KHUSH BAR Versus State
MALIK HAQ NAWAZ, J.--- Through present appeal, the appellant has questioned validity of judgment dated 08.12.2015 passed in Sessions case No. 17/2013, by the learned Sessions Judge Diamer in FIR No. 13/2002 of Police Station Tangir under sections 302/457/34, P.P.C.
2. The brief facts of the case are that complainant Moeil Khan son of Umar Khan reported the occurrence in the Police Station Tangir. The FIR was accordingly chalked which was exhibited as Exh. PW-6/A in the trial Court. The brief accusations contained in the above FIR are as under:-
"Complainant Moeil Khan son of Umer reported the occurrence on 17.5.2002 at about half past 8 O'Clock morning regarding the occurrence vide the document FIR Exh.PW-6/A. According to the document Exh.PW-6/A on 17.5.2002 at about 3 a.m. morning while the complainant was sleeping at the place of occurrence in the house of deceased Khubat, at the said time, the complainant heard hue and cry from below the house and he woke-up and saw towards the house and saw two muffled persons were involved in a fighting with the deceased couple Khubat and his wife Mst. Malika. Complainant shouted at the trespassers and in the meantime the said trespassers opened fire, resultantly the deceased couple fell on ground. One of the two accused escaped leaping over the boundary wall of the house whereas the other accused tried to escape from the main gate, was identified by the complainant as the present accused Khusbar son of Raj resident of Diamer village Tangir. Complainant has stated in the document Exh.PW-6/A that he did not identify the second person. According to the FIR both the accused entered in the house of deceased couple in order to commit rape and when they were caught by the deceased couple they committed murder of the deceased couple".
3. After registration of the FIR, the police started investigation of the case but the convict/appellant went underground. The local police obtained warrant of arrest of the accused but could not succeed. The statement of search witness on oath was recorded on 15.07.2002 and then the proper proceedings under section 87/88 were initiated against the convict/appellant and his co-accused Abdul Hadi. Incomplete challan against the accused was submitted in the Court for proceeding under section 512, Cr.P.C. on 16.08.2002. The accused were arrested on 02.04.2013 (after about 11 years of the occurrence). After necessary investigation both the accused were committed to judicial lockup to stand trial before the learned Sessions Judge, Diamer.
4. As evident from the order-sheets of the trial Court, the case was entered in the relevant register as Sessions case No. 103/2004 and on receipt of complete challan and after arrest of accused it was re-numbered as 17/2013. The accused were produced in the trial Court on 02.05.2013 and copies of necessary documents under section 265-C, Cr.P.C., were provided to them on the said date. The charge was framed on 12.08.2013 and P.Ws were summoned to face trial.
5. In order to prove the case the prosecution examined 10 P.Ws and closing statement of learned District Public Prosecutor was recorded on 24.05.2014. It is pertinent to mention here that co-accused Ahmad Hadi was acquitted from the charges under section 265-K, Cr.P.C. on 14.10.2015 by the trial Court. The statement of accused under section 342, Cr.P.C. was recorded on 14.10.2015. The accused opted to be examined on oath under section 340(2), Cr.P.C. and his statement on oath was recorded on 18.11.2015 and the case was fixed for arguments on 26.11.2015. On 26.11.2015 the arguments could not be heard and the case was posted to 30.11.2015. On the said date the arguments were heard and the case was posted to 30.11.2013 for consideration/orders, which were announced. The accused was convicted under section 302(b), Cr.P.C. and awarded life imprisonment and the trial Court also convicted him under section 459, P.P.C. The findings of trial Court are available from Paras. 11 to 17, which are re-produced as under:-
11. In view of above deliberations, this Court is of the opinion that prosecution has proved the charges against the accused Khushbar. Therefore, accused Khushbar is hereby convicted for the murder of deceased couple, under section 302, P.P.C. He is convicted for the offence of lurking house trespass at night. To the extent of charge lurking house trespass this Court is of the opinion that during the said criminal trespass accused has committed murder therefore accused Khushbar is convicted under section 459, P.P.C. instead of 457, P.P.C.
12. To the extent of charge under section 302, P.P.C. this Court is of the opinion that it is no where established on record that out of the two accused who actually fired at the deceased couple. PW.9 Iskim in her statement has stated about the accused Khushbar present on the spot duly armed with a Kalashnikov but corroboratory evidence of recovery of weapon is missing in this case and evidence on record is not exactly of the level provided under section 304, P.P.C., hence case of accused is not fit for capital punishment of Qisas under section 302(a), P.P.C.
13. In view of the above accused Khushbar son of Raj resident of village Diamer Tangir is hereby convicted for the intentional murder (Qatl-i-amd) of deceased Khubat son of Sahib Khan and his wife Mst. Malika.
14. Accused Khushbar son of Raj is convicted for lurking house trespass during night and, it is on record proved that during said trespass he has committed murder of deceased couple hence accused Khushbar son of Raj is convicted under section 459, P.P.C.
15. Convict Khushbar son of Raj resident of village Diamer is sentenced to life imprisonment under section 302(b), P.P.C. for the intentional murder of deceased Khubat son of Sahib Khan. He is sentenced to life imprisonment under section 302(b), P.P.C. for the intentional murder of deceased Mst. Malika wife of Khubat.
16. Convict Khushbar son of Raj while committing lurking house trespass has committed murder of deceased couple therefore he is sentenced to life imprisonment under section 457, P.P.C. All the sentences shall run concurrently. All the sentences of imprisonment would be rigorous in nature. Benefit of section 382-B, Cr.P.C. shall be given to convict Khushbar.
17. Convict Khushbar son of Raj shall pay Rs. 400,000/-compensation to the legal heirs of deceased Khubat and his wife Mst. Malika under section 544-A, Cr.P.C. In default of payment he shall undergo simple imprisonment for two years.
6. The appellant/convict feeling aggrieved by the judgment of learned trial Court, impugned the same by filing Cr. Appeal. No.45/2015. The learned counsel for the appellant while opening his arguments contended that the impugned judgment has been passed in a slipshod manner, without adverting to the facts of the case. The learned counsel stated at bar that the appellant has falsely been implicated in the case. The learned counsel went on to say that whole the prosecution case hinges upon the statements of so called eye-witnesses, whose statements cannot be believed as the occurrence took place in odd hours of the night and the identification of the assailant was not possible. The learned counsel further contended that on the same set of evidence one of the co-accused namely Abdul Hadi has been acquitted by the trial Court under section 265-K, Cr.P.C. and, when the P.Ws have not been believed up to the extent of co-accused, then their statements could not be believed up to the extent of appellant. The learned counsel submitted with vehemence that the statement of P.W. 6 Moyal Khan and PW-9 Mst. Iskim are self contradictory and mutually destructive. These both P.Ws are even not certain about the weapon used for commission of offence and involvement of the appellant is only due to mala fide and result of guess work on the part of complainant party. It was hotly contended by the learned defence counsel that whole the prosecution case is pregnant with inherent doubts and if the prosecution case is seen co-jointly, it does not imprint any impression of the prosecution story being true. The learned counsel stated that postmortem of both the deceased was not carried out, which has left an inherent lacuna in the prosecution case coupled with the non recovery of weapon of offence from the appellant. The learned counsel finally argued that the prosecution has failed in establishing the case against the appellant and as such he is entitled for clean acquittal.
7. On the other hand the learned Dy. A.G. for the State, while controverting the assertions made by the learned counsel for the appellant supported the impugned judgment passed by the learned Sessions Judge Diamer and he stated that no doubt the occurrence took place in odd hours of the night but the presence of PW-6 Moyal and PW-9 Mst. Iskim are quite in line with each other. Per learned Dy. Advocate General, there was no previous enmity existing between the parties and had there been any false implication, these two witnesses may have named the other intruder namely Abdul Hadi. Further contended that Mst. Iskim PW-9 is a natural witness being inmate of the house and PW-6 Moyal Khan has advanced convincing reasons for being present in the house of both the deceased. Lastly the learned Dy. A.G. stated that the statements of P.W. Mst. Iskim and Mst. Mehmooda were promptly recorded and both the ladies have charged the present appellant for the tragic incident. The appellant/convict remained absconder for more than 11 years and he was rightly convicted by the trial Court, which conviction be maintained in the larger interest of justice as two innocent persons were done to death without any legal justification.
8. Admittedly as per contents of FIR the occurrence took place on 17.05.2002 at 03:00 a.m. and the report of the occurrence was lodged on the same day at 08:30 a.m. The distance from the place of occurrence to the police station is only 6 km. The name of present appellant finds mentioned in the FIR and it is an admitted fact that both the deceased namely Khubat and Mst. Malika lost their lives in this tragic incident in the house of deceased Khubat. The statements of two natural witnesses, who are inmates of the house namely Mst. Iskim (PW-9) and one Mst. Mehooda (not examined) have charged the appellant for commission of offence along with an unknown persons, beside the fact that the appellant was named by the FIR lodger for causing the murder of two deceased who is also an eye-witness of the occurrence. We have minutely scanned the evidence of the two eye-witnesses namely PW-06 Moyal Khan and PW-9 Mst. Iskim and deliberated a lot keeping in view the principles laid down for safe administration of criminal justice. The evidence of both these PWs, whose presence at the venue of occurrence has not been disputed by the defence, could not be shaken despite lengthy cross-examination. The evidence of eye-witnesses was natural, straight forward, trustworthy and confidence inspiring. We are of the view that when the Court's mind is satisfied that the offence has been committed by the accused charged with, the minor contradictions, which are bound to occur in the testimony of the witnesses with the passage of time should not be treated a hurdle in sentencing the accused. Admittedly, weapon of offence has not been recovered from the appellant, but there are valid reasons for non-recovery of weapon of offence. The occurrence took place on 17.05.2002 and the appellant went underground for about 11 years. The appellant cannot be rewarded any premium for non-recovery of weapon of offence rather non recovery of weapon of offence tilted very heavily against the appellant in the light of wisdom laid down by the Hon'ble Supreme Court of Pakistan in a judgment reported in PLD 1985 SC 402, which though is a bail matter but the principle laid down therein suggests a wisdom that becoming a fugitive from law, the accused by his conduct thwarts the investigation qua him in which valuable evidence like recoveries is simply lost or is made impossible to be collected (by his conduct). He then cannot seek a reward (in becoming fugitive from law)." Non-recovery of weapon of offence cannot rescue the accused. Recovery by itself is only a corroboratory piece of evidence, which does not have any decisive role in such like cases. The abscondence of accused by itself, is not sufficient to convict him, but it is a strong piece of corroboratory evidence, if there exists some other direct or circumstantial evidence in the case. The reliance is placed on a judgment of Supreme Court of Pakistan reported in 1980 SCMR 474. The relevant para (11) is reproduced as under:-
11.... His sudden disappearance for a short while could possibly be explained as an impulsive act of "sheer timidity", aimed at avoiding "risk of disgrace", torture of police, or the "ordeal of a criminal trial". Such a long absence, in this case of over a year, could not possibly be explained by reference to an ephemeral emotional reaction when the parties were already accustomed to serious criminal litigation. He turned up or was apprehended only after his property was attached and was in the process of being auctioned. The reasons given for such a prolonged abscondence have not satisfied any of the Courts, dealing with the matter. The relevance and the corroborative value of abscondence cannot be denied on any interpretation of law applicable to it. Its strength or weakness, sufficiency or otherwise can be a matter of debate in a given case. It is therefore, the facts of each case which will finally determine the place and the weight to be given to abscondence for proving a case beyond reasonable doubt. In evaluating the factors, the antecedents of the absconder, his occupational habits and limitations, the period of abscondence, the specific explanation for it have all to be considered in juxtaposition with the other evidence on the record...."
In another judgment reported in 1976 SCMR 188, the impact of abscondence was discussed. Relevant portion is as under:-
"..... It is corroborated by the fact that the appellant absconded from the village for nearly seventeen months. The explanation given by him has been rightly rejected by the Courts below, as it was not supported by any evidence on the record. The absconsion of the appellant was proved by A.S.I Barkat Ali (P.W.13) who had been entrusted with the task of apprehending the appellant. It also finds mentioned in the opening paragraph of the commitment order recorded by the Magistrate, in which the appellant has been described as an absconder during the commitment proceedings....."
In another case reported in 1992 SCMR 1036 of Supreme Court of Pakistan has given guidelines, which are full of wisdom. The wisdom expressed therein is as under:-
"No doubt, abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. In the instant case the accused/respondent No.1, Jahanzeb accused (since murdered) and their brother Aurangzeb remained fugitive from justice for a very long time without any plausible and reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case."
9. In view of above discussions, we found that the prosecution has successfully proved its case against the appellant/convict and his appeal is dismissed being without any legal substance.
JK/145/GB Appeal dismissed.