P L D 1966 (W (PLP)

8. As already observed above the two appellants Gul Hasan and Bahadur Khan were arrested on the 30th of July 1965, after almost 28 days of their abscondence. After they were convicted in the case by the learned Additional Sessions Judge they escaped from judicial custody. They had given a power of attorney, duly attested by the Jail authorities, to one Khawaja Muhammad Khan, on the 19th of November, 1965, to file an appeal on their behalf in this Court. Their appeal was duly filed by their counsel, Mian Mahmud Ali Qasuri and Syed Masoom Sbah. We were informed at the Bar that it was before the appeal was filed by the learned counsel on the authority of Khawaja Muhammad Khan, their attorney, that Gul Hasan and Bahadur had managed to escape from judicial custody. Bahadur Khan has since been re‑arrested, but Gul Hasan is still at large. This has given rise to a preliminary point as to whether we can dispose of his (Gul Hasan's) appeal and the reference for the confirmation of his death sentence in his absence. Mian Mahmud Ali Qasuri, his learned counsel, contended that Gul Hasan's case should be separated from that of the others, as he is not in the custody of the Court and that it would be futile to confirm his death sentence if we chose to do so, since it cannot be executed owing to his absence. The learned counsel frankly admitted that there was no provision in the Criminal Procedure Code (hereafter referred to as the Code) forbidding the confirmation of a death sentence by the High Court passed on a convict by the Court of Session merely because he is hiding or has removed himself successfully out of the reach of law for the time being. The learned counsel merely argued on general principles that the Court should not indulge in what might turn out to be a useless pursuit.

9. The position appears to us to be just the reverse both on a reading of the relevant provisions of the Code and also on general principles. Section 374 of the Code requires that where a Court of Session passes a sentence of death, it shall submit the proceedings to the High Court and the sentence of death shall not be executed unless it is confirmed by the High Court. Section 375 authorises the High Court to make' a further inquiry if it considers it to be necessary on any point bearing on the guilt or innocence of the convicted person, and unless the Court otherwise directs the presence of the convicted person may be dispensed with in that inquiry, so that where an inquiry is considered necessary on any point the presence of the convict is not needed unless the Court so directs. Finally, under section 376, in any proceedings submitted under section 374, the High Court‑ (a) may confirm the sentence, or pass any other sentence warranted by law, or (b) may annul the conviction, and convict the accused of any offence of which the Sessions Court might have convicted him, or order a new trial on the same or an amended charge, or (c) may acquit the accused person: Provided that no order of confirmation shall be made under this section until the period allowed for appeal has expired or if an appeal is presented within such period, until such appeal is disposed of: Under section 379 of the Code, a copy of the order of the High Court, duly attested by the proper officer of the Court and bearing the seal of the Court, in proceedings submitted under section 374, whether it confirms the death sentence or makes any other direction, has to be sent to the Court of Session without delay and the latter under section 381, after the receipt of the orders of the High Court, has to imple ment those orders, whether it is of confirmation or any other order, by issuing a warrant or taking such other steps as may be necessary. It is clear from these provisions that for the completion of the process of confirmation of the death sentence or making any incidental or other order in that behalf, the presence of the convicted person is not necessary, unless it is directed by the High Court for any further inquiry under section 375, and that there are no limitations whatsoever on the; High Court to finalize the matter of confirmation except that it has to wait till the time provided for appeal has expired or if an appeal has been filed, till it is disposed of.

10. In the present case an appeal was filed by Gul Hasan against his conviction by his counsel who was authorised by his duly appointed attorney. The learned counsel were present in response to a notice for the hearing of the appeal and have argued it. At one stage, Mian Mahmud Ali Qasuri submitted that he was in doubt whether after the abscondence of Gul Hasan he had the legal authority to argue his appeal as his counsel, and wanted to throw the onus on the Court to decide the issue. We told him that it was for the counsel to take a decision whether he and the second counsel, Syed Masoom Shah, are Gul Hasan's counsel, depending on whether the authority given by Gul Hasan to his attorney to engage a counsel in consequence of which they have been engaged, still subsists or has been revoked. As the learned counsel have not repudiated their association with Gul Hasan's case as his duly appointed counsel, we have given them a hearing. Under the law, as contained in sections 422 and 423 of the Code, notice of hearing of appeal has to be given to the appellant or his Pleader, and where the records have been sent for after hearing the appellant or his Pleader, if he appears, be Court may dismiss the appeal or accept it or pass such other C 3rder as may be necessary. What is, therefore, obligatory is a notice of hearing to the appellant or his counsel and a hearing afforded to him or his Pleader, if he appears but not so, if he or his counsel does not.

11. Even if the counsel had not appeared in this case, we would have been regretfully deprived of their assistance. Nevertheless, we would have quite competently proceeded to decide the appeal after a proper notice for the hearing had been issued to the appellant or his counsel. If no appeal had been filed, we would still have, as a matter of legal obligation, engaged ourselves, in deciding the proceedings for confirmation of the death sentence to make the necessary orders, for which the presence of the accused is not at all necessary.

12. A reference to section 366(2) of the Code will show, that the personal attendance of the accused in necessary for the pronouncement of the judgment in criminal trials except where his personal attendance during the trial has been dispensed with or when the judgment is of acquittal or is of fine only. But under subsection (3) of the same section a judgment delivered by a Court is not to be deemed invalid merely by reason of the absence of any party or his Pleader on the date or at the place notified for the delivery of the judgment or for any defect in. the service of notice on the parties regarding date and place. In subsection (4) of this section the full application of the curative provisions under section 537 of the Code has been re‑affirmed, with the result that the pronouncement of the judgment in a criminal trial, sentencing a person to imprisonment in his absence is not at all an illegality, nor is the judgment rendered invalid for that reason. As for the pronouncement of judgment in criminal appeal, there is a complete omission of any analogous provision such as that contained in section 366, mentioned above manifesting the intention of the Legislature, that the judgment in appeal can be pronounced in the absence of the appellant, and it seems to us to be expressly indicated in sections 422 and 423 of the Code, already referred to above. Similarly, there is no legal requirement at all that confirmation proceedings under section 374 shall take place while the convict is present or is available or is within the reach of the Court. If the sentence of death on a convicted person is confirmed, it becomes immediately executable, subject to other legal remedies that may be open to him under the law, but it does not cease to be executable merely because it cannot be executed forthwith owing to the abscondence of the convict. To hold that the death sentence on a convict cannot be confirmed by the High Court in his absence and shall remain suspended because he has managed to run away will be putting a premium on abscondence, amounting to stultification of the authority of the Court by an unlawful act, which obviously cannot be the intention of the law.

13. Another argument addressed to us was that if the death sentence of a convict is confirmed while he is absconding, his right of appeal to the Supreme Court may be adversely affected by lapse of the prescribed time. The simple answer to this is that if a person runs away from justice, he shuts the doors of justice, on himself and if he finds his entry blocked, he must thank himself.

14. Turning to the merits of the case, the first attack made by the learned counsel for the appellants is against the reliability of the prosecution witnesses, as they are relations and partisans of the deceased party. It is pointed out that all the eye‑witnesses are closely connected or associated with the deceased. Mir Muhammad (P. W. 9) is a tenant and a gunman of the deceased, Yaqub Khan (P. W. 11) is his real brother, and Sarbaz (P. W. 10) was obviously under the deepest obligation to the complainant party, as the deceased and his brother Yaqub Khan and his servant Mir Muhammad had gone with him to give evidence for him in the civil suit at Mardan and to help him in his case on the very day on which the deceased met with his and while returning from that errand. A sheer feeling of human gratitude should impel Sarbaz to toe the line of the prosecution and to go with it the whole hog, regardless of its veracity. A further criticism made of the evidence of Mir Muhammad is that he was deeply identified with the deceased party as he had in this blood feud taken sides with it for having appeared as a prosecution witness in the murder case of Abdul Ghafur, father of the deceased, for which the charge was laid against Khanan Khan appellant and others.

15. The first question to be considered is whether these witnesses were present at the time of the occurrence and the second, that if they were present, whether their statements can be relied on implicitly against each of the four appellants for the various acts ascribed to them. While the presence of P. W. Mir Muhammad in the occurrence cannot be denied, as the firearm injury on his person is a hall‑mark of his sure presence on the spot, it is contended about Yaqub Khan and Sarbaz that their presence is doubtful for the main reason that they should have also been injured by the repeated volleys of shots alleged to have been fired by the appellants. It is argued that it is a very curious feature of the case and is one that has been put forth to explain why these witnesses have escaped unhurt that they had stuck on to the village path while the deceased and Mir Muhammad had separated themselves from their company to go over to the canal path towards the north just a few minutes before the attack was opened on the deceased. It is also argued against the presence of Yaqub Khan that he is not a witness cited in the list of witnesses of 'the civil suit filed by Sarbaz and, as such, there was no occasion for him to go to Mardan on that day and his absence from the scene is argued on the further circumstance that he was not one of the persons who had gone to the police station with the dead body for lodging the report.

16. After giving a very careful consideration to the whole matter we are of the opinion that the presence of all the three witnesses on the scene of occurrence does not admit of any doubt. Sarbaz having taken the deceased and P. Ws. Mir Muhammad and Yaqub for the purposes of his civil case must out of sheer courtesy and obligation have accompanied them back, home after all of them had their meal at Mardan and after the Court case was over. It is quite understandable that they must have boarded the same bus for the return journey and alighted from it at the destination point to take the village path to their home. I f Yaqub Khan was not there, there was hardly any need to add him as a false witness, as two good natural eye‑witnesses were available to the prosecution in the persons of Sarbaz and Mir Muhammad. If need had been felt to introduce a false witness in the case, surely the choice should have fallen on someone else instead of Yaqub Khan, a real brother of the deceased. The fact that Yaqub Khan and Sarbaz kept on to the village path and the deceased and Mir Muhammad, while crossing the bridge, went over to the parallel canal path is a circumstance not out of the ordinary (sic) to cast a suspicion on the prosecution case. The presence of Yaqub Khan and Sarbaz is mentioned by Mir Muhammad in the first information report, which was lodged without any delay, and the fact that Yaqub was not present with the dead body when it was taken to the police station is explained by the fact that he must have repaired to the village to attend to the arrangements for the obsequies and the burial of his deceased brother. If he bad been anxious to assert his presence ac a witness, end falsely so, he must have immediately gone to the police station to establish that position.

17. One general criticism that has been made of the evidence of the ocular witnesses is that the assailants who were shown to be in the rooms of the school building before the occurrence could have easily fired the shots from their sheltered positions without being seen and they could have successfully carried out their purpose without revealing their identity. The school was still under construction in those days with windows and doors without any shutters and we consider that the culprits may have laid in wait there for their victim to save themselves from the midday heat of the month of July. The fact that shots were fired on the deceased from different directions shows that the assailants must have come out of the school building to fire at the deceased successfully from different directions and the recovery of the empty shells of cartridges of .12 bore shotgun and of .303 rifle from places outside the school building supports that fact. It is well known that in cases of murders committed in the process of "vendetta" the culprits instead of concealing their identity take pride in revealing it.

18. While we are satisfied that all the three eye‑witnesses were present at the spot as stated by them, the next question as to how far to accept their statements calls for a more anxious analysis. It cannot be gain said that all of them are interested witnesses with a pronounced bias for the prosecution and against the defence. Sarbaz is not shown to have any direct hostility to the appellants, but, as stated above, he was placed in a situation in which he could not be expected to deny his full support to the prosecution. He may not be an interested‑cum- hostile witness, but he is undoubtedly a deeply interested witness. It would be worth while in this respect to recall the learned trial Judge's own estimate of the ocular evidence in this case. Re says in paragraph 8 of his judgment:‑

"Nevertheless, the prominent fact stands out that a blood feud of the deepest dye existed between the deceased and Yaqub Khan (P. W. 11) on the one hand and the accused on the other hand, that Mir Muhammad (P. W. 9) had appeared as a prosecution witness in the murder case relating to the death of Abdul Ghafur, father of Karim Khan deceased, against Khanan Khan accused and his son Sarfraz. It is equally true, as already explained that Sarbaz (P. W. 10), to all intents and purposes, is a party man of the deceased, for the latter, on his own showing, had accompanied him on the fateful day to espouse his cause by his active support. In view of these facts, their evidence requires close and critical examination, besides corroboration. In this case, the eye witnesses stand corroborated by evidence, both medical and circumstantial, on essential features of the prosecution story." In a criminal case the matter of assessment of evidence which may be characterized as interested and of a partisan character is a difficult one which has engaged the attention of superior Courts time and again. One salutary principle which seems to be accepted is that no inflexible rule can be laid down in this behalf. In each case the evidence of each single witness has to be evaluated on its own merits and if it rings true in the entire context and the circumstances of the case, free from any fault and un-contradicted by any cogent circumstance emerging from the case, it must be relied upon as the basis for convicting an accused person without any corroboration, i.e. corroboration is not to be insisted upon as a rule of law or as a rule of prudence where a statement of an interested but natural witness can be believed with implicit faith, without any diffidence whatsoever. For example, where a son is a witness of a murder of his father which has taken place at a time and at a place where his presence with his father is quite natural and there is no chance of a mistaken identity on his part and the role attributed by him to the culprit or culprits fits in with the other evidence and the surrounding circumstances of the case, the testimony of the son will not be rejected merely because he is the son of the deceased even though he might be hostile to the accused. Where, however the slightest doubt creeps into the mind of the Judge that the culprit may not have been identified and there is a possibility of the charge being made on suspicion because of hostility or motive for false implication or where it is suspected generally from circumstances of the case that padding has been done and the witness has added up the number of the accused persons for reason of ‑the well recognized tendency to implicate innocent along with the guilty, the Court will immediately be put on caution to look for corroboration of the testimony of such a witness. In such an eventuality the corro boration needed for the acceptance and support of the testimony of an interested witness must be independent corroboration as against each accused person charged with the case pointing to the inference of his guilt, although not proving his guilt by its own probative force. This rule was succinctly stated by his Lordship Kaikaus, J. (as he then was) in the case of Niaz v. The State (P L D 1960 S C (Pak.) 387 ) in the following words:‑

"Whenever interested persons claiming to be eye‑witnesses of an occurrence charge persons against whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnessed the occurrence and were in a position to identify the offenders, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits, their evidence may, in the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated, their word cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates their testimony. This circumstance need not be such that it can of its own probative force bring home the charge to the accused. It should, however, be circumstance which points to the inference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstance should possess in order that it may be sufficient as corroboration must depend on the particular circumstance of each case. However, the circum stance itself must be proved beyond all reasonable doubt." Again, in the case of Sohni v. Bahaduri (P L D 1965 S C 111), it was observed as follows:‑

"Now an interested witness is undoubtedly a competent witness under the Evidence Act. The proposition that his testimony should be corroborated by independent evidence is however not of universal application. The question of his reliability must depend upon the circumstances of each case and the quality of his evidence. If his testimony is found reliable, the Court may accept it without any corroboration." We may respectfully add that when it is said that corroboration is necessary in support of the statement of an interested witness, it is not meant that that statement of the witness is false or untrue. What is really meant is that to accept it as wholly true it is neces sary that it should have a corroborative support. In fact, when it is said that the statement of a witness needs corroboration to support it, this finding proceeds on the basis that his statement is prima facie correct but by way of precaution, and as a rule of prudence, it needs corroboration to clear it from all doubts.

19. Examining the facts of the present case in the light of the observations made above, we have to consider whether we can implicitly put faith in the statements of the eye‑witnesses in regard to the guilt of each of the four appellants for the offences for which they have been convicted.

20. That the culprits were certainly two is hardly open to doubt because of the two types of weapons used in this crime, namely, a shotgun and a rifle. Mir Muhammad specifically mentioned in the first information report that the assailants were armed with topaks, chharredar and golidar, meaning shotguns and rifles. Recovery of the bullet and pellets from the dead body and the empty cartridge shells of .12 bore and .303 bore from the spot further support this fact. That the culprits were more than two is also probable but not free from doubt, as all the injuries on the deceased and P. W. Mir Muhammad could have been caused by two assailants between themselves, armed with a shotgun and a rifle respectively. The prosecution has failed to establish beyond a reasonable doubt that more than five shots were fired at the deceased. It was their duty to establish this by expert evidence. The presence of the empty cartridge shells on the spot shows that the shotgun used must have been loaded and unloaded and all those shots could have been fired from a single shotgun by one person. We cannot escape the feeling, therefore, that because of the background of the family blood‑feud, the interested and partisan character of the testimony, the tendency to add innocent with the guilty may have found its play also in the present case. Therefore, without discrediting this evidence, we must look for its corroborative support to be sure of the guilt of each of the four appellants in this case.

21. We consider that valuable corroboration is present in the case of the two appellants, Gul Hasan and Bahadur Khan, but it is missing in the case of the elder appellants, namely, Hayat Muhammad and Khanan Khan. The first piece of corro borative evidence against Bahadur Khan and Gul Hasan is their abscondence from the village immediately after the occurrence which they admit was due to the fear of the police torture. They were not arrested until the 30th of July 1965. It is curious that this fear of torture should have assailed their youthful minds to make them fugitives from justice while their elders, who are greatly advanced in age, were sitting with equanimity of mind in their houses and were arrested from there immediately after the occurrence. The learned counsel for the appellants drew our attention to the observations of his Lordship, the Chief Justice" of Pakistan, Mr. Justice A. R. Cornelius, in the case of Siraj Din v. Kala (P L D 1964 S C 26) in regard to, the circumstance whether the abscondende of Kala accused in that case for some days after the occurrence could be used in proof of his guilt. His Lordship observed that "this circumstance is easily explained by the fact that a person who has been named as a murderer rightly or wrongly usually makes himself scarce". The learned counsel argued on the basis of this remark of his Lordship the Chief Justice, that under no circumstances can the abscondence of an accused person be used as a piece of corroborative evidence of his guilt, with all respect, we do not think that this conclusion necessarily flows from the above‑mentioned observation of his Lordship. While it is not unusual that a person accused of a murder, whether rightly or wrongly, makes himself scarce because of fear, it is equally not unusual that when rightly accused be runs away to escape the clutches of law to avoid answering his guilt and his prolonged abscondence in spite of the legal pro ceedings against him would be a pointer to his guilt. In the same case, his Lordship Mr. Justice S. A. Rahman on the same circumstance has, at page 43 of the report, observed as follows :‑

"The fact moreover that for two days the accused could not be found at his house by the police who were looking for him, is a pointer in the direction of his guilt." Again, Mr. Justice Kaikaus (as he then was), referring to the same point of the abscondence of the accused, which his Lordship had specifically listed as one of the pieces of evidence to be considered in the case, observed as follows:‑ "They (the learned Judges of the High Court) also at the same time did not take into consideration the absconding of the appellant and the circumstances in which he was arrested, although they did not reject that evidence." This clearly indicates that his Lordship considered that abscondence was a piece of evidence to be taken note of in considering the guilt of an accused person, of course in the given circumstances of the case.

22. Against Gul Hasan, there is a further strong circumstantial piece of evidence that from amongst the complainant party present at the spot, shots were rained on the deceased Karim Khan, Mir Muhammad was injured on the foot by a single shot and the rest were spared. Karim‑Khan was one of the proved assassins of his father, Sarfraz, showing that more than any other in the vendetta, was directly on a resolve to avenge the murder of his father. The rifle, after it fell off frb1n P. W. Mir Muhammad, as a result of the injury received by him, was stolen away by Bahadur appellant, as stated by the witnesses at the trial. The theft of the rifle is mentioned in the first information report. This strengthens the evidence against Bahadur Khan as also the further fact that he is directly charged by Mir Muhammad for causing the injury to him. The theft of the rifle which we have no reason to doubt and which is proved to be licensed in the name of Yaqub Khan, was the individual act of Bahadur Khan committed on the spot of the moment and this intention does not seem to have been sham by others. The removal of the rifle, in the circumstances as alleged, does not constitute the offence of robbery but makes put a case of simple theft for which we hold Bahadur Khan appellant alone liable in his individual capacity. We are also of the opinion that if Khanan Khan appellant had been present amongst the culprits as an active participant armed with a gun, he would have straightaway made for Yaqub Khan, his enemy and hit him. It may be remembered that Yaqub Khan, along with others, but not the deceased, had been charged for as attempt on his life in the last round of this vendetta previous to the present occurrence. Both he and Hayat Muhammad whom we have seen in Court, are elderly persons, and we have serious doubts that they were active participants in the execution of this crime which seems to have been perpetrated with youthful bravado and impetuosity. We do not, therefore, find it safe to uphold their convictions, and giving them the benefit of the doubt, we acquit them. They shall be released forthwith if pat required to be detained in any other case. We uphold the convictions and sentences awarded to Gul Hasan and Bahadur Khan appellants under section 302/34, P. P. C. and also under section 307 /34, P. P. C., as awarded by the learned Additional Sessions Judge. We further convict Bahadur Khan under section 379, P. P. C. for the theft of the rifle altering if from that under section 392, P. P. C., with a sentence of two years rigorous imprisonment. We acquit Gul Hasan of the charge of robbery under section 392, P. P. C. The death sentences passed on Gul Hasan and Bahadur Khan are hereby confirmed.

23. We do not see any substance in the Revision Petition No. 27 of 1966 (Mir Muhammad v. Khanan Khan etc.), praying for enhancement of sentences of the appellants by imposition of fine and confiscation of their properties. The learned counsel for the petitioner did not even bother to argue this petition. Accordingly, we dismiss the Revision Petition. K. B. A Appeal partly accepted.