1. ABDUL RASHID, C. J.-I have had the advantage of reading the judgment which my learned brothers propose to deliver in this case. I regret I do not find myself in agreement with them so far as the case of Abdul Khabir appellant is concerned.
2. It is clear from the prosecution evidence that Masai accused was armed with a double-barrelled shot-gun, and that Multan and Abdul Khabir had single-barrelled shot-guns. It is stated by the prosecution witnesses that only three shots were fired simultane--ously or almost simultaneously.
3. They have deposed that Masai, Multan and Abdul Khabir fired one shot each. I consider it, however, quite possible that the witnesses may be making an honest mistake in this respect. Masai had a double-barrelled gun and opened the attack. It was unnecessary for him to reload the gun if he meant to fire another shot. The first shot was fired by Masai. The two shots that rang out immediately thereafter could have been fired by Masai and Multan. If that happened, the prosecution witnesses would not be in a position to know with any degree of certainty whether the two subsequent shots were fired by Masai and Multan or by Multan and Abdul Khabir. After a careful scrutiny of the evidence, I do not think it has been established with any degree of certainty that Abdul Khabir fired a shot from his gun and that Masai did not use the second barrel of his gun in firing the third shot. When shots are fired almost simultaneously, it is not easy for the witnesses to state that the second and third shots were fired necessarily by Multan and Abdul Khabir, and that Masai did not fire the second or the third shot. It is reasonably possible that Abdul Khabir who was a servant of the other two did not fire any shot at all.
4. It may be contended that as Abdul Khabir was present on the scene of occurrence he is equally guilty with Masal and Multan for an offence under section 302 by the application of the provisions of section 34 of the Pakistan Penal Code. I am, however, not prepared to apply the provisions of section 34 to the case of Abdul Khabir if he did not fire a single shot. In this respect, I would like to reproduce the following passage from the judgment of the Judicial Commissioner :---- "As regards the sentence, although there is an old standing enmity between the accused's party and that of the deceased, yet the immediate cause seems to be the discontinuance of the deceased's service by Chirg, and his going to the opposite camp. It appears that on the day of occurrence the deceased just by an accident met Abdul Khabir and Masai accused, and they altercated with one another over the above-mentioned servant. Suddenly then at the spur of the moment these accused seem to have fired at the deceased and bit and killed him."
5. In view of this finding, the provisions of section 34 would not be applicable to the case of Abdul Khabir if he did not fire a shot, even though he might have been present at the place of occurrence.
6. I would, therefore, accept the appeal so far as Abdul Khabir is concerned and acquit him. I would dismiss the appeal of Masal.
7. CORNELIUS AND SHAHABUDDIN, JJ.-This appeal, by special leave, has been preferred by two persons, Masai and Abdul Khabir, who were convicted at a Sessions trial under section 302/34, P. P.
8. C. And sentenced to undergo transportation for life. Another person Multan by name, brother to Masai , was convicted at the same time. On appeal to the Judicial Commissioners, N.-W.F.P. Multan was acquitted, but the convictions and sentences of Masai and Abdul Khabir were confirmed.
9. Leave to appeal was granted for the purpose of examining the contention whether the reason--ing adopted by the learned Judicial Commissioners which led to the acquittal of Multan was equally valid for the exoneration of MaS31 and Abdul Khabir. It is, therefore, necessary to consider in some detail the facts of the case and in particular, the nature and quality of the evidence of the eye- witnesses on whose testimony different degrees of reliance have been placed by the trial Court and the lower appellate Court.
10. The murdered man was named Inayatullah, and between his family and that of Masai, there was enmity of long-standing which had led to serious crimes in the past. On the 29th June 1951 shortly before sunset, Inayatullah had occasion to go towards the shop of the witness Said Muhammad (P.
11. W. 6), where he bought some ispeghol. He had gone a short way towards his house when the attack took place. The evidence of shopkeeper Said Muhammad, Shamroze Chowkidar (P. W. 5), Raza Khan another shopkeeper (P. W. 7) and Saadullah a Zimindar (P. W. 8) was to the effect that Masai with a double --barrelled shotgun, and Multan and Abdul Khabir with single---barrelled shotguns, were called upon by Madat Khan, father of Masai and Multan, not to let Inayatullah escape and each of them fired with his weapon at Inayatullah, who was hit and died on the spot.
12. Information was coveyed immediately to Inayatullah's relations e.g. Muzaffar Khan (P. W. 3), his uncle, at his house closeby, and a prompt report was made at the thana seven miles away, at 11.00 p.m., in which the names of Said Muhammad, Shamroze, Saadullah and Raza Khan are all mentioned. The police proceeded to the spot without delay, and arrested Madat Khan on the 30th June 1951, presumably to village Daul_apura, where the crime took place. Multan too was arrested on the 30th June 1951, but at village handar, a mile away from Daulatpura. Masai and Abdul Khabir surrendered to the police at a different police station, on the 6th July 1951, about a week after the occurrence. These facts are taken from the statement of the thanedar, Abdul Malik Khan (P. W. 15).
13. The evidence that three separate shots were fired is supported by the injuries found on the deceased, number of pellets had gin, entered the body on the right side of the back, at the level of the eleventh vertebra, and at the same level there was also a lacerated wound over the back of the right elbow. A number of pellets entered the middle third of the left arm on the outside and five exit wounds were found on the inside of the arm, where the humerus bone was fractured. There was a large lacerated wound over the public region, and close to this an abrasion on the thigh. Pellets were removed from the stomach which probably entered through the last-mentioned wound.
14. Clearly, the location of the injuries indicates three separate sets of pellets. On further indication is furnished by the blackening of the pajama where the third wound was caused, indicating that the shot was fired from a close range, unlike the other two shots. The eye-witnesses were agreed that the first shot was fired by Masai the second by Multan, and the third by Abdul Khabir, Raza Khan declared that Abdul Khabir's shot was fired when Inayatullah had fallen on the ground, and that he went forward and fired it from a range of three feet. In cross-examination it was brought out that in their police statements, these persons had not stated the order of firing in detail, nor had Raza Khan mentioned the circumstances that Abdul Khabir went close to Inayatullah before firing.
15. Some corroborative evidence was produced which it is unnecessary to set out in detail. It is enough to say that the accused persons pleaded false implication at the instance of enemies, and produced no defence. Masai and Abdul Khabir pleaded alibi i.e. That on the 25th June 1951, four days before the occurrence, they had gone away together to Peshawar and did not return to their homes until the 5th July 1951, the day before they surrendered themselves. The assessors unanimously declared that the four accused persons were guilty of the offence charged, but the Sessions Judge thought that Madat Khan who is an old man and suffered from weak eye-sight had been falsely charged, he being father of two of the accused persons, and accordingly acquitted him, while convicting and sentencing the other three persons as stated already. The conviction was based upon the direct evidence of the four eye-witnesses which was appraised in the following terms :- "After carefully reading the statements of P. Ws. Saadullah of Daulatpura, Shamroze and Raza Khan, recorded at the trial and those recorded by the police and the committing Magistrate, I am led to the conclusion that these witnesses have consistently charged the three accused Masai, Multan and Abdul Khabir for having fired at the deceased.
16. I am therefore satisfied that the four eye-witnesses did witness the occurrence and saw the three accused firing at the deceased."
17. Apparently, Said Muhammad's name was omitted in the first extract by over-sight, for earlier the Judge had discussed Said Muhammad's statement, and reachel a favourable conclusion regarding its acceptability. Said Muhammad's admission that about a month before the occurrence Masal had beaten his brother-in-law was considered and found insufficient for holding that he was testifying falsely from a desire for revenge. Raza Khan was described as a "disinterested person". As regards Shamroze, the fact that the site on which his House is built belongs to a collateral of the deceased was regarded as not affecting the witness's reliability. The Judge did not think it necessary to discuss Saadullah's reliability at all, but the fact that he relied upon him equally with the others appears clearly from his declaration in the following terms :- " I am satisfied beyond doubt that the occurrence was witnessed by the four eye-witnesses, namely, Shamroze, Raza Khan, Said Muhammad and Saadullah Khan of Daulatpura."
18. The acquittal of Madat Khan against whom these witnesses had testified equally, clearly calls for explanation. The Judge declared that he was not "impressed that they (i.e. The other accused) fired at the deceased at the instance of Madat accused" and after mentioning that Madat was an old roan with weak eye--sight, expressed himself as being "satisfied that he has been falsely charged".
19. The basis of the "impression" and "satisfaction is not stated, and though this judgment is not concerned with the acquittal of Madat Khan it seems clear that that acquittal was not based on judicial cons i3,:ration of the evidence and circum--stance. That finding cannot, for this reason reflect on the complete acceptance by the Judge of the testimony of the eye--witnesses.
20. The conclusions reached by the learned Judicial Commis--sioner regarding the reliability of the eye-witnesses appear at four different places, and are plainly lacking inconsistency. Not a word is said against the credibility of Shamroze, the Chowkidar, but as to Saadullah it is said that he is related to both parties and has some enmity with the accused party. Raza Khan, it was said, seemed to be "an independent witness" who had a shop close to the spot so that his presence was natural. Although, after the occurrence, he had been bound down along with relations of the deceased in security proceedings to keep the peace, as against members of the accused party, this was not held to affect his reliability because "before the occurrence there was absolutely no interest common either with one party or with the other". As regards Said Muhammad, his admission regarding the beating of his brother-in-law by Masai was regarded as insufficient to make him unreliable or hostile to the accused persons. Later in the judgment, the following observation appears :- "On the other hand, the prosecution witnesses, out of whom Raza Khan and Said Muhammad at least are to all intents and purposes disinterested, definitely deposed that both these persons (i.e. Masai and Abdul Khabir) with S: B. Shot-guns were present at the spot and had fired at the deceased."
21. Yet, in another place, the learned Judicial Commissioner declared that because Raza Khan had "subsequently been challaned in security proceedings against the accused" and Said Muhammad had admitted "some sort of altercation between his brother-in-law and Masal", they did not think it safe to base the conviction of any of the accused persons "on their evidence unless it is corroborated by some material circumstances." In coming to this conclusion, the evidence of Shamroze Chowkidar was entirely ignored by the learned Judicial Commissioners. They eventually found corroboration in the fact "that immediately after the occurrence while Multan and Madat Khan were arrested on the following day, Masal and Abdul Khabir accused-appellants were found missing from their houses, and could not be arrested until they surrendered on the 6th July 1951".
22. They went on to discuss the facts of the alibis set up by Masal and Abdul Khabir, and concluding on the differences between the two alibis and the absence of evidence in support, they inferred that Masal and Abdul Khabir had fled from the village after the commission of the crime and had "remained fugitives from law till the 6th of July 1951, when they surrendered" and had "thus themselves provided a very strong circumstance corroborating the evidence of the prosecution witnesses". As for Multan, no such corrobora--tion was available, since it had been held that he was arrested "immediately after the occurrence on the following day". In his case, it was held that there was reasonable doubt of which he was given the benefit.
23. Assuming that corroboration is necessary, it is impossible to avoid the observation that the circumstance upon which the learned Judges have relied as corrobation is, in a practical sense, quite valueless in that respect. While the fact of an alleged offender having absconded may be regarded as providing some kind of support to another evidence which in itself is strong enough to sustain a conviction for the crime charged, such conduct by itself never has the effect of remedying defects in the other evidence led to show participation in the crime. The reason is simple, namely that a man may wish to avoid the consequences of being reported against for the commission of a serious crime as ardently if he not guilty as he might if he is guilty. This is particularly so where the crime is allegedly committed in the prosecution of a fued, as in the present case. If, therefore, we were inclined to regard the direct evidence as suffering from such infirmity as could only be cured by corrobora--tion as against individual accused persons from independent sources, the conduct alleged would, in our opinion, be wholly insufficient for providing such corroboration. It should be pointed out also that the distinction which the learned Judges have made in favour of Multan is not soundly based in fact, for, he too was arrested sometime after 'the occurrence, and not in his own village. Finally, it should be stated that there is no evidence to prove that after the occurrence Masal and Abdul Khabir were searched for and not found at their houses ; nothing to that effect appears from the statement of the thanedar.
24. But, it seems to us, that the judgment of the learned Judicial Commissioners itself provides ample ground for thinking that no corroboration of the eye-witnesses was at all necessary in the case.
25. This would appear to follow from their own declarations concerning the quality of the witnesses, Raza Khan and Said Muhammad which have been reproduced above. The very minor features affecting the evidence of these two witnesses, which had already been considered and found of no weight by the learned Judicial Commissioners, might be thought to have been deprived of all value by the circumstance that Shamroze Chowkidar, a witness against whom no word of criticism appears in the judgment under appeal, had given a precisely similar account of the occurrence.
26. Consequently, and with respect to the view of the learned Judicial Commissioners, their conclusion that the evidence of the eye-witnesses required to be corroborated in order to be believed cannot be sustained. It is unnecessary for us to re-examine the statements of these witnesses. The decision of the case cannot rest upon any doubts entertained by us regarding the truth or falsity of matters appearing from the evidence. Our duty is to eliminate the error appearing in the reasoning of the Court immediately below, and when this is done, it seems to us that the resolution of the case can be based most soundly and firmly upon the consideration that the trial Court which saw and heard the eye-witnesses when they were deposing in the witness box, and thus was in the best position to appraise their credibility, accepted their evidence unreservedly for holding that each of the three men he convicted fired a shot at Inayatullah. A premeditated attack appears clearly from that evidence.
27. In this view of the matter, the case against the appellants, Masal and Abdul Khabir, is not in any way benefited by the erroneous reasoning adopted by the learned Judicial Commissioners which has led to the acquittal of Multan. These persons appear to us to have been rightly convicted. We would accordingly dismiss this appeal.
28. ORDER OF THE COURT In accordance with the opinion of the majority, this appeal is dismissed.