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Criminal Appeal No. 159 of 1962, decided on 8th March 1963,

, S. 288‑State ments made by witness in commitment proceedings as well as during trial against some accused‑Cannot be used as evidence against another co‑accused tried subsequently.

‑Interested witnesses‑Corroboration need not be of same probative force as in case of accomplice‑Corroboration need not necessarily be by oral testimony of another independent witness‑Any circumstance may afford such corroboration‑Abscond ing of accused soon after occurrence‑Can be used as corroborative circumstance‑Evidence Act (1 of 1872), Ss. 8 & 9‑Penal Code (XLV of 1860), S. 302.

Nazir and others v. The State P L D 1962 S C 269 ; Mahla Singh v. Emperor A I R 1931 Lah. 38 ; Ali and others v. The Crown P L D 1954 Lah. 201 and Gangaram Hari Parit and others v. Imperator 62 I C 545 ref.

Monir : "Law of Evidence" 4th Ed., Vol. I, p. 32 ref.

Appellant through Jail.

G. A. Bokhary Addl. A.‑G. for Respondent.

Dates of hearing : 1st and 4th March 1963.

This appeal, by one Muhammadullah against his conviction and sentence of transportation for life under section 302/34 P. P. C. by Mr. Agha Khan Baba Khan, Additional Sessions Judge, Mardan, has been referred to me on account of a difference of opinion between my learned brothers Ortcheson, J. and Muhammad Daud Khan, J. The former has come to the conclusion that the appeal should be dismissed, while the latter considers that it should be allowed and the appellant should be acquitted.

2. The deceased in this case is Rahim Shah of village Baqar Koruna in the jurisdiction of Police Station Swabi. Four persons were accused of his murder, namely, the present appellant Muhammadullah, his father Azimullah, his cousin Rahimullah and his father's cousin Habibullah. Azimullah and Rahimullah were arrested on the day of the occurrence, i.e., the 16th of June 1948, whereas Habibullah could not be arrested until the 2nd of July 1953, and the present appellant surrendered himself as late as the 27th of January 1961. Azimullah and Rahimullah were convicted and sentenced to transportation for life by an Additional Sessions Judge, but they were acquitted on appeal, on the 28th of May 1950, by the learned Judicial Commissioners. Hahibullah was tried separately, convicted and sentenced to transportation for life, and his appeal was dismissed by the Court of the Judicial Commissioner on the 23rd of February 1955. The appellant Muhammadullah was the last to be tried with the result already mentioned earlier.

3. Briefly, the case for the prosecution is that there was enmity between the family of the appellant and that of the deceased Rahim Shah on account of the fact that one Abdul Ghani, a nephew and son‑in‑law of the deceased, had abducted the appellant's sister Mst. Zarina, a few months prior to the present occurrence. The girl was, however, restored through the intervention of the deceased. It is stated that, in the first instance, the girl was handed over to Umar Khan Lambardar (P. W. 5), and later on, she went back to her parents, after the matter was compromised with the help of the elders of the village. It appears, however, that the appellant Muhammadullah and his family did not, however, forget this insult and disgrace to their honour, and, accordingly, they decided to take revenge. It is alleged that at kucha gharma time (i.e., between 10‑00 and 11‑00 a.m.), on the 16th of June 1948, the appellant Muhammad ullah, along with the other three accused, lay in ambush in a depression near the path leading from village Baqar Koruna to village Salim Khan, and attacked the deceased Rahim Shah when he was proceeding to village Salim Khan, along with his relations Ghulam Nabi (P. W. 1) and Said Faqir (P. W. 3), for mortgaging his house with Barber Mir Ahmad of that village. Muhammad ullah and Habibullah were the first to open fire and hit the deceased, who fell down. Azimullah and Rahimullah are alleged to have fired at the deceased after he had fallen. It may be stated here that the two companions of the deceased, namely, Ghulam Nabi and Said Faqir, were at that time some distance behind the deceased, for the reason that they had found a chillam lying on the path running alongside the canal and had stopped there to have a smoke, whereas the deceased had con tinued on his journey, as he was a non‑smoker. After firing the shots, all the four assailants escaped into tribal territory, which lies at a distance of about 200 yards from the place of occurrence. When Ghulam Nabi and Said Faqir reached the deceased, they found that he had already expired.

4. From among the persons who were working on their lands in the vicinity, two men, namely, Gujarai (P. W. 4) and one Sultan (since dead) came to the spot immediately after the occurrence. The two companions of the deceased disclosed the names of the assailants to these two men, and then proceeded to village Gohati to inform Umar Khan Lambardar (P. W. 5) of the occurrence, and on his advice they went to Police Station Swabi, where the first information report was made at 1‑20 p.m. by Ghulam Nabi (P. W. 1). Village Gohati is stated to be three miles from the spot whereas Police Station Swabi is about five miles from village Gohati. Thus Ghulam Nabi and Said Faqir had to travel eight miles on foot before reaching the Police Station. At the Police Station the report was recorded by Assistant Sub‑Inspector Shaida Muhammad (P. W. 10), who was at that time working as Investigating Head Constable. He pro ceeded to the spot and took the usual preliminary steps. He arrested Azimullah and Rahimullah on the same day, but could not find the present appellant Muhammadullah and the fourth accused Habibullah, who, as already stated, absconded and could not be traced for years.

5. The post‑mortem examination of the dead body of the deceased was conducted by Dr. Abdul Aziz, who found two distinct types of injuries. There was a bullet entrance wound on the left side of the chest, and a corresponding bullet wound on the outer side of the left arm in the deltied region, whereas the remaining three injuries were all pellet wounds, two of them being entrance and exit wounds of eight pellets each, and the third was an entrance wound of nine pellets. In the opinion of the Doctor, the deceased was hit with three shots, which had been fired from a distance. The medical evidence clearly shows that two types of weapons were used, namely, a rifle and a shot‑gun.

6. The appellant pleaded not guilty at the trial and asserted that he had been falsely charged on account of the other accused persons, two of whom had been acquitted and one convicted. He further stated that Ghulam Nabi and Said Faqir P. Ws. were close relatives of the deceased, and Umar Khan Lambardar was a friend. As regards his absence from the village for nearly twelve and a half years, i.e., from the date of occurrence in June 1948 up to the 27th of January 1961, he gave the explanation that before the occurrence he was in Swat and learnt that he was charged, and, therefore, out of fear he did not surrender. He did not produce any defence evidence.

7. The case against the appellant rests primarily on the evidence of the two eye‑witnesses, namely, Ghulam Nabi (P. W. 1) and Said Faqir (P. W. 3). The first question is whether they were indeed present at or near the spot, so as to be able to witness the occurrence. If it is found that they were present, then the ques tion would arise whether their evidence can be relied upon as against the present appellant without corroboration, or if corroboration is required, what is the degree of that corroboration, and whether the required corroboration is available in the present case.

8. As regards the question of the presence of Ghulam Nabi and Said Faqir at the spot at the time of the occurrence, it seems to me that this cannot be doubted. They were close relatives of the deceased, and it was only natural for him to ask them to accompany him when he was proceeding to village Salim Khan for the purpose of mortgaging his house. It is true that the prosecution have not led any independent evidence to show whether the deceased owned a house in village Salim Khan, and if so, whether he had negotiated its mortgage with Mir Ahmad, but it is significant that statements made to this effect by Ghulam Nabi and Said Faqir were not at all challenged by the defence in cross‑examination. In my view, it was not at all necessary for the prosecution to produce any other evidence to show that the deceased possessed a house in village Salim Khan or that he intended to mortgage it with Barber Mir Ahmad, as statements made to this effect by P. Ws. Ghulam Nabi and Said Faqir remained unchallenged. If indeed it was the stand of the appellant or his co‑accused that the deceased had no house at all in village Salim Khan or that he did not intend to mortgage it with Barber Mir Ahmad, it would have been quite easy for them to produce the necessary evidence to refute the allegations made by Ghulam Nabi and Said Faqir in this behalf. This was, however, not done. There is no evidence on the record that the deceased had any lands in the vicinity where he was murdered, and it is, therefore, difficult to come to the conclusion that he was present there in connection with his agricultural work, when he was done to death. In my view, therefore, the prosecution evidence is sufficient to establish that the deceased was on his way to village Salim Khan, for the purpose of mort gaging his house with Barber Mir Ahmad, when he was attacked and killed I am inclined to agree with the learned trial Judge that in the normal course of business, the deceased was likely to take along with him one or two of his relatives, and it is, there fore, probable that Ghulam Nabi and Said Faqir were accompanying him for this purpose.

9. There are, no doubt, certain discrepancies in the state ments of the two witnesses inter se, and the statement of Ghulam Nabi at the trial and one of his previous statements, as regards the location of the chillam, but it seems to me that the discrepancy is not such as to be of any material importance. It must not be forgotten that Ghulam Nabi was making his statement at the trial nearly thirteen years after the occurrence, and he may very well be uncertain, after the lapse of such a long time, as to whether the chillam was on the north or the south bank of the canal.

10. Another aspect of the evidence of these two witnesses, to which reference has been made by my learned brother Muhammad Daud Khan, J., may be briefly mentioned. He considers that it is significant that in the first information report Ghulam Nabi did not mention the presence of a rifle in the hands of the appellant Muhammadullah, but only used the word " Banadeek ", while describing the weapons carried by the four assailants. It is correct that in the first information report the word " rifle " is not specifically mentioned, but the word " Banadeek " is only a plural of handook and can be used collectively to describe a gun and a rifle. I am, therefore, of the view that the use of the word " Banadeek " in the first informa tion report is not enough to lead to the inference that the occurrence was not seen by Ghulam Nabi. Similarly, his omission to mention the purpose of the journey undertaken by the deceased does not mean that the purpose did not exist.

11. Another point to be noticed in this connection is that Umar Khan Lambardar, who is not interested, in any manner, in the deceased or against the appellant, has stated that. immedi ately after the occurrence, Ghulam Nabi and Said Faqir came to him in village Gohati and narrated the incident describing themselves as eye‑witnesses. If these two persons were not the eyewitnesses and had only come to the spot along with the other villagers, after hearing of the incident it is very doubtful if they would at once proceed to village Gohati in search of the Lambardar and describe themselves as eyewitnesses of the occurrence. The presence of these two witnesses soon after the occurrence is admitted by Gujarai (P. W. 4) who turned hostile at the trial, and denied his earlier statement to the effect that when he arrived at the scene, he found Ghulam Nabi and Said Faqir present at the scene of the occurrence, before the arrival of other villagers. My learned brother Muhammad Daud Khan, J., has rightly held that the previous statement made by Gujarai, in commitment proceedings and during the trials, held against the A other accused persons, cannot be used as evidence against the appellant under section 288 of the Code of Criminal Procedure ; but it seems to me that his evidence, even during the course of the present trial, does give an indication of the presence of Ghulam Nabi and Said Faqir at the spot so soon after the occurrence, as to lead to an inference that they might indeed have witnessed it. For all these reasons, I am of the view that the presence of Ghulam Nabi and Said Faqir at the spot at the time of the occurrence cannot be doubted.

12. However, even if it is held that these two witnesses were present at the time of the occurrence, it is clear that they are interested witnesses, for the reason that they are closely related to the deceased (Ghulam Nabi being a cousin of the deceased and Said Faqir being Ghulam Nabi's nephew) and that there was enmity between the family of the deceased and that of the appellant. Further, both these witnesses have named four persons as the assailants, two of whom have, however, been acquitted. It will be prudent therefore to look for corroboration of their evidence as against the appellant.

13. As regards the degree of corroboration which should suffice in this case, it is to be remembered that Ghulam Nabi and Said Faqir, although interested in the deceased, have no motive of their own to falsely implicate the appellant. The evidence makes it clear that the only enmity between the two families was the one resulting from the abduction of the appellant's sister by the nephew of the deceased. This is a circumstance which would provide a motive for the appellant to do away with the deceased, but not necessarily a motive to the witnesses to falsely implicate the appellant. For these reasons, it seems to me that the corroboration required in the present case is not such as would, for instance, be required in the case of the testimony of an approver or an accomplice.

14. The question of corroboration required in the case of interested witnesses has been dealt with by their Lordships of the Supreme Court iii Nazir and others v. The State (P L D 1962 S C 269), to which reference has been made by my learned brother Ortchesor, J. As observed by their Lordships, " in the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing. Circumstances corroborating the eye‑witness may be such as (1) that the number of culprits mentioned was such as would be required for an attack of the kind which is the subject‑matter of the proceedings ; (2) that the persons named, as culprits were such as would be expected to join in the attack ". In the same judgment, their Lordships further remarked that "for corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth."

15. Now, in the present case, as already remarked, the medical evidence shows that at least three shots were fired, and at least two weapons were used, namely, a rifle and a gun. It is clear, therefore, that the assailants were more than one person, as in the normal course of things, it is difficult to believe that one person would be handling both the weapons simultaneously. This is, therefore, a case where the assault was launched by more than one person. It has already been stated that of the four accused persons named in the first information report, Habibullah's conviction has been maintained, whereas Azimullah and Rahimullah were acquitted by being given the benefit of the doubt on account of and admission made by Umar Khan Lambardar that their names were not mentioned to him, in the first instance by the two eye‑witnesses. The question is whether the second person who joined the convicted accused Habibullah was the present appellant Muhammadullah.

16. There are two circumstances which, in my view, provide an answer to this question. The first is the fact that the abducted girl was the sister of the appellant, and it is, therefore, only natural that the appellant should have participated in the assault launched by his family to avenge the insult offered to them by that abduction. In other words in the case of the appellant this is a circumstance which connects him with the crime. The second circumstance is the fact that the appellant absconded soon after the occurrence and was not available for nearly thirteen years. He himself admits that he absconded due to fear of arrest in this case. My learned brother Muhammad Daud Khan, J. has expressed the opinion that abscondence is not a circumstance which can be used as corroboration, whereat Ortcheson, J. has expressed a contrary opinion.

17. Illustration (i) to section 8 of the Evidence Act provides that the absconding of an accused person after the commission of the offence is a relevant fact. While commenting or this provision of law, Mr. Muhammad Munir in his Principles and Digest of the Law of Evidence observes that:

" the conduct of the accused soon after the incident an important part in determining the guilt of the accused, and is a corroborative piece of evidence. 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." (Page 32 of Volume I, 4th Edition).

Among the cases relied upon by the learned author is Mahla Singh v. Emperor (A I R 1931 Lah. 38) in which the following observations were made by Harrison and Dalip Singh, JJ. :‑

The mere fact that the accused absconded is in itself of little importance in a case, where the evidence is worthless and consists of very little, if anything, beyond the fact that the accused absconded.

18. It will be seen that their Lordships were dealing with a case where there was no other evidence on which reliance could be placed, and the observations made by them have to be viewed in that context.

19. This question also came up for consideration in Ali and others v. The Crown(P L D 1954 Lah. 201) and it was observed as under :‑

" Before absconding can be used against an accused person it must be established that he absconded not because, though innocent, he was afraid of being arrested but because he had a guilty conscience and cases are not uncommon in which innocent persons when convinced that they were going to be arrested have absconded."

In that case, as rightly pointed out by Ortcheson, J., two of the accused persons had absconded to avoid arrest in another case, and, therefore, the learned Judge, who wrote the judgment, observed that their mere absconding could not, in his view, furnish corroboration of the approver's statement. It seems to me, therefore, that Ali and others v. The Crown is not an authority for the view that in no circumstances can the abscondence of an accused person be used as a corroboration of the statement of an interested witness.

20. Another case to which reference has been made is the judgment of my learned brother Ortcheson, J. may also be briefly referred to. This is Gangaram Hari Parit and others v. Imperator (62 I C 545). The question of the absconding of the accused has been discussed in column one of page 571 of the report, and the observations relevant for the present purpose are the following :‑

" The fact of their absconding was conduct going to show that they were indeed concerned in the murder. Therefore, anything which tends to explain their conduct, which furnishes a motive other than a guilty conscience, is clearly relevant under section 9 of the Evidence Act."

These observations leave no doubt, whatsoever, that the learned Judges regarded the absconding of the accused as a circumstance indicative of their guilt, unless another explanation could be furnished for such conduct.

21. It will be observed that under sections 8 and 9 of the Evidence Act, the absconding of an accused person, soon after the commission of the crime, is a relevant fact, and may be taken into account in determining his guilt. The authorities, to which reference has been made by the two learned Judges, who have already dealt with this case, clearly show that absconding o C an accused person is an important and relevant fact which has to be considered while determining his guilt, although taken by itself it is not sufficient to justify a conviction. In other words, it seems to be the view that abscondence of an accused person can be used as a corroborative circumstance, but not as substantive evidence. I find myself in respectful agreement with this view.

22. In the present case, the appellant himself admits that he has been keeping away from the law for nearly thirteen years, because he had come to know that he was charged in this case. His explanation that he was away in Swat at the time of the occurrence has rightly been rejected by the trial Court for the reason that at the time of the occurrence the appellant was of a comparatively young age, namely, between 16 to 18 years, and there seems to be r o reasonable explanation as to why he should have gone to Swat, leaving his own home and family behind. The only explanation, therefore, is that he absconded because of his guilty conscience. On the facts of this case, I have no doubt at all that the abscondence of the appellant provides the necessary corroboration of the evidence of the eye‑witnesses Ghulam Nabi and Said Faqir.

23. The result is that taken together the evidence of the eye‑witnesses, the presence of the necessary motive on the part of the appellant to join in the murder of the deceased, the medical evidence to the effect that more than one weapon was employed in firing at the deceased, and finally, the fact that the appellant absconded soon after the commission of the offence, leave no doubt in my mind that he was one of the assailants, and that he fired one of the fatal shots. The appellant has, therefore, been rightly convicted under section 302, read with section 34, P. P. C. He has already been awarded the lesser penalty permitted by law. I, therefore, find no justification to interfere. The appeal is accordingly dismissed.

K.B.A. Appeal dismissed.

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