' Eight accused, namely, Hag Nawas aged 40 years son of Khuda Ya Khuda Yar aged 60 years, Allah Yar aged 65 years sons of Bahawal, Muhammad aged 35 years, Hayat aged 25 years sons of Kalu, Ghulam Mustafa aged 35 years, Muhammad Aslam aged 30 years sons of Noon Khan and Talib aged 33 years son of Allah Yar, all residents of Chak No, 143, Tehsil Chiniot, District Jhang, were tried by the learned Sessions Judge, Jhang, for offences under sections 148, 302/149 and 307/149 of the Pakistan Penal Code. Five of them were acquitted and the three appellants, namely Talib son of Allah Yar, Muhammad Aslam son of Noor Khan and Hayat son of Kalu were convicted under section 302 read with section 34 of the Pakistan Penal Code for the murder of Muhammad Khan deceased.
Each one of them was sentenced to suffer imprisonment for life and a fine of Rs, 1,000. In default of the payment of fine, each one of the convicts was to suffer further rigorous imprisonment for one year. They have appealed against their conviction and sentences.
2. The eight accused are related inter se. Muhammad Aslam and Ghulam Mustafa are sons of Nur Khan, Hayat and Muhammad are similarly sons of Kalu, Talib is the son of Allah Yar and Hag Nawaz is the son of Khuda Yar accused. Allah Yar and Khuda Yar accused are brothers. The mother of Muhammad Aslam and Ghulam Mustafa accused is the sister of Khuda Yar and Allah Yar. Hayat and Muhammad are the cousins of Aslam and Mustafa. The accused have some relationship with the deceased and Ahmad (P. W. 10) as well. According to P. W. 10, Muhammad Khan deceased was the first cousin of the witness. Muhammad Aslam and Ghulam Mustafa accused are also the sons of the first cousin of this witness. Similarly mother of Tan accused is the first cousin of the witness.
3. The prosecution case, as disclosed in the F. I. R. Is that on 25-1-1973 at 8-30 a.m. The deceased alongwith Ahmad (P. W. 10) was returning from his cattleshed when they came near the Baithak of the deceased, the accused appeared from the house of Allah Yar son of Mughal. Muhammad Aslam had a rifle, Ghulam Mustafa, Hayat, Talib and Haq Nawaz accused were armed with guns while Muhammad carried carbine, Allah Yar and Khuda Yar were, however, empty-handed, Allah Yar and Khuda Yar raised lalkara that the prey should not escape. On hearing the lalkara the complainant and Muhammad Khan deceased ran for their lives. Muhammad Aslam fired at the deceased hitting him on the back. The other accused armed with guns, then, fired at the deceased.
Ahmad P. W. Laid down on the ground near the wall. Talib's fire hit the deceased at the right thigh and he fell down with his face downward. Complainant Ahmad did not receive any injury. He raised hue and cry, which attracted Ahmad son of Najabat, resident of Ranh, Mamma (P. W. 12) resident of Adhlana and Sultan a resident of the same village, to the scene. The former two bad come to the tube-well of Gul Sher Khan, a night before and were coming to the village in the morning. The occurrence, therefore, was witnessed by them as well. Muhammad Khan succumbed to the injuries and died at the place of occurrence. Allah Ditta (P. W. 8) a brother of Muhammad Khan deceased, came at the spot afterwards. Ahmad complainant, leaving him with the dead body, proceeded to the Police Station, Chiniot, which is at a distance, of 15 miles from the place of occurrence. He lodged the F. I. R. Promptly at 10-40 a.m. Which was recorded by Muhammad Masood A. S. I. (P. W.
16).
4. The motive of the crime, as disclosed, is that Allah Ditta, paternal uncle of Muhammad Aslam and Ghulam Mustafa accused was murdered about ten years prior to the present occurrence.
Muhammad Khan deceased was doubted to have killed him and to have manipulated in giving a false colour to the incident in that Messrs Mudai son of Sikandar etc, were got challaned while he himself appeared as a prosecution witness in the case and ultimately resiled. Mst. Aisha, wife of the deceased, had illicit intimacy with said Allah Ditta,, who was later divorced by the deceased after the acquittal of Mudai etc. From the charge of the murder of Allah Ditta. The device employed by Muhammad Khan deceased became known and on that account, the accused party bore grudge against him.
5. Accused Muhammad, Allah Yar, Haq Nawaz and Khuda Yar were arrested on 29-1-1973.
Muhammad accused is alleged to have produced an unlicensed carbine (Exh. P. 10) before the police; Ghulam Mustafa accused was arrested on 31-1-1973. The three appellants, however, absconded and were declared proclaimed offenders. Warrants for their arrest were entrusted to Abdul Aziz F. C, (P. W. 14) but they were not available in the village. Ahmad Bakhsh F. C. (P. W. 15) was then entrusted proclamations with respect to these accused. He made necessary publicity and affixed the proclamations at the residence of the appellants. Ultimately Muhammad Aslam appellant was arrested on 5-4-1973. One unlicensed rifle (P. 174 and two cartridges Exhs. P. 2 and P.
3 were secured from his possession. Talib appellant was arrested on 9-4-1973 and a gun (P. 4) was recovered from him. Last of all Muhammad Hayat was arrested on 20-5-1973 and a gun (P. 2) and cartridges Exh. P. 3/1-6 were also recovered from him.
6. Dr. Tajammul Hussain conducted the post-mortem examination on the dead body of Muhammad Khan on 26-1-1973 at 9 a.m. According to P. W. 1, who went to serve summons on him, he had left for Saudi Arabia and his whereabouts were not known. He was, therefore, not examined as a witness. His signatures on the post-mortem report Exh. P L and the pictorial representation of the injuries Exh. P L/1 and Exh. P were identified by Sardar Muhammad, Dispenser (P. W. 13), who, thus, proved these documents. According to the post-mortem report Exh. P. L., the deceased bore the following injuries:-
(1) Three wounds of fire-arm entrance each 1/3' x 1/3' on back of left chest upper part in the shoulder region. These go from right to left side obliquely upwards far 2' in the muscles (outer to the bone) and appear as wound of exit under injury No, 2.
(2) Three wounds of exit each 1/3' x 1/3' at the level of upper border of left shoulder nape of neck of left side, each about apart.
(3) A firearm wound of entrance 1/3' x 1/3' on the posterior surface of left upper arm in the upper part, it goes from right to left side forwards and appears after passing from muscle as wound of exit at as 1/3' x 1/3". There is another lacerated wound of fire am above it result of a passing grazing firearm shot of 1/3' x 1' x skin deep and parallel to the first.
(4) Two firearm wounds of entrance on back of right chest. Both chest cavities contained blood.
Middle and outer part. Each 1/3' x 1/3'. Both 1' apart. They go into the chest after injuring the ribs U. N.
From right to left, slightly upwards forward, damaged the right lung after passing through the vertebral column one pierced the apex of the heart on left side of chest. Big pellet is found. The second pierced the left lung is found a big pellet between outer and frontal part of lower lobe of left lung.
(5) A firearm lacerated wound 1" x 1/3' x skin deep on right thigh-upper part at outer part of front aspect in the grim, (result of pushing grazing fire-shot) then it entered right side of abdomen in its front aspect at the lowest point near about of right penis's testicle and directed from right to left upwards, damaged the bladder and sigmoid column (lowest part of small intestines) and a big pellet is found in the nearby vertebrae. Abdomen contained clotted blood.
7. The investigations were conducted by Ashiq Hassan Shah S. I. (P. W. 7) and Ghulam Abbas (P. W.
9). According to P. W. 9 the case was also investigated by Taj Muhammad Khan, Deputy Superintendent of Police and accused Ghulam Mustafa, Muhammad Khan, Allah Yar, Haqnawas and Khuda Yar were found innocent. However all the eight persons were claimed and the three appellants were convicted as indicated above.
8. The three appellants, in their statements at the trial, denied the allegations and pleaded not guilty. Appellant Talib admitted that accused Khuda Yar, Allah Yar and Haq Nawaz are his relations, but denied that Muhammad, Ghulam Mustafa, Muhammad Aslam are in any manner related to him. He rather stated that they are his enemies. He also denied his relation with Ahmad (P. W. ). He denied that Allah Ditta deceased was related to him and stated that in fact be was a relation of Muhammad Khan deceased, who had been prosecuting the case against Mudai etc. He also denied that Muhammad Khan was ever suspected to have killed Allah Ditta. As to the fact of his ascendance his position was that he had his lands in Chak No, 169/W. B. Near Lodhran and was living there. He declined to lead defence. Muhammad Aslam appellant even denied that Ghulam Mustafa accused is his brother and Hayat and Muhammad accused are his cousins. He stated that all the three are his distant cousins. He admitted that his mother is the sister of accused Khuda Yar and Allah Yar. He, however, stated that both the accused are his enemies as his brother Ghulam Mustafa and his father Noor were challaned for the murder of Nur Ahmad, a brother of Khuda Yar and Allah Yar accused. He denied that he and his brother Ghulam Mustafa are the sons of the first cousin of Ahmad P. W. Or that mother of Talib appellant is related to Ahmad P. W. The relationship with Ahmad P. W. That was given out by him was that his grand-father Muhammad was a son of Ghulam while Yara grand-father of Ahmad T. W. Was his brother. As to the motive of the crime his position was that Allah Ditta was murdered by Mudai and others. The deceased lodged report in that murder and appeared as witness against the accused in that ease. He bad not resiled from his evidence and Mudai and others were properly prosecuted by him. He denied that there was any illicit intimacy between Allah Ditta and Mst. Aisha, the wife of deceased Muhammad Khan. As to the factum of abscondence he took the same position as was taken by Talib appellant. Muhammad Hayat appellant accepted that Muhammad accused is his brother. Mustafa accused, according to him, Is his distant cousin. He denied the relationship with other accused. He also denied relationship with Ahmad P. W. He admitted that Allah Ditta was murdered, but denied that he was his uncle. He denied that illicit intimacy between Allah Ditta and Ma. Aisha, the wife of the deceased. He took up the same position as was taken by the two appellants as to -their abscondence after the occurrence.
8-A. The prosecution, at the trial, relied on the ocular evidence of the -three P. Ws., namely, Ahmad (P. W. 10), Ahmad son of Najabat (P. W. 11) and Mamman (P. W. 12); the medical evidence; motive; recoveries; and finally, as against the three appellants, their conduct after the occurrence In that they remained absconded for over a period of two months in the case of Muhammad Aslam end Talib appellant and period of three months In the case of Muhammad Hayat appellant.
9. The learned trial Judge accepted the motive for murder. According to him recovery of gun (P. 4) from Talib appellant has not been established. The recoveries of rifle from Aslam appellant and gun from Muhammad Hayat appellant have been proved. But these recoveries could not be used as a piece of corroborative evidence as the empty recovered from the spot did not match with the arms recovered from them. He found that the medical evidence supports the allegation against appellants Muhammad Adam and Talib, Muhammad Aslam had fired at the deceased with his rifle biting the deceased at the back. Injury No, 3 according to the post-mortem report is a lacerated firearm wound, which was as a result of grazing firearm shot. This could be the result of a fire from the rifle. The description of the remaining injuries show that they were the result of gunshot fires.
Injury No, 5 on the thigh had been caused by a firearm shot by a gun which was attributed to Talib appellant. He then relied on the ocular evidence and, lastly, sought corroboration from the conduct by absconding of the three appellants after the occurrence. The learned Judge observed that accused Ghulam Mustafa, Muhammad, Allah Yar, Haq 'Nawaz and Khuda Yar were found innocent by the police itself. No specific injury has been attributed to them. No recovery was effected from Ghulam Mustafa, who is alleged to be armed with a gun. Accused Muhammad and Haq Nawaz were, allegedly, armed with a carbine and 4 gun; no recovery has been made from Haq Nawaz and the recovery of -carbine from Muhammad has not been satisfactorily proved. Allah Yar and Khuda Yar accused were empty-banded and have been attributed a proverbial lalkara. Allah Yar is the father of Talib appellant, whereas Khuda Yar is the brother of Allah Yar accused. Hata Nawaz is the son of Khuda Yar accused. Thus Allah Yar, Haq Nawaz and Khuda Yar accused might have been involved on account of their connection with Talib appellant.
10. The trial Judge, therefore, as against the appellants has relied upon the ocular evidences motives the medical evidence and their abscondence from the scene of occurrence. It will, therefore, be seen if their conviction can be sustained on the basis of this evidence.
11. The learned counsel appearing for the appellants vehemently argued that no reliance could be placed on the ocular evidence. P. W. 10 is an interested witness, and the blood-feud among the parties stands established. P. W. 11 and P. W. 12 are chance witnesses. They had come to the tube- well of Gul Sher for realising the price of Bhoosa allegedly sold by them to Gul Sher, who has not been produced at the trial. Mamman (P. W. 12) has admitted that he was challaned for the abduction of Kanizan, daughter of Khushhal alongwith Muhammad Khan deceased. He has further admitted that he had abducted a woman from Lyallpur District alongwith Muhammad Khan deceased and that a criminal case against him and Muhammad Khan deceased was pending trial at Lyallpur. It was contended that, in any case, the ocular testimony cannot be accepted unless corroborated by some independent evidence. The motive for the crime, according to the learned counsel, has not been established. The medical evidence, in fact, contradicts the allegation as to the specific role attributed to the accused. The factum of the abscondence of the appellants has not been established and, in any case abscondence by itself is not a sufficient corroborative piece of evidence. He referred to Siraf Din v. Kala and another (1), Hakim Gul v. The State (2), Aminullah v.
The State (3).
12. The learned counsel appearing for the State, however, argued that Ahmed (P. W. 10) is related to both the complainant and the accused party and therefore, had no motive to falsely implicate the appellants. He was accompanying the deceased at the time of attack and, therefore, is the most natural witness. P. W. 11 Ahmed son of Najabat and P. W. 12 Mamma although does not belong to Chat No, 143, where the occurrence took place yet they have fully given out the purpose of their presence in the Chak. Gul Sher could not be produced as having been won over by the accused.
The two eye-witnesses, therefore, could not be condemned as chance witnesses. The learned Sessions Judge, therefore, was justified in relying on the ocular evidence. He has applied the test of sifting the grain from the chaff in acquitting the co-accused. The medical evidence fully corroborates the eye-witnesses as to the attribution of the injuries to the appellants. The motive has also been fully established. In his submission learned trial Judge could take into consideration the abscondence of the appellants after the occurrence as a corroborative piece of evidence, a fact being a relevant fact under section 8 of the Evidence Act. He referred to Muhammad Bashir alias Shikra v. The State (4), Khushi MOammad v. The State (5), Bashir v. The State (6) and Gul Hassan and another v. The State (7).
(1) PLD 1964 SC 26
(2) PLD 1964 Pesh. 1
(3) PLD 1976 SC 629
(4) 1970 P Cr. L J 739
(7) PLD 1969 SC 89
13. Taking up the ocular evidence first, I find that Ahmad P. W. Was accompanying the deceased on the fateful day. He has given out the prosecution version in all the necessary details. He had stood the test of lengthy cross-examination. He is the first cousin of the deceased and, also, related to Muhammad Aslam appellant, who, according to the witness, is the son of his first cousin. Mother of Talib appellant is, also, his first cousin. The appellants, though denied this relationship in their statements under section 342, Cr. P. C. Yet Muhammad Aslam admitted that brother of his grand- father Muhammad, viz. Ghulam was the brother of Yara, the grand-father of the witness. The witness, therefore, may be related to the deceased nearer in degree, is also a relation of the accused party. It has been brought out in cross-examination that Allah Ditta deceased was a cousin in the second degree of Muhammad Khan deceased in the case. Allah Ditta was a paternal uncle of Muhammad Aslam appellant. Deceased Muhammad Khan, was, also, thus related to the appellants. Kandoo father of Mudai, who was challaned for the murder of Allah Ditta, was murdered before the murder of Allah Ditta. Noor a brother of Allah Ditta was challaned for the murder of Kandoo. Kandoo, in its turn, was murdered in retaliation of the murder of one Muhammad, father of No or. One Sulhi was challaned for the murder of Allah Ditta alongwith Mudai. Wife of Sulhi is the sister of the wife of the witness. Muhammad Khan deceased in the case was a witness against Mudai and Sulhi. However if the motive is to be accepted, Mudai, Sulhi, Muhammad deceased and the witness belong to the same camp. I find that the witness, the deceased and even, appellants belong to the same clan. However, it cannot be denied that a persistent state of enmity bad prevailed in the tribe since long. Even among the accused there had been bloody strifes. Mother of Muhammad Aslam appellant is the sister of Khuda Yar, Allah Yar accused, yet Ghulam Mustafa, brother of the appellant and Noor father of the appellant were challaned for the murder of Noor Ahmad, a brother of latter two. In this clannish background and in view of the fact that the witness attempted to involve innocent persons, the question-should we look for some independent corroboration before relying on the testimony of the witness, has engaged my attention. I am fully alive to the following observation of my Lord the Chief Justice of Pakistan in a recent case Roshan and others v. The State (1):- "As regards the testimony of Mehdi and Raju, P. Ws. There is also no universal rule that the evidence of an interested witness must be Invariably corroborated by independent evidence. If that were so then why should the Court at all take into account the testimony of the interested witness.
Secondly, if the presence of a witness is proved beyond doubt and no other independent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot-free regardless of the quantum and quality of the oral evidence provided by the interested witness. It, therefore, depends on the facts of each case and instances are not wanting where this Court has upheld the conviction of the accused based entirely on the testimony of the 'interested' witness."
' Even in this judgment their Lordships have not laid down any absolute rule; and, in fact, it is difficult to make a rule of universal application.
(1) PLD 1977 SC 557 ' Bach criminal case proceeds on its own facts. I am, therefore, of the view that it will not be safe to rely on the statement of this witness unless corroborated by an independent source.
' This brings me to the other two namely eye-witnesses, P. W. 11 Ahmed son of Najabat and P. W. 12 Mamman. Ahmed P. W. 11 is a resident of village Rasalu which is at a distance of three miles from Chak No, 143 where the occurrence took place. P. W. 12 similarly is resident of Idlana which, too, is at a distance of three miles from Chak No,
143. Both the witnesses, therefore, came from different villages. They have fully supported the prosecution version and their statements are in line with the statement of P. W.
10. They were not supposed to be present in Chak No, 143 at 8-30 a.m. On the day of occurrence.
They have, however, explained their presence in the village. Mamman (P. W. 12) had sold some Bhoosa to Gulsher, a resident of Chak No, 143 on credit. P. W. 11 Ahmed had stood surety for Gulsher.
Both had come to this village in the evening on the day previous to the day of occurrence and stayed for the night at the tube-well of Gulsher. Gulsher has not been produced in evidence.
Mamman P. W. Stated that Ahmad P. W. Had not stood surety for Gulsher while Ahmed P. W. Has taken up the position that he stood surety for Gulsher and, on that account, Mamman had brought him to Gulsher. Mamman admits that he was challaned along with Muhammad Khan deceased for the abduction of Kanizan, daughter of Khushhal. He further admits that 5/7 months before the occurrence, he and the deceased had abducted a woman from Lyallpur and that a criminal case was pending against them in a Court at Lyallpur. Both the witnesses have attempted to involve some innocent persons and in this regard, their testimony is on no better footing than that of P. W.
10. Defence has been able to bring out that, at least, P. W. 12 Mamma; on account of his associations with the deceased, had motive to support the prosecution version. No doubt their presence at the place of occurrence has been disclosed in the first information report, lodged promptly after the occurrence and it appears difficult that their consent was obtained before citing them as witnesses to depose about an un-witnessed occurrence, yet, the fact remains that, too many chances shall have to be reconciled before accepting their statements detracted from the prejudice usually attached to the testimony of a casual witness. I am inclined to hold that the testimony of these two witnesses, therefore, before it is accepted, shall have to be subjected to the well-settled tests of credibility and the rest of the evidence shall be considered in the light of this formulation.
15. Turning, therefore, to the item of motive I find that the same has been fully established. Allah Ditta murdered in the incident, which provided motive to the present occurrence was the paternal uncle o Muhammad Aslam appellant and Ghulam Mustafa. The other two appellants are close relations of Muhammad Allem. Allah Ditta, if at all, was distantly related to Muhammad Khan deceased. The defence version that deceased had diligently prosecuted Allah Dina' s case cannot be accepted. Mudai etc. Accused in that case, it seems, were acquitted. Allah Ditta's party, therefore, could rightly suspect that deceased Muhammad Khan had a hand in that murder and the acquittal of Mudai etc. Was due to the manipulations employed by the deceased. The motive was, also disclosed in the first information report which, as noticed above, had been lodged without delay. Learned trial Judge was, therefore, justified in accepting Allah Ditta's murder as a motive for the crime.
' Motive alone may not be sufficient to corroborate the interested testimony, yet, in the whole body it is an important piece of evidence.It may not be a sine qua non for bringing the offence home to the accused, yet it is relevant and important on the question of intention. Generally the voluntary acts of sane persons have an impelling emotion or motive; the existence of motive, therefore, has a great significance in a criminal trial.
16. The next item of evidence relied upon by the learned Sessions Judge is the medical evidence.
Considering the importance of medical evidence Morin in his Law of Evidence (Pakistan Edition) observes at page 612s- "The medical evidence does not itself prove the prosecution case. Its value is only corroborative. It can prove that the injuries could or could not have been caused in the manner alleged and the death could or could not have been caused by the injuries. Where there is a conflict between the medical evidence and the oral testimony of witnesses, the evidence can be assessed only in two ways. The Court can either believe the prosecution witnesses unreservedly and explain away the conflict by bolding that witnesses have merely exaggerated the incident, or rely upon the medical evidence and approach the oral testimony with caution testing it with medical evidence. The first method can be applied only in those cases, where the oral evidence is above reproach and creates confidence. Where the evidence Is not of that character and the medical evidence-is not open to any doubt or suspicion, the only safe and judicial method of assessing evidence is the second method."
' In a case from the Indian jurisdiction Sunil Chandra Roy and another v. The State (1), the rule at page 318 has thus been laid down- "Where there are alleged eye-witnesses of physical violence which is said to have caused a person's death, the value of medical evidence adduced by the prosecution in support of its case is only corroborative. It proves that the injuries could have been caused in the manner alleged and death could have been caused by the injuries so that the prosecution case being consistent with matters verifiable by the medical science, there is no reason why the eye-witnesses should not be believed."
' Since I have taken the view that some corroboration is required before accepting the ocular evidence, the medical evidence in the instant case will be considered in the light of above principles. According to the eye-witnesses Muhammad Aslam was armed with a rifle, Ghulam Mustafa, Hayat, Talib and Haq Nawaz were armed with guns and Allah Yar and Khuda Yar were empty-handed. On seeing the assailants the victim had started running.. Muhammad Aslam appellant fired from his rifle hitting the deceased on the flank at the back. The accused armed with guns then opened fire hitting the deceased. Talib fired his gun, which hit the deceased on his right thigh and ho fell down with his face downward. Specific injuries are attributed to Muhammad Aslam and Talib. According to post-mortem report there are number of fire arm injuries. AI serial No, 3 a lacerated wound has been described as a result of a passing grazing fire-arm shot, and is on the posterior surface of the left arm at the upper part. This could well be by a rifle shot. At serial No, 5 there is a lacerated wound on the right thigh upper part (result of pushing grazing fire shot) of front aspect in the grim, then it entered right side of abdomen in its front aspect at the lowest point near about of right penis's testicle and directed from (1) AIR 1954 Cal. 305 right to left upwards, damaged the bladder This injury has been attributed to Talib. On receipt of this injury the victim fell wit his face downward. The damage done by this injury would show that the victim could no longer remain on his foot. The number of other injuries sustained by the deceased also lend support to the view that there were more than one person armed with shot-guns. The medical evidence therefore, fully supports the eye-witnesses' version of the occurrence.
17. Last of all I turn to the question of abscondence. The appellants are admittedly residents of Chak No, 143 where the occurrence took place. Warrants of their arrest were given to Abdul Axis (P. W. 14 for execution. They could not be searched out in the Chak and a repo of their abscondence was made. The three appellants, in their statements under section 342, Cr. P. C., have taken up the position that they had gone to Cbak No, 269/W. B. Near Lodhran, where they had their cultivation.
Not a single question has been put to this witness in cross-examination on this line. P. W. 15 was then entrusted with a proclamation. He made publicity and affixed the proclamation at the residences of the appellants. The prosecution has thus fully proved the factum of abscondence of the three appellants.
' If the conduct of the accused by absconding can be used as a corroborative piece of evidence has remained a moot point in the past and the have been divergent views on the proposition.
Conduct of the person by absconding is a relevant fact under section 8 of the Evidence Act and is covered by illustration (1). Similarly facts explaining the absence of the persons from the place of occurrence are relevant facts under section 9. The proposition is covered by illustration (c) to section 9. However, if the prosecution succeeds in establishing that the person accused had absconded from the place of occurrence, the onus will be on that person to explain his absence.
' In the instant case though the prosecution has established the factum of abscondence of the three appellants, the appellants have failed to explain away their absence. There is nothing on record except the bare assertion by the three appellants in their statements under section 342, Cr.
P. C. That they had been residing in Chak No, 269/W. B. Near Lordhran, where they had their cultivation.
' The question to be seen, however, is if the abscondence of the appellant would provide corroboration to the ocular testimony. Point was raised In Amin Ullah v. The State (1). In this judgment almost all the cases cited by the learned counsel for the appellants were considered. It has thus been observed:- "I now turn to the question of abscondence. According to the prosecution, the fact that the appellants absconded was consistent only with their guilt. The submission is based on the assumption that the guilty man tries to escape from the police whilst the innocent man rushes to the police to vindicate his innocence. But this assumption is itself based on several assumptions, so that it would not be safe to hold that the abscondence of an accused automatically amounts to evidence of his guilty mind. Thus, for example, apart from the question of the public confidence in the integrity of the Investigating Agency the conduct of the investigation in a particular (1) PLD 1976 SC 629 case might be such as to lead the accused to think that the investigation was biased in favour of the complainant. And, on the other hand, it would be difficult for an accused to explain away a very long period of abscondence. Munir in his Law of Evidence (1974 Edition) observes at page 611- "The conduct of a person in absconding after the commission of the offence is evidence to show that he was concerned in the offence, but it is usually a very small item in the evidence on which a conviction can be based. Absconding is equally consistent with innocence and guilt. It is a proper matter to be considered along with the other facts of the case, whether they bear upon guilt or upon innocence. It is well known that different persons are differently constituted, and that some accused persons, though innocent, deliberately abscond rather than face the ordeal of a criminal trial."
' In my humble opinion, this passage states the correct law. Next as to the corroborative value of abscondence I would only refer to the Federal Court's judgment in Mesal and another v. The Crown (1). Cornelius and Shahabuddin, IL, who pronounced the majority judgment of the Court observed at page 244 "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 mime 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 ho is guilty.
' I am in respectful agreement with this view, which was followed by the Federal Court in Abdul Rauf v. The Crown 1971 SCMR.
250. The same view was taken by Cornelius, C. J. In Siraj Din v. Kala and another PLD 1964 SC 26 and by Sajjad Ahmed Jan, J. In Khan Zaman v. Kachkol and another 1972 SC MR 574. There are of course judgments in which this Court has held that the abscondence of the accused furnished corroboration of the prosecution evidence, but the question is always of the facts and circumstances of each case. But the view taken in Mesal's case has never been dissented from by this Court, and I deprecate the tendency to exaggerate the importance of abscondence by the accused."
' On the other hand cases were cited against the preposition. In Muhammad Bashir alias Shikra v.
The State abscondence of the appellant and his arrest at a distant place was viewed by the Supreme Court as an important circumstance against him. In Gul Hassan and another v. The State under similar circumstances their Lordships of the Supreme Court have held:- "M a precaution the learned Judges in the High Court looked for confirmatory evidence and maintained the convictions and sentences of Gul Hassan and Bahadur Khan alone as they were proved to have absconded after the occurrence. This circumstance though not of a conclusive nature was considered as sufficient corroboration of their participation in the assault. As (1) 1971 SCMR 239 no such evidence was forthcoming in the case of Khanan Khan and Hayat they were given the benefit of doubt and acquitted. This approach to the appreciation of the testimony of the eye-witnesses did not mean that they were disbelieved qua two of the accused persons as urged by Mr. Manzur Qadir or that the very same evidence on which the conviction of Gul Hassan and Bahadur rested was disbelieved in the latter's case as maintained by Mr. Peer Bakhsh. The learned Judges considered that in view of the blood-feud between the parties and the interest of two of the eye-witnesses in the deceased, it was safe to look for confirmation from an independent source and in that they followed merely a rule of precaution."
' A Division Bench of this Court in Khushi Muhammad v. The State has taken the view thus: - "In any case, corroboration is available by the circumstance of the appellant's abscondence for nearly 7 months which circumstance is relevant as held in Gui Hassan and another v. The State PLD 1969 SC 89 and Muhammad Bashir alias Shikra v. The State 1970 SCMR 351. The evidence of both the ocular witnesses can, thus, be relied upon."
' In Bashir v. The State the accused remained absconded for about a month and this was taken as corroboration to the testimony of the eyewitnesses.
It will, therefore, be seen that no inflexible rule can be laid down and the abscondence of the accused will be judged in the light of the facts and circumstances of each case. Even in the Supreme Court judgment in which though the tendency to exaggerate the importance of abscondence has been deprecated yet it has been observed that the question is always of the facts and circumstances of each case. I, therefore, conclude that abscondence by itself is a very small item in the evidence and by itself may not afford corroboration to the interested testimony yet in the whole body of the evidence it has its own significance. In the instant case, therefore, I have come to the conclusion that the motive, the medical evidence and the abscondence of the three appellants after the occurrence furnished sufficient corroboration to the testimony of the three eye-witnesses. No exception, therefore, can be taken to their conviction for the offences charged.
' For all the reasons I do not find any merit in this appeal and the same is, therefore, dismissed.