dead body of the deceased Muhammad Akhtar to the mortuary of D.H.Q. Hospital for post-mortem examination and after post-mortem examination the doctor handed over to him the police papers, copy of P.M. Report, a sealed phial and last-worn blood-stained clothes of the deceased, i,e, Shalwar P.1, shirt P.2, Banian P.3 and Parna P.4, which things he handed over to Kamil Hussain Shah, Investigating Officer, who took into possession the said articles vide memo. Exh.P.K. Muhammad Zaman appeared as P.W.7 and stated that in his presence the Investigating Officer collected the blood-stained earth from the spot and sealed it into a parcel vide memo. Exh.P.L. In his presence the police recovered from the house of Muhammad Azam accused two guns of 12 bore Exh.P.5 and P.6, 50 live cartridges P.7/1-50, one pistol P.8, two magazines P.9/1-2, 14 live rounds Exh.P.10/1-14, one revolver P.11, 18 live bullets P.12/1-18, one 7 MM rifle P.13 and 130 live bullets P.14/1-30, 3 daggers P.15 to P.17, two passports P.18 and P.19 and two licences of arms P.20 and P.21, which were secured into sealed parcels vide memo. Exh.P.M., which memo. Was attested by the witness and Muhammad Amin Lambardar. Naser Mehmud Constable appeared as P.W.8 and stated that he brought the complainant Exh.P.B. On 25-11-1991 from Kamal Hussain Shah, S.-I. To the Police Station for registration of formal F.I.R. Qurban Hussain P.W.9, complainant, deposed about the contents of the complaint Exh.P.B. S. Kamil Shah, Inspector, P.W.10 stated that on receipt of information he went to the D.H.Q. Hospital, recorded the statement Exh.P.B. Of Qurban Hussain, complainant, P.W.9, examined the dead body, prepared the injury statement Exh.P.N. And inquest report Exh.P.O. From the place of occurrence, he collected the blood-stained earth, recorded the statements of the P.Ws. And carried the investigation. According to him, in spite of his best efforts he could not arrest the accused so proceedings under sections 87/88, Cr.P.C. Were conducted. Naghman Hayat, the then A.S.-I. C.I.A. Staff, Jhelum, P.W.11 arrested the appellant Muhammad Mumtaz and obtained his physical remand.
9. Statement of Muhammad Iqbal, recorded by the learned Sessions Judge under section 512, Cr.P.C. As P.W.2, who had later on died. Was ordered to be given in evidence vide order dated 22-4- 1998 by the learned Sessions Judge. This witness was treated as P.W.12. Said Muhammad Iqbal P.W.12 claimed to be the eye-witness of the occurrence.
10. C.W.1 Amjid Ali stated that he was entrusted with summons Exh.C.W.-1/1 in the name of Muhammad Iqbal, P.W., for his service; he was informed in the village of the P.W. That he had died 2 years earlier so he made report Exh.C.W.1/2.
11. Statement of the appellant Mumtaz Ali under section 342, Cr.P.C. Was recorded, wherein he denied the allegations levelled against him and deposed to have been roped in the case due to his relationship with Muhammad Azam and Pervaiz, absconded co-accused, and enmity of Qurban Hussain, complainant, with his younger brothers Ijaz and Khuda Dad. Regarding hi absconsion he stated that he never absconded. He left for Siri Lanka from Karachi on 23-11-1991; then he proceeded to France in 1992 and remained there up till 1994; in 1994 he reached -England and was detained in jail there up to 24-11-1996; on 25-11-1996 he was deported from England to Pakistan. He further stated that he came to Rawalpindi and stayed with his brother Ijaz, from where he was arrested. Ijaz Ahmad and Manzoor Qadir were produced in his defence as D.W.1 and D.W.2, respectively.
12. It is important to mention here that the appellant was convicted by the learned Sessions Judge, Jhelum on 11-5-1998 and was sentenced to imprisonment for life alongwith imposition of fine of Rs,50,000, or in default of payment thereof, to further undergo R.I. For two years. It was also ordered that if the amount of fine was recovered, half of it should be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. An appeal bearing Criminal. Appeal No,141 of 1998 was preferred in the High Court, which was allowed vide order dated 30-5-2000. The conviction and sentence recorded by the learned Sessions Judge vide judgment dated 11-5-1998 was set aside and the case was remanded with a direction to record the statement of Muhammad Shafique, eye-witness of the occurrence. Qurban Hussain, P.W., complainant, challenged the said judgment of this Court before the Honourable Supreme Court of Pakistan. The Honourable Supreme Court of Pakistan vide order dated 8-5-2001 passed in Criminal Appeals Nos.350 and 351 of 2000, modified the judgment of the High Court dated "30-5-2000 to the extent that instead of examining Muhammad Shafique as P.W:, he should be examined as C.W. In compliance with the said order of the Honourable Supreme Court, Muhammad Shafique was examined as C.W.2. As such, said Muhammad Shafique narrated the occurrence as C . W .2 .
13. After hearing the arguments of the learned counsel, the learned Session Judge through the impugned order dated 29-9-2001 convicted and sentenced the appellant as described in para.1 of this judgment.
14. The learned counsel for the appellant has raised the following _points:-
(i) that no role of effective firing has been attributed to the appellant in the F.I.R. Therefore the involvement of the appellant has not been proved by the prosecution;
(ii) there is no motive against the appellant to participate in the occurrence;
(iii) the Haveli from where the accused persons allegedly emerged at the scene of occurrence does not belong to the appellant and therefore there was no occasion for hint to be present there;
(iv) there are glaring contradictions in the statement of P.W.2 Muhammad Iqbal recorded under section 512, Cr.P.C. And considered as P.W.12, and the statement of Muhammad Shafique recorded as C.W.2;
(v) the statement of C.W.2 Muhammad Shafique has not been read in true perspective as he had stated before the Court that at the time of firing they were in panic and therefore they were not able to observe whether Mumtaz appellant had pointed the gun at some specific part of the body of the deceased;
(vi) there was no hurdle in the way of the appellant and the co-accused to kill the deceased by making more shots;
(vii) the prosecution witnesses are interested having enmity with the accused-appellant and motive to falsely implicate the appellant therefore the interested witnesses could have not been relied upon by the trial. Court for conviction of the appellant;
(viii) no conviction could be recorded on the sole ground of the absconsion of the appellant- accused. Reliance has been placed on:-- ' Wasal Qamar v. Noor Dad and others 2000 PCr.LJ 2038 and Ghulam Farid v. The State 1992 SCM R 1258
15. Conversely, learned counsel for the State assisted by the learned counsel for the complainant argued that:-
(i) there is promptly lodged F.I.R. Giving details of the occurrence and the role played by the accused, including the appellant and the weapon of offence which they were carrying at the time of the occurrence;
(ii) the Haveli from where the accused emerged at the scene of , occurrence was owned by Muhammad Pervaiz and Azim and the appellant's absconding co-accused and the present appellant are the real cousins therefore they had the common intention to launch an attack on the deceased; therefore the trial Court has rightly convicted the appellant under section 302, P.P.C. As the ingredients of section 34, P.P.C. Are fully attracted in the present case;
(iii) though there is effective firing attributed to the appellant, yet he has been attributed overt act of pushing the deceased from the motorcycle and raising of Lalkaras;
(iv) the appellant absconded for five years and five days and the proceedings under sections 87/88, Cr.P.C. And section 512, Cr.P.C. Were initiated against him, which is a corroborative piece of evidence as held in the case:-- ' Sher Ali alias Sheri v. The State 1998 SCM R 190 and Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182.
' They further argued that section 34, P.P.C. Is fully attracted in this case for the following reasons:--
(i) a finding has been recorded by this Court while deciding Criminal Appeal No,141 of 1998 on 30th May, 2000 that the appellant had shared the common intention with his co-accused;
(ii) in pursuance of the remand order passed by the High Court Muhammad Shafique was examined as C.W.2, who is an independent and disinterested witness, who has fully supported the case of the prosecution;
(iii) the statement of Muhammad Iqbal recorded as P.W.2 under section 512, Cr.P.C. And treated as P.W.12 is admissible in evidence and proves the case of the prosecution beyond any reasonable doubt against the appellant. Reliance has been placed on 1997 PCr.LJ 259.
(iv) medical evidence is in line with the ocular account; and
(v) the plea of alibi raised by the appellant has not been taken during investigation and was not proved during trial.
16. Prosecution case is based on the following evidence:--
(a) Medical evidence consisting of Di. Khalid Mehmood, P.W.1, ocular account furnished by Qurban Hussain, complainant, P.W.9, Muhammad Iqbal P.W.12, whose statement made under section 512, Cr.P.C. Was ordered by the learned Sessions Judge to be given in evidence was the said P.W. Had died, and the statement of C.W.2 Muhammad Shafique.
(b) Absconsion of the accused-appellant.
17. Medical evidence furnished by Dr. Khalid Mehmud, Medical Officer, D.H.Q. Hospital, Jhelum, P.W.1, is not much helpful to the prosecution because admittedly the appellant has not caused any injury on the body of the deceased Muhammad Akhtar as the allegation against the appellant in the F.I.R.
Was that he fired which missed. As per story given in the F.I.R., the appellant in furtherance of common intention to commit the crime while actively participating in the occurrence, fired at the deceased which was missed. The fatal injury is attributed to the co-accused of the appellant.
Whether the appellant was present at the spot with fire-arm and he effectively used it and whether there was an overt act on his part by giving a push to Muhammad Akhtar, deceased, who was driving the motorcycle and it was a .Proof of his common intention, these questions need consideration. Element of common intention could be judged from the manner of incident and circumstances connected therewith before incident could not be pre-planned, but common intention could develop at the spur of the moment during commission of offence. If the appellant alongwith his co-accused was responsible for pushing the deceased, who fell down from the motorcycle, the natural consequence would be that he would have sustained some sort of injury of fall on his body, as there was metalled road. The Haveli from where all the accused persons allegedly emerged to the scene of occurrence did not belong to the appellant. There was no occasion for the appellant to be present at the Haveli owned by his co-accused Azam and Pervaiz.
The statement of Muhammad Shatique, C.W.2, made in cross-examination is:-- "At the time of tiring, we were in panic and therefore, we were not able to observe whether Mumtaz accused had pointed the gun at some specific part of the body of the deceased."
' This statement clearly shows that the appellant had no intention to fire at the deceased. Had there been any intention to do so, there was no hurdle in the way of the appellant to murder the deceased by firing more shots. No empty was recovered at the scene of occurrence. The appellant could have not been convicted on the sole ground of relationship with the co-accused Pervaiz and Azam. There is no force in the contention of the learned counsel for the complainant that the appellant is the real cousin of the co-accused therefore he had the common intention to launch an attack on the deceased. Similarly, finding recorded by the High Court while disposing of Criminal Appeal No,141 of 1998 on 30-5-2000 was not binding on the trial Court for the reasons that firstly, in para.10 of the judgment passed in the abovesaid criminal appeal decided on 30-5-2000 it was categorically observed:-- "I, therefore, keeping in view the special features of the present case, without detail 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 eye-witness of the occurrence, within three months."
' And, secondly, the order of the High Court, aforesaid, was modified by the Honourable Supreme Court. Recovery of the motorcycle has not taken place from the site.
19. After examining the case from every angle, I am of the opinion, that a larger net has been thrown by the prosecution to involve the three persons for one fatal injury attributed to the co- accused of the appellant. Suffice to say that no conviction can be recorded on the mere ground of absconsion. It has been ruled in the case reported as Wisal Qamar v. Noor Dad Khan and another 2000 PCr.LJ 2038 Peshawar DB:-- "Appreciation of evidence---Abscondence of accused---Effect--- Abscondence of accused by itself did not establish the guilt of accused unless it was corroborated by other cogent evidence--- Where prosecution had failed to bring home guilt through ocular evidence, alleged abscondence was of no use in circumstances."
' I have purposely employed a guarded language and have also not made observations and sweeping statement, because I lean in giving the benefit of doubt to the appellant. It has been ruled in the case reported as Qamar Ali Khan v. Zardad Khan and others 1992 PCr.LJ 362 that as and when some of the accused, particularly main accused be absconding and some of the accused charged for vicarious liability face trial, the trial Court intending to extend benefit of doubt to the accused facing trial, he must employ a guarded language and need not make sweeping statement and observations.
' For what has been discussed above, I hold that the participation of the appellant in the occurrence by sharing common intention under section 34, P.P.C. Is doubtful. He is given the benefit of doubt and is acquitted of the charge by setting aside his conviction and sentence awarded to him vide judgment dated 29-9-2001 by the learned Sessions Judge, Jhelum. He shall be released from custody forthwith, if, not required in any other case.