JAVED IQBAL, J.--This petition for leave to appeal is directed against the judgment dated 25-11- 1999 passed by the learned Division Bench of Lahore High Court. Lahore, whereby the judgment dated -31-3-1994 delivered by learned Additional Sessions Judge, Kasur, has been kept in tact by whom the petitioner was tried in case got lodged by means of F.I.R. No,87 of 1987 dated 11-4-1987 under sections 302, 307, 148 and 149, P.P.C. For the alleged murders of Niaz Ali, Mst. Shahab Bibi, Mukhtar and Basharat and convicted under section 302, P.P.C. And sentenced on four counts to death on each count with further direction to pay a fine of Rs,25,000 on each count and in case of default to suffer two years' R.I. On each count. In case of realization, the fine was directed to be paid to the legal heirs of the deceased on each count. Being aggrieved an appeal was preferred by the petitioner which has been rejected vide impugned judgment, hence this petition.
2. Briefly stated the facts of the case as enumerated in the impugned judgment arc to the effect "that there was dispute between Niaz Ali deceased and Inayat accused (appellant) due to a common walLadjoining their houses and Niaz deceased wanted to re-construct it after demolishing but the same was objected to by Inayat appellant and his co-accused (two out of whom were sentenced to death and two were acquitted by Speedy Trial Court No,1), Lahore. On 11- 4-1987 at about Peshiwela, when Niaz deceased demolished some portion of the wall, Inayat appellant while armed with .12 bore gun, alongwith his co-accused namely Salamat Ali armed with .7 MM rifle, Salim arid Din Muhammad armed with. 12 bore gun, came there, Inayat appellant fired at Niaz deceased which hit him on his chest who fell down. On learning about the occurrence Mst.
Shahab Bibi wife of Niaz deceased also came there and when she was near the house of Malik Suba in the street, Salamat Ali co-accused of the appellant fired with his .7 MM rifle which hit on the left wrist of Mst. Shahab Bibi. Din Muhammad co-accused also fired with his .12 bore gun which hit Mst. Shahab on left shoulder. Muhammad Saleem co-accused of the appellant fired at Mukhtar Ahmad who was present in his shop at that time which hit him on his right armpit who also fell down inside the shop. On hearing alarm Younas son of Dost Muhammad P.W. Came at the spot and Salamat Ali accused fired with his .7 MM rifle but the same did not hit him due to good luck.
Inayat appellant and his co-accused while raising Lalkaras and firing then went towards the house of Walayat Ali P.W. Where Amanat Ali co-accused was present, who told Inayat appellant that Basharat alias Norri deceased was present in the house of Walayat P.W. And he be also killed upon which Inayat appellant fired with his gun at Basharat deceased which hit him on his abdomen whereafter the accused persons while firing and raising Lalkaras ran away from the place of occurrence. Niaz Ali, Mst. Shahan Bibi, Mukhtar deceased person died on the spot whereas Basharat deceased was taken to General Hospital, Lahore who subsequently died there on the night between 13/14-4-1987". After usual investigation the petitioner was sent for trial and on conclusion whereof conviction and sentences has been awarded as per details mentioned hereinabove.
3. It is mainly contended by Mr. Munir Ahmad Bhatti, learned Advocate Supreme Court on behalf of petitioner that it is a case of misreading and non-reading of evidence which resulted- in serious miscarriage of justice and the evidence led to substantiate the plea of alibi was neither examined properly nor considered in its true perspective which resulted in serious prejudice and on this score alone the impugned judgment is liable to be set aside. It is also contended that various grave contradictions, quite apparent in the statements of prosecution witnesses, were not considered without any rhyme and reason. It is argued that medical evidence does not lend corroboration to ocular account which aspect of the matter escaped notice from the learned High Court. It is also pointed out that dying declaration of the deceased Basharat could not have been relied as it was not got signed by the doctor.
4. We have carefully examined the respective contentions as agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the judgment dated 31-3-1994 passed by learned trial Court as well as the impugned judgment. The entire evidence has been scanned with the eminent assistance of learned Advocate Supreme Court.
5. We are not persuaded to agree with the prime contention that evidence as led to substantiate the plea of alibi has not been examined in its true perspective which resulted in serious miscarriage of justice. Before we could examine the statement of defence witnesses, let we mention here at the outset that it is not essential for the accused to have proved the plea of alibi to the hilt and more so, it is for the prosecution to establish its case beyond the shadow of doubt. The provision as contained in section 103 of then Evidence Act (Article 119 of the Qanun-e-Shahadat Order, 1984) concerning the plea of alibi were examined in case titled Amanullah v. State (PLD 1982 SC 429) and relevant portion whereof is reproduced hereinbelow for ready reference:-- "13. The divergence of opinion between the learned Judges stemmed from their interpretation and application of section 103 of the Evidence Act, to criminal cases. Section 103 lays down that the burden of proof as to any particular fact lies on that person who wishes the Courts to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. Salahuddin Ahmea, J. (as he then was) and Muhammad Yaqoob Ali, C.J. (as he then was) concurring with him, relying on Surat Chandra Dhupi v. Emperor AIR 1934 Cal. 719, Suraj Bakhsh Singh v. Emperor AIR 1933 Oudh 369 and Muksed Molla v. The Crown PLD 1957 Dacca 503, held the view that under section 103 of the Evidence Act, the onus lay upon the defence to prove its plea of alibi affirmatively. This view was held by the learned Judges, notwithstanding the fundamental principle underlying our system of criminal jurisprudence that "the onus of proving its case against the accused lies entirely upon the prosecution and it does not shift at any point of time", which was expressly adverted to. All the learned Judges, however,substantially agree on the principle that the Court has to judge the guilt or innocence of the accused uninfluenced by the consideration that the accused had failed to prove his plea of alibi, on the basis of the prosecution evidence, so that if the prosecution fails to prove its case upon its own evidence or the accused succeeds in raising reasonable doubt, the benefit of acquittal must be given to him. The other learned Judges, namely, Dorab Patel and Muhammad Akram, JJ. (as they then were) after an extensive review of the case- law (if I may say so with respect) bearing on the question, held the view that the onus of proving affirmatively his alibi does not lie upon the accused, to the extent and in the sense onus lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, the accused, in order to succeed on his plea of alibi need only to produce evidence sufficient to raise in the mind of the Court a reasonable possibility that he may be at the place where he asserts he was, rather than at the place of the crime at the time of occurrence. In such a case a reasonable doubt will have arisen as to his participation in the commission of the crime, the benefit of which, must be given to him. The Court, therefore, has to examine the evidence of the prosecution in juxtaposition with the defence evidence of alibi, and then upon the whole evidence to judge whether the accused can be found guilty beyond reasonable doubt and to convict him only when it is so possible. I am in respectful agreement with the enunciation of the correct legal position, on the question of onus of proof on an accused person under section 103 of the Evidence Act, by Muhammad Akram, J. As under:-- "It was rightly remarked in R. v. Lobell 1957 All E R 734 relied upon by my learned brother Salahuddin Ahmed, J. That "there is a difference between leading evidence which would enable a jury to find an issue in favour of the defendant and in putting the onus on him. The truth is that the jury must come to verdict on the whole of the evidence that has been laid before them. In my respectful opinion in the reported case of Mukshad Mulla and others v. The Crown (PLD 1957 Dacca 503), noticed by my learned brother, Salahuddin Ahmed, J., the Court failed to bear in mind this difference and I am, therefore, unable to approve of some of the observations made on reference to section 103 of the Evidence Act in that case. Similarly on principle, I am unable to appreciate the observations in the reported case of Suraj Bakhsh Singh v. Emperor to the effect that because there is satisfactory evidence that "a man committed a crime at a certain place and at a certain time, a Court will never find any difficulty in rejecting an alibi he may seek to establish, even if that alibi be supported by what, on the surface, would appear to be satisfactory evidence."
There is always a rational approach in all cases to the entire evidence viz. That produced by the accused in support of his plea of alibi and that by the prosecution in support of his conviction. The conclusion as to the guilt or innocence of the accused must rest on the basis of the entire evidence considered and weighed as a whole for and against the prosecution. If in the process a reasonable doubt is raised as to the complicity of the accused the benefit of doubt must be allowed to him." The principle as enunciated hereinabove has been kept in view while examining the defence evidence let to substantiate the plea of alibi. Mustansar Hussain Adil (D.W.1) had never checked the attendance register in person and thus he was not in a position to opine with certainty that petitioner remained present on the date of occurrence i,e, 11-4-1987. It could not further be proved that on the date of occurrence a telephone call was made by the petitioner from office because it was never mentioned by the said witness in his earlier statement got recorded by the Speedy Court on 19-1-1998. (He was confronted with his said statement). It is also to be noted that the office hours of the petitioner were 8-00 a.m. To 3-00 p.m. And none of the defence witnesses could point out that the petitioner had observed the said timings and remained present in the office. It was also stated by the petitioner in his statement got recorded under section 342, Cr.P.C. That during the period of absconsion he appeared before Zafarullah Chatta, S.I. Police who after carrying out investigation let him off being innocent. The factum of appearance before Zafarullah Chatta, S.-I.
Police could have been proved conveniently by producing him as defence witness which could not be done for the reasons best known to the petitioners. The record is also indicative of the fact that the usual ink which was used to mark attendance was never used while showing the presence of accused for 11-4-1987. It can, therefore, be inferred safely that the plea of alibi was fabricated one and being an afterthought could not have been considered and the learned Courts below have discarded it for convincing and cogent reasons. Besides that the petitioner remained absconder for about nine months for which no plausible explanation could be furnished. It is worth mentioning that this Court in case titled Mesal and another v. The Crown.(1971 SCM R 239) has discussed the evidentiary value of the evidence of abscondence as follows:- "While the fact of an alleged offender having absconded may be regarded as providing some kind of support to another evidence which, in itself is strong enough to sustain a conviction for the crime charged such conduct by itself never has the effect of remedying defects in the other evidence led to show participation in the crime. The reason is simple, namely that a man may wish to avoid the consequence of being reported against for the commission of a serious crime as ardently if he is not guilty as he might if he is guilty." This view has been followed in a number of cases by this Court and although there are judgments in which abscondence has been held to furnish corroboration of the prosecution evidence, but the view taken in Mesal's case has never been overruled by this Court. It will, therefore, be reasonable to hold that the question whether abscondence does provide corroboration to the other prosecution evidence Would be a question to be decided on the facts and circumstances of each case. According to the prosecution case, the warrant of arrest (Exh.P.O.I) for Aminullah appellant was issued showing his address as village Bhosa Khel, Charsadda. The same address was shown in the endorsement on the proclamation issued under section 87, Cr.P.C. (Exh.P.O.3). But before these documents were produced in the evidence, Aminullah had disclosed his address as village Baly Caroona in his statement in the Committal Court. Apparently these are two different places and no question was put to this appellant whether he lived in village Bhosa Khel. Ghulam Habib (P.W.6) a Foot Constable who was detailed for effecting the search for the execution of the warrant on Aminullah stated in his evidence that he hod searched for the appellants in the villages noted in his report. Admittedly, the proclamations were affixed on the house of the appellants in village Charsadda. The witnesses stated that the house of Aminullah appellant was pointed out to him by Amirullah, Lambardar, but the latter was not examined as a witness nor was the report produced in the evidence. It is not, therefore, established that the appellant was- searched at his proper address in village Baly Caroona. It was suggested that the appellants did not attend the funeral ceremonies of their father. This was, however, not put as a circumstance appearing against them during their examination under section 342; Cr.P.C."
6. In order to see as to whether the factum of abscondence lends corroboration to other prosecution evidence has been examined in the light of eye account as furnished by Malik Rehmat Ali (P.W.1), Meraj Din (P.W.7), Malik Muhammad Younas (P.W.8) and Dilawar Hussain (P.W.9). Their version being consistent and confidence-inspiring has rightly been considered and relied upon by the learned trial and Appellate Courts. They cannot be labelled as chance witnesses being residents of the same vicinity. They were subjected to an exhaustive cross-examination and in spite of various searching questions nothing beneficial could be elicited. It has come on record that the petitioner and the prosecution witnesses were not in good terms but the enmity was not so grave which could prompt the eye witnesses to substitute the real culprit which otherwise is a rare phenomena. Insofar as contradictions in the statements of prosecution witnesses are concerned they were not grave in nature and minor contradictions do creep in with the passage of time. The said eye account has been supported by the medical evidence. After having an in-depth scrutiny and evaluation of the evidence we are of the view that abscondence of the petitioner can be considered a corroboratory factor which cannot be kept out of consideration. The prosecution has proved its case beyond shadow of doubt. Brutal murders have been committed in a reckless manner by the petitioner and hence the question of any leniency does not arise. The impugned judgment has been passed after having proper analysis of the evidence and the conclusion as drawn by the learned trial Court and appellate forum being unexceptionable hardly calls for any interference. The petition being devoid of merit is accordingly dismissed.