1. SHAH ZAMAN BABAR, J.---Wali Muhammad, aged 25 yearld and Shahid Muhammad alias Shah Zoon, aged 30 years, both sons of Said Muhammad, resident of village Sard China, Tehsil Swabi, District Mardan, were tried under section 302/34, P. P. C. On the allegation that they, in furtherance of their common Intention, on 27-1-1971, at 4 p m. In village Sard China, committed the murder of Mfr Bahadur by firing at him. The trial was held by Mr. Abdul Karim Khan Kundi, Additional Sessions Judge, Mardan, who by his judgment dated 27-6-1972, held the two accused guilty under section 302/34, P. P. C. For the murder of Mir Bahadur and while convicting them accord--ingly, sentenced each of them to suffer death, subject to confirmation by the High Court. The trial Judge has also forwarded the proceedings of confirmation of the death sentences.
2. Both the condemned convicts have appealed. Sher Muhammad has filed a revision petition for confiscation of the property of the two appellants. This revision petition moves in motion. This judgment will dispose of the appeal, the murder reference and the revision petition.
2. The parties are residents of Sard China, Tehsil Swabi, District Mardan. They have blood feuds since the year 1962. Sardar A.I, brother's ion of Mir Bahadur deceased, is the son-in---law of P. W.
3. Nausher Khan. Nausher Khan and Mir Bahadnr are otherwise also related, P. W. Asghar A.I and Sultan Hussain (not produced) are the nephews of Mir Bahadur. P. W. Khan Muhammad runs a shop contiguous to the Hujra of Nausher Khan. On 27-1-1971 Mir Babadur, Nausher Khan, Asghar A.I and Sultan Hussain were sitting in the Hujra of Nausher Khan. A certain boy while passing by the gate of the Hujra said that Ghulam Haidar and Sikandar butchers have slaughtered a she-buffalo in the Hujra of Mirajul Haq. It is alleged that Mir Bahadur went to the Hujra of Mirajul Haq to purchase beef. There occurred some delay in the return of Mir Bahadur to the Hujra. This created anxiety on account of their enmity and so Nausher Khan, Sultan Hussain and Asghar A.I came out of the Hujra. This was 4 p.m. They looked to the side of the Hujra of Mirajul Haq. By the time Khan Muhammad had also come out of his shop. Mir Babadur was seen coming on the path. Mir Bahadur after turning by the corner bad taken 4 or 5 steps on the path to the Hujra when Wali Muhammad one Shahid Muhammad each armed with D. B. Shot-gun appeared from behind Mir Bahadur. Wali Muhammad and Shahid Muhammad simultaneously fired one shot each at Mir Bahadur from a distance of 6-7 paces. Both the shots proved effective and Mir Babadur dropped dead on the spot. Both the appellants decamped. The witnesses who were standing outside the Hujra, on seeing the shooting of Mir Bahadur by the two accused, entered their Hujra, except Khan Muhammad, and picked up firearms. All the witnesses came to Mir Bahadur and found him dead.
4. The deceased was placed on the cot and taken to Police Post Yar Hussain. The distance between village Sard China and P. P. Yar Hussain is two miles. The dead body was also taken to the P. P.
5. At the P. P. Yar Hussain P. W. Aslam Khan A. S. I. Recorded the report Exh. P. A/1 of Nausher Khan at 5 p. m. The A. S. I. Prepared the injury sheet and inquest report of the dead body and sent it to the mortuary under the escort of F. C. Mahtab Shah P. W. The A. S. I. Also forwarded the report Exh. P. A/1 to Police Station Kalu Khan where P. W. Sardar A.I Khan A. S. I. Incorporated it in the F. I. R. Exh. P. A.
6. And registered the case. P. W. Muhammad Akbar Khan S. H. O. Police Station Kalu Khan came to P. P.
7. Yar Hussain at 6-30 p. m. The same day. The dead body was still at the police post. The S. H. O. After examining the dead body and verifying the proceedings conducted by A. S. I. Aslam Khan, sent the dead body to the mortuary. He then started for the place of occurrence and reached there at 8 p. m. In the company of Nausher Khan. On a cursory site inspection on that night the S. I. Recovered a blood-stained piece of cloth from the spot. He also picked up blood-stained earth from there. The blood--stained piece of cloth and earth were sent to the Chemical Examiner for opinion. The Chemical Examiner vide his opinion Exh. P. Q. Opined that the earth and the piece of cloth were not stained with blood. The S. I. Inspected the site of occurrence next morning on 28-1-71 and prepared the site plan Exh. P. D. He recovered three big pellets Exh. P. 1 and carboard disc i3xh. P. 2 from the spot in the presence of P. W. Nausher Khan vide memo. Exh. P. E. Besides clothes of the deceased 4 pellets Exh. P. 4 were also brought from the mortuary which the S. I. Took into po3session vide memo. Exh. P. G. In the presence of P. W. Nausher Khan.
8. Both the accused were allegedly absconding. The S. I. Obtained warrants under section 204, Cr. P.
9. C. And entrusted them to P. W. F. C. Mehtab Shah, who brought them usserved. Proceedings under section 87/88, Cr. P. C. Were also taken against the two accused. Challan under section 302/34, P. P.
10. C and 512, Cr. P. C. Was submitted to Court ran 5-3-1971. Both the accused surrendered to the Deputy Superintendent of Police, Swabi, on 10-3-1971. A supplementary challan was then put in Court.
3. Dr. Muhammad Aslam performed the post-mortem examination on the dead body of Mir Bahadur, aged 46 years, on 28-1-1971, at 9 a. m. The doctor was examined by the committing Court.
11. He was not available for evidence at the trial and as such by order dated 26-6-1972, the trial Judge transferred the statement of the doctor recorded by the committing Magistrate on 1-4-1971 to the Sessions file. The doctor had found the following external injuries :-
(1) Frearm entrance wounds each --" x --" in the area of 4" x 4" on back of left side 3" below the angle of scapula.
(2) Firearm entrance wound, --" x --", on left side back at the level of angle of scapula.
(3) Two firearm entrance wounds, --" x --" on right side back at the level of 4" below the angle of scapula and the other 2--" below the above.
(4) 3 firearm exit wounds --" x --" on left 5th, 7th inter costal space. Corresponding cuts were present on shirt, banyan and sweater.
12. On internal examination thorax walls, ribs, cartilages, pleura, larynx and trachae, both lungs, heart and blood vessels were found injured. Stomach was full of digested food and fluid. The injuries were caused by firearm resulting the injury to heart which caused haemorrhage and death. Four pellets were removed from the chest. Time between injuries and death was sudden and between death and post-mortem was 15-16 hours.
13. The doctor admitted the post-mortem report Exh. P. C. To be in his handwriting and correct. The doctor opined that the possibility is that the injury on the deceased may be the result of more than one shot. He further opined that keeping in view the site of injuries 1 and 4, it was possible that injury No. 4 was the exit wound of injury No. 1.
4. At the commencement of the trial the two accused had pleaded not guilty to the charge of murder and had claimed trial.
14. At the trial both Wali Muhammad and Shahid Muhammad accused denied the charge of murder.
15. They stated that they were falsely charged and had not absconded after the occurrence. Both of them produced no defence evidence.
5. The ocular evidence has been furnished by P. Ws. Nausher Khan, Asghar A.I and Khan Muhammad. The three ocular witnesses have unanimously testified that they, while standing outside the Hujra (of Nausher Khan) saw Mir Bahadur turning round the corner to the path of the Hujra while coming from the Hujra of Mirajul Haq, Mir Bahadur had taken 4-6 steps on the path when the two appellants appeared from behind armed with a D. B. Shotgun each. They simultaneously fired one shot each at the deceased and felled him dead. The two appellants there after decamped. P. Ws. Nausher Khan and Asghar A.I are closely related to Mir Bahadur deceased.
16. The blood feud between the parties started in the year 1962 when two cross cases under sections 307 and 307/34, P. P. C. (vide F. I. Rs. Copies Exh. P. H. And Exh. P. 1) were registered. Two cases under section 302/34, P. P. C. Were registered in 1966, vide F. I. Rs. Copies Exh. P. J, and Exh. P. K. Four more murder cases were registered between the parties in the year 1967 (vide F.1. Rs. Copies Exhs. P.L., P.
17. M., P. N. And P. O.). In the year 1969 Mst. Kiomatai, a said servant of Nausher Khan, was killed. The present two appellants namely, Wali Muhammad and Shahid Muhammad, beside several others, were implicated of the charges under sections 302, 307, 149 and 148, P. P. C. Wasil Khan, a son of P.
18. W. Khar Muhammad, appeared as prosecution witness in that case Sometime before the present occurrence P. W. Khan Muhammac was prosecuted by Gul Khan, a maternal grandfather of the presen~ appellants. Khan Muhammad was convicted and sentenced to one year's R.I. In the case.
19. Nausher Khan and Asghar A.I are therefore related to the deceased and inimical witnesses to the appellants. Khan Muhammad also has got animosity with the appellants. The three ocular witnesses are thus interested witnesses. An interested witness is one who has a motive for veluntarily implicating an accused person. The testimony, 01 the three witnesses, therefore requires strong corroboration to make it worthy of credit. Exceptional strong corroboration is necessary in the present case. The corroboration by Itself should be sufficient to establish guilt of the appellants.
20. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by any thing in the circumstances which tend sufficiently to satisfy the mind of the Court that the witness has spoken the truth. See Nazir and others v. State (PLD 1962 SC 269) and Wasiullah v. Mirza All and others (PLD 1963 SC 24). A close scrutiny of the testimony of the three ocular witnesses tends sufficiently to satisfy our mind that the witnesses have not spoken the truth. It is in the evidence of Muhammad Akbar Khan S. H. O. That close to points 2 and 3 of the site plan from where the two appellants allegedly fired at the deceased at point 1, is the stair of the gate of the Hujra of Akbar Khan, and that the perimeter wall of the Hujra of Akbar Khan intervening the path to the Hujra of Nausher Khan is about 2 feet High. The prosecution case is that the two appellants had fired one shot each simultaneously from points 2 and 3 at Mir Bahadur deceased, who was at point 1, from his behind, and that Mir Bahadur at that time was returning from the Hujra of Mirajul Haq. The Hujra of Mirajul Hag is shown to the north at point 9. There are also indications in the site plan that the path diverting to the south leads to the houses of the appellants and the --deceased. P. W.
21. Nausher Khan had deposed that the two accused followed Mir Bahadur from the side of the Hujra of Mirjul Haq. It is not the case of the prosecution that Mir Bahadur turned the corner running towards the Hujra of Nausher Khan. It may be reasonably presumed that the 6eceased would have apprehended immediate danger to his life if the two appel--lants had chased the deceased from the side of the Hujra of Mirajul Haq. Nausher Khan had also deposed that when he saw Mir Bahadur and the two accused he gave no warning to the. Deceased that he was followed by his enemies.
22. Muhammad Akbar Khan I. O. Has testified that he recorded the statements of Mlrajul Haq and Ghulam Haidar and Sikandar butchers, but had not cited them as prosecution witnesses. The I. O.
23. Also did not take into possession the blood of slaughtered buffalo from the Rujra of Mirajul Haq. In the circumstances, it will be difficult to believe that the two appellants had chased Mir Bahadur from the side of the Hujra of Mirajul Hag and had fired at the deceased after turning the corner of the Hujra of Akbar Khan.
24. Injury No. 1 on the dead body of Mir Bahadur shows that six pellets had entered in a bunch, causing wounds each, --" x --" in the area of 4" x 4" on the back of left side, 3" below the scapula. Injury No. 4 appears to be 3 exit wounds of injury No. 1 on the left side front of chest at the level of 3rd, 5th and 7th intercostal space. The I. O. Had recovered three big pellets at point 1 of the site plan. The location of injuries 1 and 4 when viewed with the pictorial attached to the post-mortem report Exh.
25. P. C. Reveals that the wounds of exit at injury No. 4. Are on a high level that the six entrance wounds at injury No. 1.Injuries Nos. 2 and 3 are pellet injuries and are at the back of the deceased. Injury No. 1 with its exit at No. 4 could be suffered by -shotgun fired by an assailant sitting couched inside the perimeter wall of the Hujra of Ambar Khan and firing at the victim proceed--ing on the path from west, may from the Hujra of Nausher Khan towards the east. It is in evidence that the two shots were fired at the deceased simultaneously. After the receipt of injury No. 1, the deceased might have staggered and moved ahead when a second shot from the other barrel of a D. B. Shotgun was fired at him and be sustained injuries 2 and 3. The cardboard disc of second shot fell at point 4 ahead to the east of point 1. The medical evidence thus contradicts the ocular testimony of the three witnesses. It is probable that a single assailant sitting couched and armed with a D. B. Shot- gun at the corner of the Kotha inside perimeter wall of the Hujra of Ambar Khan close to the path had fired two shots at Mir Bahadur when Mir Bahadur was going from the direction of the Hujra of B Nausher Khan towards the east; rather than that Mir Bahadur was returning from the hujra of Mirajul Haq and coming from the eastern direction to the west. There are material discrepancies 1n the testimony of the three witnesses which cast grave doubt over their having witnessed the murder of Mir Bahadur. Nausher Khan has deposed that many people had collected at the spot but no body had asked them as to who had killed Mir Bahadur and nor they told anybody about the occurrence. P. W. Asghar A.I has stated:- "The people had asked us that who had killed the deceased and we all told them that Shahid Muhammad and Wali Muhammad accused had killed the deceased."
26. P. W. Khan Muhammad has testified that people had gathered at the spot and had also witnessed the occurrence but the witness did not inform the public nor the people did tell the witnesses that they had seen the occurrence. P. W. Khan Muhammad was confronted with his Magisterial statement wherein he has stated that when they saw the deceased Mir Bahadur at the time coming on the way, Wali Muhammad and Shah Zoon accused were coming from the opposite direction duly armed. It is, therefore, difficult to say that the three witnesses had seen the shooting of the deceased by the two appellants.
6. The occurrence took place on 27-1-1971. Both the accused had surrendered on 10-3-1971. It is alleged that both the appellants had absconded after the occurrence for 42 days. This abscondence has been considered by the learned trial Judge as confirmatory evidence of the testimony of the eye-witnesses. The essential requisites for the proof of abscondence, are, firstly the issue of process of summons or warrant under section 201; Cr. P. C. When a Magistrate takes cognizance of an offence, C and secondly, the publishing of a written proclamation under section 87, Cr. P. C. Requiring the person against whom process had been issued to appear, if after the issue of the warrant amyl Court has reason to believe that any person against whom a warrant has been issued by it, has absconded or is concealing himself so that such warrant cannot be executed. Muhammad Akbar Khan S. I. Has deposed that the accused had absconded and that he had obtained warrants under section 204, Cr. P. C. And had entrusted the warrants to P. W. F. C.
27. Mehtab Shah, who brought them unserved. The S. I. Has further stated that he also initiated proceedings under section 87/88, Cr. P. C. P. W. F. C. Mehtab Shah has deposed that he was given a warrant under section 204, Cr. P. C. Against both the accused. He searched the two accused in village Sard China and the other surrounding villages but the accused were not traced and the search warrants were returned unserved to the police station. Mehtab Shah F. C. Has further stated that he also effected the pro--clamation as against the accused. The search warrant and the proclamation, however, were not shown to the F. C. Nor the search warrant arid the proclamation have been placed on record. This case was committed to the Court of Session by Mr. Amanullah Khan, Magistrate. P. W. Muhammad Shauaib Khan, the successor-Magistrate of Mr. Amanullah Khan, has deposed that the application for the issue of the search warrant or the search warrant could not be traced out in his Court. The Magistrate had also checked up the record, wherein he found no entry regarding the issue of the search warrant under section 204, Cr. P. C. He deposed that proceedings under section 87, Cr. P. C. Are not entered in the record of the Court. The only entry which the Magistrate could find in the record is that proceedings under section 88, Cr. P. C. Had been taken against he appellants. To a Court question the Magistrate stated t1lat it could be presumed that the proceedings under section 88, Cr. P. C. Must have followed the proceedings under section 87, Cr. P. C.
28. A warrant of arrest issued under section 204, Cr. P. C. Can only be proved by the production of the original order by secondary evidence. In K. R. Easwaramurthi Goundan v. Emperor (AIR 1944 P C 54) it is observed:- "A warrant of arrest is a public document which affects the personal liberty of the subject. The statute prescribes its form. It has to bear the appropriate signature and seal. Any laxity of proof might have serious consequences. It might for instance lead to error as to the identity of the person to be apprehended. Secondary evidence other than a certified copy would not necessarily or even obviously show that the statutory form had been complied with. Section 87 (3) does not override the requirements of the Evidence Act or make the proclamation evidence that the warrants had been issued. The method of proving the warrants is not requirement of section 87 which is merely dealing with the proclamation itself and the mode of publishing it and the like. Nor does section 87 expressly or by Implication make the proclamation equivalent to notice to the public of Its contents even to the inhabitants of the town or village where it is published. There can be no proof that the accused knew of the orders or warrants of arrest unless or until the issue of the warrants has been proved. The mere fact that the proclamation was made under section 87 cannot make the proclamation legal evidence of the issue of the warrant or order of arrest, nor is there anything in section 87 which makes it possible to impute the accused notice of the proclmations or their terms."
29. The burden of proving that there was due proclamation under section 87, Cr. P. C. Lay on the prosecution. The mere fact that an accused was absent for some period of time would D not be sufficient proof of his absconsion unless it is shown that proceedings against the accused were taken under sections 87, 88, Cr. P. C. "The requirements of section 87, Cr. P. C. Are imperative in so far as they lay down the condition as to time which should not be less than 30 days from the date of the publication of the proclamation, and also with respect to the manner of publication which has been laid down in clauses (a), (b) and (c) of subsection (2) of section 87. If these conditions are not properly fulfilled, then the proclamation would be void ab initio. "Even process under sections 87 and 88, Cr. P. C. Cannot be issued unless it is established that a warrant had already been issued against the person wanted and that the person was absconding. Mere oral testimony of P. Ws. F. C. Mehtab Shah and S. I. Muhammad Akbar Khan will not be sufficient proof of the issue of a search warrant under section 204, Cr. P. C. And proclamation under section 87, Cr. P. C. The term "abscond" in its etymological and ordinary sense means "to hide oneself". In the absence of strict proof of issue of a search warrant under section 204, Cr. P. C. And issue of proclamation under section 87, Cr. P. C., it could not be said that the two appellants had absconded or were concealing themselves. Therefore, we hold that the prosecution has failed to prove that the appellants had absconded after the occurrence and their mere absence under the circumstances of the present case cannot be considered as confirmatory evidence of their participation in the crime of murder.
30. See:-
(1) Thanghai v. The State PLD 1969 Kar. 200;
(2) In the matter of the petition of Bandyu Nayak I L R 102 Mad. 436;
(3) O. Y. Forhes v. Emperor AIR 1943 Oudh 3253 and
(4) A6dur Rashid v. The State PLD 1962 Dacca 245.
31. The revision petition fails automatically and is dismissed.