MUHAMMAD AKRAM J; Bacha Said appellant watt convicted and sentenced to dsaA by the Additional Sessions Judge. Mardian. Under 'section 302, P. P. C. For the douals murder. Of Nst.
Sabargula and her daughter Afst. Bill Bum on appeal, on a difference of opinion between the Division Beneb consisting of the Chief Justice and Abdul Hakim Khan, J. The matter eras referred to Qaiser Khan, J. (as he then was) of the Peshawar High Court and in accordance with the opinion of the majority the appeal of the appellant herein was dismissed and the death sentence against him was thereby confirmed by the High Court on the 22nd of November. 1973 He, therefore, filed a petition for special leave to appeal from Jail and the accessory leave was allowed to him by this Court on the 28th of July, 1974 having regard to the controverter unsatisfactory features c: the case as pointed out by the learned Chief Justice in his judgment and the fact that them has bees a difference of opinion amongst the Judges of the Peshawar High Coors.
2. The incident resulting in the double murder toot place at 8-00 am. On 10-1-1971 in a Havell altuated to village Saidabad Shagai, Tohsil and District Mardao, which was jointly occupied by Usman Said P. W. Husband of Mat. Sabargula deceased and father of Mat. DWI Hura deceased, and Jamal Said informant. They bad their separate residential Kothas in the common Havell. Usman Said P. W. Was employed as a private servant of the Nawabs of Hod at Mardan and at the relevant time he was away from his house although his women folk were living there as usual.
3. The First Information Report in the case was made at the Police Station Takhatt Bat at the instance of Jamal Said. He stated that about 6/7 months before this incident his uncle had betrothed bit daughter Mst. Bibs Hura deceased to Bacha Said accused and had promised to give her in marriage to him after winter. On 10-1-1971 at about 8-00 am. Bacha Said accused armed with a lopak came to the house of his uncle. He tried to forcibly take away Mot. Bibs Hura with him but Malt. Sabargula resisted. On this the accused fired at Mat. Sabargula dropping her dead at the spot. He then fired a second shot at Mss. Bibi Hnra who was injured and fell unconscious. The accused then managed to escape with the weapon of offence. In addition to the first informant the incident was also witnessed by Fazal Karim and Aziz.Ur-Rahman who had stayed with him for the night as his gasets to his Kotha in the soma Havell. The dead body of the deceased and the injured were then carried on cots to the Police Station situated at a distance of 5/6 miles from their village.
On the way Mil. Bibi Hura also died because of the injuries. At the Police Station, Sherdil Khan, S. H. O.
Registered the first information report at i1-00 a.m. On 10-1-1971.
4. The Investigating Offer proceeded to the spot, recovered blood stained earth from the tyro places situated in the Havell and also prepared the site plan (Esh. P. F/1). After completing the necessary formalities be dispatched the twodead bodies under escort for theirpost-mortem.
5. The accused was arrested only on the 20th of January 1971, by Bahadur Sher P. W. From a tea shop In Mardan. But no recoveries from him could be effected.
6. The Lady Doctor K. Awan P. W. Conducted the autopsy on the dead bodies. She found that the body of Mst. Sabargula had the following injuries on It .
(1) Fire-arm entrance wound on the right side of back f in diameter at the level of 4 thorax vertebra.
(ii) Fire-arm exit wound 3' In diameter irregular on chest at lateral 3rd of clavicle.
On internal examination the stomach was found healthy and empty. In the opinion of the Doctor the death took place instantaneously due to the injuries to the vital organs of the body. The post- mortem examination on the dead body of Mst. Bib! Hura was also conducted on the same day at 1- 30 p.m. By the Doctor and she found the following Injuries on it t-
(i) Fire-arm wound of entrance irregular 4' diameter on external surface of right forearm, radius ani ulna bones fractured.
(ii) Exit wound interior surface of right forearm. All muscles torn and blood vessels injured. Right radius, ulna and humeroua fractured.
On internal examination the Doctor found the stomach healthy and empty. In her opinion the death was due to injuries to the blood vessels, haemor--rhage and shock caused by fire-arm. The approximate time between the injuries and the death was stated to be 2/3 hours.
7. The prosecution relied on the evidence of the three eye-witnessese of the occurrence. Jamal Said P. W. Deposed that they have their residential hoosts in the same Haveli situated in the village.
In one of the Kothas Usman Said was residing. But at the relevant time he was away from his house In connection with his service with the Nawabs of Hod at Mardan. He Is the uncle of the accused who was also living with him in the Haveli at the time. He had aiso betrothed his daughter Mst. Bibs Hura with him about seven months prior to the occurrence Fazal Karim and Azizur Rahman P. W.
Had come .To enquire about the health (Bimarpursi) of the witness and had stayed on with him for the night. Next morning at about 8.00 a.m. On the 10th of January 1971. He along with his two guests were sitting in his Kotha after having taken their morning tea when they heard some noise outside.
On cowling out they saw that Bacha Said accused, armed with a topak, was holding Mst. Bibs Hura deceased intervened and asked him not to take her away by force and said that she shall prevail upon her husband to marry her to him after the winter was over. On this the three eye-witnesses also intervened to rescue Mst. Bibs Hura from the accused. He then left the Haveii- After about 6/7 minutes as the witness was preparing to see off his two guests (Fazal Karim and Azizur Rahman P.
Ws.) the accused again returned to the Haveli, passed by them in the courtyard and fired at Mst.
Sabargula dropping her dead instantaneously. He fired a second shot at Mst. Bibs Hura who was precariously injured. He then made good his escape taking away the weapon of offence with him.
Faxal Karim P. W. 8 and Aaizur Rahman P. W. 9, the other two eye-witnesses have appeared to depose in support of !He tes:imony of Jamal Said P. W.
9. The accused in his statement before the Committing Magistrate and at The trial admitted that about 6/7 months before the occurrence Usman Said P. W. Had promised to give Mit. Bibl Hura to him in marriage. But that he had also promised her hand to Azlzur Rahman P. W. He however, denied that on the day of occurrence he had attempted to carry her away by force and that the P.
Ws. Had rescued her from him. He denied the charge. He denied that he had absconded after, the occurrence. According to him he had gone to Jan Baz Naral near village Saleem Khan on Charsadda Road two years prior to the occurrence to work as a laborers for his livelihood and had come to Mardan for purchases where he was arrested by the police while he was sitting in the Ad& taking tea. He explained that Fasal Karim P. W. Had Incurred quarrel with his maternal uncle and he was therefore, inimical towards him. A.I---ur Rahman P. W. Was promised the hand of the deceased In marriage and gave the evidence against him. According to him Jamal Said and Usman Said have their ancestral property jointly with him and they have charged him for these murders in order to get rid of him and thus to appropriate the entire property to themselves. He suggested that the complainant party or some other assailant might have killed the deceased and that he had been falsely implicated for this double murder.
10. It is common ground that Usman Said P. W. Husband of Mat. Sabargula deceased and father of Mst. Bibs Hura. Is' the uncle of Jamal Said P. W. And Bacha Said accused. Faaal Karim P. W. Is their cousin and Azizur Rahman is the sister's son of Jamal Said P. W.
11. The trial Court believed the three eye-witnesses as the natural witnesses of the occurrence and all of them being closely related to the appellant had no enmity to falsely Implicate him. The corroboration of their evidence, if required. Was also furnished by the circumstance that the accused-appellant had absconded soon after the occurrence until he was arrested after search.
The Court also relied on the motive and the medical evidence. The learned Additional Sessions Judge convicted the accused for the double murder and sentenced him to death on each count under section 302, P. P. C.
12. In appeal Abdul Hakim Khan,
1. Substantially agreed with the learned trial Judge In upholding the conviction and sentence awarded to the accused. He observed that in the circumstances of the case it was rightly conceded before him that there was no delay in lodging the First Information Report at the Police Station. The medical evidence supported the prosecution case. Jamal Said P.
W. Was living in the Haveli where this incident toot place and was a natural witness of the occurrence. Fazal Karim P. W. Is a cousin of Jamal Said while Azisur Rehman is his sister's son. The taro were living in village Noor Rahlm Killi, at a distance of 2; miles away from village Said Abad Shagai, when this occurrence took place. There was nothing unnatural if they had come to enquire about the health of Jamal Said at digerwela a day before the occurrence and stayed on with him for the night when this incident took place on the next morning in their presence. He, therefore, regarded them as the natural witnesses of the occurrence. He believed the ese-witnesses account given by these witnesses. In this connection he however observed that the First Information Report was a laconic document and did not contain a mention of the first phase of the transaction deposed to by the eye-witnesses to the effect that while theywere sitting in the Kotha of Jamal Said, they heard some noise outside and when they came oat they saw the appellant armed with a toka attempting to forcibly carry away Mst. Bibs Hura deceased and on this they intervened and he then left the Haveli. It was only after some 6/7 minutes that he came back to commit the double murder. Similarly there was no mention of the first part of this episode by the three eye-witnesses In their statements before the police. But in the opinion of the learned Judge the omission in the First Information Report as well as in the police statements did not constitute a serious contradiction in the deposition of the eye-witnesses elaborately narrated in Court and it did not damage the case of the prosecu--petition. In the alternative he observed that even if Fazal Karim and Azizur Rahman P. Ws. Were treated as chance witnesses and their testimony was ruled out for any reason, this would not adversely reflect on the prosecution case, in the presence of the unimpeachable evidence of Jamal Said P. W. Who has fully implicated the accused and his solitary statement was sufficient to base the conviction on it. In coming to this conclusion the learned Judge further relied on the circumstance that according to Usman Said and Jamal Said P. Ws. At the time of the occurrence the appellant was residing with the former in the same house and the fact that he had absconded the reform, after the occurrence and could riot be arrested for I0/I1 days in spite of search, as furnishing sufficient corroboration of the ocular evidence. The learned Judge was not impressed by the plea put forward by the accused in defence to the effect that he was living elsewhere at Jan Baz Narai near village Salim Khan on Charsadda Road, for about two years prior to the occurrence.
13. But the learned Chief Justice of the Peshawar High Court disagreed with She above assessment of the evidence made by his learned brother on the Bench. He entertained grave doubts about the veracity of the three eye---witnesses (namely Jama1 Said, Faaal Karim and Azizur Rahman) because of their unanimous evidence on the first part of the episode narrated by them to the effect that at first the appellant had made the attempt to carry away Mst. Blbi Hura by force, which was foiled on their intervention and that it was only after 6/'t minutes that he again came back to Havell to till the two ladies. The learned Chief Justice was not at all impressed by the first portion of this version narrated by the witnesses in Court and observed that it was not only unnatural but entirely curious also. He has dwelt upon the inconsistencies and fallacies pointed out in the evidence of the three eye-witnesses. In this connection he observed that according to the case of the prosecution Fasal Karim and Azizur Rahman P. Ws. Had come to Jamal Said to enquire about his health a day before the occurrence and stayed on with him in his Kotha for the night. Their own village was situated barely 2J miles away and there was no cogent reason forthcoming on; the record as to why they had chosen to stay on for the night with Jawal Said away from their own family members and hearth and home. He observed that according to Jamal Said they came to him to enquire about his health at Peshi time. But according to Fazal Karim tbay had come there at Dilarwela and according to Azizur Rahman at Peshi Qaza time. In the opinion of the learned Chief Justice this inconsistency in their statements yeas not without significance if notice was taken of the fact that the occurrence had taken place on the 10th of January, 1971 when the days would be shorter in length and anybody could have known the difference between Peshi time, Digar time and Peshi Qaza time. Even otherwise, according to him there was hardly any occasion for the two witnesses to have visited the house of Jamal Said. He observed that apparently he was not suffering from any malady of a serious nature so as to warrant this visit.
Neither in the F. I. R. Nor even in the police statements of these witnesses recorded on the day of occurrence, there is any mention about Ibis illness of Jamal Said. It was only during the evidence of these witnesses at the trial in Court that for the Brat time this reason was assigned by them for having stayed for the night with Jamal Said in his house. He did not have the slightest hesitation in holding that the three eye-witnesses had been prevaricating in their evidence and could not be believed. The learned Chief Justice also observed that according to Usman Said P. W. The gun with which the appellant committed the crime belonged to him. He had a licence for it, and the name of Jamal Said eras also entered in it as its retainer. The unanimous version of the three had come out in the compound and saw the appellant dragging away Mst. Bibi Hura by force but they succeeded in releasing her from bin clutches and he then walked away from the house carrying the gun with him. But in his opinion it was not believable that under the circumstances Jams Said could have allowed him to take away the gun and not snatch it from him. He further observed that after the appellant had reappeared at the scene armed with the gun the witnesses allowed hire to enter the Havell, pass by them and then start shooting at the victims of this tragedy. All this appeared to the learned Chief Justice rather unnatural on .The part of the witnesses who allowed the appellant to re-enter the house and did not even raise their little finger to disarm him and further allowed him to shoot at the ladies with impunity and then quietly ascape from the scene. Moreover, according to the learned Chief Justice in all probability the appellant was not even present in the house during the night preceding the occurrence. The first information report conveyed the impression that the appellant had appeared at the scene from outside all of a sudden in the morning armed with the gun. This was also borne out by the circumstance that bad he passed the night preceding the eventful morning in the same Havell. Then he would have known that Fasal Karim and Aziz -Ur Rahman were also staying there as alleged by the prosecution and therefore, be would not have picked up this inopportune moment to carry away Alit. Bibi Hura by force while they were still there to resist any such forcible attempt on his part. It would have been easier for him to have consummated his designs during the dark hours of the night, rather than make the attempt at about 8---00 a.m. In the morning knowing fully well that there were three able bodied persons living in the not Kotha "ready to frustrate his design" To the learned Chief Justice all this made the prosecution version highly improbable. He also went on to observe that the medical evidence did not fit in with the eye-witnesses account. The medical evidence showed that the two ladies had been shot at with their backs towards the assailant. But with the help of the site plan (Exh. P. F/1), the learned Chief Justice tried to demonstrate and observed that it would not hive been possible for the appellant positioned as he was at the time, to have shot at Mst. Sabargula in her back as also MJt. Bibi Hurathe, back of her arm. According to the eye-witnesses after the appellant had once again returned to the Haveli and no sooner be passed by them, he shot at Mst. Sabargula.
Therefore, according to him, she should have suffered a frontal or lateral injury from the fire-arm and not in the back. In any case the seat of the injuries found on the body of Mat Bibi Hura appeared to the learned Chief Justice all the more intriguing and not susceptible of any explanation on the basis of the ocular account of the occurrence. At the time she was stated to be standing in the door way of the Kotha and if the appellant could be said to have fired at her from the place mentioned by the prosecution, it would be entirely impossible that she would have received the entrance wound in the back of her arm as borne out by the medical evidence on the point. The learned Chief Justice also expressed his great surprise that although Mst. Bibi Hura had survived for quite a few hours, yet her version of the occurrence was not taken down by any body before her death. He further observed that Jamal Said and Fazal Karim were both related to the appellant as first cousins (tarboors) and in their part of the country the attitude of the tarboors was ironically hostile towards each other and therefore, to say that they had no motive to falsely implicate him would be incorrect. He observed that the appellant was eventually arrested from a shop in Mardan on the 21st january 1974, 10 days after the occurrence in pursuance of the warrant issued against him under section 204, Cr. P. C. Nonetheless according to the learned Chief Justice, he could not be dubbed as an absconder the Court not having first resorted to the machinery provided under section 87, Cr. P. C. To enforce his attendance in Court and therefore, it was entirely wrong to rely on this circumstance as a corroborative piece of evidence against the accused. In conclusion the learned Chief Justice hesitatingly observed that perhaps the appellant might have committed the twin-murder but that the moral satisfaction of a Judge was no substitute for the oath of his office that he must administer justice according to law. He was, therefore of the opinion that the prosecution had failed to bring home the guilt to the appellant beyond reasonable doubt and his appeal should be allowed.
On this difference of opinion between the two learned Judges of the Bench the case was referred to Qaisar Khan, J. (as he then was) for his opinion. He observed that the whole of the material evidence for the prosecution consisted of the statements of Jamal Said, Fazal Karim and Azizur Rahman (P. Ws. 7 to 9) corroborated by the circumstantial evidence of the abscondence of the accused from the village soon after the occurrence. In his opinion the presence of two of the eye- witnesses namely Fazal Karim and Azisur Rahman at the spot at the time of the occurrence was doubtful. There was no independent evidence on the record excepting the vague statement of Jamal Said himself to show that he was really ill. Indeed in this he was belied by the fact that he took all the pains in taking the dead bodies all the way to report the matter at the police station and also actively participated in the completion of the investigation against the accused. This would ahoy that he was not at all ill at the time. Even otherwise if the two witnesses had come to see Jamal Said at his house between Peshiwela and Digarwela as was alleged by the prosecution, they could never have stayed back for the night as their own village was only about two miles away and could have easily returned to their home to live with their families. The illness of Jamal Said was not even specifically mentioned by the two witnesses in their police statements with which they were confronted nor even in the report lodged at the police station. Moreover in case the two eye-witnesses had been present at the spot and witnessed the occurrence, they would have certainly accompanied Jamal Said to the police station when the two bodies were carried on cots to that place. But the statement of the investigating officer does not show that they had also gone to the police station. In this state of affair Qaisar Khan, J. Did not find it safe to place reliance on the testimony of these two eye-witnesses and consequently discarded the :game. He was however particularly impressed by the testimony of Jamal Said P. W.
7. Admittedly be lived with the two deceased is the same Havell though in a separate Kotha and he had reported the matter to the police. His presence at the spot could not be doubted and was natural. He was, of course, closely relates to the deceased But then it was also admitted that be is similarly related to the accused being his first cousin. There was nothing brought on the record to establish that he had any motive to falsely implicate the accused. His version to the etTxt that the accused wanted to take away Mat. Bibi Hura who was betrothed to him was supported by the statement of the accused himself to the effect that despite the fact that Mat. Bibi Hura was promised to him, her father was going to give her away in marriage to Azizur Rahman P. W. Therefore, in the opinion of Qaiser Khan, J. This must have prompted the accused to take her away by force. In appraising the evidence of Jamal Said he observed that the witness had no doubt made some exaggerations and embellishments in his statement. But then sifting the chaff from the grain he did not find any difficulty in arrive at the truth. In his opinion Jamal Said P. W. Was a disinterested witness being equally related to the parties and had no motive of his own to' falsely implicate the accused. In his opinion the evidence of Jamal Said P. W. By itself was sufficient to base the conviction against appellant. He, however, further observed that even otherwise his evidence was sufficiently corroborated. If at all it was required, by circumstantial evidence of the obsconsion of the accused who could not be arrested for 10 days after the occurrence in spite of the search. In that connection he observed that there was no evidence adduced in support of the plea raised in defence to the effect that the appellant had gone to village Salim Khan and was living ttere for about two years before the occurrence. Qaiser Khan, J. Further remarked that it was highly improbable that he did not come to know about the double murder of his relations for 10 long days to visit their village. In coming to this conclusion he did not agree with the learned Chief Justice that the accused could not have been treated as an absconder without first complying vi itb the provisions contained in section 87 of the Code of Criminal Procedure. In this connection he relied on the reported cast from the Indian Jurisdiction in State v. Girasia Bachublia (AIR 1954 Sau. 39). He observed that in the instant case according to the statement of Sher Dil Khan, S. H. O. (P. W.) in spite of the search for the accused in his village he could not find him. Thereafter, he got a warrant issued for his arrest which was entrusted to Babadar Sher. Foot Constable (P. W.) In pursuance thereof he searched for the accused in his village and the surrounding villages but could not find him. Eventually only on the 20th of January 1971 he was arrested taking tea at a stall in Martian. Qaiser Khan. L, therefore, held him to be an absconder. This circumstance sufficiently corroborated the evidence of Jamal Said P.
W. In conclusion therefore, he agreed with Abdul Hakim Khan, J. In maintaining the conviction of the accused and confirmed the death sentence awarded against him.
We have carefully gone through the record and also the dissenting judgment recorded by the learned Chief Justice of the High Court and the reason,; elaborated by him. The facts in this case era sufficiently narrated above and I need not recapitulate them here. There are in all three eye-- witnesses of this occurrence produced by the prosecution. According to Abdul Hakim Khan, J. Both Fazal Karim and Azizur Rahman (P. Ws.) were natural witnesses of the occurrence and there was nothing unnatural if they A had come to enquire about the health of Jamal Said P. W. Round about digarwela and stayed on with him for the night to have witnessed the occurrence which took place in the same Haveli early in next morning. At the same time he further observed that even if these two witnesses were treated as mere chance witnesses, this did not necessarily discredit the testimony of Jamal Said P. W. On the other hand the learned Chief Justice rejected the evidence of all the three witnesses as not only unnatural but carious and in his opinion they had also prevaricated in their evidence to be believed. In this connection the third learned Judge Qaiser Khan, J. Has on a careful analysis and for good and sufficient reasons assigned by him held that Fazal Karim and Asisur Rahman (P. Ws.) were not the natural witnesses of the occurrence and their presence on the spot at the time was highly doubtful. He, therefore, discarded their testimony. We find ttat they both belong to village Nur Rahim Killi and were living at a distance of about 2; miles from the place of occurrence where Jamal Said P. W ass living at the time. According to them they bad gone there at about digarwela to enquire about Jamal Said (Bimar--purai) and bad stayed on for the night with him, when the neat morning at about 8-00 a. m. This occurrence took place in their presence in the very Havell in which they were staying with their hos'. But there is nothing in the F.
1. R. Lodged by Jamal Saidbimself to the effect that he vi as ailing at the time and that the two witnesses bad come to enquire about his health. Even in the police statements of there witnesses there is no mention about it. In this connection even if the explanation advanced by Abdul Hakim Kbao. J. That the F.
1. R. In the case being a laconic document and the omission in it was understand--able, yet there was no plausible excuse for the witnesses not to have elaborated on this point in their police statements and explained the reason for their very presence at the scene of occurrence. Moreover, they bad all the time at their disposal to have returned to their own village the same evening after having enquired about the health of Jamal Said P. W. From him. He was by no means suffering from any serious malady at the time. This is evident from the fact that the next morning, after the unfortunate occurrence, it was he who covered a distance of 5/b miles, taking the two bodies on the cots with him, to lodge the report at the police station and bad also participated in the investigation of the case. It does not also stand proved from the evidence that Fezal Karim and Azizur Rahman bad also accompanied them from the spot to the police station. If indeed they were at all present at the spot at the time of the occurrence they could not have missed to have accompanied Jamal Said P. W. To the police station.
At the same time we fully share the view entertained by Qaiser Khan, J. That Jamal Said P. W. Was a natural witness of the occurrence. He was living in the same Haveli and his presence there in the mornins at the time of the occurrence could not be doubted. In the opinion of Abdul Hakim Khan, 1.
Also he was a natu al witness of the occurrence. Even the learned Chief Justice does not seem to have doubted his presence at the spot. He was, however not impressed by his testimony and bas rejected it as untrustworthy.
The witness appears to have made improvements in his testimony in Court when compared with the F.
1. R. Lodged at his Instance and the statement before the police, in both of which there is no mention at all of the first phase of the episode forming the prosecution version In Court to the effect that at first in the morning the appellant had come armed with a topak and tried to forcibly carry away Mst. Bibi Hura with him but his attempt was toiled on the intervention of the three eye- witnesses who rescued her. He then left the Haveli and returned again after about 6/7 minutes to kill the two ladies.
The F.
1. R. In the case was lodged at the p)lice station by Jamal Said P. W. Without any undue delay.
It was a daylight occurrence and the complainant had charged the accused by name in the F. I. R.
At tee very first opportunity. So that there could be no question of any doubt about the identity of the culprit. There was also motive for the murder by the accused. He was admittedly promised the hand of Ust. Bibi Hura by her father. But in spite of this, according to the accused, he also promised to give her away in marriage to Aa;zur Rahman P. W. This must have annoyed him and he then took it into in his head to embark up )n this mad venture the finish them.
The medical evidence also supports the testimony of Jamal Said P. W. But in this connection the learned Chief Justice has expressed his grave doubts about it and according to him the medical evidence did not fit in with the ocular account of this occurrence. He observed from the medical evidence that Mir. Sabargula was shot at in the back and Mst. Bibi Hura was also inured from the back, but that according to the ocular evidence a frontal attack had been made on both of them.
But in this connection most of the arguments that have prevailed with him are hypothetical and he has taken a rather narrow view of the evidence before him. It is likely and indeed most probable that on sating the accused entering the Havell armed with the topak and proceeding towards the two ladies to deal with them one after the other, they must have been scared and tried to run sway from him or out of fear at spur of the moment had just turned their backs towards him as if by instinct and got the fatal ie juries. Even otherwise it is just possible that these witnesses when they appeared in the witness-box to depose about the occur--rence after a lapse of about 20 months were not very exact in giving all the minor details about it Otherwise broadly speaking the evidence of Jamal Said P. W. Is amply supported by the medical evidence in material particulars.
On these facts Abdul Hakim Khan and Qaisar Khan, JJ. Are in agreement with the trial Court concurred in finding that the accused had absconded after the occurrence and that this circumstance further corroborated the evidence on the record. But in this connection the learned Chief Justice observed that in the instant case no steps had been taken against the accused to declare him a proclaimed offender in accordance with the requirement of section 87 of the Criminal Procedure Code and as such in law he could not be held to be an absconder without having first made a recourse to these provisions for the issuance of a written proclamation against him to appear in Court at a specified date. In the opinion of the learned Chief Justice in the absence of any proof that the dictates of this section have been observed the appellant could not be declared as absconder, notwithstanding the warrant issued against him under section 204, of the Code.
PLD 1969 Kar. 200) observed that if the appellant was an absconder, proceedings must have been taken aginst him under sections 87-88 of the Code and that the prosecution did not produce any evidence to sh-w that action was taken against the appellant under those sections. Therefore, in the opinion of the Court the prosecution had failed to prove that the appellant was an absconder.
But in my opinion in the light of the above discussion' there is hardly any justification for placing such a restricted interpretation on the term. It is not necessarily confined only to those persons against whom proceedings under sections 87-88 of Code have been taken and has a wider import as discussed above.
We have, therefore, no hesitation in holding that the appellant was rightly regarded as an absconder by the trial Court upheld in appeal by the majority judgment of the High Court. The circumstances of his abscondence after the occurrence sufficiently corroborates the testimony of Jamal Said P. W. As already discussed above in order to hold the appellant guilty He was, therefore, rightly convicted under section 302, P. P. C. And sentenced to death on both the counts. There are no extenuating circumstances in his favour for taking any lenient view of the double murder committed by him.
For all these reasons this appeal has no force and is, therefore, dismissed.
ANWARUL HAQ, J.- I agree.
MUHAMMAD AFZAL CHEEMA, J.-I agree.