MUHAMMAD BASHIR KHAN JEHANGIRI, J.- This appeal is directed against the judgment of Sessions Judge, Bannu, dated 8.9.1987 by which he found accused Mr Qad Ayaz (30/31) guiIty under section 302, P.P.C for the murder of Nazeef Khan and sentenced him to imprisonment for life and a fine of Rs.10,000/- or in defauIt to undergo rigorous imprisonment for three years. Half of the fine, if realized, was directed to be paid under section 544-A Cr.P.C to the heirs of the deceased by way of compensation. Muhammad Ayub, brother of the deceased, has also filed Criminal Revision No.6 of 1987 under section 439 Code of Criminal Procedure for the enhancement of the sentence of life imprisonment to one of death. Both this Appeal and Criminal Revision No.6 of 1987 are being disposed of by this judgment.
2. The prosecution in this case commenced with the report to Inspector Ghulam Abbas Khan (PW.8) by Mst. Raham Jana (PW.6) at 6.50 P.M on 23.7.1981 at Police Station, Kakki, District Bannu, and in there would appear the following allegations:- That at 'digar wela' on 23.7.1981 she (complainant Mst. Raham Jana), her sons Nazeef Khan and Muhammad Ayub were going towards the shops of their village for buying ice. Accused Mir Qad Ayaz duly armed with DB Shotgun challenged Muhammad Nazeef that he would not be spared on account of which Muhammad Nazeef out of fear tried to retreat towards his house. Upon this Mir Qad Ayaz Khan fired four conxecutive shots out of which three went amiss while one hit her son on his back and he fell injured.
Her son was lying on the spot in injured condition. The first informant maintained that they had no previous enmity with the accused. Nonetheless on 15.1.1981 Mir Taj Ali son of Ghulam Sarwar of their village had been done to death for which she and her two sons Nazeef Khan and Muhammad- Ayub were charged. She suspected that Ghulam Sarwar in order to avenge the murder of his son had hired the accused for assassinating her son who had fired at him effectively as a hired assassin.
2. The evidence of Ghulam Abbas Khan, Inspector, the then S.H.O Police Station Kakki (PW.8) is that on 23.7.1981, Mst. Raham Jana (PW.6) reported him the occurrence which he took down and registered a case vide F.I.R EjcPA under section 307 P.P.C when in the meantime an information was conveyed to him that Nazeef Khan had succumbed to his injuries and in consequence he aItered the offence from section 307 P.P.C to that under section 302 P.P.C. He then set out for the spot and secured vide memo Ex:PB blood stained earth, prepared the injury sheet Ex:PE and inquest report Ex:PF. His evidence further is that he prepared the site plan Ex:PE/l which was pointed by Mst. Raham Jana. (PW.6); took into possession and sealed them into a parcel vide memo Ex:P-l three pieces Ex:P-l of card board discs from the spot. He went on to state that after postmortem examination, the doctor had sent through Amir Saifullah F.C the shirt Ex:P-2, Shalwar Ex:P-3 both blood-stained and bearing corresponding cuts and a phial containing three pellets extracted from the dead body which were taken into possession vide memo Ex:PD. His evidence further is that Mir Qad Ayaz accused had crossed over and had gone into hiding, in the tribal area, therefore, warrants of his arrest Ex:PC/l under section 204 Cr.P.C were obtained and were entrusted to Muhammad Akram F.C (PW.l) for execution and so were the proclamations under Section 87 Cr.P.C. According to him he recorded the statements of PWs and challaned the accused to the Court under Section 512 Cr.P.C.
3. Mir Qad Ayaz accused having absconded was arrested on 14.4.1984 along with two other Proclaimed Offenders by Nasrullah Khan, S.H.O (PWA), in a raid. Since the accused had allegedly fired at the police party and a dagger and a 8 M.M rifle had also been recovered from him, a separate case under section 307/353/216/34 P.P.C read with section 13 of the Arms Ordinance and section 5 of the Explosive Substances Act were registered against him. In consequence a supplementary challan under section 302 P.P.C was put into the Court of Illaqa Magistrate from where he was sent up to stand his trial.
4. The prosecution, in order to support its case, relied on the ocular evidence of Mst. Raham Jana (PW.6) Muhammad. Ayub (PW.7), medical evidence furnished by Dr. Muhammad Aslam Khan (PW.3) and abscondance of the accused from the date of occurrence on 23.7.1981 to the date of his arrest in a raid on 14.4.1984. As regards the death of Nazeef Khan by fire shots is concerned it is not in dispute because it has been satisfactorily established by Doctor Muhammad Aslam Khan (PW.3) who had performed autopsy on his dead body on 24.7.1981 at 6.30 A.M and found the following injuries:-
1. Fire arm inlet wounds four in number each 1/4" x 1/4" on the right buttock, 1 inch above the right iliac crest and in the reduce of 447.
2. A fire arm inlet wound 1/4" x 1/4" on the renalangle.
3. A fire arm out let wound 1/4" x 1/4" on the renal angle relating to wound No.2 (Wound Nos.2 and 3 are not in the abdominal cavity but are under the Skin).
5. Cervicle vertibrea, abdomen, peritorium, small intestine, large intestines, right kindney and spleen were injured. Stomach was heaIthy and empty. The fire arm wounds injuring the abdominal organs like intestines, kindney and spleen leading to haemorrahage and shock were sufficient in orinary course of nature to cause death. Probable time that elapsed between injuries and death was 15 minutes to two hours while that between death and post mortem examination was about 6 to 15 hours.
6. When examined under sectin 342, Cri\C the plea of the accused-appellant was that of total denial.
With regard to abscondance upto 14.4.1984 he explained thus.- "I do Garlic business in Karachi. Prior to the occurrence I had gone to Karachi. When I arrived in my village I came to know of the false charge having been levelled against me. I then voluntarily surrendered to the police. The prosecution has not proved my abscondance at all in the present case."
7. When asked as to what was his statement and why has he been charged, the appellant stated as under:- I am innocent and falsely charged on account of the blood fued of the complainant with my 'tarbor', Ghulam-Sarwar who was an aged man and was having no other male member (major) of his family."
8. In this case, as stated earlier, the ocular account of the occurrence has been furnished by Mst.
Raham Jana mother and Muhammad Ayub, brother of deceased.
9. Mst. Raham Jana (PW.6) after giving out her relationship with the deceased and that of PW Muhammad Ayub had stated that on the day of occurrence she along with her two sons, namely, Nazeef Khan and Muhammad Ayub Khan, in order to purchase ice for 'Aftari' were proceeding at late 'Peshin' or early 'Digar Wela' to the shop of her village. According to her she was ahead of Muhammad Ayub (PW) followed by Muhammad Nazeef (deceased). A little short of the shop of the ice vendor, Mir Qad Ayaz accused duly armed with DB shotgun got up from the said shop, started towards them and called out to Nazeef Khan that he would not be spared. Nazeef Khan, out of fear, immediately turned back and retreated.
The accused, however, fired two shots which went amiss but two subsequent shots hit the deceased while he was turning towards his house and fell on the ground. She and her son went near Nazeef Khan who was meaning and breathing his last. The accused, however, decamped from the spot towards western side. She left PW Muhammad Ayub to remain by the side of her injured son while she left for the Police Station in the company of Wali Jan (PW.9) where she lodged the report. Her report was recorded by the S.H.O, who accompanied her to the spot where the I.O prepared the site plan at her instance. By way of motive, she disclosed that she and her two sons were involved in the murder of the son of Ghulam-Sarwar Khan their co-villager since dead which case was pending trial in the Court of Sessions. The accused was hired by Ghulam Sarwar Khan for assassinating Nazeef Khan to avenge the murder of his son Mir Taj Ali.
10. Muhammad Ayub (PW.7) had stated that on the day of occurrence at about late 'Peshin wela' and early 'Digar wela' he along with his brother Nazeef and his mother Mst. Raham Jana (PW-6) were present in their house when in the meantime his nephew Afsar Ali came and complained that Mir Gad Ayaz accused had not allowed him to purchase ice from the shop of Babarri. Upon this, his mother Mst. Raham Jana (PW.6) took money from Afsar Ali and went to purchase the ice herself.
Upon this he and Nazeef Khan also went after her. They had not yet reached the shop of Babarri when in the meantime accused Mir Qad Ayaz got up from the said shop and confronted them throwing a challenge to Nazeef Khan that he would not be able to escape. On hearing this, his brother turned round and started running back. The acused, however, fired two shots at his mother which went amiss and two shots at the deceased with his DB shotgun with which his bcother was hit and fell down. Thereafter the accused decamped from the spot. His mother left for the Police Station to lodge the report while he remained with his brother. The deceased succumbed to his injuries after half an hour. His statement was recorded upon the arrival of the Police and he pointed out various places in the site plan Ex:PB/l.
11. The learned counsel appearing on behalf of the accused- appellant had criticised the ocular account of occurrence furnished by these two PWs by saying that there was no justification for Mst.
Raham Jana to have gone to fetch the ice for 'Aftari', firstly, at late 'Peshin wela' and, secondly, when her two major sons were present in the house. According to the learned counsel it can safely be inferred that the claim of Mst. Raham- Jana, in the circumstances of the case, to have been present at the time of place of occurrence is not worthy of credence. He further contended that it was queer that the mother has gone to the Police Station to lodge the report while his young son Muhammad Ayub (PW.7) remained on the spot. He also referred to the evidence of Ghulam-Abbas, Inspector Police (PW.8) who has not stated in the witness-box that Muhammad Ayub (PW.7 had pointed out to him various points in the site plan. The learned counsel also argued that the assertion of Muhammad Ayub (PW.7) in the witness-box that Afsar Ali his nephew was disallowed by the accused-appellant to take the ice was an improvement upon his earlier statement recorded under section 161 Cr.P.C and that recorded under Section 512 Cr.P.C.
According to him it was introduced with a view to furnish justification for their presence on the spot.
He also took exception to the admission in the cross-examination of Mst. Raham Jana (PW.6) wherein Wali Jan (PW.9) has stated that he and Mst. Raham Jana head taken 'Aftari' in the Police Station against her own version on this account which is diffrent. The learned counsel for the accused- appellant pointed out that both the star-witnesses of the prosecution are highly interested one being the mother and other being the brother of the deceased and also that the accused-appellant was a Tarboor'of Ghulam Sarwar Khan father of Mir Taj Ali (deceased) for whose murder the two PWs and the deceased had been charged.
12. The learned counsel had serious criticism qua the evidence of Doctor Muhammad Aslam Khan (PW3) and pointed out that he had tampered with the post-mortem examination as also the pictorial annexed thereto by scoring the injuries on the left side of the pictorial and transposing them on the right side in order to bring it in conformity with the injury sheet prepared by the I.O. The learned counsel lastly contended that the alleged abscondance attributed to the accused- appellant is also far from proved, therefore, it ought to have been discarded by the trial Judge.
13. A bare perusal of the site plan Ex:PB/l would reveal that the house of the deceased and the two PWs is situated at a distance of hardly 105 paeces from point No.1 where the deceased was done to death. It is just in front of the street which leads to the place where the ice vendor is shown to have been selling the ice at the time of occurrence. It is a common feature of rural life that ice, being a rare commodity there, is sold out within no time particularly in the month of Ramzan. In this view of the matter there was nothing unusual for Mst. Raham Jana to have gone a little earlier than 'Digar Wela' to fetch the ice for 'Aftari'. The objection as to why the two sons had not gone by themselves or only one of them should have gone should be looked into the context of their involvement in the case of the murder of Mir Taj Ali Khan. Mst. Raham Jana had proceeded to fetch the ice on Afsar Ali's complainant that he has not been allowed to fetch ice by the accused provides ample justification for the deceased and the PW Muhammad Ayub to go after their mother. The contention that there was no justification for Mst. Raham Jana to have left' for Police Station to lodge the report is also untenable because she might have been under a genuine apprehension lest her only son should be killed and, therefore, she decided to lodge the report herself.
14. The criticim of the learned counsel for the appellant upon the conduct of Doctor Muhammad Aslam Khan (PW3) on his alleged tampering with the post-mortem report and the pictorial is also not well- founded. It was the month of Ramzan and if the Doctor had committed some mistake in his record he could justifiably correct the same there and-that is what the Doctor has actually done. A human error to which PW3 is no exception cannot be stretched to the pxtent of attributing to it some bias. If the learned counsel for the defence was serious in this objection he could have got the clothes of the deceased examined and should have pointed out the discrepancy. Having not done so the learned counsel for the appellant cannot be allowed to attribute to Doctor Muhammad Aslam (PW.3) a motivefor such a correction in the record which is not more than a bald accusation.
15. The question is whether this evidence has been rightly accepted by the learned trial Judge.
There is no doubt that both the witnesses are closely related inter as well as to the deceased but this relationship by itself cannot militate against their credibility. There is no indication on the record that there was any previous enmity between the parties or that the witnesses had any motive whatsoever to falsely implicate the appellant. They are natural witnesses of the occurrence, as they were admittedly residing jointly in a house which lies close by point No.1 where the deceased was done to death.16. It was, however, contended by the learned counsel for the appellant that the witnesses being interested, their evidence required corroboration.
17. The question as to who is an interested witness as to require corroboration of his evidence was considered by their Lordships of the Supreme Court in Nazar and others versus the State (1962 S.C 269) and, it was held that an interested witness was one who had a motive for falsely implicating an accused person. While explaining the dictum in Niaa versus the State (PLD 1960 S.C 387), their Lordships dispelled the impression that the statement of an interested witness could never be accepted without corroboration. They added that, however, in order to be satisfied that no innocent person was being implicated along with guiIty, the Court would in the ordinary case of an interested witness look for some circumstance that gave sufficient support to his statement so as to create that degree of probability which could be made the basis of conviction.
18. As regards relationship,it is well-settled that mere relationship with the deceased is not by itself sufficient to discard his evidence unless it be shown that he has a motive to falsely implicate any accused person, in which case he would have to be regarded as an interested witness requiring corroboration. In this behalf we may refer to Sahib Din versus The State (P.L.D 1964 S.C 117), Muhammad Hussain versus the State (1969 S.C.M.R. 64) and Muhammad Bashir alias Shikra versus the State (1970 S.C.M.R 351).
19. Mr. Ejaz Muhammad Khan, Asistant Advocate General has not seriously contested the position that the statements made by the eyewitnesses in this case require corroboration. Nonetheless the learned trial Judge has adverted to other corroborative circumstances like the medical evidence and spot of occurrence.
20. The stomach of the deceased was found by Doctor Muhammad Aslam Khan (PW.3) to be empty. This aspect is confirmatory of the prosecution case that the occurrence has taken place before the 'Aftari'. In any next question with regard to need for further corroboration does not present any serious difficuIty. The occurrence is of 23.7.1981 while the appellant was arrested'along with two other proclaimed offenders in a raid on 14.4.1984 as disclosed by Nasrullah Khan, S.I.
(PW.4) which means that he remained fugitive from law for about two years and 9 months. The learned counsel conceded that, no doubt the period intervening between the occurrence and that of his arrest is long enough to be noticed, but maintained that it should be looked into the context of his explanation which he has tendered in his statement under section 342 Cr.P.C, and also that abscondance was not legally proved. Merely because the reports on the warrant under section 204 and proclamation under section 87 Cr.P.C, have been scribed in the Police Station by a Head Constable due to the illitracy of Foot Constable Akram Khan (PW.l) would not render these proceedings as unlawful.Be that as it may, the appellant has made himself scarce after the occurrence without any plausible reason. His conduct can, therefore, legitimately be taken note of under Article 21 of the Qanun-e-Shahadat which corresponds to section 8 of the Evidence Act, 1872.
His Lordship M.A. Zullah, J in Abdur Rashid Khalid versus State (P.L.D 1972 Lahore 90) while referring to Illustration (i) under section 8 of the Evidence Act held that the fact that after the commission of the alleged crime the accused absconded is relevant.
21. In our view, therefore, depending upon the circumstances of each case, abscondence or even long absence remaining unexplained is a relevant fact which can be noted and used as a corroboratory piece of evidence. We have scrutinized the explanation of the appellant in respect of abscondence or long absence which is not convincing. We, therefore, hold that this is a piece of corroboration against the appellant.
22. In the instant case the First Information Report has been lodged promptly by the mother of the deceased who and her son Muhammad Ayub (PW-7) are proved to be the natural witnesses, for, the occurrence has taken place near the house of the deceased. Both the PWs have no enmity against the accused. It was a broad-day light occurrence and there was no question of mistaken identity of the accused either. The charge of murder of Nazeef Khan is against the accused- appellant alone. His substitution in the circumstances of this case is, therefore, very remote. In a recent case of Muhammad Sadeeq versus State! 1983 P.Cr.LJ 1859) a Division Bench of the Lahore High Court has held that in an occurrence which took place at about sun set time involving a single accused, there are remote chances of substitution. We are in respectful agreement with this observation of the learned Judge.
23. After considering the entire evidence against the appellant, we are of the view that the eye- witness account, furnished by Mst. Raham Jana and Ayub (PWs) having been corroborated by medical evidence and his abscondence, constitutes sufficient and ample evidence for conviction.
We, therefore, maintain the same.
24. The prosecution has, however, not been able to bring on the record convincing evidence that the appellant was a hired assassin. The assertion that the appellant being a Tarboor' of Mir Taj Ali Khan had evenged the latter's murder cannot be ruled out as a remote possiblity.
25. We take this feature of the case as an extenuating circumstances. As a resuIt of the above discussion we maintain the conviction and sentence awarded to the appellant -;-by the learned trial Judge. The resuIt is that both the appeal of Mir Qad Ayaz and Criminal Revision No.6 of 1987 filed by Muhammad Ayub for the enhancement of sentence fail.