' KHALIL-UR-REHMAN RAMDAY, J.---Muhammad Aslam, Muhammad Akram, Sardar Khan, Muhammad Ashraf, Asmatullah and Umar Hayat were tried by the learned Sessions Judge of Mianwali for forming an unlawful assembly while armed with deadly weapons and for having murdered Noor Khan and Saadullah Khan in furtherance of the common object of the said unlawful assembly and also for having misappropriated a gun of Noor Khan deceased.
2. Through his judgment dated 24-10-1989, the learned SJ., found all the said accused persons guilty of the murders of Noor Khan and Saadullah Khan and while Umar Hayat accused was punished with imprisonment for life on each of the abovementioned two counts under section 302/149, P.P.C., the remaining five accused persons were awarded sentences of death on each such count. Each one of these six convicts had also been directed to pay a fine of Rs,10,000 or to suffer two years' R.I. In default thereof. Each one of them had been further convicted under section 148, P.P.C. And ordered to suffer two years' R.I. Therefor and also to pay a fine of Rs,2,000 or to undergo six months' R.I. In default of payment of the said fine. Muhammad Akram had been further convicted under section 404, P.P.C. And had been sentenced to two years' R.I. With a fine of Rs,2,000 or six months' R.I. In default thereof. The sentences of imprisonment were directed to run concurrently while half of the amount of fine imposed under section 302/149, P.P.C, was directed to be paid to the heirs of the two deceased persons, in equal shares.
3. Murder Reference No,256/89 seeks confirmation of the sentences of death awarded to Aslam, Sardar Khan, Ashraf, Akram and Asmatullah convicts while Crl. Appeal No,810/89 filed by all the six, abovementioned convicts, impugns the above-noticed convictions and sentences recorded against each one of them. Crl. Revision No,97/91 was filed by Sultan Sikandar complainant praying that the punishment of imprisonment for life awarded to Umar Hayat convict be enhanced to a penalty of death and further that each convict be also ordered to pay compensation, independently of the amount of fine, imposed on the said convicts.
4. All these three matters are being disposed of together through this single judgment.
5. The occurrence in question had taken place on 25-2-1986 at about 5-00 p.m. In the LORRY ADDA of Mianwali, two FURLONGS away from Police Station, City, Mianwali and had been reported at the said police station at 4-45 p.m., the same day by one Sultan Sikandar.
6. He had claimed that on the day of occurrence, he had come to Mianwali, alongwith Noor Khan and Saadullah Khan deceased, to participate in a public meeting to be addressed by one Maqbool Khan who was then a Federal Minister and that the said meeting concluded at about 4-30 p.m.
Whereafter he, alongwith the two deceased persons, Alam Khan (P.W.11) and Muhammad Amir (given up) came to the LORRY ADDA in order to board a bus to return to their respective homes. He had added that just as they had reached the said bus stand at about 5-00 p.m., all the six accused persons, out of whom, Aslam was armed with a RIFLE while the other five were armed with .12 bore GUNS, emerged there and after declaring that they had come to avenge the murder of their brother, opened fire at the complainant party resulting in the death of Noor Khan and Saadullah Khan deceased. The complainant had further alleged that while leaving the place of occurrence, the said accused persons had also taken away the licensed gun of Noor Khan deceased which he was carrying at the time of occurrence.
7. Sultan Sikandar complainant had further disclosed that in the year 1956, Noor Khan deceased had murdered one Bahadur Khan who was a brother of Sardar Khan and Umar Hayat accused; that about 5/6 months prior to the present occurrence, Noor Khan deceased and others had resorted to firing at Sardar Khan accused and others in respect of which, a case under section 307, P.P.C. Had also been registered; that in order to avenge the said murder and the said firing, the accused persons had attacked Noor Khan deceased with firearms on the day preceding the day of the present occurrence but Noor Khan deceased had luckily escaped in respect of which firing, Noor Khan deceased had lodged an F.I.R. At Police Station Moosa Khel and it was in order to take revenge of the same, that the above-named assailants, had murdered Noor Khan and Saadullah Khan deceased.
8. It may be mentioned here that from amongst the accused persons, Umar Hayat and Sardar Khan are real brothers while Asmatullah is a son of Umar Hayat. Aslam and Akram accused are also real brothers inter se and are the MAMUN ZAD of Umar Hayat and Sardar Khan accused whereas, Ashraf accused is a son of a brother of Aslam and Akram accused.
9. It may also be mentioned here that the mother of Sultan Sikandar complainant who is the husband of a sister of Noor Khan deceased, is the sister of the paternal-grandmother of Aslam and Akram accused.
10. During the course of investigation, Muhammad Ashiq Inspector (P.W.14) had found four empties of 12 bore gun Exh. P-12/1-4 and one empty of 7 m.m. Rifle Exh.P.13 at the place of occurrence, besides a licence of Noor Khan deceased (Exh.P-16) for keeping a .12 bore gun. All these items had been seized by the said I.O. Through memos. Bearing Exhs.P.M. And P.L., respectively. These crime empties, according to the present record, had never been sent to the Forensic Science Laboratory and are thus of no real consequence.
11. The Investigating Officer made efforts to arrest the above-named accused persons but none of them could be arrested till 3-4-1986 on which date, four of them, namely, Aslam, Ashraf, Asmatullah and Umar Hayat surrendered themselves to the custody of Muhammad Ashiq, Inspector (P.W.14). Out of them, Ashraf then led to the recovery of a .12 bore gun Exh. P.14 on 13-4- 1986 while Asmatullah led the I.O. To the recovery of a licensed m.m. Rifle Exh. P-15 on the same day and both these weapons were taken into possession by the I.0 vide memos. Exh.PN and Exh.P0, respectively.
12. Since Sardar Khan and Muhammad Akram appellants had, according to the Investigating Officer, concealed themselves after the occurrence in question, he obtained non-bailable warrants Exh.P.W.7/1 and Exh.P.W.7/2 on 6-4-1986, for their arrest. They were handed over to Muhammad Farooq A.S.I. (P.W.7) for execution. Despite the search and the efforts made by the said A.S.I. To cause the arrest of these two appellants, he could not succeed in the execution and submitted reports accordingly which are Exh.P.W.7/1/1 and Exh.P.W.7/2/1 and also made a statement to that effect before the learned Ilaqa Magistrate on 26-4-1986, a copy of which is Exh.P.W.7/3.
Proclamations were then issued by the learned Ilaqa Magistate under section 87 of the Cr.P.C. In respect of Sardar Khan and Muhammad Akram appellants. The copies of these proclamations are on record as Exh.P.W.7/4 and Exh.P.W.7/5, respectively. The reports of Muhammad Farooq A.S.I.
(P.W.7) regarding the publication of these proclamations are Exh.P.W.7/4/1 and Exh.P.W.7/4/2, respectively.
13. Both these accused persons had, however, been finally arrested almost seventeen months after the occurrence i,e, on 7-6-1987 from the area of Police Station, Moosa Khel. At the time of his arrest, Sardar Khan accused handed over an unlicensed gun P-10 to Sher Muhammad, Inspector (P.W.13) which was seized vide memo. Exh.P.H. Whereas, Muhamad Akram accused produced a licensed rifle P-9 before the said Inspector which was taken into possession vide memo. Exh.P.G. On 13-6- 1987, Muhammad Akram accused, while in custody, also led to the recovery of a gun P-11 belonging to Noor Khan deceased which had been seized vide memo. Exh.P.J.
14. When confronted with the prosecution case, the accused persons admitted their inter se relationship. It was also admitted that the mother of Sultan Sikandar complainant was the real sister of the paternal-grandmother of Aslam and Akram accused. They also admitted that a brother of Umar Hayat and Sardar Khan accused had been murdered in the year 1956, for which murder, Noor Khan deceased and others had been tried and convicted and sentenced to imprisonment for life and further that about 5/6 months prior to the occurrence, Sardar Khan and Asmatullah accused on one side and Noor Khan deceased and others on the other side, had exchanged firing in respect of which, cross-cases had been registered and which matters were still pending adjudication. It was also not denied that one day prior to the present occurrence, Sardar Khan, Akram and Ashraf accused had allegedly fired shots at Noor Khan deceased in respect of which occurrence, a case stood registered at Police Station Moosa Khel. When questioned about their absconsion after the present occurrence and their non-availability to the police till 7-6-1987, Akram and Sardar Khan accused admitted to have concealed themselves in Mirpur in Azad Kashmir but stated that it was on account of the case under section 307, P.P.C. With respect to the firing at Noor Khan deceased, a day prior to the present occurrence, that they had gone away to Mirpur apprehending retaliation and arrest and that while they were in Azad Kashmir, even their relatives did not know of their whereabouts and further that it was on learning of their involvement in the present case, that they returned home in June, 1987 and surrendered before the police. Both of them produced an order dated 25-2-1989 passed by a Magistrate 1st Class at Mianwali through which order, their respective properties attached in pursuance of the proclamation issued against them under section 87, Cr.P.C. Had been restored to them as envisaged by section 89 of the Cr.P.C.
15. All the accused persons had, however, denied their participation and involvement in the present case and pleaded that they had been falsely implicated in the present occurrence on account of the long standing enmity which existed between the two parties.
16. Canvassing acquittal for the appellants, Mr. Ijaz Hussain Batalvi, Advocate, argued that both the eye-witnesses, namely, Sultan Sikandar and Alam Khan were not only interested and inimical witnesses but were even chance witnesses of the occurrence in question; that reliance could not be placed on their testimony without independent corroboration emanating from unimpeachable sources; that the alleged recoveries of firearms from four of the six appellants were of no consequence as neither the said weapons nor the crime empties recovered from the spot had been sent to the Forensic Science Laboratory for examination; that the ocular testimony was being falsified by the medical evidence; that the order dated 25-2-1989 (Exh.D.E.) passed by a Magistrate at Mianwali was sufficient proof of the fact that Sardar Khan and Akram accused had not concealed themselves and had thus not absconded; that in the circumstances, nothing was available on record which could corroborate the interested and inimical testimony of the two eye- witnesses and that the prosecution had failed to prove their case against the present appellants and consequently, the convictions and the sentences recorded against them, could not be sustained.
17. The question which was very fiercely contested before us by the two sides related to the disappearance and non-availability of Sardar Khan and Muhammad Akram appellants since after the day of occurrence till their arrest about sixteen months thereafter and the effect of the order dated 25-2-1989 passed by a learned Magistrate 1st Class at Mianwali under section 89 of the Cr.P.C. Since this issue is likely to have a direct bearing on the case of at least the abovementioned two appellants, therefore, we propose first to deal with this question.
18. Some of the dates and facts which would be relevant for this discussion are that the occurrence in question had taken place on 25-2-1986; that while four of their co-accused were arrested on 3- 4-1986, Sardar and Akram appellants could be apprehended only on 7-6-1987; that after being arrested and having been sent up to the Court of Session for their trial, all the six appellants, including Sardar and Akram appellants, started appearing before the learned trial Court and were charged for the first time by a learned A.S.J. Of Mianwali on 5-4-1988; that the application under section 89 of the Cr.P.C. Was filed by Sardar and Akram appellants sometime in December, 1988 which had been submitted neither before the learned Court which had ordered the attachment of their respective properties or before the Court to which, this Court was subordinate but before a learned Ilaqa Magistrate and that also after the trial against them had commenced before the learned Sessions Court; that the order of a learned M.I.C. On this application under section 89 of the Cr.P.C., was passed on 25-2-1989; that the plea of Sardar and Akram appellants before the said learned M.I.C. In the said proceedings under section 89 of the Cr.P.C. Was that they were away to Azad Kashmir in connection with doing labour work and that even the members of their family did not know about their whereabouts while their explanation about their disappearance before the learned trial Court in the present case was that Noor Khan deceased of the present case had got a case registered against them under section 307 of the P.P.C. a day prior to the present occurrence and that it was on account of fear of retaliation on the part of Noor Khan deceased party and the fear of arrest that they had gone away to Mirpur in Azad Kashmir without telling anyone.
19. This order dated 25-2-1989 passed by a learned M.I.C.' at Mianwali under section 89 of the Cr.P.C.
Had not been challenged by anyone before any Appellate or Revisional Court.
20. Relying very heavily on a Privy Council case from Malaysian jurisdiction reported as Sambasivan v. Public Prosecutor of Malaysia (PLD 1950 PC 43), the learned counsel for the appellants vehemently argued that the order in question dated 25-2-1989 having not been challenged before any higher fora and the same thus, having attained finality, was binding on everyone, including all the Courts superior to the said learned M.I.C. And since the said learned Magistrate had found that Sardar and Akram appellants had not absconded or concealed themselves for the purpose of avoiding the execution of any warrants and further that they had no notice of the proclamation issued against them, no Court could hold to the contrary in respect of the disappearance and non-availability of Sardar and Akram appellants. The submission thus, was that these two appellants could not be considered to have absconded to avoid proceedings arising out of the present occurrence and, therefore, the said appellants could not be treated to have remained absconding.
21. We have not been able to persuade ourselves to agree with the legal proposition canvassed by the learned counsel that a finding of any Court in a collateral matter could have a binding effect on another Court of equal or superior jurisdiction where such a fact was directly in issue at an independent trial. We state with respect, that the abovementioned Malaysian case and the dictum laid therein have not been accepted and followed by the superior Courts of Pakistan. Reference may be made to Maddad Ali's case PLD 1965 Karachi 541, Muhammad Khurshid's case PLD 1960 Lahore 1202 and PLD 1963 SC 157. We, therefore, hold that the order in question of the learned M.I.C.
Did not preclude the learned Sessions Court to come to a different conclusion on the question of absconsion and disappearance of the accused persons nor could the same restrain us from examining the issue in question and from drawing our own conclusions from the evidence led on the said issue in the present trial because a finding to the contrary would have the result of reading evdicnce into the present case which was never led at the present trial and in fact giving a finding which was absolutely contrary even to the position taken by the appellants themselves at the present trial.
22. As has been mentioned above, the finding of the learned M.I.C. Was that Sardar and Akram appellants were away to Azad Kashmir for the purpose of earning their livelihood and that even the members of their families back home did not know of their whereabouts for about one and a half years till they voluntarily returned to Mianwali. As against this, the position taken by Sardar and Akram appellants, through their statements recorded by the learned trial Court under section 342 of Cr.P.C. Was that it was on account of fear of retaliation from the deceased party of the present case and on account of fear of arrest in connection with the case registered under section 307 of the P.P.C., only a day prior to the present occurrence, that they had gone and concealed themselves in Mirpur in Azad Kashmir without telling any-one. These appellants thus appear to have taken absolutely contradictory positions at the present trial and during the course of the proceedings under section 89 of the Cr.P.C. If we were to mechanically follow the order in question of the learned M.I.C. As sought by the learned counsel for the appellants, then we will have to give a finding on the issue in question which would absolutely be at variance with the position taken by the appellants themselves at the present trial and we would be falling into an error in reading evidence into the present record which had not been led or examined in the present case. Even for this reason, we hold that we will have to draw our own inferences regarding the issue in question on the basis of the material available on the present record.
23. The order in question of the learned M.I.C. Also deserves to be ignored on the ground that the provisions of section 89 of the Cr.P.C. Envisage restoration of attached property to the proclaimed persons only either by the Court which had ordered such an attachment or by the Court to which, such a Court was subordinate. In the present case, as would appear from the order in question of the learned M.I.C. (Exh.D.E.), the attachment in question had been ordered through two separate orders dated 26-6-1986 passed by a learned Magistrate Section 30 at Mianwali. Needless to repeat that the restoration had been ordered by a 1st Class Magistrate which was neither the Court which had ordered the attachment nor a Court to which, a Magistrate Section 30 was subordinate. The order in question, therefore, appears to be an order without jurisdiction.
24. It may also be noticed that the orders of attachment of property in the present case had been passed on 26-6-1986. The two appellants in question had been arrested in June, 1987, whereafter these two appellants had been regularly appearing before the learned trial Court in the present case but they did not move any application for the restoration of their property till December, 1988 and that also before a Court which was not competent in law to deal with the same.
25. Having thus examined the legal and factual aspects relating to the absconsion of Sardar and Akram appellants and the effect, if any, of the order abovementioned of a learned M.I.C. Dated 25- 2-1989 (Exh.D:E.), we are of the view that we are:not bound to mechanically follow the said order and the same does not exclude us from considering the evidence brought on the record of this case relating to the disappearance and non-availability of the said two appellants after the present occurrence and we hold accordingly. These two appellants admit having gone into hibernation and having remained in such an hibernation for about seventeen months. Warrants were duly issued for their arrest and the same having remained unfruiful, proclamations were also issued under section 87 of the Cr.P.C. Whereafter proceedings of attachment under section 88 of the Cr.P.C. Had also been taken which stand proved on record. They had taken contradictory pleas regarding their disappearance and the explanation thus offered by them in this regard is not reasonable and is thus rejected. We, therefore, find that Sardar and Akram appellants had absconded after the present occurrence in order to avoid the process of law and this is a circumstance available to the prosecution in support of the proof of its case against the said two appellants.
26. It was argued that the two eye-witnesses, namely, Sultan Sikandar and Alam Khan P.Ws. Were mere chance witnesses of the occurrence in question and thus, could not be relied upon.
27. The occurrence in question had taken place at a BUS STAND. The eye-witnesses of such an occurrence cannot be condemned only by declaring them to be chance witnesses of the occurrence in question. Guidance is available to us from the Supreme Court in Muhammad Ashraf's case PLD 1977 SC 538 wherein their Lordships had declared:-- "No doubt, the Courts have been rather cautious in accepting the testimony of chance witnesses and that too not without corroboration but chances do occur in life and more often in frequented public places like bus stands, railway platforms, level crossings etc. 'The presence of a witness at such public resorts would considerably detract from the prejudice usually attached to the testimony of a witness casually appearing at the scene which of course has to be subjected to the well-settled tests of credibility."
28. The two deceased persons had been done to death at the BUS STAND at about 5-00 p.m. It had not been challenged by the defence that no public meeting was to be addressed by Maqbool Minister on the day of occurrence as claimed by the prosecution. If it be so, then the two deceased persons who had been subjected to an assault just a day before, having gone to attend such a meeting being accompanied by some other relatives and well-wishers, is a claim which is perfectly in accord with the circumstances and inspires confidence.
29. Sultan Sikandar is the husband of a sister of Noor Khan deceased. A sister of Saadullah deceased is married to one of his sons and one of his daughters is married to a brother of Saadullah deceased. Alam Khan P.W. Is the son of a brother of Saadullah deceased. The two are thus, closely related to the two deceased persons.
30. A son of Sultan Sikandar P.W., namely, Khan Muhammad was one of the accused persons in a case under section 307 of the P.P.C. Which had been registered about 5/6 months prior .To the present occurrence and in which Sardar Khan accused of the present case was the complainant.
Likewise, Sultan Sikandar P.W. Was one of the injured persons in a case under section 307 of the P.P.C. Which had been registered in the year 1947 and in which case, the father of Noor Khan deceased was the complainant and in which one of the present appellants, namely, Umar Hayat and his brothers etc., were the accused persons. He could, thus, be termed as an interested witness.
31. As has been mentioned above, Alam Khan P.W. Is also closely connected with the deceased persons of the present case and he is also involved in at least one of the earlier cases between the parties being a witness in the case under section 307 of the P.P.C. Which had been registered a day prior to the present occurrence and in which Noor Khan deceased was the complainant and in which Sardar Khan, Akarm and Ashraf appellants were amongst the accused persons.
32. It could thus be said that the two eye-witnesses are interested witnesses of the present occurrence.
33. Demanding corroboration for relying upon the testimony of such-like witnesses is only a rule of prudence and caution and is not a legal command of a universal nature. The real test of the credibility of a witness in fact lies in the intrinsic worth of the testimony offered by a witness and the confidence which it invokes from a Court of law. There is no universal proposition that interested or inimical testimony must be discarded in all cases unless the same is corroborated by other evidence available on record. Reference my be made to Muhammad Ali v. The State (1985 SCMR 203).
34. Be that as it may, in the present case, not only that the intrinsic worth of the ocular testimony inspires confidence but the same is even corroborated by other pieces of evidence existing on record.
35. The occurrence in question had taken place at about 5-00 p.m. And the F.I.R. Had been promptly lodged within about 45 minuts of the said occurrence at the instance of Sultan Sikandar P.W. Giving all the necessary details of the occurrence, including mentioning of Alam Khan P.W. As one of the eyewitnesses.
36. It is true that the murder of Bahadur Khan who was a brother of Sardar Khan and Umar Hayat appellants at the hands of Noor Khan deceased had taken place about 30 years prior to the present occurrence but we have it on record that about 5/6 months prior to the present case, the parties had exchanged firing and cross-cases had been registered at the instance of both the parties under section 307 of the P.P.C. And then there was the incident of only a day prior to the present occurrence in which, a murderous assault had been mounted on Noor Khan deceased and in respect of which also, a case under section 307 of the P.P.C. Stood registered against the present appellant party. Needless to mention that the enmity which appears to have started in the year 1947 had not been forgiven and forgotten and had continued up to the evening preceding the day of the present occurrence and the latest of the incidents was an attemp on the life of Noor Khan deceased which had remained unsuccessful till a day earlier. Thus, a finding that the present appellants party had a motive to launch the present attack is a finding which is well-founded in evidence and is thus, inevitable.
37. The medical evidence cannot be held as destructive of the ocular testimony only because of some minor improvements which the eye-witnesses had made at the trial because it would be unfair for a Court of law to expect a witness to specifically trace the track of each projectile fired by the assailants specifically fixing the seat of injury caused by each pellet or bullet fired in the occurrence. It also has to be kept in mind that in the melee which ensued after the victim party had been surprised by the assailants, such demand from the eye-witnesses would not be just and proper. In such an occurrence, neither the assailants nor the victims are stationary fixtures fastened to the earth. The medical evidence is specifically in accord with the eye-witness account and is thus another piece of evidence which corroborates the eye-witnesses. It had been claimed at the very outset through the F.I.R. That the assailants had attacked the deceased party with firearms and besides having caused fire-arm injuries. To the two deceased persons, had even inflicted blunt weapon injuries with the butt of the gun.
38. Needless to mention that absconsion of Sardar and Akram appellants and the recovery of the licensed gun of Noor Khan deceased at the instance of Akram appellant are further facts supporting the ocular testimony.
39. We, thus, find that the prosecution had sufficiently proved its case but the dictates of safe administration of justice had engaged our attention to further scrutinize the complicity of Umar Hayat and Aslam appellants in the present occurrence.
40. Umar Hayat is about 66 years of age. The fire-arm injury attributed to him on the head of Saadullah deceased did not exist and the same was in fact a blunt-weapon injury on the back of the head of Saadullah deceased. No recovery of any weapon of offence had been affected from the said appellant and in fact the I.O. Was of the view that according to the evidence collected by him, Umar Hayat appellant had not fired any shot.
41. Similar is the position of Aslam appellant. He had been declared innocent by the I.O. And no weapon of offence had been recovered even at his instance.
42. We, thus, find that the case of Umar Hayat and Aslam appellants is not free from doubt.
Consequently, extending the benefit of doubt to them, we set aside the convictions and sentences recorded against them through the impugned judgment. They are acquitted of all the charges.
Aslam shall be set at liberty forthwith, if not required to be detained in any other case. Umar Hayat is on bail. His bail bonds are cancelled.
43. So far as the remaining four appellants, namely, Sardar Khan, Ashraf, Akram and Asmatullah are concerned, we find and hold that no exception can be taken to the conviction and sentences recorded against them but in view of the acquittal of Umar Hayat and Aslam appellants, the conviction and sentences passed against these four appellants under section 148, P.P.C. Are set aside and the conviction and sentences recorded against them under section 302/149, P.P.C. Shall be read as the conviction and sentences under section 302/34, P.P.C. Subject to this modification, Crl. A. No,810/89 to the extent of Sardar Khan, Ashraf, Akram and Asmatullah appellants is dismissed and the death sentences as awarded to them by the learned trial Court ARE CONFIRMED.
44. Murder Reference No,256/89 is answered accordingly.
45. In view of the acquittal of Umar Hayat appellant and for the reasons abovestated, Crl. Revision No,97/91 is dismissed.