1. AKRAM, J.-There is sufficient evidence on the record to sustain the conviction and the sentences passed on the appellants. I agree that this appeal should be dismissed.
2. SHAHABUDDIN, J.-This is an appeal by special leave preferred by three persons Hassan Muhammad, Bashir and Muhammad Akram against their conviction under section 302/34, P. P. C.
3. And sentences of death awarded by a Sessions Judge of Lahore, which have been confirmed on appeal by the Lahore High Court.
4. The murder was committed in prosecution of a blood feud, and the existence of such a feud in this case admits of no doubt whatsoever. It is defined to the extent that the parties have been given distinct names, that to which the accused persons belonged being the Malkana party and the opposite-party, of which the deceased was a member being known as the Jamala party. The first murder was committed twenty years ago when a Jamala, named Manna, was killed and one of the present appellants namely Hassan, was tried for the murder but was acquitted. Some thirteen years ago, Saeed Ahmad son of Muhammad Din, who is the victim in the present case, was killed.
5. Six years later, two Malkanas Amir and his son Sarwar were killed, one after the other. About two- and-a-half years before the present murder, two Jamalas named Abdullah and Kala were killed, on different occasions, and in each case, Hassan, the present appellant was an accused person.
6. Both cases resulted in acquittal.
7. Two months before the murder of Muhammad Din, two Malkanas, named Sardara and Muhammad Ali were killed, and four Jamalas were accused, who were found to be absconding. On the day of the present murder viz. 7th September 1951, one of these absconders named Ishaq had been brought to the village by the deceased Muhammad Din, and handed over to Qazi Muhammad Abbas, Inspector of Police who was actually investi--gating that murder in the village.
8. It was when Muhammad Din was leaving the village, after having performed this service, that he was killed. He was accompanied by two persons named Muhammad Hussain and Farzand, who gave evidence in the case as eye-witnesses.
9. Their story was that when they were about 300 yards out of the village, and were passing a clump of reeds, the three appellants suddenly appeared, each carrying a gun, and declared that Muhammad Din was helping the absconders and should be killed. Muhammad Din protested that he was actually assisting in arresting them, but Hassan fired at him and he was hit. Muhammad Hussain did not desert Muhammad Din and supported him to a place about 50 feet away, but Farzand ran away and concealed himself in a field. Seeing that the assailants were again coming towards Muhammad Din, Muhammad Hussain also sought safety in flight. The three accused persons went close up to Muhammad lain and each of them fired a shot at him with the result that he died on the spot. Then, Muhammad Akram accused fired at Muhammad Hussain as he was running into a cotton field, from a distance of about 35 feet, but Muhammad Hussain was only hit by a single pellet in the back.
10. Thereafter, the appellants left the spot. About ten minutes later, a head constable and some constables who had heard the shots in the village arrived, on the spot, whereupon both Muhammad Hussain and Farzand come out of their hiding places. Shortly after a First Information Report was recorded by Qazi Muhammad Abbas, Inspector of Police, as made to him by the witness Muhammad Hussain. Farzand was also there. Qazi Muhammad Abbas reached the spot about 40 minutes after the occurrence. In this connection it is of interest to note that although Muhammad Hussain is a resident of village Mir Muhammad where the investigation was going on.
11. Farzand belongs to a village 8 or 10 miles away.
12. Strong support for the statement that four shots were fired at Muhammad Din is derived from the evidence of Dr. Muhammad Umar who performed the post-mortem examination''` of the deceased.
13. He found no less than 22 separate gun shot wounds, two of them being so large as obviously to result from the entry of a body of pellets, indicating gun shots fired from very close range. The location of the wounds enabled the doctor to opine, in cross-examination, that at least four separate shots were fired at the deceased. That is exactly in accordance with the prosecu--tion evidence. The same doctor declared that the superficial wound sustained by Muhammad Hussain was probably caused by a gunshot.
14. A large part of the judgment of the learned trial Judge, who accepted the opinion of the three assessors who assisted at the trial, is concerned with the degree of credence to be attached to the statements of the two eye-witnesses Muhammad Hussain and Farzand. The judgment deals in detail with each ground put forward on behalf of the accused for disbelieving these witnesses and the Judge has been at pains to show that the contentions are, for the most part, devoid of force. In the case of each witness he has recorded his view that be had gained the impression from seeing him in the witness-box that he was an honest and truthful witness. In coming to the conclusion that both were genuine witnesses and had deposed honestly, the Judge took into account a number of factors, e.g. That they were both found on the spot by the Inspector of Police, and were examined with the least possible delay. He found further that their evidence was cor--roborated by that of the doctor. In addition, he relied upon certain circumstantial evidence namely that three empty cartridges found lying in the vicinity of the spot by the Inspector were shown to bear distinctive markings resulting from their having been fired and it had been proved by test that these marketing served to show that one of these cartridges was fired from each of the three guns that were recovered from the possession of the individual accused persons in the course of the investigation. On this part of the case, it should however be pointed out that the Judge was in doubt whether the guns produced by Hassan and Bashir when they appeared before the police on the 10th September 1951, were at once sewn up in cloth and sealed, as the prosecution declared that they were. Despite this doubt, which has a bearing on the question whether the cartridges allegedly found on the spot might not be the result of shots fired from the guns after their recovery, the Judge relied upon the evidence of the Director of the Punjab Forensic Science Laboratory for holding that the "crime cartridges" i.e. The empty cartridges recovered on the spot were fired from the three guns recovered from the three accused persons respectively.
15. In the High Court, the learned Judges took a distinctly different view regarding the evidence of the eye-witnesses. Disbe--lieving; the claims of Muhammad Hussain and Farzand to belong to the party of the accused persons, they held that in fact they were members of the Jamala party, and went on to conclude :- "As the relations between the two factions are very greatly strained, the evidence given by the two eye-witnesses has to be scrutinised carefully and will be unsafe to rely upon, if not corroborated by some other material on the record."
16. Such corroboration was found in the circumstances firstly that the names of the three accused persons were mentioned very promptly in the initial report, and secondly that one of the three "crime cartridges" was fired from each of the three guns recovered from the accused persons. They accordingly confirmed the conviction recorded by the trial Judge, as well as the sentence of death, which in view of the nature of the crime was certainly not an improper sentence.
17. The contention on behalf of the appellants has been that the corroboratory circumstances relied upon by the learned Judges are without validity. As regards the immediate mention of the accused persons on the spot, if it be believed that the eye--witnesses are men of the Jamala party, the necessary guarantee of truth is not provided by mere promptness in accusing these three members of the Malkana party. As regards the cartridges, it was pointed out that the evidence clearly showed that while a single parcel containing the three "crime cartridges" was despatched from the police office on the 22nd October 1951, the Director of the Forensic Science Laboratory received three such parcels each containing one fired cartridge. The conclusion of the Sessions Judge on this point that no one tampered with the sealed parcles from the time when they were prepared until they were received by the Forensic Expert, was reached without reference to the clear oral evidence of a Constable Ali Muhammad P. W. 15, and the Forensic Expert himself Mr. Abdul Majid, P. W. 4, as well as some documentary evidence. Nor was this evidence considered in the judgment of the High court, where learned Judges have proceeded on the basis that there was no ground of any kind for doubting the genuineness of the cartridges received by the Forensic Expert. It was accordingly urged that the corroboration which the High Court felt was necessary in order S to secure belief in the direct evidence of Muhammad Hussain and Farzand was altogether lacking and consequently the conviction could not stand.
18. In the reply, the learned Advocate-General placed his reliance on the same grounds which had found favour in the Courts below. He appeared to argue also that in case the identification of the "crime cartridges" was doubted, corroboration of the evidence of the eye-witnesses could be found in the recovery of a gun from each of the accused persons two of which were unlicensed, as well as the fact that they absconded immediately after the occurrence.
19. The intense enmity existing between the parties is undoubtedly a factor requiring the exercise of great caution in accepting against the accused persons the evidence of witnesses belonging to the opposite-faction. In this respect, the view of the High Court that the eye-witnesses while they professed to belong to the Malkana party in fact belonged to the Jamala party may perhaps be accepted, although it is to be noted that neither of the witnesses has figured in any previous case between the parties in any capacity. They seem to have connections with both parties and in this respect, it might be thought that at a time when Muhammad Din was engaged in assisting to capture and produce before the police, four members of his own party who had been accused of the murder of Sardara and Muhammad Ali, he would have found it of advantage to take with him, persons who were not strongly inimical towards either side. The nature of the task which he had undertaken was such as to render him unpopular with both parties, and consequently, persons possessing the qualities claimed by Muhammad Hussain and Farzand were likely to be his best companions from the point of view of security.
20. Circumstances favouring belief in the presence of these witnesses on the spot are that one of them bears the mark of a gunshot on his person, and the other belongs to a distant village. Neither of them has any particular axe to grind in implicating any of the three accused persons, of whom Bashir and Muhammad Akram do not appear to have figured prominently in any previous criminal incident between the parties. As for Hassan, there is a statement by the Inspector Qazi Muhammad Abbas to which insufficient importance appears to have been given in the Courts below. Just before Qazi Muhammad Abbas left the village for the spot, he met Hassan accused, who was "out of breath, as if he had come running." Hassan told the Inspector that people believed that he had been killed, and here he was, alive. This statement was made by Qazi Muhammad Abbas in cross- examination where he also denied being told by Hassan that he was being falsely implicated for the murder of Muhammad Din. At the time when this meeting take place,, no formal report of murder had yet been made to the Inspector. This part of the evidence of Qazi Muhammad Abbas clearly has a bearing on the question of the guilt of Hassan. His having been accused in relation to three previous murders is obviously a factor which necessitates the exercise of caution in determining the truth of the present accusation, and consequently, the details of Hassan's condition and behaviour shortly after the occurrence which have been stated by the Inspector gain considerable importance. The spot being only about 300 yards from the village, it is conceivable that Hassan should have been able to return to the village by the time the Inspector was ready to go out to the spot. In the absence of any indication that there was a report that Hassan had been killed, his reference to this matter has a misleading quality.
21. When all the factors attending the presence of Muhammad Hussain and Farzand on the spot, and their disclosure of what had happened are taken into account, along with the proved behaviour of Hassan, it becomes apparent that these statements are entitled to a markedly higher degree of credence than was allowed to them in the High Court. The factors favouring the truth of these statements are sufficiently strong to require that they should be rebutted, if they are to be disbelieved, rather than that they should be corroborated if they are to be believed. There being no indication that any person has been falsely implicated e.g. That the number of the assailants has been exaggerated, the first piece of evidence which the High Court has regarded a corroborative, namely the prompt report, is rather to be regarded as an intrinsic indication of truth, tending strongly to avoid the necessity for corroboration.
22. For this reason, also, it is clearly unnecessary to seek cor--roboration in the alleged flight of the accused persons, in the recovery of a gun from each of them, and in the evidence of the Forensic Expert. Absconding, as a piece of conduct, may have high value where it takes place when as yet an accusation against the person who absconds has not taken definite shape. Where, as here, the names are mentioned within a few minutes of an occurrence, such conduct cannot be regarded as material for eliminating doubts regarding the truth of the accusation. The mere possession of guns, even if they be unlicensed, would also be an indifferent factor in this respect, having regard in particular to the deadly nature of the feud between the parties.
23. As for the testimony of the Forensic Expert, it would obviously have been of the highest value were it not for the doubts to which the evidence clearly gives rise regarding (a) the securing of the recovered guns as quickly as possible, thus eliminating the possibility of their being used for producing cartridges with their distinctive markings and (b) the immunity of the parcel containing the alleged "crime cartridges" from interference in transit to the Forensic Science Laboratory.
24. But, in the view which has been taken above, the absence of the strength which, had there been no such doubts affecting the validity of the opinion of the Forensic Expert, the prosecution case would undoubtedly have drawn from that opinion, is without effect upon the weight to be attached to the evidence of the eye-witnesses. That evidence is credible in itself, and a strong circumstance which should have inclined the lower Appellate Court in extending credence to it is the fact that the trial Judge who saw acid heard the witnesses, not only relied upon them, but also recorded his opinion based upon observation of their that they were truthful and honest. That was clearly also the opinion of the assessors.
25. Although, therefore, the approach of the High Court to the evidence in this case has not commended itself to us, we are satisfied that the appeal before that Court was rightly dismissed and we hereby dismiss this appeal.