P L D 1969 Supreme Court 89 (PLP)

MUHAMMAD YAQUB ALI, J.

This will dispose of Criminal Appeals Nos. 43 and 44 of 1968. Gul Hassan and Bahadur Khan, appellants, in Criminal Appeal No. 43 and Khanan Khan and Hayat, respondents, in Criminal Appeal No. 44, were charged under sections 302, 307 and 392 read with section 34, P. P. C. for the murder of their co‑villager Karim Khan, subjecting Mir Muhammad P. W., who was accompanying the deceased, to a murderous assault and robbing the last‑named of a gun and a bandolier after he was hit by a fire‑arm. The Additional Sessions Judge, Maidan, found the four accused had acted with a common intention in committing the offence under sections 302 and 307 and by order dated 19‑11‑1965 sentenced them each to death on the first count and to undergo rigorous imprisonment for seven years each in case the sentence of death was not confirmed on the second count. Bahadur Khan who alone had disarmed Mir Muhammad, P. W., of the gun and bandolier was further found guilty under section 392, P. P. C. and sentenced to undergo rigorous imprisonment for two years. On appeal and reference the High Court maintained the respective convictions and sentences of Gul Hassan and Bahadur Khan against which Cr. A. No. 43 is directed. The learned Judges at the same time gave the benefit of doubt to Khanan Khan and Hayat and acquitted them of the aforesaid charges which order is the subject‑matter of Criminal Appeal No. 44 by Mir Muhammad, P. W. Gul Hasan and Bahadur Khan absconded from Police custody after they were convicted by the trial Judge and were under transit to the District Jail while the latter was re‑arrested, the former is to this day a fugitive from law. Before their absconsion Gut Hassan and Bahadur had executed a power of‑attorney in favour of one Khawaja Muhammad Khan who instructed a learned counsel at Peshawar to file an appeal on their behalf in the High Court. At the hearing of the appeal and the reference under section 374 of the Code of Criminal Procedure a question, therefore, arose whether the sentence of death awarded to Gut Hassan could be confirmed and the appeal filed on his behalf disposed of in his absence. The learned Judges in the High Court on examining the Provisions of sections 366, 374, 422 and 423 of the Code of Criminal Procedure arrived at the conclusion that the presence of a condemned‑prisoner was not essential for disposing of the reference under section 374 and that the appeal by Gut Hassan having been filed by his duly appointed attorney through a counsel who in response to the notice of the hearing of the appeal had put in appearance fulfilled the requirements of sections 366, 422 and 423 of the Code. It was concluded by the learned Judges: "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." On merits the learned Judges found that the charges brought by the prosecution against Gut Hassan and Bahadur Khan were fully brought home to them and maintained their respective convictions and sentences. The case against Khanan and Hayat was not considered as free from doubt as corroboration from an independent source was not forthcoming in their case. They were accordingly acquitted and the sentence of death awarded to them by the trial Judge was not confirmed. Against the order of the High Court Messrs Siddiq & Company, Attorneys, on the instructions of the aforesaid Khawaja Muhammad Khan moved Criminal Petition for Special Leave to Appeal No. 180 of 1966 on behalf of both Gut Hassan and Bahadur Khan. Along with it Mir Muhammad, P. W., filed Criminal Petition for Special Leave to Appeal No. 19 of 1966 calling in question the acquittal of Khanan Khan and Hayat by the High Court on the grounds to be noticed presently. At the hearing of the two petitions Mr. Mahmud Ali Kasuri appeared for Gut Hassan and Mr. Manzur Qadir for Bahadur Khan. Mr. Mahmud Ali Kasuri appearing for Gut Hassan urged that the appeal preferred by his attorney and the reference under section 374 made by the trial Judge should not have been heard by the High Court till he was arrested, but the prayer was turned down by the learned Judges who held that it was doubtful whether the appeal on behalf of Gut Hassan during his absconsion was properly constituted and that in any event the reference for confirmation of the death sentence could be heard in the absence of the convict: The Court considered that the questions of law arising for consideration in the petition on behalf of Gut Hassan were of considerable importance and permitted Mr. Mahmud Ali Kasuri to confine his arguments on those law points. Mr. Manzur Qadir appearing for Bahadur Khan contended that two of the accused persons having been acquitted on the basis of the very evidence on which the conviction of Gut Hassan and Bahadur Khan rested, this Court should re‑examine the evidence in the case. He further relied on the circumstance that the prosecution witnesses were all connected with the deceased or were interested in him and it was a matter of consideration whether their interested evidence should have been accepted without corroboration from an independent source. The learned Judges in the High Court had relied in this behalf on the absconsion of Gut Hassan and Bahadur Khan which according to the learned counsel was in view of the interested nature of the prosecution witnesses not such a weighty circumstance. In Criminal Petition for Special Leave to Appeal No. 19‑P Mr. Peer Bakhsh contended that the High Court were in error in acquitting Khanan Khan and Hayat, accused, although the evidence against them was the very same which was accepted as reliable as against Gut Hassan and Bahadur Khan. The argument raised by the learned counsel fortified the contention of Mr. Manzur Qadir. Leave to appeal was, accordingly, granted in both the petitions to re‑examine the evidence in the case. The legal questions arising in the appeal by Gut Hassan is concluded by the decision in Chan Shah v. The Crown (P L D 1956 F Q 43). Dealing with a similar situation it was observed as follows: "The present is an "individual case" and, in our opinion, it is an essential condition of the administration of Justice, in a case affecting an individual or individuals, that the persons concerned should submit to the due process of justice. We cannot conceive of a more flagrant violation of this condition that a case‑like the present‑where the individual seeks the interference of the Sovereign to obtain revision of a judicial order, when he is himself engaged in setting that judicial order at naught. We accordingly dismiss this petition, by reason of its being, in the existing circumstances wholly unsuitable for the exercise of this Court's special jurisdiction in criminal cases. . . . . .. . Attorneys and Advocates who appear to present petitions, on the criminal side‑other than those which lie as of right‑are under a duty to see that they are acting in furtherance of justice. It seems to us that this duty is clearly violated when aid, for securing interference by this Court with a judicial order, is given by these officers of the Court to persons who, to their knowledge, are in contempt, i.e., as fugitives from justice, without at the same time ensuring that such persons conform to the judicial orders applicable to them." We fully subscribe to this view and reiterate that the attorneys and members of the bar will bear in mind the serious consequence of committing contempt of this Court in moving on behalf of a prisoner who is a fugitive from law. The appeal filed by the counsel on the basis of the power‑of‑attorney (executed by Gut Hassan in favour of Khawaja Muhammad Khan before his absconsion was thus not properly constituted 'and should have been dismissed by the High Court on that "ground alone. In this view Gut Hassan being a fugitive from law and , contemner was not entitled to hearing and leave granted to him on limited questions of law was liable to be rescinded. As to the proceedings under section 374, Cr. P. C., we endorse the view adopted by the learned Judges in the High Court that if a prisoner decamps and thereby forfeits the right of audience the sentence of death may be confirmed in his absence. On merits Mr. Manzur Qadir took us through the evidence on the record, but failed to make out a case for interference with the conviction and sentence of Bahadur Khan, appellant. Karim Khan, deceased, was shot dead on 1‑7‑1965 during day light as a result of blood‑feud within the sight of Mir Muhammad, Sarbaz and Yaqub Khan, P. Ws. The occurrence took place on a public path opposite to the building of a local school under construction. At first Gut Hassan fired a shot from a double‑barrel gun which hit Karim Khan and brought him to the ground. Next Bahadur fired a shot from the rifle he carried and hit Mir Muhammad on his left foot who too was 'felled to the ground and was disarmed of the gun and bandolier which he happened to be carrying for Yaqub Khan, P. W. All the four accused then fired a number of shots at Karim Khan causing him a large number of injuries as a result of which he died instantaneously. Sarbaz and Yaqub Khan, P. Ws: who were following the deceased on the other side of the minor canal witnessed the occurrence from a near distance, but escaped injuries at the hands of the accused. After the accused had left, Yaqub Khan went to his village Galayara and informed his‑relations there about the occurrence who at once repaired to the scene of crime. Other co‑villagers also followed and they arranged to carry the deceased and Mir Muhammad, P. W. to the Police Station, Shahbazgarha, where Mir Muhammad lodged the first information report with Muhammad Nawaz, Sub‑Inspector, at 5‑30 p.m. in which the details of the occurrence mentioned above were given. It was stated in the report that the accused deprived Mir Muhammad of the licensed gun of Yaqub Khan, P. W., which be happened to be carrrying for him at the time of occurrence, but no mention was made of the loss of the bandolier. The vendetta as a result of which Karim Khan, deceased, was murdered started in 1948 with the killing of his father Abdul Ghaffur for which Khanan (acquitted) accused, his son Sarfaraz Khan; father of Gut Hassan (absconder), and two other relations, namely, Maab Khan and Zabita Khan, were charged under section 302, P. P. C. The trial resulted in the conviction of Zabita Khan, while others were acquitted. In 1952 Sarfaraz was murdered and Muhammad Yunus son of Hayat (acquitted) accused, was injured for which Karim Khan, deceased, his brother Bahadur Khan and three others were charged. The case was tried by a Council‑of‑Elders under Frontier Crimes Regulation which found Karim Khan, deceased, Bahadur Khan and another guilty under sections 11 and 40 and sentenced each of them to 14 years rigorous imprison ment. In 1959 Khanan Khan (acquitted) accused was subjected to a murderous assault for which Yaqub Khan, P. W., brother of Karim Khan, deceased, and two of their brothers were tried and acquitted on 2‑1‑1960. Lastly on 1‑7‑1965, the deceased and the three eye‑witnesses were returning from Mardan to their village Gulyara after attending to a case in the Court of a local Civil Judge when the four accused attacked them with fire arms in the area of village Hussai which fell on the way with the aforementioned result. Mr. Manzoor Qadir maintained that the assailants had fired from inside the school building and decamped through the windows at the back so that the eye‑witnesses did not have the opportunity to identify the culprits. The learned counsel did not dispute that Mir Muhammad, P. W., was deprived of the gun and the bandolier, which is ordinarily tied round the waist or slung across the shoulder, but argued that on being hit by the bullet near his left ankle Mir Muhammad must have lost consciousness and it was for this reason that he made no mention of the loss of the bandolier in the F. I. R. The argument raised has little substance for whatever, may be said about the presence of Yaqub and Sarbaz, P. Ws., here could be no doubt that Mir Muhammad, P. W., accompanied the deceased when the assault took place. As he was disarmed of the gun and the bandolier he had enough opportunity to identify the culprits. It was to overcome this situation that the learned counsel desired us to presume that Mir Muhammad had, on receiving the bullet injury on the left foot, become unconscious. He, however, overlooked that Mir Muhammad was fully conscious when he reported the incident to the Police. By then he knew that both the gun and the bandolier had been removed by the culprits from his person. The omission of the bandolier from the report, therefore, did not . indicate that it was removed while Mir Muhammad lay unconscious. Mir Muhammad was an independent witness. He admitted having been a tenant under the deceased in the past, but bore no enmity to any one of the accused. This is also vouchsafed by the fact that Bahadur Khan did not fire another shot after Mir Muhammad was hit and disarmed ‑of the gun and the bandolier. The presence of Mir Muhammad was established by the injury suffered by him in the same transaction in which Karim Khan, deceased, was killed. The occurrence having taken place at about 3 p.m. on a public path it could not be a case of mistaken identity on the part of Mir Muhammad nor of false implication. The accused were his co‑villagers and Mir Muhammad had named them in the first information report lodged with expedition at the Police Station, Shahbazgarha, three miles away from village Hussain at 5‑30 p.m. In between Yaqub Khan, P. W. had gone to his village at a distance of one mile and informed his relations who took sometime in making arrangements for transporting the deceased and Mir Muhammad to the Police Station.. The evidence given by the latter was, in the circumstances, reliable and the Courts below were clearly right in relying on it. As to the identity of the culprits in all 'the deceased suffered 30 gun shot injuries over different parts of his body of which some were multiple. It is conceivable that after he fell to the ground by the first shot of Gul Hassan the deceased took one or two turns, but thereafter he could not have moved to expose his body from different angles to the assailant where he was found to have been hit. It is, therefore, evident that the assailants did not fire at the deceased from inside the school building where their manoeuvrability was limited to the openings of the doors. The locale of the injuries found on the deceased in particular wounds of entry on left eye, front of neck, right side of neck, left shoulder, left side of chest epigostrium, right axilla, top of right foot, right leg, right buttock, left leg and left thigh corroborated the version of the eye‑witnesses that the accused had fired at the deceased from outside the school building. This was further confirmed by the recovery of card-board discs from two places a little away from the school building. The learned Judges also relied on the common phenomenon that in blood‑feuds the assailants do not shoot from behind a cover, but charged with the emotion of reprisal make their identity known to the victim. The contention that the culprits had fired from inside the school building has, therefore, no force. As a precaution the learned Judges in the High Court looked for confirmatory evidence and maintained the conviction and sentences of Gul Hassan and Bahadur Khan alone as they were proved to have absconded after the occurrence. This circumstance though not of a conclusive nature was considered as sufficient corroboration of their participation in the assault. As no such evidence was forthcoming in the case of Khanan Khan and Hayat they were given the benefit of doubt and acquitted. This approach to the appreciation of the testimony of the eye‑witnesses did not mean that they were dis-believed qua two of the accused persons as urged by Mr. Manzur Qadir or that the very same evidence on which the conviction of Gul Hassan and Bahadur rested was disbelieved in the latter case as maintained by Mr. Peer Bakhsh. The learned Judges considered that in view of the blood‑feud between the parties and the interest of two of the eye‑witnesses in the deceased, it was safe to look for confirmation from an independent source and in that they followed merely a rule of precaution. On the above analysis of all the material placed on the record we concur with the conclusions reached by the learned Judges in the High Court about the guilt of the accused persons and dismiss the appeal preferred by Bahadur, accused. As held in the earlier part of this order the appeal by Gul Hassan is not competent in law. The leave to appeal granted in his favour in Criminal Petition for Special Leave to Appeal No. 180 of 1966 is, accordingly, rescinded. Lastly as to the Criminal Appeal No. 44 of 1968 directed against the acquittal of Khanan and Hayat, accused, it has been seen that in distinguishing their case from that of Gul Has; an and Bahadur, accused, the learned Judges followed the rule of precaution which found some support from the circumstance that no particular injury suffered by the deceased was attributed to either of them. It could not therefore, be said that the acquittal of Khanan and Hayat by the High Court was so patently erroneous in fact or law as to call for interference by this Court. In the result Criminal Appeal No. 44 of 1968 is likewise dismissed. K. B. A, Appeals dismissed.