SHAHZAD AKBAR KHAN, J.- The instant appeal has been filed by Muhammad Fayyaz and Muhammad Javed questioning the correctness and legality of their conviction and sentence recorded and awarded by the learned Sessions Judge, Haripur vide his Judgment dated 23.6.1999.
Both the appellants were charged and tried for the murders of Raja Sardar Bahadur and Raja Firdous. They were found guilty for committing ' Qati-i-Amd' of Raja Firdous and were sentenced to imprisonment for life and to pay Rs.1,00,000/- by each appellant as compensation to the L.Rs. Of the deceased Raja Firdous in terms of Section 544-A, Cr.P.C. Benefit of Section 382-B, Cr.P.C, was extended to the appellants. However, they were acquitted from the charge of murder qua Raja Sardar Bahadur deceased. The complainant Raja Mukhtar has also* filed a Criminal Revision No. 17/1999 for the enhancement of sentence from life imprisonment to death. Our this judgment shall govern the disposal of both the appeal and criminal revision.
2. On 13.4.1992 at 2215 hours Haji Mukhtar Ahmad (P.W.3) made a report to Muhammad Sultan, AS1 (PW.7) which .Was recorded in the form of Murasila and culminated into case F.I.R No. 338, dated 13.4.1992. It was stated in the first information report that on the eventful night at 10-p.m. He (complainant) along with his father was present in his stop situated in purani (old) Committee Chowk. In the meanwhile his brothers, namely, Firdous Qali Arif along with Bakhshish driver came there in a pick-up No. 3043-Quetta which was being driven by Firdous. At that moment Javed and Fayyaz (appellants) sons of Shah Zaman, Ayub and Shah Zaman of unknown parentage residents of Gujar Mohra Rangeela Road having pistols in their hands appeared from their hotels. Fayyaz and Javed opened firing at Firdous while his father in search of rescue started running from the spot.
Shah Zaman and Ayub fired at his father and resultantly his brother Firdous and his father died on the post. The motive which ignited the occurrence was described to be a many times quarrels between his brother Firdous and the accused. The occurrence was claimed to have been witnessed by his brother Arif (P.W.4) and Bakhshish driver.
3. After registration of the case the necessary investigation ensued which was carried out by Muhammad Sultan P.W.7. During the investigation the I.O. Prepared the injury sheets of the dead- bodies Ex.P.W.5/4 and Ex.P.W.5/9 and their inquest reports Ex.P.W. 5/5 and Ex.P.W.5/10. The dead- bodies were sent for post-mortem examination. He secured blood with cotton from the place where Raja Sardar Bahadur was lying dead vide memo. Ex.P.C. He took into possession bulbs and tube lights which were It at the relevant time over an electric pole of the municipality. Similarly, one tube light was taken into possession from the show-cause of the Farhat Jewellers, one tube from the shop of Zakaullah and another bulb of 100 volt from the comer of the shop of the complainant while still another bulb from the lane leading to the house of the complainant were taken in possession. The recovery memo, qua the above lighting articles was prepared as Ex.P.D. He also appeared the site map at the Plantation of the complainant. The Pick-up No. 3043 Quetta found present on the spot was also taken into possession vide recovery memo. Ex.P.D./2. Three shells of 32 bore giving smell of fresh discharge were also taken into possession. The blood-stained clothes of Bakhshish driver produced by him were taken into possession by the I.O. Vide recovery memo.
Ex.P.D./3. Blood-stained sheet-cover of the abovesaid vehicle wherein the deceased Firdous was fired was secured vide recovery memo. Ex.P.G/2. The blood-stained garments of deceased Raja Sardar Bahadur and a spent bullet recovered from his body and sent by the doctor was secured by the Investigating Officer vide recovery memo. Ex.PEE. Similarly blood-stained tom shirt of Firdous deceased and 4 spent bullets recovered by the doctor from his corpus during autopsy were also taken into possession vide recovery memo. Ex.P.E/1. A pistol of 30-bore was recovered at the instance of Muhammad Ayub the acquitted ^accused to which the three empty shells recovered from the spot were found wedded. Proceedings under Sections 87 and 204, Cr.P.C were carried out against the appellants as they were evading their arrest. The F.S.L, report about the blood-stained articles referred above was received by the I.O. Which was in affirmative. The entire investigational exercise was re-affirmed by the I.O. Muhammad Sultan when he appeared before the Trial Court as P.W.7.
4. The dead-bodies of Raja Sardar Bahadur and Raja Firdous were put to autopsy by Dr. Shaukat Hussain P.W.5. On examining the dead-body of Raja Sardar Bahadur 3 entry and 2 exit i.e-arm wounds were traced by the doctor and according to his opinion the injuries caused severe and massive damage to the vital organs like liver, lung and brain causing irreversible shock resulted into the death of the victim. A bullet was found from the skull of the deceased. The dead- body of Raja Firdous was also examined on the same day with the following report:- Extemal Injuries: He was a stout, healthy, 5' 6" height. Rigor mortis and post-mortem lividity present. Clothes bloodstained.
Injuries:
(1) Fire-arm entry wound 0.3" x 0.3" at the superior surface of right shoulder with blackening of edges.
(2) Fire-arm entry wound 0.3" x 0.3" on right side of lower lip.
(3) Fire-arm entry wound 0.3" x 0.3" on right temporary region of skull 1 V2" lateral to the right eye brow. Blackening of edges were present.
(4) Fire-arm entry wound 0.3" x 0.3" right side of face 1" anterior to the right ear lobule.
Internal Examination: Skull was fractured. Brain and its margins were damaged. One bullet was found from left occipital lobe of brain. Thorax was intact. One bullet was found from below the right clavial. Abdomen; tongue was Injured, right wall of oral cavity was injured. Two bullet found from the face. Small amount of semi-digested food present.
In the opinion of the doctor the i.e-arm injuries caused severe damage to the vital organ like brain leading to shock and death. Four bullets were removed from the body. Total weight was 264 grain and were sealed and signed by him. The bullets and six copies of P.M. Report to that effect is Ex.P.W.5/6 while the pictorial is Ex.P.W.5/7 and P.W.5/8 correctly bearing his signature and were in his handwriting. He had also seen the injuries sheet and inquest report of Raja Firdous which are Ex.P.W.5/9 and 5/10 bearing his signatures correctly. The shirts in both cases of both the deceased were removed by tearing and cuts.
5. At the trial Dr. Shaukat Hussain the conductor of the autopsy appeared as P.W.5 and affirmed his observations that he recorded during the autopsy of both the dead-bodies while deposing his statement.
6. The prosecution, besides the I.O. And the doctor and formal witnesses examined Raja Mukhtar as P.W.3 and Muhammad Arif as P.W.4 in the capacity of eye-witnesses whereas Bakhshish was cited as an eye-witness in the F.I.R, was abandoned having been won over by the accused party. Raja Mukhtar P.W.3 re-stated the same story as was narrated in the F.I.R. Muhammad Arif while appearing as P.W.4 stated that he is running a crockery shop in the main Bazar and adjacent to his shop his deceased brother (Raja Firdous) was running a shop of furniture. After closing their shops at about 10 p.m. They started in their vehicle No. 3043 Quetta towards the shop of their brother P.W.
Mukhtar which is also situated in the same Bazar. Firdous deceased was driving the vehicle, Bakhshish the driver was seated in the centre while he was towards the window side. When they reached the shop of Mukhtar he was sitting on the counter while his father was standing on the platform in front of the shop. In the meanwhile accused javed, Fayyaz, Ayub and Shah Zaman duly equipped with pistol came there. Fayyaz and javed opened firing at Firdous with which he was hit on the right side and fell in the laps of Bakhshish. His father started running when Ayub and Shah Zaman fired at him was also hit and fell down and died near comer of Farhat jewellers. Firdous also died on the spot. The accused sped away from there.
7. Accused Shah Zaman and Ayub were arrested within a week of the occurrence who were tried by the Special Court for Speedy Trial and were acquitted on 23.4.1994. The present appellants were absconders. Fayyaz appellant was arrested on 19.10.1996 whereas javed was arrested on 24.4.1997 and as such they remained in abscondence for a period of 4 a.m. a half years and 5 years respectively. On conclusion of their trial the appellants were examined under Section 342, Cr.P.C, who denied all the charges against them and pleaded false involvement in the case.
8. The learned counsel appearing for the appellants has argued that both the eye-witnesses, i.e. Raja Mukhtar and Muhammad Arif being the sons and brothers of the deceased Raja Sardar Bahadur and Raja Firdous and there being an enmity between Ayub and the complainant party- fall within the domain of interested witnesses and their testimony cannot be made basis of the conviction of the appellants. He while emphasizing this argument urged that independent corroboration being necessary in this case is not forthcoming in support of the testimony of the eye-witnesses. He also argued that this being a night occurrence the question of identification of the culprits is involved. He next argued that Bakhshish whose presence was claimed by the eye- witnesses at the time of occurrence and being an independent person was not produced as a witness by the prosecution. t He also contended that according to medical report injuries Nos. 1 and 2 of deceased Firdous contained blacken while two other entry wounds were not having he blackening marks and this aspect of the case indicates that the occurrence has not taken place in the manner as has been narrated by the eye-witnesses which suggests that the eye-witnesses were not present at the relevant time, It was also argued that the first information report was not signed by P.W. Arif and it was signed only by the complainant, i.e., Raja Mukhtar which also is a pointer to the fact that P.W. Arif was not present at the relevant time.^ He^also raised a contention that P.Ws, if were present on the post they would have not been spared by the culprits. He further argued that all the empties recovered from the spot were, according to the F.S.L, report, found to have been fired from the pistol which was recovered at the instance of the Ayub the acquitted co- accused. While folding-up his argument the learned counsel argued that since- the co-accused Shah Zarnan and Ayub were acquitted on the same type of evidence, therefore, the learned Trial Court was not justified in recording the conviction of the appellants on the strength of the evidence not different than in case of the acquitted co- accused.
9. On the other side Mufti Muhammad Idris, Advocate, learned counsel for the complainant and the Deputy Advocate-General for the State have defended the impugned judgment and the ensuing conviction and sentence. The learned counsel for the complainant, has, however, not pressed the Criminal Revision No.. 17/1999 which is accordingly dismissed, It was urged by the learned counsel for the complainant that the prosecution has abundantly proved its case through evidence of high order and quality against the appellants. The occurrence has been witnessed by two eyewitnesses, namely, Raja Mukhtar and Arif and their testimony is supported by the medical evidence, the recovery of blood from places of both the deceased persons, the positive report of the F.S.L, and the unexplained long abscondence of appellants. It was contended that the appellants were waiting for the result of the trial of the co-accused and it was only after their acquittal the appellants could be arrested. They also urged that the acquittal of the co-accused would not in any manner affect the merits of the case of the appellants. Justifying the abandonment of P.W. Bakhshish it was argued that he being a driver of deceased Firdous initially gave his statement to the I.O. Against the appellants but subsequently by yielding to the pressure and force of the appellants he could not maintain his loyalty and left the services of the complainant party and was won over by the opposite party due to which he was abandoned.
10. We have heard and considered the rival contentions of the learned counsel for the parties in the light of the record. For the purpose of safe administration of justice it is essentially required of the Court to satisfy itself whether the eye-witnesses are natural and their presence on the spot could reasonably be believed and that whether their testimony is free from any kind of intrinsic improbabilities and in case of an interested witness whether any independent corroboration is forthcoming. Proceeding on the above consideration the arguments of the learned counsel for the appellants have to be assessed and evaluated, It i$ settled law that the testimony of an interested eye-witness cannot out-rightly be rejected and in circumstance's it can be made basis of conviction provided it receives corroboration through other circumstantial evidence. Undoubtedly P.Ws. Raja Mukhtar and Muhammad Arif are closely related to the deceased Raja Sardar Bahadur and Raja Firdous as their sons and brothers respectively. The straint of relations with the appellant is also mentioned in the F.I.R, and subsequently recorded as quarrels between Raja Firdous and the appellants, It is a matter of evidence that P.Ws. Raja Mukhtar and Muhammad Arif run their business in the same Bazar. After closing their shops the deceased and P.W. Muhammad Arif drove their vehicle along with driver Bakhshish to the shop of complainant where the complainant and Raja Sardar Bahadur both were present. It means that both the eye-witnesses and Raja Firdous deceased were business runners in the same Bazar. The father being an elderly man of the family was also, not unexpectedly or unnaturally,, present at the shop of the complainant. The accused appeared from their hotels in the same Bazar at the scene of occurrence and committed the murders of two persons. Sufficient source of shops lights was available besides the Municipality bulb light. The lights of nearby shops and the shop of the complainant were It. The I.O. Has duly taken into possession several bulbs and tubes. The question of identification in prsence of such quantum of light becomes insignificant. The appellants have been unanimously charged by the eyewitnesses for firing at the deceased Firdous who was sitting in the vehicle and fell into the laps of Bakhshish driver who himself produced his blood-stained clothes to the I.O. Which earned a positive report from the F.S.L, both the witnesses stood firm to the test of combing cross- examination but nothing advantageous could be extracted fro their mouth so as to undermine the evidentiary worth of their statements. Both of them are unanimous on all the material points. The witnesses run their business in the same Bazar and as such are the natural witnesses whose presence on the spot cannot doubted in any manner. Their testimony is found unimpeachable and invokes confidence about its truthfulness. The ocular account is strongly supported by the medical evidence, the venue of occurrence has been established by the recovery of the blood from the seat of the vehicle No. 3043 Quetta wherein Firdous was killed and also from the place where Raja Sardar Bahadur was shot dead and the report of the chemical examiner thereabout being in positive lend further support to the eye account. There is also a motive for the occurrence and more. To it the visible unexplained abscondence spanning 4 and a half years in case of Fayyaz and 5 years in case of Javed is a very strong corroboration which speaks about the guilt of the appellants. In this view of the matter, we hold that the eye-witnesses are natural, their presence on the spot. Is undoubted and they have furnished an account which is compatible with the medical evidence and transcends every kind of infirmity. We, therefore, have no reason for rejection of their testimony. The argument of the learned counsel that the eye-witnesses are interested and do not find corroboration thus becomes forceless, and contention of the night occurrence also loses its significance in view of the presence of the sufficient light which has been established by cogent evidence. The third limb of the argument of the learned counsel is that Bakhshish driver was not examined by the prosecution. Obviously he was an independent person and there is no cavil with the proposition that in our society and under the prevailing circumstances of lack, of security the independent person sell assumes courage of incurring the enmity of the accused party. This was, therefore, not unnatural for Bakhshish to succumb to the opposite pressure who was abandoned by the prosecution for sufficient reasons and his abandonment does not in any way adversely affect the case of the prosecution. On the argument of the learned counsel that two entry wounds contained blackening while two were without blackening, we may observe that the death of Firdous was. Caused it the vehicle. It is highly probable that after receiving the first two shots he might have moved leftward for his escape and such movement definitely caused distance between the barrel of the pistol and the body to the extent wherefrom the blackening could not be caused. Moreover, hands of two persons were employed for firing and it also depends upon the length of the arms of the assailant. It also depends upon the position of the assailant as one might have stretched his arm more closely to the deceased. This feature of the case, therefore, cannot be termed as conflict between the ocular account and the medical evidence nor does it possess the potency of out-weighing the otherwise acceptable ocular testimony. The next argument that signature of Arif was not obtained on the. Murasila is misconceived as it is only the complainant whose" signature or thumb impression is to be obtained on the report. The next argument that if the P.Ws. 3 and 4 were present on the spot they might not have been spared. It is up to the assailants whom they choose as their target for death and it is not necessary that all the persons of a family should be done to death. It is the mind of the accused which determines the priority and the fact that the eye-witnesses were spared does not speak about their absence. The empties recovered from the spot were argued to have been found wedded to the pistol recovered at the instance of the acquitted accused Ayub cannot be of any help to the appellants because the occurrence has taken place on a road with high density of traffic ^nd the possibility of misplacement of the empties coming out of. Pistols of the appellants cannot be ruled out. The last argument that in view of the acquittal of the co-accused the appellants should also have been acquitted as the evidence is not of different nature. In this respect the august Supreme Court in its judgment of "Muhammad Zubair v. The State", reported in 2002 SCMR page 1141 + 2002 SLR (FSC)
668 observed that the acquittal of the co-accused does not affect the over-whelming incriminating evidence available on the record against the accused and the impugned judgment being free from any illegality or infirmity would not warrant any interference. It was also observed in the same judgment that maxim of "falses in uno falses in omnibus" is not applicable in prevailing system of criminal administration of justice and there is no rule of universal application that where some accused persons have not been found guilty, the other accused would ipso facto stand acquitted, because the Court has to sift the grain from the chaff. In the instant case the ocular account is not tainted with any kind of infirmity and is true and straight-forward which is duly supported by the circumstantial evidence has rightly been made basis for the conviction of the appellants. The still distinguishing feature of this case as against the case of the acquitted co- accused is that the appellants after the commission of offence became fugitive from law and remained absconders for 4 and a half to 5 years which has not been explained convincingly. The accused are hotel runners in Haripur and absconded after the occurrence. They were proceeded against under Sections 87 and 204, Cr.P.C. In determining the effect of the abscondence the antecedents of absconder, his occupational habits and. Limitation, period of abscondence and specific explanation for abscondence have to be considered in juxta-position with other evidence on the record. Reference can profitably be made to PLD 1980 S.C. Page 109. In the instant case the appellants are the hotels runners in Haripur, It was merely answered in the statement under Section 342, Cr.P.C, that they were at Karachi and Sindh. No reasons for their long stay spanning 4 and a half/5 years are given. Leaving their occupational and business pursuit for another end of this country is not convincing and the absence can be termed as abscondence bearing corroborative effect as its consequence. PLD 1971 Pesh.. 32, PLD 1974 Pesh, page 113 and NLR 1985 page 330 relied upon.
11. In view of the foregoing circumstances, we are of the considered view that the judgment of the learned Trial Court is based on sound reasons which has taken proper care of the entire record and has correctly interpreted the evidence brought or the record. The ocular account of PWs Raja Mukhtar and Muhammad Arif has been rightly believed by the learned Trial Court in context of the ambient circumstances. We found no reasons for interference in the impugned judgment of the learned Trial Court. Consequently, the same is upheld and this appeal being destitute of merits is dismissed. The criminal revision as stated earlier having not been pressed is also dismissed.