P L D 1963 (W (PLP)

ORTCHESON, J.

‑The facts of this case are set out in the judgment of my learned brother Muhammad Daud Khan and need not be repeated, though two points may be mentioned. The first is that both the alleged eye‑witnesses Ghulam Nabi and Said Faqir have not stated that two shots were fired by each of the appellants. Said Faqir has so deposed, but the relevant portion of Ghulam Nabi's statement runs :‑ Muhammadullah the present accused and Habibullah convict stood up from a depression. Muhammadullah accused was armed with a rifle and Habibullah convict was armed with a shot‑gun. Both of them fired one shot each at the deceased who was hit and fell down on the ground. Azimullah and Rahimullah (acquitted accused) also got up from the same depression. Both of them were armed with shot‑gun. They fired one shot each at the deceased .

2. The other point referred to is that the first information report was not lodged by Ghulam Nabi and Said Faqir but by Ghulam Nabi alone. No doubt the statement of Said Faqir was not added as "a rider", but as Ghulam Nabi's deposition constitutes the F. I. R., the statement of Said Faqir was one made in the course of the investigation.

3. Having had the privilege of perusing the judgment proposed to be delivered by my learned brother, I am regretfully constrained to differ not only from his conclusion on the merits of the case, but also from some of his observations in support of that conclusion.

4. In the course of his judgment my learned brother observes :‑ No doubt in a case of an approver corroboration is necessary before an accused person is found guilty, but the same is true in the case of an interested witness . . . . . It is true that it is not necessary in law that the corroborative circumstance should itself be sufficient proof of the guilt of the accused person, but there is only a difference of small degree, if at all, between the corroboration required in support of the statement of an approver than in support of the statement of an interested witness. With the utmost respect, the view taken by my learned brother on this point is not in accordance with the law declared by the Supreme Court of Pakistan in Nazir and others v. The State (P L D 1962 S C 269). The learned Judges remark :‑ By what we said in Niaz v. The State we were not laying down any rule of law though we were explaining for the guidance of Courts our own approach to the problem that generally confronts the Courts in cases of crime by violence. It is possible to lay down a rule of law that a witness belonging to a particular category is to be presumed to be unworthy of credit without corroboration. In the case of an accomplice such a rule has already been accepted by the Courts: But we had no intention of laying down an inflexible rule that the statement of an interested witness (by which expression is meant a witness who has a motive for falsely implicating an accused person) can never be accepted without corroboration. The definition of the expression "interested witness" given above shows that it refers to those witnesses who are not only related to the deceased but are inimical to the accused, since it cannot be held that the mere relationship of a witness with the deceased provides a motive for his falsely implicating an accused person. No doubt a relation of the deceased has good grounds for wishing the offender to be brought to book, but that is not the same thing as saying that he wishes to see an accused person falsely implicated.

5. Later in the judgment cited above their Lordships of the Supreme Court go on to observe that 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. It may further be mentioned that in Ali and others v. The Crown (P L D 1954 Lah. 201) cited by my learned brother in another connection, an approver was held to be an even more unsatisfactory type of person than an ordinary accomplice. After referring to the well‑settled principle that corroboration of the evidence of an accomplice is required the learned Judge who wrote the judgment goes on to observe What has been said above applies to the evidence of all accomplices, but I am of the view that when dealing with the evidence of an approver greater care is called for.

6. It emerges from the above discussion that not only is it incorrect to say that there is little or no difference between the credibility of an interested witness and that of an approver, but also that on the one hand there may be cases where no corro boration of the evidence of an interested witness is required, and on the other hand, that an approver is an even more untrustworthy type of witness than an ordinary accomplice. My learned brother has, therefore, if I may say so with respect, mis directed himself as to the quantum of corroboration required before the evidence of an interested witness can be accepted, and this misconception may well have influenced his conclusion it the present case.

7. The next question to be dealt with is whether the conduct of an accused person in absconding can be treated as corroboration. In this connection my learned brother remarks in his judgment :‑ "In such circumstances, the mere abscondence of the accused for a long period was considered to be not sufficient to serve as a corroboration of the statement of an approver in AU and others v. The Crown P L D 1954 Lah.

201. It is further held in the judgment that mere absconding of the accused is no corroboration." With the utmost respect, my learned brother appears to have failed to notice an important point of distinction between Ali's case and the present. In the former, two of the three accused were shown to have been arrested in another case unconnected with the one before the High Court. The relevant portion of the judgment runs :‑ "Muhammad Aslam, Sub‑Inspector (P. W. 29) stated that Shabna and Paralli had been arrested in some other case and had been sent to him from there. In these circumstances it cannot be said that Shahna and Paralli appellants absconded to avoid arrest in the present case and the circumstance has no value even as a piece of corroborative evidence. Ali appellant pleaded as did Paralli and Shahna that he absconded as he was involved in another case. There is nothing to show that this plea was wrong but at any rate mere absconding cannot in my view, for the reasons detailed already, furnish corroboration of the approver's statement." With the utmost respect, I entirely agree that where an accused has been arrested after absconding in one case, the fact of his having absconded cannot be treated as corroboration in another, but in the case now under consideration there is no suggestion that the appellant was wanted by the police in any other con nection. If, therefore, it behold that he did abscond, he absconded for fear of arrest in these proceedings and in no other. In this connection I may also point out that even according to the accused himself his reason for remaining so long away from his village is that he had been "charged" in the present case.

8. My learned brother has called attention to the com mentary on section 8 in Monir's Law of Evidence to the effect that though the conduct of a person in absconding after the commission of the offence is evidence to show that he was concerned in the offence, it is usually a very small item in the evidence on which a conviction can be based. This comment is, according to the foot‑note appended to the relevant passage, based on Mahla Singh v. Emperor (A I R 1931 Lah. 38) but, with the utmost respect to the learned commentator, I have been unable to find any reference to the words italicized above in that ruling. The only one of the three learned Judges who had referred to the fact of Mahla Singh's absconding is Harrison, J. who remarked We are left therefore with the fact that Mahla Singh absconded. This is itself is of little importance in a case such as this, where the evidence is practically worthless and consists of very little if anything beyond the fact that the accused absconded. Neither Agha Haider, J. nor Dalip Singh, J. to whom the proceedings were referred on a disagreement between the other two learned Judges, has even referred to the accused's having absconded, much less expressed any opinion regarding the weight to be attached to that circumstance. With great respect, I entirely agree a that when the other evidence in the case is worthless, the accused's absconding cannot be held to be H sufficient for his conviction ; but the position is very different where the absconding is being used as corroboration of the evidence of an eye‑witness who is not shown to be completely unreliable.

9. Apart from the fact that both Illustration (i) to section 8 and Illustration (c) to section 9 of the Evidence Act clearly lay down that an accused's conduct in absconding is relevant fact, it was pointed out in Gangaram Hari Paril and others v. Imperator (62 1 C 545 at p. 571) that the fact that the six accused concerned in the case under consideration absconded was conduct going to show that they were indeed concerned in the murder, and that anything which tended to explain their conduct and which furnished a motive other than a guilty conscience was clearly relevant under section 9 of the said Act.

10. For the above reasons I am unable to agree with my learned brother that the conduct of an accused in absconding isle matter of little or no importance in determining the question of his guilt or innocence.

11. The next question for consideration is whether the two alleged eye‑witnesses, Ghulam Nabi (P. W. 1) and Said Faqir (P. W. 2), were accompanying the deceased on his last journey. My learned brother, in coming to the conclusion that they were not, remarks : "The corroboration of the statements of these witnesses becomes all the more necessary when we find that their statements were disbelieved against Azimullah and Rabimullah, the two previously acquitted accused." It is true that in Mahla Singh's case, referred to above, one of the learned Judges observed that perhaps the strongest criticism of the evidence of the eye‑witnesses was that they were disbelieved or not accepted at the trial of one of the alleged culprits who had been arrested and tried before the others, but if it is a relevant fact that Azimullah and Rahim Ullah were acquitted, it is equally relevant that the evidence of Ghulam Nabi and Said Faqir was accepted against the other absconding accused, Habibullah, who was convicted on the basis of their testimony. Moreover, even in the case of the acquitted accused the presence of these witnesses was not disbelieved either by the trial Court or by the Court of the leaned Judicial Commissioner. They were convicted by the former Court, and only acquitted by the latter on the basis of the rule of abundant caution. One important point of distinction between the case of Azimullah and Rahimullah, the acquitted accused, on the one hand, and that of Habibullah and the present appellant on the other, is that whereas Habibullah and the appellant absconded, Azimullah and Rahimullah remained in the village and were arrested soon after the occurrence. It is, therefore, with respect, incorrect to say that the acquittal of Azimullah and Rahimullah creates a reasonable doubt as to the presence of Ghulam Nabi and Said Faqir at the time of the occurrence.

12. My learned brother has disbelieved the prosecution story that the object of the deceased's journey was to mortgage his house in village Salim Khan, and argues that the prosecution have miserably failed to prove that any such house existed. He has further drawn a presumption against the prosecution from their failure to produce Mir Ahmad, the barber who is alleged to have been contemplating taking the house in question on mortgage. With great respect, however, I must call attention to the dictum laid down in Rang Ali v. The State (P L D 1958 Lah. 242) that in all civilized systems of jurisprudence the presumption is against perjury. The presumption is, of course rebuttable, and is very frequently rebutted, but in the present case the statement of Ghulam Nabi and Said Faqir on oath that the deceased had a house in Salim Khan has not been refuted. It further appears to me that the witnesses would scarcely have dared to put forward an explanation of the journey which, if false, could so easily be belied. I am also, with great respect, unable to agree with the proposition that the failure to produce Mir Ahmad raises any presumption that if produced he would have given evidence against the prosecution. It is well settled that it is not incumbent on the prosecution to rebut in advance any defence that maybe raised by the accused, and if in fact Mir Ahmad had not contemplated taking a mortgage of the deceased's house the defence could easily have demonstrated the falsity of the prosecution allegation, on this point by producing him.

13. My learned brother also expresses the opinion that "it is more possible that the deceased was attending to his agricul tural pursuits in that area", but though I have gone carefully through the evidence on the record, I have been unable to find any suggestion that the deceased owned or cultivated any land in the vicinity of the spot where his body was found, nor was any question put in cross‑examination to any of the witnesses on this point.

14. In my opinion, therefore, there is no reason to doubt the prosecution story that at the time of his death the deceased was on his way to village Salim Khan, and if this part of the prosecution story is true, the presence of Ghulam Nabi and Said Faqir is eminently natural. As pointed out by the learned Sessions Judge, a man who is proceeding to another village to enter into such an important transaction as the mortgage of his house is unlikely to go alone, and as Ghulam Nabi was the deceased's cousin and Said Faqir his nephew, it was natural that he should take them with him. My learned brother considers it to be a circumstance reflecting on the credibility of the two eye‑witnesses that in the first information report they did not mention the purpose of their visit. The first information report can only be used to contradict Ghulam Nabi, though Said Faqir's statement, even if made in the course of the investigation, can of course be used to contradict him. In my opinion, however, the mere omission of the witnesses to give the object of their journey cannot lead to the inference that the later explanation is false. If they had given two contradictory explanations the position would, of course, have not been different, but such is not the case.

15. My learned brother has referred to certain discrepancies in the evidence of the witnesses relating to where they found the chillam. In this connection it is interesting to note that in Mahla Singh's case, already referred to, a chillam also featured, and there were also discrepancies in the evidence of the prosecution witnesses with respect to it. Agha Haider, J., however, remarked :‑ "We must remember that an illiterate Zamindar was making a statement before the Court about three years after the incident of (sic) which lie was deposing and unless he was thoroughly tutored it is not likely that he would be able to give the details of such trifling incidents as are relied upon by the defence in order to discredit his testimony." 1n the present case, the witnesses are giving evidence after fourteen years, and the likelihood of such discrepancies creeping into their evidence is correspondingly increased by the much greater lapse of time.

16. My learned brother recognises that the presence of Ghulam Nabi and Said Faqir at the time of the occurrence finds some corroboration from the evidence of Umar Khan Lambardar (P. W. 5) that the witnesses came to him and reported the occurrence. He has, however, discounted this fact by pointing out that two of the accused were later acquitted but; as I have tried to point out, that acquittal cannot in the circumstances of this case be held to disprove the presence of the witnesses.

17. For the above reasons I am firmly of the opinion that Ghulam Nabi and Said Faqir are speaking the truth in stating that they were accompanying the deceased, though not actually close to him, at the time of the occurrence. The next question to be determined, therefore, is whether their testimony finds sufficient corroboration from the other evidence on the record.

18. The learned Sessions Judge found such corroboration, apart from the absconding of the accused, in the statements of some of the witnesses in the previous two trials, but as rightly pointed out by my learned brother, those statements are inadmissible in evidence, not having been taken in the presence of the appellant. The only corroboration left, therefore, is the fact of his absconding.

19. My learned brother has relied on the dictum in Ali v. Crown already referred to, that 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. In the present case the appellant alleges that he had gone to Swat State before the occurrence, and on learning of the accusation against him, remained there out of fear. Sarwar Shah F. C. (P. W. 8), on the other hand, states that at the time of the occurrence he was posted at Police Station Swabi, and that on going to search for the appellant in his village he was informed that the latter had gone to the Tribal Territory. Unfortunately, the source of his information has not been elicited, but I agree with the learned Sessions Judge that the appellant, who was at that time very young, had no good reason for going alone to Swat State. Moreover, if there was a good reason, the appellant might have been expected to disclose it. Another circumstance which in my opinion tells agaist him is that even after the acquittal of Azimullah and Rahimullah he did not give himself up. If his conscience was clear, the acquittal of the alleged culprits should have gone far to convince him that his fears were groundless. It may be argued that the information of the acquittal might not have reached him, but if, as held by my learned brother : "he (the appellant) had been making himself scarce from the authorities, but at the same time he was enjoying practically all the amenities of his home and hearth" he must have been paying frequent visits to his village and could scarcely have failed to pick up information of such interest to him.

20. In my opinion, therefore, the failure of the appellant to give himself up until the 27th of January 1961, nearly thirteen years after the occurrence, cannot be explained on any hypothesis other than that he was concerned in the present crime and was consequently afraid to surrender to the authorities. This, in turn, to my mind, forms sufficient corroboration of the statements of Ghulam Nabi and Said Faqir to justify the main tenance of his conviction under section 302/34, P. P. C.

21. In view of the unfortunate disagreement between my learned brother and myself there is no option but to refer the case to a third Judge for decision. I accordingly direct that the pro ceedings be laid before my learned brother Anwarul Haq before the end of his circuit in Peshawar. MUHAMMAD DAUD KHAN, J.‑Muhammadullah (32) son of Azimullah, of village Baqar Koruna, Tahsil Swabi, was sentenced to transportation for life under section 302/34, P. P. C. by Agha Khan Baba Khan, Additional Sessions Judge, Mardan, on the Ist of February 1962. He has appealed from jail.

2. The appellant was tried for the murder of Rahim Shah, their co‑villager, by firing at him with guns within the limits of village Rishtanai Koruna, in furtherance of his common intention along with Azimullah and two others on the 16th of June 1948, at kacha gharma time (i.e. between 10 and 11 a.m.). It may be mentioned here that in the first information report Muhammad ullah appellant was charged along with Azimullah, his father, Rahimullah his cousin and Habibullah, a cousin of his father, for firing at the deceased and murdering him in furtherance of their common intention. Azimullah and Rahimullah were arrested soon after the occurrence, and they were tried jointly and convicted by the trial Court, but they were acquitted on appeal by the Court of the then Judicial Commissioner's Court, N.‑W. F. P. on the 20th of May 1950. Habibullah surrendered on the 2nd of July 1953 and he was tried for the same offence and convicted and sentenced to transportation for life. His appeal was dismissed by the Court of the Judicial Commissioner, N.‑W. F. P., on the 23rd of February 1955. Muhammadullah appellant surrendered on the 27th of January 1961, and after the necessary inquiry proceedings, he was tried by the Additional Sessions Judge, Mardan, and was sentenced as mentioned above.

3. The occurrence had taken place on the path situated on the north of a canal at a distance of two to four furlongs from Baqar Koruna and in the limits of Rishtinai Koruna on the 16th of June 1948, between 10 and 11 a.m. The report of the occurrence was lodged by Ghulam Nabi (P. W. 1), cousin of the deceased, in Police Station Swabi lying at a distance of 5/6 miles from the spot at 13‑20 hours. The reporter stated that he had gone first to village Gohati to inform Umar Khan Lambardar (P. W. 5) of the occurrence and on his advice he had gone to Police Station Swabi, and made the first information report. Village Gohati is three miles from the scene of occurrence and Swabi is five miles from village Gohati. He, therefore, made this report after traversing a distance of about eight miles on foot as these places were not connected by a road.

4. The relevant facts of the occurrence as stated by Ghulam Nabi (P. W. 1), who is a cousin of the deceased, and Said Faqir (P. W. 3), who is a sister's son of the deceased at the trial are briefly, as follows :‑ Rahim Shah deceased had a house in village Salim Khan lying at some distance from the hamlet of Baqar Koruna where he was then living. On the day of occurrence he had left his house at about 10/11 a.m. in the company of Ghulam Nabi and Said Faqir P. Ws. with a view to mortgage this house to one Mir Ahmad, a barber of village Salim Khan, and on the request of the deceased these two P. Ws. also set out to accompany him to village Salim Khan. After they had traversed a distance of two to four furlongs (differently stated at different occasions), they found a chillam lying on the road. According to Ghulam Nabi (P. W. 1), the chillam was lying on the north of the road, while according to the statement of Said Faqir (P. W. 2) it was lying on the south of the canal, but according to the site plan the chillam was lying to the north of the canal. Ghulam Nabi and Said Faqir P. Ws. stopped with a view to smoke the chillam, while Rahim Shah deceased being a non smoker, continued proceeding ahead. Here too, the two eye witnesses differed with respect to the fact whether they smoked the chillam which was already filled with tambakoo or they had put their own tambakoo in it. The deceased reached at a distance of about 20 paces, according to these prosecution witnesses, while according to the site plan, the deceased was at a distance of ,40 paces from the place where these P. Ws. were present after having smoked the chillam when the appellant and Habibullah, out of his four companions, got up from a depression lying on the north of the road and fired two shots each at the deceased with which the deceased got hit and dropped down. Azimullah and Rahimullah also got up from the same depression and fired two shots each at the deceased. After having killed the deceased on the spot, the appellant, along with his three companions, entered the tribal territory lying at a distance of 200/300 paces from the spot. After the appellant and his companions bad disappeared, one Sultan, who had since died, and Gujarai (P. W. 4), resident of the hamlet known as Reshtinai Koruna, came to the spot. According to Ghulam Nabi and Said Faqir P. Ws. Gujarai and Sultan came to the spot when they were already present there, while Gujarai (P. W. 4) stated that when he came to the spot, he found the deceased lying dead, and nobody present with the dead body, and that Ghulam Nabi and Said Faqir P. Ws. came to the spot from Baqar Koruna along with a number of other persons afterwards.

5. Ghulam Nabi and Said Faqir P. Ws. left the dead body on the spot and proceeded to village Gohati where they informed Lambardar Umar Khan (P. W. 5) of the occurrence and charged all the four accused for firing at the deceased and murdering him, and on his direction they went to the police station and lodged a report.

6. At the trial, as well as, in the first information report, they have given the same motive for the offence, namely, that a daughter of Azimullah (sister of the appellant) eloped with Abdul Ghani, a nephew of Rahim Shah deceased, and that on the second day of the elopement Rahim Shah deceased made over the girl to Umar Khan Lambardar so that she might be taken away from him by her parents.

7. The first information report was recorded by Abdul Malik M. H. C. (P. W. 6). Shaida Muhammad, then I. H. C. Swabi (P. W. 10), went to the spot, and reached there at 16‑20 hours. He found the dead body lying there. He prepared the injury sheet and inquest report of the deceased and sent the dead body to the mortuary under escort of Bahadur, Foot Constable. He also prepared the site plan. According to the site plan, the abadi of the hamlet Reshtinai Koruna was at a distance of 300 paces from the spot. He did not find any chillam lying on the spot.

8. Dr. Abdul Aziz Radiologist conducted the autopsy of Rahim Shah on the 16th of June 1948, at 6 p.m. and found the following injuries :‑ External examination :‑ (1) A bullet entrance wound, 1/2" in diameter, on the left side of the chest. (2) A bullet exit wound, 3/4" in diameter, on the outer side of the left arm in the deltoid region. (3) Eight pellet entrance wounds on the back of the right lumbar region covering an area 4" in diameter. (4) Eight exit wounds, on the front of the right iliac region over an equal area. (5) Nine pellet entrance wounds over an area of 6" in diameter, on the front of the right lumbar region. He opined that these injuries were inflicted before death and the shots were fired from a distance. On internal examination he found the abdominal wall, peritoneum, intestines and right kidney injured. One pellet was recovered from the left side of the sacrum corresponding to injury No.

5. Death was due to shock and haemorrhage on account of injury to the left sub‑clavian vessels, intestines and pelvic blood vessels on account of the wounds, inflicted. He opined that the deceased was hit with three shots.

9. There is some difference between the statements of Ghulam Nabi and Said Faqir P. Ws. recorded in the first information report and the trial. In the first information report they stated that they were accompanying Rahim Shah at noon time to village Salim Khan. They bad not mentioned the purpose of their visit in it, while in their statements at the trial, they said that they were accompanying Rahim Shah deceased as the latter wanted to mortgage his house situated in village Salim Khan to Mir Ahmad barber of the village. In the first information report he charged all the four accused with firing with banadeeq which had no other meaning except shotguns, but after the result of the medical examination was known, they changed their version with respect to the firearms which the accused were carrying at the time of the occurrence and charged Muhammadullah appellant for firing with a rifle, while the remaining three accused for firing with shotguns. This difference between their statements was due to an attempt on their part to reconcile injury No. 1 with the weapon of the offence, as this injury was described as, "an entrance wound of a bullet."

10. The accused pleaded not guilty. In explaining his abscondence he stated in the trial Court in the following words :‑ "Before the occurrence I was in Swat and learnt that I was charged, and therefore, out of fear I did not surrender."

11. The learned trial Judge found that there was no love‑lost between Ghulam Nib! (P. W. 1), Said Faqir (P. W. 3) and Rahim Shah deceased, and therefore, the former were not disinterested witnesses, and consequently, their testimony alone would not be sufficient for the conviction of the accused unless it was corroborated by other evidence. He felt the necessity of corroboration on two points, (1) about the actual presence of these prosecution witnesses at the spot at the time of the occurrence, and (2) if they were present, then what they had stated was true. The corroboration of the statements of these witnesses becomes all the more necessary when one finds that their statements were disbelieved against Azimullah and Rahimullah, the two previously acquitted accused. The learned trial Judge found the corroboration of the statements of these witnesses about their presence at the spot in the statements of Gujarai P. W. recorded by the learned Additional Sessions Judge on the 15th of December 1949 and recorded by the inquiry Court on the 11th of May 1954, in the proceedings against Habibullah, tried previously, and consequently, trans ferred those statements under section 288, Cr. P. C. to the Sessions file. With regard to the veracity of their charge against the appellant he found the abscondence of the appellant as a sufficient corroborative circumstance. In my view, the evidence relied upon by the learned trial Judge cannot be a corroboration in the eye of law. In his anxiety to find out corroboration for the presence of the two so‑called eye‑witnesses on the spot at the time of the occurrence he transferred the statements of Gujarai P. W. recorded by the Magistrate Swabi on the 11th of May 1954 and the Additional Sessions Judge on the 15th of December 1949 in the previous trials to the Sessions file under section 288, Cr. P. C. On both the occasions Muliammadullah appellant was not present before the Court and had no opportunity to cross‑examine the witness. Section 288, Cr. P. C. runs as follows Evidence given at preliminary inquiry admissible. The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may; in the discretion of the presiding Judge, j such witness is produced a n4 examined, be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872. Chapter XVIII relates to inquiry into cases triable by the Court of Session or High Court. It is, therefore, abundantly clear that the evidence given in the preliminary inquiry before the committing Magistrate in the presence of Muhammadullah appellant would have been only admissible under section 288, Cr. P. C. The statements of Gajarai recorded in the previous inquiry and trial when Muhammadullah appellant was not present in the Court were not admissible in evidence. The learned trial Judge, therefore used an inadmissible evidence in corroboration of the fact that the two eye‑witnesses were present on the spot when he arrived, and therefore, they must have witnessed the occurrence. Gujarai P. W., on the other hand, in the inquiry Court as well as at the trial, in the presence of the appellant, had consistently stated that these eye‑witnesses were not present on the spot when he arrived and they were amidst the group of persons belonging to Baqar Koruna who came later from the village to the spot. He was declared hostile and the Public Prosecutor was allowed to cross‑examine him. By being declared hostile, therefore, he cannot turn out to be a true witness. When the prosecution had itself declared him hostile his statement normally loses all its evidentiary value, and therefore, neither it l can be used in favour of the prosecution nor against it. In this case, therefore, his statement is required to be safely eliminated from consideration. If this is done then there is no corroboration with regard to the presence of these two eye‑witnesses on the spot at the time of the occurrence.

12. On the other hand, when the circumstances and the statements of these witnesses are carefully examined, they point out more towards their absence from the spot, rather to their being present there at the time of occurrence. The prosecution has also miserably failed to prove that the deceased was the owner of a house in village Salim Khan or Mir Ahmad barber of the village was prepared to get it on mortgage from the deceased. Mir Ahmad barber was alive. He could easily have been produced as a prosecution witness to prove that a talk, about the mortgage of the house was going on between him and the deceased during the days of the occurrence. He was not produced. The presumption is that had he been produced he would have stated against the prosecution. Even the deceased being owner of a house in village Salim Khan had not been proved by the production of an independent witness. In the first information report these two prosecution witnesses have not stated at all as to why they were accompanying the deceased to Salim Khan village. It was afterwards that they had given the reason, and even this belated reason was not borne out by any independent evidence. If they were accompanying the deceased and had hardly traversed a distance of two to four furlongs why their craving should have the upper hand when they stopped to smoke the chillam so shortly after their departure from the village. They had to explain as to why the accused had not fired at them when the accused were inimically disposed towards them on account of the disgrace, and why the deceased was selected to be the target of their vengeance. They could not have given any explanation if they had admitted that they were accompanying the deceased when he was killed. It was to create an answer to this question that possibly they had stated that they had stayed behind to smoke the chillam which they found lying on the way. If this was a fact then what was the necessity for the deceased not to have stayed for his companions for a minute or so when they were smoking the chillam and then set out together, when they were accompanying him to village Salim Khan, on his own request. These facts clearly show that these eye‑witnesses were not accompanying the deceased at the time of the occurrence, and since the occurrence had taken place within a very short distance from the village they came to the spot after they learnt of the occurrence and then went to the police station for report. No doubt these witnesses were supported by Umar Khan Lambardar when he stated that they had informed him in village Gohati that all the four accused had shot dead the deceased, but this circumstance was not considered sufficient to connect Azimullah and Rahimullah with the murder of the deceased, and therefore, they were ultimately let off. In my viw, therefore, the presence of these witnesses on the spot at the time of the occurrence and their having actually witnessed the occurrence is not free from reasonable doubt. Therefore, their evidence as eye‑witnesses cannot be believed without a pinch of salt. It is more possible that the deceased was attending to his agricultural pursuits in that area alone and was killed by someone who could not be identified, and therefore, the appellant and his companions were merely charged on suspicion.

13. Assuming for the sake of arguments that the above named witnesses were present at the spot, then the question whether the statement of these witnesses to the effect that Muhammadullah was one of those who had fired at the deceased and had murdered him is proved, because the abscondence of the appellant serves as a corroborative circumstance sufficient to connect the appellant with the offence. No doubt section 8, Illustration (i) of the Evidence Act provides that :‑ "A is accused of a crime. The facts that, after the commission of the alleged crime, he absconded, or was in possession of property . . . . . are relevant." The circumstance that the appellant remained in abscondence from the 16th of June 1948 to the 27th of January 1961, is a relevant fact. It is to be seen whether the prosecution had succeeded in proving that the appellant was present in the village on the morning of the day of occurrence or a day earlier and he had absconded after the occurrence. No effort in this case has been made to prove this fact. The accused explained this circumstance in his own way. He said that he was in Swat, and that when he learnt that he had been charged, he did not surrender on account of fear. In such circumstances, the mere abscondence of the accused for a long period was considered to by not sui9iept to serve as a corroboration of the statement of an approver in Ali and others v. The Crown (P L D 1954 Lah. 201 (D B)) in which Shabir Ahmad, J. with whom S. A. Rahman, J. had fully concurred, remarked the following :‑ "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." It is further held in the judgment that mere absconding of the accused is no corroboration. No doubt in a case of an approver corroboration is necessary before an accused person is found guilty, but the same is true in the case of an interested witness. In the case of the former it must be of a substantial character, but in the latter case, the corroboration should also be such that it should not admit of any interpretation, at all favourable to the accused in any manner. It is true that it is not necessary in law that the corroborative circum stance should itself be sufficient proof of the guilt of the accused person, but there is only a difference of small degree, if at all, between the occurrence required in support of the statement of an approver than in support of the statement of an interested witness. In the Law of Evidence by Monir, third Ed. at p. 38 in commentary of section 8, it is pertinently remarked that "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". It is further laid down there that "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." It is, therefore, obvious that in spite of the fact that the appellant had absconded for such a long period, this by itself, is not sufficient to prove that the appellant was concerned with the commission of the murder of the deceased. The abscondence should be used as a last item of the evidence on which an accused person can be convicted. In the instant case, therefore, it cannot safely be used as a corroboration of the two eye‑witnesses whose testimony is not sufficient to convict the accused unless it is corroborated by reliable evidence.

14. In this case, the appellant had not to undergo the pangs of a normal exile, as according to the prosecution itself, the tribal territory is situated at a stone‑throw distance from his residence. He had been making himself scarce from the authorities, but at the same time he was enjoying practically all the amenities of his home and hearth. In my view, therefore, the abscondence of the appellant in this case on that score as well, cannot serve as a corroboration of the interested evidence of the two eye‑witnesses named above, and consequently, the statements of these witnesses, coupled with the abscondence of the accused is not sufficient to justify the conviction of the appellant for such heinous offence. The prosecution has, therefore, failed to bring home the charge of the murder of Rahim Shah deceased to the appellant. At least the case is not free from reasonable doubt and the conviction of the appellant on the evidence produced by the prosecution, is extremely hazardous. The jail appeal is, therefore, accepted, the conviction and sentence of the appellant are set aside, and the accused should be set at liberty forthwith. K. B. A.