' IJAZ-UL-HASSAN, J.---The appellants namely Murid Khan and Ramdad Khan, brothers inter se, were tried jointly alongwith Akbar Ali (since acquitted) by learned Judge Special Court, Nowshera in respect of offences under sections 302/324/148/149, P.P.C. Vide F.I.R. No,149 registered at Police Station Akbar Pura, District Nowshera on 27-7-1994 at the instance of complainant Itbar Khan son of Khaista Khan deceased. At the conclusion of trial the appellants and acquitted co-accused, having been found guilty were convicted and sentenced to suffer life imprisonment as `Tazir' with fine of Rs,10,000 each as compensation under section 544-A, Cr.P.C. Or in default thereof to undergo further S.I. For four months. The amount of compensation on realization was ordered to be paid to the legal heirs of deceased Khaista Khan. The appellants and acquitted co-accused were also convicted under section 324/149 P.P.C. (on two counts) and sentenced to undergo one year's R.I. Each plus a fine of Rs,1,000 each or in lieu thereof to suffer R.I. For three months. They were further convicted under section 148, P.P.C. And sentenced to suffer one year's R.I. Each. All the substantive sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to the convicts. The impugned judgment is, dated 25-3-1999.
2. Akbar Ali, one of the co-accused of the appellants filed Criminal Appeal No,106 of 1999 before this Court challenged his conviction and sentences. Complainant Itbar Khan, also filed Criminal Miscellaneous No,98 of 1999 for enhancement of the sentences awarded by the trial Court. Vide judgment, dated 5-11-2002 passed in Criminal Appeal No,106 of 1999, Ali Akbar convict was acquitted of the charges by extending benefit of doubt. Criminal Miscellaneous No,98 of 1999 was dismissed in consequence of the acquittal of Akbar Ali convict.
3. Murid Khan and Ramdad Khan appellants have preferred Jail Criminal Appeal No,45 of 2003 on 28-1-2003 assailing their conviction and sentences per judgment, dated 25-3-1999 of learned Judge Special Court, Nowshera. The appeal is accompanied by an application (Criminal Miscellaneous No,40 of 2003) for condonation of delay in filing appeal.
4. We have heard at length Mr. Abdul Fayaz Khan, Advocate for the appellants, Malik Ahmad Jan, Deputy Advocate-General for the State and Mr. Suhail Akhtar, Advocate for complainant Itbar Khan in the light of the material on file.
5. Learned counsel for the complainant has raised a preliminary objection that appeal has been filed after considerable delay and as such the same is not maintainable. The submission is misconceived. Having regard to the facts and circumstances of the case and the grounds of delay highlighted in the application, we allow the same and condone the delay in filing appeal in order to meet the ends of justice.
6. Coming to the merits of the case we find that the appellants and acquitted co-accused Akbar Ali alongwith two absconding co-accused namely Wali Khan and Safdar have been charged in the report for having on 27-7-1994 at about 5-30 a.m. In the fields of Arbab Najibullah in Deh Banda Sheikh Ismail, Nowshera, committed `Qatl-e-Amd' of their co-villager Khaista Khan by firing. They are also charged for making murderous assault on the persons of Itbar Khan complainant and his brother Murad Khan. The evidence produced by the prosecution in support of its case and made basis of the judgment, dated 25-3-1999 passed by the learned trial Judge, has already been disbelieved by this Court for reasons recorded in Criminal Appeal No,106 of 1999 which resulted in acquittal of Akbar Ali co-accused. It may be observed here that the appellants and acquitted co- accused have been assigned similar role of firing culminating in the murder of Khaista Khan deceased. There is no recognizable difference in role assigned to the appellants and that of the acquitted co-accused. Benefit of the judgment recorded by this Court shall also go to the appellants. In this view of the matter we are fortified by the judgment reported in Talib Hussain and another v. The State PLD 1958 (W.P.) Kar.
383.
7. The arguments of the learned State Counsel that there is a prolonged noticeable abscondence to the discredit of the appellants, will not, per se, prove the case of the prosecution because abscondence at the most can be taken as corroborative of the charge and not the evidence of the charge. It is a settled law that in absence of any other corroborative evidence, this evidence even if found convincing would not be sufficient by itself to warrant the conviction of the accused person on a charge of murder. The abscondence in this case, no doubt, is for a very long time but abscondence alone, cannot be a substitute for real evidence. People do abscond though falsely charged in order to save themselves from agony of protracted trial. Some time they disappear because of the fear of the police and even of the complainant party. In Siraj Din v. Kala and another PLD 1964 SC 26 it was observed that 'a person who has been named as a murderer, whether rightly or wrongly, usually makes himself scarce. 'Again it was observed in Taj Muhammad v. Resham Khan and others 1986 SCM R 823 that 'mere abscondence would not be enough to sustain conviction of the accused'.
8. A strong motive has been alleged against the accused persons. It is disclosed in the F.I.R. That about a year and a half prior to the occurrence one Adam son of Abdur Rehman was murdered for which the complainant and his father Khaista Khan deceased were charged. The accused were on a look to take revenge. The motive attributed to the accused persons has not been satisfactorily proved. Even otherwise the motive alone is not sufficient to lay foundation for conviction of an accused person on the capital charge of murder.
9. In the result and for the foregoing reasons in view of our judgment, dated, 5-11-2002 recorded in Criminal Appeal No,106 of 1999 (Akbar Ali v. State), we accept the appeal, set aside the impugned judgment, dated 25-3-1999 passed by the leaned trial Court and acquit the appellants. The appellants shall be released forthwith from jail if not required in any other case. The case of the absconding co-accused shall remain on dormant file. Above are the reasons for our short order, dated 27-3-2003.