1969 P Cr (PLP)

Penal Code (XLV of 1860), S. 302 and Evidence Act (I of 1872), S. 8‑Absconding‑Relations between complainant and accused strained‑Mere abscondence, in circumstance, of not much significance for possibility of false implication by opposite party cannot be brushed aside. Tasaddadue Hussain, Senior Advocate Supreme Court of Pakistan (Hamiduddin, Advocate Supreme Court with him) instructed by Ferozuddin, Attorney for Appellants. Faiz Muhammad, Advocate‑General West Pakistan (Abdul Qayyum, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State. Date of hearing : 10th October 1957. SHAHABUDDIN, J.‑The appellants Muhammad Aslam and Boota were tried with seven others under sections 148, 302/149 and 307/149, P. P. C. in respect of the murders of Nur Ahmad and Nur Hussain and gun‑shot injuries found on Nawab Din and Bashir Ahmad P. Ws. The case for the prosecution was that on the morning of 8th November 1955 the accused and one Muhammad Din absconder armed with deadly weapons com mitted the above‑mentioned murders and caused injuries to the above‑said witnesses. There were six eye‑witnesses including the two wounded men and information was given to the police with out delay. Yet as the relations between the accused and the prosecution party were strained, caution in accepting the evidence of eye‑witnesses was considered necessary and the Sessions Judge convicted only six of the accused as he thought that the evidence against them was sufficiently corroborated. On appeal the learned Judges of the High Court acquitted four of the convicted accused and confirmed the convictions and sentences imposed on the present appellants. They observed that after going through the evidence of the eye‑witnesses carefully they came to the conclusion that because of the strained relations between the parties prudence required that there should be corroboration although there was nothing to show that any of the appellants had been named falsely. With regard to one of the accused whom they acquitted the only circumstance that was said to corroborate the eye‑witnesses was that at his instance a pistol and seven live cartridges were recovered while the ocular evidence against the other acquitted accused was said to have been corroborated by the evidence of their abscondence. The learned Judges held that the recovery of the pistol did not help the prosecution as there was no evidence that it was used in the occurrence and that mere abscondence was not sufficient corroboration. But as regards the present appellants with reference to the evidence of their abscondence the learned Judges observed: "Abscondence may be actuated by a desire to avoid arrest even if the person who absconds is innocent, but if a person does not know that he is likely to be arrested, the act of absconding is not without significance. In the present case, there is nothing to show that any of the appellants knew that in spite of being innocent he had been reported against and, therefore, the fact that they had absconded will not be a valueless piece of evidence". Another reason given for confirming convictions of the appellants was that though they had furnished bonds to appear before the Tehsildar of Toba Tek Singh on the 8th September 1955, the day of occurrence, they did not attend that Court and there was no satisfactory explanation for their non‑appearance. The appellants were not asked to explain as to why they did not appear in the Court of the Tehsildar on that day, but the learned Judges observed that they found from the record that a question though not happily worded was put to the present appellants with regard to their having not appeared in the Court of the Tehsildar on the 8th September. They therefore came to the conclusion that there was sufficient corroboration of the interested evidence as far as the appellants were concerned. It was contended by Dr. Tassadaque Hussain for the appel lants that the learned Judges were not justified in drawing the conclusion that there was nothing in the present case to show that the appellants knew that in spite of their being innocent they had been reported against, that the very proposition they laid down with regard to the significance of abscondence was equally applicable to the four accused and yet they were acquitted. As regards the other reason given by the learned Judges against the present appellants the argument of Dr. Tassaddaque Hussain was that the learned Judges did not read the record correctly. It was pointed out that there was nothing in the evidence of the clerk of the Court of the Tehsildar to show that the appellants were bound over to appear on 8th September and that in none of the questions put to the appellants was their attention drawn to their non‑appearance in the Court of Tehsildar. These contentions have to prevail. Both the parties belong to the same village and the incident took place in the chak adjoining that of the occurrence. There were cases pending against both the parties under section 107, Cr. P. C. and the relations between them were strained. In the circumstances the abscondence of the appellants even according to the principle laid down by the learned Judges was not significant, for their false implication by the other party was likely. Similarly the non‑appearance of the appellants in the Court at Toba Tek Singh on the day of the occurrence is of no significance, for, it is not unnatural for an innocent person to avoid arrest. However in respect of this circumstance which appears to have mainly influenced their decision the learned Judge have fallen into error. According to the evidence of P. W. 5, the clerk of the Tehsildar, die case in which the appellants had to appear was first posted 19th August 1955, that the Presiding Officer was on flood duty that day and the case was adjourned to 8th September 1955, When none of the respondents attended Court. There is nothing in his evidence to show that on 19th August 1955, on which date the Tehsildar was absent bonds were taken from these appellants for appearance on 8th September 1955, or on each date of hearing. The learned Advocate‑General suggested that it might be that P. W. 5 took the appellants to another Magistrate and had their bonds taken. But this is nothing short of peculation, for no such suggestion was put to the witness. As regards the non‑appearance of the appellants before the Tehsildar on 8th September the learned Judges have proceeded under an erroneous impression that a question was put to these appellants in this respect. Dr. Tassadaque Hussain took us through the statements of these appellants and pointed out that none of the questions referred to the non‑appearance of the appellants on 8th September. In one of the questions reference was made only to the fact that the case against the appellants stood posted to that date while in another question it was suggested that the appellants knew that the prosecution party had to appear in the Court that day. The learned Advocate‑General conceded this position. Therefore even if the non‑appearance of he appellants that day, was of significance, it could not be said that the appellants failed to explain it. Had they been questioned in respect of it they might have given a plausible explanation. In these circumstance their absence from the Tehsildar's Court cannot be taken as inconsistent with their innocence. The result is that the ocular evidence is not corroborated and the case off the appellants is on the same footing as that against the four accused acquitted by the High Court. We, therefore, set aside the convictions and sentences of the appellants and acquit them. Appeal accepted.