MUHAMMAD AFZAL ZULLAH, J.-Abdur Rashid Khalid, aged 28 years, and Muhammad Siddiq, aged 30 years, have been convicted under section 302/34, P. P. C. And sentenced to death on two counts for the murder of Abdul Khaliq and Muhammad Shafi deceased by the learned Sessions Judge, Layallpur, vide his judgment dated the 21st of July 1969. Both of them have also been convicted and sentenced to seven years' rigorous imprisonment and a fine of Rs. 1,000.00 each, in default of payment of which to undergo further rigorous imprisonment for one year, under section 307/3 4, P.
P. C. For a murderous assault or Khushi Muhammad P. W. Abdur Rashid Khalid was charged o1 an offence under section 404, P. P. C., for having misappropriates the licensed revolver of Abdul Khaliq deceased, but he has bee acquitted of that charge due to technical reasons. The convict have appealed and the case is also before us under section 374 Cr. P. C., for confirmation of the death sentences. Both the matters are being disposed of together.
2. The facts of the case, as disclosed by Azmatullah, P. W. 17, who is the first informant and is also an eye--witness, are as follows:- On the day of occurrence, which took place on the 28th of July 1966 at 7 a.m., Azmatullah, his son Abdul Khaliq deceased, Muhammad Shafi, the second deceased, Khushi Muhammad, P. W. 18, and Muhammad Ali, P. W. 20, left the house of Azmatullah P. W. At about 7 a.m. The two deceased had to go to Toba Tek Singh in connection with some cases pending in Courts and were to take a bus from a place, known as Philor. Both of them were on a bicycle belonging to Muhammad Shafi deceased. Khushi Muhammad and Muhammad Ali P. Ws. Were also going to Toba Tek Singh for purchasing fertiliser. Khushi Muhammad was on a bicycle. Azmatullah P. W. Had to go to another village, named Madepur, to enquire about the health of his maternal uncle. He and Muhammad Ali were to take a tonga and were going towards the katcha road of their village at the relevant time.
All these persons had to pass in front of the horse of Abdur Rashid Khalid appellant. When the two deceased passed in front of the house of Abdur Rashid Khalid, the two appellants came out of that house. They were armed with guns with which they fired at the two deceased who were hit and fell down from the bicycle, Abdur Rashid Khalid appellant had also a revolver with him. Khushi Muhammad P. W, who was nearer to the deceased than the other P. Ws. Was also fired at by Muhammad Siddiq appellant but he escaped unhurt. The two appellants then having gone near the two deceased fired more shots at them. The occurrence was also witnessed by Ghulam Nabi, P.
W. 19, whose house is very near the place of occurrence. Abdul Khaliq deceased had a pistol with him, it was removed by Abdur Rashid Khalid appellant from the holster. The appellants then ran towards the eastern side of the village. While they were running away from the spot, three copies of licences fell from them near the spot. They were picked up by Azmatullah. The fire shots by the appellants on the two deceased had proved effective in killing them. Azmat--ullah took the bicycle of Muhammad Shafi deceased and went to lodge the report at Police Station Rajana which is at a distance of about nine miles from the place of occurrence which falls within the area of Chak No. 252/GB, District Layallpur. At his dictation Muhammad Nawaz, P. W. 22, recorded the first information report (Exh. P. A.) at 9 a.m. The three licences picked up by Azmatullah from the place of occurrence, which are Exhs. P-1, P-2 and P-3 were produced by him before the Assistant Sub- Inspector at the police station. They were taken into possession vide memo. Exh. P. B. The facts about the three copies of licences are mentioned in the first information report, and their recovery from Azmatullah P. W. Soon after the registration of the case is mentioned in the police proceedings (karwai Police), as noted on the F. I. R., Exh. P. A. The memo. Of recovery of these licences, apart from Azmatullah, is also attested by Muhammad Aslam, P. W. 16.
3. The motive for the crime arises out of enmity between the two parties. The two deceased are not related to each other but are friends. Similarly, the two appellants are not related to each other but due to various reasons had a common cause in so far as their enmity with the complainant party is concerned. The enmity appears to have originated out of a land dispute. One Mr. Salah-ud-Din, a Group Captain in the Air Force, was allotted land in the village of the two parties in 1963. Abdur Rashid Khalid appellant was his Mukhtar in respect of this land. He (Abdur Rashid Khalid) offered to purchase the land but did not succeed in prevailing upon the owner to sell the same because in the meanwhile Khair Din a relative of Azmatullah P, W., succeeded in purchasing the same on a price higher than that offered by Abdur Rashid Khalid appellant. Khair Din also purchased two ihatas from Salah-ud-Din Butt. The land was purchased by Khair Din in November 1965. Earlier to that, ft was in possession of Abdur Rashid Khalid appellant as a Mukhtar. According to Azmatullah P. W., he was deriving benefit from this land and was himself getting all produce. After the possession was delivered to Khair Din, Abdur Rashid Khalid, in January 1966, attempted to take back the possession; whereupon Muhammad Ali P. W., the Mukhtar of Khair Din, got a case registered against Abdur Rashid Khalid and Muhammad Siddiq appellants. They were convicted in that case and sentenced to rigorous imprisonment for one and a half years. Abdur Rashid Khalid made another attempt in respect of securing the control over the land by cutting the maize crop of Khair Din on which Khair Din got a case registered against the two appellants. Khair Din had constructed a kotha on the land which was set on fire and destroyed. Abdul Khaliq deceased got a case registered in respect of this occurrence against the two appellants and some others. The two last mentioned cases were pending before the Magistrate at the time of occurrence; and, in fact, according to Azmatullah P. W., Abdul Khaliq deceased was going to appear in one of these cases at Toba Tek Singh on the day of occurrence and it was for this reason that he took a ride from Muhammad Shafi deceased on his bicycle and thus they were to pass in front of the house of Abdur Rashid Khalid appellant. About seven or eight months before the occurrence, the two appellants and some others were bound down against Abdul Khaliq deceased and Muhammad Ali P. W. For keeping the peace. Muhammad Shafi deceased also was going to Toba Tek Singh in connection with a case about a dispute relating to an ihata allotted to his brother. The opposite- party in this case were some Christians. Thus, due to the dispute over the land originally belonging to Salah-ud-Din Butt the two parties, one of Abdul Khaliq deceased and the other of Abdur Rashid Khalid appellant, were at loggers head, with the consequence that proceedings with regard to keeping the peace had to be taken by the police.
4. The Assistant Sub-Inspector Muhammad Nawaz, P. W. 22, reached the spot at 11 a.m. During his stay at the spot he performed the preliminaries of the investigation. He took into possession six empty cartridges of .12 bore gun from near the spot vide memo. Exh. P. G. He also took into possession the licence (Exh. P.4) of Abdul Khaliq deceased which was produced before him by Azmatullah P. W. The cycle of Muhammad Shafi deceased was taken into possession vide memo.
Exh. P. D. The blood-stained earth was taken from two places in front of the house of Abdur Rashid Khalid appellant from under the dead bodies which were lying about two karams apart from each other and about eight or nine karams from the said house. The investigation was partly conducted by Muhammad Hayat, Sub-Inspector, who had died before he could be examined in the trial Court.
The investigation was also conducted at some subsequent stages by the Crime Branch of the Police under orders of the A.
1. G. Muhammad Siddiq appellant was arrested on 3rd August 1966. At his instance, on 15th August 1956, the police recovered gun (Exh. P. 18) from a field near the canal vide memo. Exh. P. N. It appears that Muhammad Siddiq led to the recovery of another unlicensed gun (Exh. P. 15) from his house. Muhammad Rafiq, P. W. 13, is the witness of recovery of Exh. P. 15 while Muhammad Bashir, P. W. 21, has attested the memo. Of recovery of gun, Exh. P.
18. Abdur Rashid Khalid appellant was arrested on the 3rd of September 19(6, by Muhammad Abdullah Inspector, P. W.
23. At the time of arrest, he produced a rifle and a double-barrelled .12 bore gun which were taken into possession by the police vide memo. Exh. P. M. Both of them are licenced.
Two of the licences picked up from the pot by Azmatullah P. W. Related to these weapons while the third is the licence of Muhammad Siddiq, a brother of Abdur Rashid Khalid appellant.
5. Doctor Abdul Wahid Khan, P. W. 1, performed the autopsy on the dead body of Muhammad Shafi on the 29th of July 1966 at 7 a.m. And found the following injuries:- "(1) There were multiple (about 72) fire-arm circular wounds of 1/10" diameter each near each other in an area of 10--- x 8---, extending over the outer side on back of right hip, the adjoining part of the right thigh and the right flank. The wounds were going deep into the muscles, up to the bone underneath. Eight pellets were removed from the wounds. There was slight burning adjoining the wounds. There were correspond--ing holes in the shirt and tahband he was wearing, which were blackish.
(2) A fire-arm wound 1 -- " x 1 -- " in diameter, circular in shape with slight burning round about, and a burnt (scorched) area, -- ' x -- " x -- ", above the wound. The wound was situated 6' above the iliac crest in the post axillary line in the left flank. There were corresponding holes in the shirt with slight blackish stains at some places. The wound was directed upwards, where it fractured the ribs underneath, then it badly torn the spleen, after which it had injured the stomach, which was having a big tear in it and was empty. Then it perforated the left bone of the diaphragm and has passed through the lower lobe of left lung in its post-part, along with the pleura. Then it crossed over to the right side of the chest cavity and 20 pellets and three circular pieces of card boards (Wads) were removed from the lower lobs of the right lung."
The death was due to injury No. 1 which caused severe haemorrhage and shock. It was sufficient in the ordinary course of nature to cause death. The death was immediate after the injury while the time that elapsed between the death and the post-mortem examination was about twenty-four hours.
6. On the same day at 8-50 a.m. The same doctor performed the post-mortom examination on the dead body of Abdul Khaliq deceased. The following injuries were found:- "(1) Multiple (about 15) circular gun shot wounds, 1/8" in diameter each, on front and outer aspect of right thigh, scattered in an area of 10" x 7 -- " with slight scorching at places. There are corresponding holes in the pantaloon, which were slightly blackish at few places. Some pellets were removed from the wounds. The pellets had gone deep into the muscles.
(2) Multiple (about 10) circular gunshot wounds, about 1/8' in diameter each, on the back of right forearm and hand. There was slight scorching at places. There were correspond--ing holes in the bushirt he was wearing. The wounds were going towards depth. Some pellets were removed from the body.
(3) Multiple (about 14) circular gunshot wounds, about-- in diameter each, with slight scorching of skin at some places. They were mostly on the front of left forearm and hand with corresponding holes in the bushirt. Some pellets were removed.
(4) A firearm wound, 1 -- x 1 -- circular, with scorching of the skin round about on the left side of back 21" from the vertebral line and 3" below the shoulder blade. The wound was directed forward, where it had fractured the rib under--neath, then after injuring the pleura it had reached the left lung and had torn it. Some pellets and the card boards (Wads) were removed. The chest cavity was full of blood.
(5) A firearm wound. 1 -- " x 1 -- " circular with scorching on the left side of the back above injury No. 4 and one to the left of vertebral line. The wound was directed forward. The vertebras underneath were badly fractured, also some part of the ribs underneath. It had passed through the pleura and had badly torn the left lung underneath. The chest cavity was full of blood. A few pellets, some cardboard circular places (Wads) were removed from the lungs.
(6) A firearm wound 1 -- " x 1 -- " just below the lower end of the right shoulder blade. The wound was directed forward and slightly obliquely to the left. There was fracture of the ribs underneath.
After passing through the pleura it had gone to the right lung, the middle of which was badly torn.
Some pellets and cardboard pieces (Wads) were removed from the lung."
The stomach contained six ounces of partially digested food. The bladder contained one ounce of urine. Injuries Nos. 4, 5 and 6 were individually and collectively responsible for the death. They had led to severe haemorrhage and shock, and were sufficient in the ordinary course of nature to cause death. The death was immediate after the injuries while the time that elapsed between the death and the post-mortem examination was about twenty-four hours. It is pertinent to note that the doctor was not cross-examined.
7. At the trial, the ocular account of the occurrence was given by Azmatullah, P. W. 17, Khushi Muhammad. P. W. 18, Ghulam Nabi, P. W. 19 and Muhammad Ali, P. W.
20. They fully supported the prosecution case. The recovery of the three licences from the spot is also supported by these witnesses. Their production before the Assistant Sub-Inspector at the police station at the time of lodging of the first information report is supported by Muhammad Aslam, P. W. 16, Azmatullah, P. W.
17, and Muhammad Nawaz Assistant Sub-Inspector, P. W.
22. The crime empties were not found to have been fired from any of the weapons recovered from or at the instance of the appellants, therefore, no expert witness was examined in that behalf. When examined under section 342, Cr. P.
C., the plea of the appellants was that of total denial. Abdur Rashid Khalid appellant gave the following version in respect of the dispute over the land and the resultant litigation :- "This case too was falsely registered against us due to enmity with the witnesses. I was found innocent and acquitted in this case also. The background of these cases was that on 2nd November 1965, oral mutation of the said land was entered. Faqir Muhammad son of Abdullah of Chak No. 252, who had previously purchased this land came to know of it. We took exception to it.
Said Faqir Muhammad instituted a civil suit in December 1965, in the Court of the Senior Civil Judge, Layallpur. Khair Din, son of Miran Bux, Salah-ud-Din Butt, myself and Muhammad Sharif tenant were made defendants in that suit. I produce Exh. P. J. (copy of plaint) which was received by me during that suit. (Admissibility is objected on by the learned P. P. On the ground that it was not signed by the plaintiff or his counsel). The civil suit was fixed for 2nd February 1965, for producing the reply. I had executed the agreement of sale in favour of Faqir Muhammad being the Mukhtar of Salah-ud- Din Butt. If I had not supported that case, the suit could have been dismissed. There was no registered sale-deed in favour of Khair Din. If the suit had been decided against Khair Din, he would have lost his money, which he had paid to Salah-ud-Din Butt. Muhammad Ali, Ghulam Nabi, Khushi Muhammad P. Ws , Muhammad Sabir, Chairman and others told me to resile from my position and depose in favour of Khair Din, but I did not accede that request. In order to put pressure on me the said cases were made out falsely against me. The civil suit mentioned above is still pending in the Court of Civil Judge Toba Tek Singh, and probably stands fixed for 24 July 1969. The complainant party had influence over the local police and Circle D. S. P., Rukan Din. We were not summoned and joined in the investigation of the case in case F. I. R. No. 97/65. The other cases 4 and 5 were registered 3/4 days after the alleged occurrence in order to put maximum pressure on me. The said three cases were registered against us as I had to file the written statement on 2nd February 1966. I filed the written statement on 8th February 1966."
It appears that some plea of alibi was raised by Abdur Rashid Khalid appellant before Nazir Hussain Shah Inspector, Crime Branch, who collected certain documents in that behalf and after having found it as false he filed a complaint under section 466, P. P. C. Against four persons, namely, Dr. Maula Bakhsh, Ghani Sham Clerk, Miss Nasim L. H. V. And Manzoor Ahmad Dresser, all of rural dispensary, Burli Shah Karim. At the trial, the appellant (Abdur Rashid Khalid) did not examine them in defence. He, however, in answer to question No. 25, namely, whether he wanted to produce any defence evidence, made the following statement:- "I am Ex-Commissioned Officer of Pakistan Air Force. T produce certified copy of the statement of Additional Sessions Judge dated 14th October 1968, Exh. D. L., Copy of judgment of Resident Magistrate, Kamalia dated 17th June 1969 Exh. D. M., copy of judgment of R. M. Kamalia, dated 23rd December 1967, Exh. D. N., copy of the judgment of Taj Muhammad Khan Magistrate, Kamalia dated 1st February 1964, Exh. D. O. I produce the certified copy of statement of Khair Din recorded in case State v. Abdur Rashid under section 440/448, P. P. C. Exhs. D. D. I produce certified copy of bail application of Abdul Khaliq deceased dated 2nd December 1965, along with order dated 4th January 1966 Exh. D. Q. I also produce the site plan Exh. D. R. 1 wanted to produce Dr. Maula Bakhsh in my defence before C. M. My case was pending in the Court of R. M. Kamalia. I made request to R.
M. Kamalia that the complaint under section 406/466 etc. P. P. C. Filed at the instance of Crimes Branch be taken up first, but even the accused off that complaint were not summoned. My case was transferred from that Court and was entrusted to R. M., Toba Tek Singh. On the certain hearings, I submitted application Exh. D. E. But no action was taken on that application. The complaint against the doctor and his staff is still pending in the Court of R. M. Kamalia and no action has been taken so far on that complaint. The Dr. Mir Maula Bakhsh was contacted to depose the facts before this Court. The doctor disclosed that in case he appeared, that complaint which was pending against him, would be taken up and he would be prosecuted and in case he did not appear in defence, that complaint would be filed without hearing, because such assurance was given to him. I have no other evidence to lead."
With regard to abscondence up to 3rd September 1966, the appellant explained that on the day of occurrence he was in Bulri Shah Karim and was under treatment. He produced the original certificate of Dr. Mir Maula Bakhsh Talpur which is Exh. D. K. He further stated that he himself appeared before the Additional Superintendent of Police.th
8. Muhammad Siddiq appellant denied that he had absconded and that he was arrested on 3rd August 1966. He attributed his involvement in the case to the enmity which Azmatullah P. W. Had against him because he (the appellant) was responsible for a raid conducted in respect of illegal gratifi--cation against Muhammad Tufail, a cousin of Azmatullah. He also stated that for some time he was a servant of Khushi Muhammad P. W. Who also is related to said Muhammad Tufail.
Khushi Muhammad put pressure on him so that he may depose in favour of Muhammad Tufail but he did not agree. On this, he left that employment and he has, therefore, been falsely implicated.
About his arrest, he explained that it took place from an Arhat shop where his brother used to work as a labourer.
9. The learned trial Judge did not rely on Azmatullah P. W. And disbelieved Muhammad Ali P. W. He placed full reliance on the statements made by Khushi Muhammad and Ghulam Nabi P. Ws.
According to him, these witnesses are corroborated by various circumstances including the abscondence of the appellants, the motive, the medical evidence and the recovery of the two licences of Abdur Rashid Khalid appellant from the place of occurrence which was in front of his house. On these findings, he convicted and sentenced the appellants as noted above.
10. With the help of the learned counsel we have gone through the evidence. It needs to be noticed in the out set that the points raised by the defence at the trial with regard to the alibi of Abdur Rashid Khalid appellant, the place of occurrence and the time of occurrence have not been pressed before us. As to the time of occurrence, it was argued before the learned Sessions Judge that according to the medical evidence it may have been taken place at about noon time on 28th July 1966. Regarding place of occurrence, the defence plea at the trial was that it took place on or near about, a bridge on the outskirts of the village. In respect of plea of alibi, the position adopted by Abdur Rashid Khalid appellant is somewhat vague. He did not raise this plea before the committing Magistrate. At the trial, however, he relied on the certificate, Exh. D. K., issued by Dr. Mir Maula Bakhsh Talpur, but did not produce any further evidence to support his plea. His explanation appears to be that the doctor was being prosecuted for creating false evidence, therefore, he was reluctant to depose in this favour. Be that as it may, we have gone through the reasons advanced by the learned trial Judge for rejecting the points raised by defence in respect of the above matters. They are sound reasons and there is no need to reconsider these questions, particularly in view of the fact that they have not been agitated before us. It may be mentioned, however, that the learned counsel for the appellants while reading the doctor's statement about the post-mortem conducted on Muhammad Shafi's dead body, commented that the occurrence might have taken place earlier than morning time because the stomach of Muhammad Shafi was found to be empty. He, however, did not pursue the point any further after noticing the fact that the stomach of Abdul Khaliq deceased contained semi-digested food.
11. All the eye-witnesses admittedly are related to the deceased. Not only this, they also appear to be partisan witnesses. The prosecution case in respect of motive is that on account of the dispute between Khair Din and Abdur Rashid Khalid appellant over the land originally belonging to Salah- ud--Din Butt there emerged two factions, one of Abdul Khaliq deceased who supported Khair Din and the other of Abdur Rashid Khalid appellant who himself was interested in purchasing the land.
Azmatullah is the father of Abdul Khaliq deceased. Ghulam Nabi, Muhammad Ali and Khushi Muhammad, P. Ws., are also closely related to him. The partisan character of the eye-witnesses is further borne out from the fact that they were cited as prosecution witnesses in one or the other case against Abdur Rashid Khalid and Muhammad Siddiq appellants. Thus, these witnesses are, on the one hand, interested on account of their relationship with Abdul Khaliq deceased, and, on the other hand, their previous conduct shows that in the dispute between the two parties they adopted a partisan role in support of the complainant party.
12. It is an established position of law that the mere fact that a witness is interested or is held to be partisan is not per se sufficient for disbelieving him if otherwise it can be held that he saw the occurrence and his statement inspires confidence. Keeping in view the nature ---of the dispute between the parties, which constitutes motive, ft becomes necessary in some cases to find corroboration of the partisan witnesses. In this case, the learned counsel for the appellants strenuously argued that the statements of Khushi Muhammad and Ghulam Nabi P. Ws. Could be ignored on the same grounds on the basis of which the statements of Azmatullah and Muhammad Ali P. Ws. Were not relied upon by the learned trial Judge. He also contended that the eye-witness account is contradicted by medical evidence. Moreover, according to him, the pieces of evidence relating to abscondence or the recovery of licences being themselves without any force and substance could not be treated as corroboration in the eye of law. The learned counsel appearing on behalf of the State, firstly, contended that the eye-witnesses have given good reasons for being present near the spot. He has laid particular stress on the statement of Ghulam Nabi P. W. Who admittedly could be a natural witness because his house is very close to the place of occurrence.
He contended that the number of the accused is not disproportionate in so far as the number of injuries is concerned, and because the occurrence took place in day light there is, therefore, no scope for substitution. He also stressed the point that, if need be, there is sufficient corroboration of the eye-witnesses in the medical evidence, the abscondence of the two appellants and, in particular, against Abdul Rashid Khalid appellant in the recovery of the licences belonging to him from the spot and the further fact that the occurrence took place in front of his house.
13. The learned trial Judge gave several reasons for not relying on the statement of Muhammad Ali P. W. He has also observed that he, as he put it, "was not convinced by the statement of this witness". He took note of, amongst others, the circumstance that the witness contradicted his previous statement on material points. The fact, that he was a prosecution witness against the two appellants, was noted but along with that the circumstance, that he (Muhammad Ali P. W.) was the Mukhtar Khas of Salah-ud-Din Butt regarding the two Ihatas, was also noticed and further that, it was on his application to the Commissioner that a case was registered against the two appellants on 21st January 1966. After having gone through the statement of this witness, we are of the view that the points noticed by the learned Sessions Judge are not without force. The learned counsel appearing for the State frankly conceded that' it was not safe to rely on the statement of this witness. For the various infirmities in his statement, coupled with the fact that he is not only a partisan witness but was himself directly opposed in the previous litigation against the two appellants, agreeing with the learned trial Judge, we keep his statement out of consider--ation.
14. No doubt, Azmatullah P. W. Is the father of Abdul Khaliq deceased but that reason alone is not sufficient to reject his statement. The learned trial Judge has given three reasons for doubting the veracity of this witness. They are:
(a) that it was not necessary for him (Azmatullah) to have waited for a tonga for going to Madepur because it was more convenient to go there on foot;
(b) that the son of the witness was being murdered. He was, therefore, expected to intervene. On the contrary, he did nothing to stop the culprits from killing the two deceased. His conduct, therefore, does not show that he saw the occurrence; and
(c) that Ghulam Nabi P. W., who undoubtedly is a natural witness, did not mention the name of Azmatullah as an eye--witness in his statement before the committing Magistrate.
In addition to the above grounds, the learned counsel for the appellants has brought to our notice some so-called discrepancies in respect of the statement made by him (the witness). The statement made by the witness relating to his visit to Madepur is scattered in the cross- examination which extends to several pages. On the western side of the village the witness owns a garden. The distance of Madepur from his garden is two miles. Adda Philor is also about two miles from a bridge near the village. Two roads go towards the western side of the village, one to the aforementioned garden and the other to Adda Philor. The one that goes towards the garden ends there. The witness was waiting for the tonga for going towards Adda Philor. He was to go for some distance on the road to Philor and was to get down on the way so as to walk towards Madepur. In answer to a Court question, presumably to the effect as to why the witness did not go to Madepur via the Kutcha road passing near his garden, he answered as follows:- "I did not go to bigger Madepur via the Katcha road, which passed near my garden, because I had to go by a tonga and that Katcha road does not lead up to bigger Madepur."
This answer should be read with his statement made earlier in cross-examination to the effect that "a Katcha road leads East-- West near my garden, but that Katcha road ends at my land". Thus, it is abundantly clear that if the witness had to go by tonga it was not possible for him to have gone on the road leading to his garden. The learned trial Court was of the view that in these circumstances it was more convenient for the witness to have walked to Madedur particularly when he had to walk a distance of three squares after getting down from the tonga on the Philor road. Madepur being two miles from the garden, which is admittedly outside the village, if the supposition of the learned trial Judge is accepted as correct, the witness would have had walked about two miles. He preferred going by tonga for this distance. It is not necessary that a villager must always walk in the morning as the learned trial Judge presumed. If the tonga was available and if a villager wanted to save time and further wanted to utilize a village transport like a tonga, there is neither anything unusual nor improbable about it. We have not been impressed by the first reason noted by the learned Sessions Judge for discarding the statement of this witness. The second reason advanced by the learned Sessions Judge is also not very convincing. True, the son of the witness was shot at when he himself was at some distance from the spot. The occurrence took place in village abadi. At the time of attack, there could be different reactions from different persons. It essentially depends on the psychological make up of a particular individual. One may raise a violent hue and cry in order to attract villagers to save the victim, another might rush to the spot unmindful of the risk involved fn that, namely, he may not be able to save the victim and may further risk his own life. In this case, according to Azmatullah, two persons armed with .12 bore guns suddenly started firing at the deceased. About half a dozen fire shots could not have taken very long time. After the effective shots were fired the conduct of Abdur Rashid Khalid appellant in removing the revolver from the person of Abdul Khaliq deceased was not such as to have impelled Azmatullah to have resisted this removal of the pistol. It is also to be noted that Azmatullah is an old man and the occurrence took place in front of the house of his son's enemies. It cannot be advanced as a universally acceptable proposition that whenever a son is under attack the father must physically intervene. It all depends upon the circumstances of each case. Considering all the circumstances of this case, one cannot hold with absolute certainty that the only fact, that the witness was unable to physically intervene, shows that he did not see the occurrence. The last reason advanced by the learned trial Judge relates to the omission by Ghulam Nabi P. W. To mention the name of Azmatullah as an eye-witness. We have noticed the statement made by Ghulam Nabi before the committing Magistrate. He has not stated that he did not see Azmatullah at the spot. It is a short statement and it appears to us that the witness was not examined on this question. Ghulam Nabi was not cross-examined before the committing Magistrate. Ghulam Nabi specifically stated at the trial that Azmatullah had seen the occurrence and further that he (Azmatullah) had picked up three licences from near the dead bodies. In these circumstances, we do not attach much importance to the omission of the name of Azmatullah as an eye-witness in the statement of Ghulam Nabi made before the committing Magistrate. The discrepancies pointed out by the learned counsel for the appellants in the statements made by Azmatullah P. W. Mainly arise out of the fact that the first information report and the statement made by the witness before the committing Magistrate do not contain the details about various matters. The learned Public Prosecutor, it appears, thought it fit to examine this witness in detail with respect to every aspect of the case. It was probably due to this reason that the learned defence counsel cross-examined the witness at a great length. In such a situation, naturally some matters included in the statement made at the trial-both in examination-in-chief and in cross---examination would not be found in the earlier statements. We, after going through the statement, are of the view that none of the so- called improvements pointed out by the learned counsel amounts to a contradiction which can be seriously taken note of. After having gone through the statement made by Azmatullah and after having noted the criticism made by the learned counsel, we have come to the conclusion that the learned trial Judge has ignored the statement made by this witness for insufficient reasons. The witness has given full explanation in respect of his presence at the spot and we see nothing improbable in his claim. The value and strength of his statement and the need for its corroboration, however, will be discussed separately.
15. The house of Ghulam Nabi P. W. Is very near the place of occurrence. Undoubtedly, he is a natural witness. Khushi Muhammad P. W. Has also given convincing reason for his presence near the spot at the time of occurrence. The learned counsel for the appellants has criticised the statement of Khushi Muhammad in that he would not have been spared by the appellants if, in fact, he was found by them near the spot. He further contended that it is impossible that Khushi Muhammad could have escaped unhurt if in fact he was fired at by Muhammad Siddiq appellant.
According to the prosecution, Khushi Muhammad was fired at after the first stage of firing. He was nearer to the spot as compared to Asmatullah and Muhammad Ali. It is quite possible that in order to scare away one, who might have intended to intervene, one of the culprits fired a shot at the witness, who was the nearest at the R moment. That shot having proved ineffective, the culprits were not very such interested in pursuing the witness. The main S, target being the two deceased, it was possible for Khushi Muhammad to have escaped unhurt after having been fired at Z only once.
It is also not unusual that in order to take further' precaution he took the protection against the heap of dung. We do not consider that the only reason that Khushi Muhammad was not hurt, is sufficient to disbelieve his statement. The learned Sessions Judge while considering the statement of this witness observed that it impressed him. We, after reading the statement made by the witness at the trial, agree with the observation of the learned trial Judge. In respect of Ghulam Nabi P. W. The main stress laid by the learned counsel was on the fact that he is interested and partisan, therefore, his statement should not be believed without corroboration from independent sources qua each accused. We will deal presently with this aspect of the matter.
16. The next question with regard to need for corroboration does not present any serious difficulty.
In fact, the learned counsel appearing on behalf of the State has not seriously contested the position that the statements made by the eye--witnesses in this case require corroboration.
Though the learned trial Judge observed, that the statements of the witnesses cannot be rejected merely on the ground that there is no independent corroboration, yet in paragraph 12 of the judgment while dealing with the abscondence of the appellants he did observe that "there are other corroborative circumstances . . . . Like the medical evidence, spot of occurrence, presence of two licences of Abdur Rashid accused". Apart from this, he also noticed that the motive and abscondence were pieces of corroboratory evidence against the appellants. We are of the view, that in this case the enmity between the deceased and the two appellants being of considerable duration and the eye--witnesses who saw the occurrence undoubtedly having consistently adopted a partisan role in the past, it is safe for the dispensation of justice to seek for corroboration qua each appellant; whether as deposed to by these witnesses, he participated in the crime. We, therefore, proceed to consider the question whether there is sufficient corroboration in this case against each one of the appellants.
17. With regard to medical evidence, learned counsel contended that instead of corroborating the eye-witnesses it contradicts them. The main reliance is on the fact that according to the doctor all but one injuries on the two deceased had burning or scorching on or around them, therefore, the shots were fired from a close range, i.e., within three or four feet. Injury No. 6 on Abdul Khaliq deceased has no burning but, according to the learned counsel, this was also the result of a shot fired from a close range because cardboard pieces were removed from this injury. The position as it emerges from the medical evidence, the learned counsel contended, snots were tired from a distance of seven or eight t karams. In order to appreciate the argument, it is necessary to visualise as to what may have happened according to the prosecution case. All the three witnesses whom we have believed, namely, Asmatullah, Khushi Muhammad and Ghulam Nabi, have stated that as soon as the two deceased reached in front of the house of Abdur Rashid Khalid both the appellants came out of that house and fired the shots as a result of which the two deceased fell down from the cycle. It appears from the site plan that the two places where the dead bodies were found are in front of the house of Abdur Rashid Khalid. The two deceased were on a moving cycle when they were shot at, therefore, they were not a stationary target from the culprits. If the culprits came out of the house at the time that the deceased reached in front of the door, it is quite possible that till the time they were fired at the deceased would have gone ahead on the cycle for some distance. It is not in evidence that at the time that the deceased came in front of the house of Abdur Rashid Khalid they were away from the house by seven or eight karams. Thus, the possibility cannot be excluded that when the deceased came in front of the house they were near the door and after having been fired at the cycle continued moving ahead and they fell down at a distance of seven or eight karams. Looked at from this angle, the statements made by the witnesses about the distance are not contradicted by the medical evidence even if we assume that according to the doctor the shots were fired from a close range of three or four feet as contended by the learned counsel for the appellants. But there is another aspect of the matter. The distance given by the witnesses is only by a rough estimate. There are, at least, two injuries on the deceased which clearly appear to have been the result of shots fired from a distance much beyond four feet. Each of them consists of multiple circular gun shot wounds scattered in an area of about 10' x 8 inches.
The dimensions of individual wounds indicate that they were caused by a small shot. The dispersal of the shots indicates that the distance could be about five yards. This supposition has the support of Taylor's Principles and Practice of Medical Jurisprudence.
A page 441 of 1948 Edition, it is observed as follows :- "As a rule, there is little trace of burning beyond a yard, but traces of powder marks may be found up to four yards or more. The shot begins to disperse in an ordinary cylindrical barrel at about three yards, at which distance the bulk of the shot enters in one mass and leaves a hole with a few isolated shots around it. The dispersion gradually increases, and at about five yards an open pattern about ten inches in diameter is found. At ten yards the diameter of spread is about twenty inches, at twenty yards about thirty inches, and so on. With fully choked barrels the dispersion is about half the above. With pistols loaded with shot the dispersion is very much greater."
If the above quoted opinion is taken note of, not only the medical evidence end tie eye-witness account are reconsiled, but also the fact, that the injuries found on the dead bodies according to the medical evidence appear to have been fired v. From two distances, clearly corroborates in general the narrative Stare of the incident given by the eye-witnesses. Learned counsel for the appellants, however, laid stress on the point that even M' A on the injuries with greater dispersal of shots noted above the doctor had found slight burning or scorching around the wounds. If the dispersal is kept in view the possibility of burning or scorching is clearly excluded. The use of the word "slight" by the doctor is very significant. The doctor was not cross-examined on these points nor an attempt was made by the defence to show the distance from which the shots were fired.
The learned trial Judge while dealing with this question observed that according to his impression the doctor had no clear idea about burning and scorching. Learned counsel urged that the opinion of the doctor has been brushed aside without giving him (the doctor) an opportunity of explaining that opinion. In our view, the remark made by the learned trial Judge is not, at all, unjustified. After having noted the dispersal of the shot (10" x 8') the doctor obviously fell in some error in observing that there was "slight" burning or scorching. In all probability, the doctor was not sure about his observation and this is also the reason why the defence did not take the risk of asking the doctor, particularly about the above noted two injuries, as to whether they could have been caused by shots fired from a distance within four feet. The supposition, that the doctor could have committed a mistake in this behalf, is again supported by the opinion express in Taylor's Medical Juris-- prudence wherein it is observed that-- "the bruised and dark appearance which a gunshot wound sometimes presents, even when the weapon is discharged at a distance from the body, has led to the supposition that this effect was due to a burn, and that the bullet burnt the parts which it touched, but this idea is not correct. The projectile never becomes sufficiently heated to acquire the power of burning"
After having considered all these circumstances, we navy come to the conclusion that the medical evidence does not contradict the eye-witnesses. Even if we had arrived at a different conclusion, in the peculiar circumstances of the case, particularly in absence of cross-examination on the doctor, we would not have preferred the opinion of the doctor over the specific assertions made by the eye-witnesses.
18. The next item of evidence to be noted is found in the fact that the culprits while running away from the spot dropped three licences which were picked up by Asmatullah P. W. And were later on produced by him before the police. Two of these licences belong to Abdur Rashid Khalid appellant and the third belongs to his brother. This circumstance is a corroboration of the eye-witnesses so far as Abdur Rashid Khalid appellant is concerned. Learned Counsel for the appellants, however, argued that the recovery of the licences is nothing but padding by the police. His main argument was that the witnesses have not offered any explanation as to why the licences were dropped at the spot, particularly in view of the fact that no struggle is alleged to have taken place. Learned counsel also argued that if Abdur Rashid Khalid appellant had sufficient time to remove the revolver from the dead body of Abdul Khaliq deceased, he could as well, in that time interval, have collected the licences if they had really fallen on the spot. He also contended that there was no reason why the licences should have been carried by any of the culprits at the time of occurrence.
All these arguments are based on hypothetical suppositions. They really relate to the peculiar attitude and the need of a particular culprit about which he only could have the special knowledge.
Many possibilities can be visualised. Abdur Rashid Khalid appellant, undoubtedly, absconded for more than a month. He is alleged to have had more than one weapon with him at the time of occurrence. Apart from that, he admittedly has licences to retain a rifle and a .12 bore gun. He might have needed the licences to give a cover to the possession of arms by him during the period of abscondence. He is not shown to have returned to his house during this period, therefore, it is not unnatural that he would have taken the licences along when he went out to attack the deceased. It is in evidence that after the occurrence the culprits ran away towards the eastern side of the village and did not enter the house of Abdur Rashid Khalid. As to why the licences dropped at the spot depends upon the condition in which they were being carried. We have examined the licences. They are in the form of small booklets with hard and smooth surface. In our view, they could very easily fall out of an unbuttoned shirt-pocket during a running position and there is no need to visualise any struggle in this behalf. When we questioned the learned counsel whether according to him it was impossible that the licences may have been dropped by the culprits while running away, he could not given any answer. As to why the culprits did not collect the licences after the occurrence, again depends upon surrounding conditions at that very moment. They may not have immediately realised that the licences had been dropped, or, they may have realised 'that if they stopped for retrieving them, more people might collect there and some body might try to apprehend or harm them. The first information report in this case, as noted earlier, was very prompt. The fact that the licences were dropped by the culprits at the spot is mentioned in it. They were taken in possession by the Sub-Inspector at the police station and are also mentioned in the police proceedings noted on the reverse of the first information report. There is absolutely no material on the record to suppose that the first information report was recorded at the spot or after deliberations. We cannot suppose that the Sub-Inspector thought of this unorthodox padding by first searching the house of Abdur Rashid Khalid appellant for taking out these licences and then making any entry fin that behalf in the first information report. The production of the licences at the police station at the time that Asmatullah made the first information report as deposed to by these witnesses is indicative of the fact that the informant had brought these licences with him to the police station. It is impossible to imagine that Asmatullah had any special means of procuring these licences from the house of his adversary for production before the police. Learned counsel contended that Muhammad Aslam, P. W. 16, the witness of recovery of these licences, is related to the deceased. That circumstance will not make any difference in this case because we have no reason to believe that at the initial stage of the case when the first information report was being recorded at the police station, the Sub-Inspector had any reason to make a fake recovery memo or to make a false entry in respect of the licences in the first information report and other documents. After going through the evidence in this behalf we are satisfied that the recovery of the licences is proved beyond any doubt and is a very strong corroboratory evidence against Abdur Rashid Khalid appellant.
19. The next item of corroboration to be noticed is the abscondence of Abdur Rashid Khalid appellant. The occurrence is of 28th July while he was arrested on 3rd September which means that he remained fugitive from law for one month and six days. Learned counsel conceded that, no doubt, the period of abscondence is long enough to be noticed but explained that the appellant being a Zamindar and a respectable person may have made himself scarce in order to avoid any insult or torture at the hands of the police. In answer to the question about the abscondence, the appellant stated that on the day of occurrence he was in Bulri Shah Karim and was under the treatment of a doctor whose certificate, Exh. D. K. Was produced by him. He also stated that he appeared before the Additional Superintendent of police voluntarily. The explanation visualised by the learned counsel was not offered by the appellant. With regard to the presence at Bulri Shah Karim for medical treatment, the appellant failed to produce any legal evidence. In fact, learned counsel has not relied on the plea of alibi. We cannot suppose, for a moment, that the appellant remained unaware of the charge against him for such along time. No doubt, every person is presumed to be innocent and respectable, but in this case there are some additional circumstances which need to be noticed. The appellant admittedly has been a Pilot Officer and it is in evidence that one of his brothers was an officer in the Police at the relevant time. It is neither claimed nor the circumstances of the case suggest that the abscondence of Abdur Rashid Khalid appellant was due to any fear of the police. It can legitimately be taken note of under section 8 of the Evidence Act. Illustration (1) thereunder provides that the fact that after the commission of the alleged crime the accused absconded is relevant. Learned counsel cited Siraj Din v. Kala and another (PLD 1964 SC 26), in support of his contention that abscondence should not be used as an item of corroboration against the appellant. It is pointed out with respect that in the peculiar circumstances of the case before their Lordships of the Supreme Court abscondence of the accused was not given any weight in the minority judgment by A. R. Cornelius, C. J. In the majority judgment, however, at pages 43, 50 and 51 of the Report, abscondence was given due weight. In Gul Hassan and another v. The State (PLD 1969 SC 89), abscondence of an accused was indirectly treated as corroboration of the participation of the accused in the crime though it was observed that this circum--stance was not of a conclusive nature. In our view, therefore, F depending upon the circumstances of each case, abscondence if proved and if unexplained is a relevant fact which can be noted and used as a corroboratory piece of evidence. We have already observed that the explanation suggested by the learned counsel in respect of abscondence of Abdur Rashid Khalid appellant at this appellate stage, is not supported by any circumstances and is not convincing. We, therefore, hold that this is another piece of corroboration against Abdur Rashid Khalid appellant.
20. Learned counsel for the State relying on illustration (e) under section 8 of the Evidence Act contended that the attempt by Abdur Rashid Khalid appellant of creating a false alibi should also be treated as a corroboratory circumstance against him. The finding of the learned trial Judge on the question of alibi is "that Abdur Rashid accused failed to prove bis alibi". It is an admitted fact that the appellant did not produce evidence in support of the plea of alibi. The evidence collected by the police in this connection, however, did indicate that some attempt might have been made for creating evidence of alibi. We have no reason to differ with the assessment of that material by the learned trial Judge in para. 11 of his judgment, but at the same time there is no direct evidence to show that Abdur Rashid Khalid appellant himself created or provided false evidence of alibi.
Though the circumstances create a very strong suspicion that it may have been done by the appellant himself but in absence of any direct proof we consider it necessary to keep this item of evidence, viz., that the appellant created false evidence to support his plea of alibi, out of consideration.
21. Learned counsel for the State also contended that the fact, that the occurrence took place in front of the house of Abdur Rashid Khalid appellant, should also be treated as corroboration qua his participation. Be that as it may, we arc of the view that this circumstance is not of any conclusive effect. It, therefore, cannot be used as corroboration.
22. After considering the entire evidence against Abdur Rashid Khalid appellant we are of the view that the eye-witness account, given by Asmatullah, Khushi Muhammad and Ghulam Nabi P. Ws., having been fully corroborated by the recovery of G the licences belonging to him from the spot and his abscondence, as supported by motive and medical evidence, constitutes sufficient and ample evidence for his conviction. We, therefore, maintain the same.
23. As regards Muhammad Siddiq appellant, the specific item of corroboratory evidence directly connecting him with the crime is his abscondence for six days. Learned counsel for the appellants contended that this period is not sufficient so as to be treated as abscondence. We do not agree with this contention. In case it is proved that an accused absconded without any reasonable, explanation the period of abscondence would only be a relevant factor. It (period) cannot be conclusive, qua the acceptance or otherwise of abscondence as an incriminatory piece of evidence. We, however, notice that Muhammad Siddiq appellant is a `faqir' by caste/profession. It is nowhere in evidence that he is related to Abdur Rashid Khalid appellant. By the registration of the case, he was charged with double murder of two Zamindars of the village. We have already held that Abdur Rashid Khalid, who from all circumstances appears to be more influential and well- connected person, made himself scarce and was not available to the police. In these circum-- stances, Muhammad Siddiq appellant could have entertained a genuine fear that being a 'faqir' with lesser status he might be dealt with severely and for this reason he might have made himself scarce for some days. In these peculiar circumstances, we consider it safe not to treat his abscondence as of much significance. If abscondence of Muhammad Siddiq is excluded from consideration, we are left with no other piece of I corroboratory evidence which may connect him with the crime. In this view of the matter, we consider it safe in administration of criminal justice to give him benefit of doubt and acquit him of the charges.
24. There are no extenuating circumstances in this case. As a result of the above discussion, we maintain the convictions of and sentences awarded to Abdul Rashid Khalid appellant by the learned trial Judge. The sentence of death awarded to him is confirmed. The fine, when realised, shall be paid as com--pensation to the heirs of Abdul Khaliq and Muhammad Shafi deceased.
Muhammad Siddiq appellant is acquitted by giving him the benefit of doubt. The result is that the appeal of Abdur Rashid Khalid appellant fails. The appeal of Muhammad Siddiq appellant is accepted. He shall be released forthwith if not required to be detained in any other matter.