1. MUHAMMAD HALEEM, J.-Thin appeal is by special leave of this Court against the judgment dated 9- 2-1976 of a Division Bench of the Lahore High Court by which the convictions and sentences of the appellants were maintained.
2. Eleven persons namely, Ghulam Muhammad, Allah Dad, Sher Khan, Dost Muhammad, Muhammad Khan, Yar Muhammad, Mlam, Afzal, Usman, Muhammad Ramzan and Atta Muhammad were tried for the murder of Usman and Slier Muhammad by the Additional Sessions Judge. Mianwah and by judgment dated 30-11-1974 the appellants and Unman were convicted under section 302, read with 34 of the Pakistan Penal Code and sentenced to death and also to pay a fine of Rs. 1,000 each which, if realised, was to be paid by way of compensation to the heirs of the two deceased under section 544-A, Cr. P. C. The others were acquitted. Gul Muhammad, one of the assailants died before the trial commenced.
3. On appeal and reference Unman was acquitted but the convictions of the others were maintained.
4. There was deep-rooted enmity between the parties. It was alleged that Sher Muhammad was suspected of being on illicit intimacy with Mst. Amir Khatoon, a sister of Sher Khan and others who had left her husband about two or three years back and was residing with her brothers. On account of this grudge Allah Dad had stabbed the deceased for which he was prosecuted. This happened 2 to 2J years back. Again about a years back Ghulam Muhammad and others had fired and set the house of the deceased on fire in respect of which a case was pending against them in Court. In this background of enmity it was alleged that at Digarwela on 8-2-1971 Sher Muhammad took his licensed gun and proceeded to the house of Muhammad Ismail frown where he was returning after the MaghrlB Azan when his call was heard from the side of Kutianwala Bazar and on hearing it his father Unman, mother Fateh Khatoon, brothers Muhammad Hayat, Ghulam Hussain and sister Mst. Bakht Bibi who were then sitting in the house, went out and came near the house of Fazal Hussain Shah from where they saw Sher Khan, Allah Did, Ghulam Muhammad, Muhammad Khan, Dost Muhammad, Gul Muhammad, Yar Muhammad, Afial, Aslam, Unman, Atta Muhammad and Ramzan, armed with guns and abusing Sher Muhammad. From amongst them Sher Khan, Dost Muhammad, Allah Dad and Unman fired their guns at the deceased who, on being hit, fell down and died. Unman ran towards his son Sher Muhammad upon which Sher Khan, Allah Dad and Dost Muhammad fired at him and he too fell dead. Thereafter Sher Khan and Dost Muhammad told their companions told their dead bodies but in the meantime Mst. Fateh Khatoon and others went ahead and fell on the dead body of Usman. To frighten them Ghulam Muhammad. Araal, Aslam, Usman, Muhammad Khan, Gul Muhammad, Atta Muhammad, Ramsan and Yar Muhammad fired their guns in the air and dragged the dead body of Sher Muhammad towards their house. They also took along with them his licensed gun and the bandolier containing live cartridges. The deceased at that time was wearing a white Poplin Shirt, a Chaddar, a wrist watch and a ring with a red stone. Leaving his sons and daughter near the dead body of Unman, Mat.
5. Fateh Khatoon proceeded to Police Post Kundian and lodged the First Information Report at 7 p.m.
6. The same day.
7. Allah Bakhsh, A. S. I. Reached the spot at 7-20 p.m. And after despatching the dead body of Unman for post-mortem examination he collected blood--stained earth from the places where the two deceased were shot at and also from a place near the shop of Haji Ahmad Khan. He took Into possession 12 crime empties of '12 bore (P. 4/1-12) and 3 crime empties of '303 bore (P. 5/1-3).
8. Thereafter Ayub Shah, S. I. Arrived at the spot and took over the investigation from him. The crime empties were sent to Forensic Laboratory on the 11th February, 1971 and on the same day Ghulam Muhammad, one of the acquitted accused produced three guns bearing Nos. 122713 (P. 6), 99298 (P. 7), and A-377765 (P. 8). The first two were the licensed guns of Yar Muhammad and Gul Muhammad and the third belongs to Dost Muhammad of which the duplicate licence was produced later by Haji Ahmad Khan. The number of the gun shown therein is 377768. These guns were also sent to the Forensic Laaoratory on 16-21971. On examination, one crime empty of '12 bore matched with the gun P. 8 of Dost Muhammad. It is not necessary to refer here to the crime empties which matched with the guns of those acquitted as their acquittal has not been assailed.
9. The dead body of Sher Muhammad was not discovered and no attempt seems to have been made in this behalf. The medical evidence disclosed that deceased Usman had suffered three firearm injuries.
10. Dost Muhammad was arrested on the 27th February, 1971. Allah Dad and Sher Khan absconded after the incident and voluntarily appeared on 12-4-1971 before the Superintendent of Police, Mianwali and they were arrested.
11. The trial Court held that the prosecution had established motive as against the others except Aslam, Afaal, Ramsan, Atta Muhammad and Usman as no specific motive was alleged against them by Mir. Fatsh Khatoon and they were only described as 'friends and partisans' of the others. It also held that the immediate cause fort the attack on the deceased was the lodging of the First Information Report (Exh. P. T.) by deceased Usman on 4-12-1970 at Thana Sadar, District Mianwali against Dost Muhammad and Allah Dad and a case was registered against them under section 307, P. P. C. Besides it also took into consideration the admission of Mst. Fatoh Khatoon that Muhammad Khan, Dost Muhammad and others had turned them out of the house of Gole jawan on suspicion that the deceased Sher Muhammad had illicit intimacy with their sister Mst. Amir Bibi whereaftey deceased Usman purchased four marlas of land from a refugee for the construction of his house which Dost Muhammad pre-empted successfully and so also two other criminal cases registered against Muhammad Khan, Ghulam Muhammad, Yar Muhammad, Dost Muhammad, Afzal and Aslam under section 324, P. P. C. And Alam Khan father of Ramzan and two others under sections 307, 436, 148 and 149, P. P. C. Accordingly !t held that the testimony of Mal. Fateh Khatoon (P. W. 9) and her two sons Muhammad Hayat (P. W. 10) and Ghulam Hussain (P. W. 11) was interested and It was unsafe to rely on it without independent corroboration. It further held that effective firing was attributed to Dost Muhammad, Sher Khan, Allah Dad and Usman by the eye- witnesses. As for Dost Muhammad. His participation was established as one of the crime empties securest from the spot matched with his gun P.
8. In the case of Sher Khan and Allah Lad their abscondence was held to be sufficient to assure their participation. Against Usman the ocular testimony was accepted without corroboration for no enmity was established between them. It were they who were only convicted and the others were acquitted, as the eye-witnesses had not attributed any effective firing to them despite the fact that the guns of Yar Muhammad and Aslam had matched with some of the crime empties found at the spot. The two charges under sections 201 and 397, P. P. C. Were hold not to have been eestablished as there was no positive evidence In support of it. Even those convicted were acquitted of these charges.
12. The Division Bench of the Lahore High Court hold that corroboration was available against Dost Muhammad, Sher Khan and Allah Dad whose conviction was upheld and not so in the case of Usman against whom corroboration was also necessary as the evidence on record showed that he was inimical towards the complainant party. Accordingly he was acquitted.
13. Leave to appeal was granted to consider whether in the context of the duplicate licence produced later in which a different number of the gun was given. The gun alleged to belong to Dost Muhammad which matched with one of the crime empties could be used as corroborative evidence against him. Again, whether the abscondence of Allah Dad and Sher Khan could provide corroboration in the circumstances that seven members of the same family were implicated in the crime, more so when there was no satisfactory evidence to prove it 'in a formal sense' sad lastly, as to whether death sentence was called for when the murder was attributed to 'a sense of family honour'.
14. Mr. M. B. Zaman, learned counsel for the appellants contended that the dead body of Sher Muhammad not having been discovered it is doubtful whether he was murdered. From the evidence I find that no positive attempt was made to find out the dead body of Sher Muhammad though it is established that blood-stained earth from the place where he had fallen after being hit and another place near the shop of Haji Ahmad Khan was secured and it was found to be stained with human blood. Again the presence of deceased Usman, his wife, sons and daughter at the place near the house of Fasal Hussain Shah could be explained only on the hypothesis that they were attracted to the spot at his call, for, otherwise there was no occasion for Usman and others to have gone there. The cireumstanoes in which Usman was killed is also not explainable otherwise, for, if the intention was to kill him then the assailants could have as well gone to his house and achieved their object. Sher Muhammad has not been heard of ever A since then and there is ocular testimony to the effect that he was fired at and killed. Therefore, even if the corpus delicti is missing still his homicidal death is established. In Muhammad lsmail v. Khushi Muhammad (PLD 1974 SC 37) it was held that a conviction can no doubt be based only on the ocular testimony but this ocular testimony must be of all absolutely unimpeachable character. But in that case the evidence was not of such high quality that it could safely be acted upon. Each witness had attempted to improve upon the-- first version given by him to the police and to have made a conscious effort to rope in as many members of the family of the accused as possible: In the Instant case, the circumstances elicited above are additional features in the case and the testimony of the witness, though interested, does not suffer from the defect as pointed out in the above-cited case and, therefore; I have no hesitation in concluding as the Courts below have held, that Sher Muhammad was killed.
15. I cannot help observing that the Investigating Officers have shown callous disregard of their statutory duty in not attempting to find out the dead body of Sher Muhammad which gives an impression of lack of bona fides on their part.
16. It was submitted that the incident having occurred at sunset time yet the report was lodged at 7 p.m. When Police Post Kundian was about 100 to 125 Karams away from the spot which showed either that the incident had occurred later and the witnesses were not able to identify the culprits or that they had taken time to deliberate us to whom to involve. It appears from the testimony of the Doctor that he had performed the post mortem examination on the next day at 1 p.m.
17. According to him the deceased had died within 15 minutes of having received the gunshot injuries and the probable time that elapsed between death and post-mortem examination was 18 hours.
18. This estimation supports the ocular testimony as to the time of the incident. The trial Court held that 'the time of occurrence as mentioned in the First Information Report is free from all reasonable doubts'. The Division Bench also believed the time at which the Incident was alleged to have occurred and so far as the delay was concerned, the Division Bench held that it stood explained by the fact that the incident must have taken some time as number of shots were fired and also because Mst. Fateh Khatoon must have suffered a shock at having seen her husband and son being killed. Accordingly she would have taken some time to recover before going to Police Post.
19. There is, thus nothing exceptional to detract from this conclusion and, therefore, the delay of 45 minutes or an hour cannot be construed in the fashion in which the learned counsel wants us to believe.
20. 1 he learned counsel next contended that the gun P. 8 which matched with one of the crime empties and was produced by Ghulam Muhammad, an acquitted accused, did not belong to Dost Muhammad as in the duplicate licence the number of the gun was different. This licence bears the date 24-11-1966 and was produced by Ahmad Khan on 6-3-1971 which was taken into possession by Muhaaomad Shafi, S. I. Kundian. However, nothing will turn on the discrepant number given in the licence in view of what Dost Muhammad has stated in reply to question No. 10 while being examined under section 342, Cr. P. C. The question and answer are as under: Q. No. 10.-Does the gun P. 8 belong to you and is on your licence?
21. A.-Yes. The gun was lying in my house at Kundian from where it was taken into possession by the Police on the night of the occurrence.
22. The learned counsel submitted that it is not clear from the statement of the Ballistic Expert as to whether it was the gun of Dost Muhammad which had matched with one of the crime empties as its number was not stated by him. This argument is main without substance, for, the Ballistic Expert has identified the gun by the Exhibit Mark g. 8 , and there is no room for any doubt. Consequently, this circumstance was rightly taken as corroborating his participation.
23. PLD 1955 FC 88) it was held that unless miscarriage or failure of justice is proved, section 537, Cr. P.
24. C. Would cure the irregularity. In that case the accused was literate and could very well follow the nature of the proceedings against him and was also aware of the case and, therefore, the omission to question him on the vital pieces of evidence was not held tp be fatal. In the case of Munawar .,ihmad v. The State (PLD 1956 SC 306) the omission to put the extra-Judicial confession to the accused which was toe sole support for the accusation of bribery was hold to have prejudiced the accused. The decision turns on the particular facts of that case. Nevertheless prejudice was a relevant consideration.
25. 1969 SCMR 461) the decision turned on the consideration that no prejudice was caused to the accused by the perfunctory nature of his examination under section 342, Cr. P. C. As it was held that in the face. Of the evidence produced it may be safely assumed that had he any explanation to offer which might have been consistent with his innocence, he was sufficiently conscious of the danger in which he stood at his trial to have put forward an explanation without the necessity of any suggestions from the Court' In Din Muhammad v. The Crown (1969 SCMR 777) the necessity of putting the vital evidence was again reiterated but there is no expression of opinion as to whether or not the irregularity could be cured by section 537, Cr. P. C. In the present case Dost Muhammad was represented by a counsel and he was himself present and had heard the entire evidence. In the circumstances the omission to put the question as to whether his gun matched with the crime empty cannot be fatal as he was at liberty to give an answer to that piece of evidence when he was questioned about the gun. Again it was open to the counsel to have brought it to the notice of the trial Court that this piece of evidence was not put to Dost Muhammad which. Was not done, and therefore, there walls no compliance with the requirement of the explanation to section 537, Cr.
26. P. C. That an objection should have been raised at an earlier stage in the proceedings. Accordingly it is not possible to presume failure of justice. The cases cited by the learned counsel, therefore, cannot be of any help, for, the question now has to be resolved on the basis of the criterion whether or not the omission has occasioned a failure of justice. At least in the two cases cited above the question of prejudice was considered and the benefit of omission was not given to the accused.
27. Accordingly, the contention has no substance.
28. "I continuously remained in "arch of the accused on 9th and 10th of February, 1971 but failed to trace them out. On 11-2-1971 1 raided the house of the accused and arrested Yar Muhammad and Ghulam Muhammad accused from there."
29. The absence of these appellants from the house and the warrants having been returned unexecuted clearly showed that they had absconded and it was, therefore, that the Ilaqa Magistrate, after recording the statement of Sultan Khan on 5-3-1971 initiated proceedings against them under section 87/88, Cr. P. C. It was after the proclamation was issued that they surrendered.
30. No question was put either to Sultan Khan or to Syed Muhammad Ayub Shah about their whereabouts and I have no hesitation In concluding that they had remained in hiding which proves the abscondence.
31. PLD 1976 SC 629), Machhla and 2 others v. The State (PLD 1976 SC 695) and on the minority opinion of Muhammad Akram, J. In Mehr Khan v. State (PLD 1977 SC 41). The proposition as stated does not find support from the opinion expressed in these cases. It is true that this circumstance is not conclusive by itself to establish the guilt but as held in those cases its probative value depends on the facts and circumstances of each particular case, having regard to the fact that it can be consistent with either the guilt or the innocence of the accused. In Croasfkld's case (26 How. St. T.
32. 216) Eyre, L. C. J. Said "The prosecution say-and they say truly-if they make out that the conduct of the prisoner has been that he has either originally with--drawn himself from justice or that he has taken pains to secrete himself from Justice after be has been apprehended, that these are circumstances which do at least infer a consciousness of a very great guilt, and, if there be no other reason assigned for the conduct of the party, very much corroborating and supporting the charges."
33. Hones abscondence is universally admitted as evidence of the guilt of accused though not conclusive and section 8 of the Evidence Act gives to it statutory recognition. In this connection the Assistant Advocate-General has referred to Gut Hassan and others v. The State (PLD 1969 SC 89) and Muhammad Bajhlr alias Shikra v. The State (1970 SCMR 351). In Gul Hassan's case it was hold that it affords sufficient corroboration to the evidence led in support of the charge and so is the view in Muhammad Bashir's case. Accordingly I have no hesitation is concurring with the view taken by the Court' below upon the material on record that their abscondence provided sufficient corroboration of their participation in the crime.
34. Lastly, the learned counsel contended that the murders were commit to vindicate the family honour and, therefore, the lesser penalty of transporta--petition for life should be substituted for capital sentence. It was Sher Muhammad against whom the appellants entertained suspicion and if he alone had been murdered then it might have been a case for a lessor penalty. Where was, however no reason to kill his father Usman whose only fault sax that he had attempted to go near his son who was shot at earlier. Accordingly, I see no reason to interfere with the legal sentence.
35. ANWARUL HAQ, J.-I agree.
36. DORAB PAM, J.-I have had the advantage of reading the judgment to be pronounced by my learned brother Muhammad Haleem, J. And whilst I agree that the appeal should be dismissed, I would like to make a few observations on the question of the abscondence of the appellants.
37. My learned brother has observed that abacondence "is universally admitted as evidence of the guilt of accused though not conclusive and. Section 8 of the Evidence Act gives to it statutory recognition". I agree with the proposition that the abscondence of an accused is relevant under section 8 of the Evidence Act. But as observed by Munir, in his Law of Evidence 1974 edition page 62, abscondence "is equally consistent with innocence and guilt" therefore, the learned author has pointed out that abscondence "is usually a very small item in the evidence on which a conviction can be based". I have followed these observations in my judgments in Amirutllah v. The State (PLD 1976 SC 629) and Machhia and 2 others v. The State (PLD 1976 SC 695) and I have reached this conclusion on the basis of the earlier pronouncements of this Court.
38. As my learned brother has relied on Crossfied's case, with the utmost respect and humility, I would observe that unless abscondence is for a long period, it is of very limited evidentiary value for two reasons, The first la, in the words of Munir, "that different persons are differently constituted, and that some accused persons, though innocent, deliberately abscond rather than face the ordeal of a criminal trial". The second reason is the question of the public confidence in the investigation agency. This is something which may vary from time to time even in the same country, and the flood of applications for bail in this Court, which were unknown, 30 years age, does not indicate that public confidence in the investigation agency bad been growing, therefore, with the utmost respect and humility I am of the view that English cases on the question of abscondence have little relevance to our conditions.
39. However, as the ocular evidence in the instant case, though interested, b reliable, it is sufficient to observe that together with the evidence of the recoveries, it helps to furnish sufficient corroboration of what the eye--witnesses said. Accordingly, I respectfully agree with my learned brother that the appeal must be dismissed.