; SHAFI-UR-REHMAN, J.-Malik Yaran Khan, a prastising lawyer of District Mianwali, was shot dead while on way to District Courts on the morning of 17th June, 1972. His son Malik Amir (P. W. 13) also an Advocate, who was accompanying him, lodged a report at Police Station Sadar Mianwali within half an hour. He charged Ali Khan petitioner along with two others, Attar Khan and Muhammad Hayat for firing at him and on the information received from one Anwar Beg while on way to Police Station charged Sikandar Hayat and Ghulam Muhammad of conspiring with them to kill him. The motive given out was long outstanding enmity between the parties. The trial Court , acquitted Sikandar Hayat and Ghulam Muhammad, and convicted the other three, sentencing Ali Khan to death and two others to life imprisonment. The Lahore High Court maintained the conviction and sentence of Ali Khan but giving the benefit of doubt to the other two convicts acquitted them.
2. There are three petitions seeking leave to appeal. Two of them are by All Khan by which he wants to question his conviction and sentence under section 302, P. P. C. And under section 13 of the Arms Ordinance recorded in a separate trial. The third petition is by the complainant who wants to question the acquittal of the other two convicts.
3. The background of the occurrence was that in the year 1967 three persons were murdered of which report (Exh. PL) was lodged by Ali Khan petitioner. One of the murdered was brother of Ali Khan, the other father of Attar Khan acquitted accused and the third his paternal uncle. Malik Yaran Khan deceased was charged of conspiracy and Ahmad 'Sher (P. W. 15) and Mehr Elahi (not produced) were charged of their murder. That trial ended in acquittal. In 1968, Jehan Khan, the father of the petitioner Ali Khan, was murdered. For this Mumtaz, a nephew of Malik Yaran Khan was charged. In 1969 Allahyar, a brother of Malik Yaran Khan deceased, had lodged a report under sections 148/ 307/429/149, P. P. C. Against Ali Khan petitioner and others. In this case Malik Amir (P.
W. 13) appeared as a witness. In 1970, Khizar Hayat a servant of All Khan petitioner, had fallen' into a well. An application was filed by Malik Muhammad Sadiq a cousin of the deceased for initiating an inquiry into that matter and when it did not yield any fruitful result he filed a complaint about his being murdered on the ground that he was suspected of maintaining illicit relations with All Khan's sister.
4. On 17th January 1972, Malik Yaran Khan deceased along with his son Malik Amir (P. W. 13), his clerk Mehrban Khan (P. W. 14), Ahmad Sher (P. W. 15) and Mehr Elahi (not produced) was proceeding from his house to the Courts. On way they had just passed ahead of the hotel of one Abdullah when All Khan alerted them by shouting and simultaneously fired a shot hitting the deceased in the head. His companions the acquitted accused Attar Khan and Muhammad Hayat also fired shots.
The assailants left the place. Malik Yaran Khan died immediately. Malik Amir started for the police station and on way he was informed by one Anwar Beg (not produced) that Ghulam Muhammad and Sikandar Hayat were planning the previous evening the murder of Malik Yaran Khan. He lodged the report narrating what he had himself seen and what he was told by Anwar Beg. The report was recorded by Muhammad Sadiq S.
1. (P. W. 17).
5. Dr. Muhammad Aslam Khan (P. W. 10) found in all ten injuries on the dead body of Malik Yaran Khan, three of these were minor abrasions and the rest file-arm injuries, five being entry wounds and two exit wounds. All the firearm entry wounds were on the back of the head on its right side and the doctor was of the opinion that "if a firearm is discharged from a distance of 20 to 25 feet all these injuries can be caused with one shot". In the commitment Court he had stated that injuries on the person of the deceased were the result of more than one fire. Ali Khan's licensed gun was recovered in his absence at the instance of his brother. Soon after the occurrence he had, it appears, absconded and was arrested a year after the occurrence by Khan Muhammad Mohsin DSP (P. W. 7) on 20th February 1973 from near the bus stop of Ban Hafizji. On his arrest he led to the recovery of unlicensed gun' from his Kotha in Dhok Khund on 21st February 1973 which was taken into possession and for which he was separately tried under section 13 of the Arms Ordinance convicted and sentenced by the Sessions Judge and was required to undergo one year's rigorous imprisonment. The Lahore High Court which heard his appeal against this conviction along with the other appeal and the murder reference rejected it.
6. The plea of the petitioner Ali Khan at the trial was one of false implication by interested witnesses and he explained his abscondence by making the following statement :- "On learning about the murder of Malik Yaran Khan apprehended that the complainant party would falsely implicate me and, therefore I left Mianwali and went to Karachi where I remained till February 1973, because earlier the complainant party had tried to falsely implicate me in the case of alleged murder of Khizar Hayat who had died accidentally and in a case under section 307, P. P.
Code in which a mare was killed. I came to Mianwali and appeared before the Superintendent of Police on 20th February 1973. I was not arrested by Mr. Mohsin Inspector Police P. W." ; The trial Court found Malik Amir and Ahmad Sher to be interested witnesses, -sought corroboration and obtained it from the statement of Mehrban (P. W. 14) who was taken to be an independent witness. Further corroboration was obtained from the motive, the abscondence of Ali Khan and the avoidance of his arrest for eleven days by Attar Khan. The trial Court therefore found these three guilty and convicted and sentenced them.
7. The learned Judges: in the High Court considered, in view of the background of the enmity, all the three eye-witnesses to be interested witnesses and looked for independent corroboration. At the same time, they were taken to be the natural witnesses, witnesses who were present at the time of the occurrence and could identify the culprits and were truthful. Corroboration was still considered necessary as the learned Judges of the High Court felt that such was the established principle of law. They found the medical evidence supporting the prosecution evidence but not providing the necessary corroboration. They found the required corroboration forthcoming only in the case of Ali Khan and that too from his prolonged abscondence from 17th January 1972 to 20th February 1973.
His conviction was therefore upheld and the others were given benefit of doubt. As regards the sentence the learned Judges in the High Court found no extenuating circumstance and held that the deceased was acting in performance of his professional duties, which partly accounted for his murder. Hence the sentence of death coupled with a fine of Rs, 1,000 to be paid as compensation was upheld.
8. The learned counsel for Ali Khan contended that as the abscondance of Ali Khan had been satisfactorily explained it could not at all provide corroboration and even in cases where it is proved as a fact it has a very weak corroborative value. He has further contended that the witnesses were all interested, that they had thrown the net too wide by naming two totally unconcerned persons as involved in the crime and had thereafter made statements which were not quite consistent and creditworthy. As regards the investigation, it has been stated that the FIR was overwritten, Sadiq (P. W. 17) the investigating officer had admitted how pressure was brought on him not to place Sikandar in column No 2 and how the evidence of independent witnesses of the locality which was recorded during police investigation was kept back. In any case, it has been urged by the learned counsel that there were mitigating circumstances, like the family honour being involved and the revenge being for the murder of his own father which facts if kept in view would make the sentence of death appear harsh and excessive.
9. The circumstances in which two others totally unconcerned were charged of the murder of Malik Yaran Khan are explained in the first in- formation report itself. It was not on the basis of a direct knowledge. It was on the information supplied by a named person. If that person backed out the maker of the report could not be made responsible for transmitting an incorrect information. The witnesses who claim to be eyewitnesses were natural for it was time for lawyers to go to Court and the deceased and the complainant were both practising lawyers, living in the same house.
Mehrban was the clerk and had a plausible reason to accompany them. Ahmad Sher has given a reason for being present which has been accepted by the Courts and appears to be true for, inter alia, his shirt sleeve got bloodstained in handling the deceased at the spot. Not only these witnesses were natural witnesses, they made consistent statement with regard to their presence and the manner in which the occurrence took place. The Courts have believed them. The only question is whether Mehrban could be treated as an independent witness as is claimed by the complainant and his testimony could provide the necessary corroboration and whether the abscondence was a fact capable of providing the required corrobo ration.
10. Mehrban has admitted that he had an association with the deceased since 1959 as his clerk. In view of such a relationship existing between the deceased and Mehrban (P. W. 14) it cannot be said that the learned Judges in the High Court have erred in treating him as an interested witness.
11. Ali Khan was a school teacher by profession. He was required to attend to his school duties regularly and punctually. He had been marking his attendance also. His absence even for a day could not go unnoticed or remain unexplained. 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 E the absconder, his occupational habits and limitations, the period o abscondence, the specific explanation for it have all to be considered in juxtaposition with the other evidence on the record. Where the eyewitnesses are natural, found to be present and capable of identifying the culprits, are held to have truthfully deposed about the event, and corroboration is sought not under a mandate of law, but more on the basis of established principles. Of judicial caution, it may ,as 'in this case, prove decisive for the value that it has.
12. We have been taken through what is said to be the overwritings in the first information report.
They are not shown to be consequential. They are clerical. The investigating officer is free to form his own opinion about the extent or degree of participation of a named accused but at a trial, it has no relevance. What is relevant is the fact on which such an opinion is based. The witnesses of the locality were certainly examined by the police during the course of the investigation but that does not mean that irrespective of what they claim to know about the occurrence they have to be produced as witnesses. It is only when they show an awareness of the occurrence, knowledge of the identity of the assailants or other relevant facts that they can find a place at the trial. Any reference to such material as is not on the record is impermissible, and any conclusion drawn from it would be only conjectural. The other submissions made by the learned counsel for the petitioner, namely that if Mehr Elahi and Ahmad Sher were present they would have been the more likely targets than the deceased or that if the deceased had also like others turned back to look at the accused when they called out to him to be alert, such an injury as was found could not have been caused, are entirely in the domain of the appraisement of the evidence and there is no plausible reason to go into it at this stage.
13. As regards the sentence, this Court has certainly held that in cases where the family honour relatable to females is involved, or there appears from the record a tradition of taking revenge, hardening into family duty aggravated to the extent of being an obsession with the accused, the lesser sentence is awarded. In this case, however, that principle is not attracted for the deceased was nor instrumental in causing any such grievance to the petitioner Ali Khan. This Court has, on the contrary, never considered taking of private revenge a mitigating circumstance in the matter of sentence.
14. As regards the petition filed by the complainant, two grounds have been taken up. In the first place, it is said that where the interested witnesses are taken to be the natural witnesses, truthful witnesses and to have identified and correctly named the assailants no further corroboration should have been looked for. Further, it is said that Mehrban (P. W. 14) should have been taken to be a disinterested witness providing the necessary corroboration. Secondly, it has been urged that the medical evidence has been misread for it did show that more than one shot was fired effectively at the deceased, and in that case the medical evidence was capable of providing the necessary corroboration. We have already considered why on the facts of this case, to be on the safer side, Mehrban could be taken to be an interested witness. Though. Theoretically even the statement of interested witnesses is capable of being accepted without further corroboration but such would be an "exceptional witness" or witnesses and there is nothing on the record which may justify the classification of these witnesses as such. The Courts were therefore justified in looking for corroboration. The medical evidence could not provide it because the doctor made a positive statement in the trial Court that "if a firearm is discharged from a distance of 20 to 25 feet all these injuries can be caused with one shot". The distance shown according to the site-plan was in the neighbourhood of 38 feet.
15. As regards the conviction and sentence of Ali Khan petitioner under section 13 of the Arms Ordinance it proceeds on evidence accepted by both the Courts.
16. All the three petitions are, therefore. Dismissed as being without merit.
17. .