1998 PLP 1823 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

Muhammad Aslam, Muhammad Akram, Sardar Khan, Muhammad Ashraf, Asmatullah and Umar Hayat were tried by the Sessions Judge, Mianwali, under sections 148/302/149 and 404, P.P.C. for forming unlawful Assembly and in pursuance of common object committing the murders of Saadullan and Noor Khan and for dishonestly misappropriating the licensed gun and a bag of cartridges belong to Noor Khan deceased. 2.. The trial Court found all the six accused guilty of offences under sections 148 and 302/149, P.P.C., and convicted them accordingly. Under section 148, P.P.C., all were sentenced to 2 years R.I. and fine of Rs.2,000 each and in default of payment of fine to undergo R.I. for six months. Except Umar Hayat accused rest of the accused were awarded death penalty on two counts under section 302/149, P.P.C., with fine of Rs.10,000 each on each count and in default of payment of fine to suffer R.I. for 2 years each. Umar Hayat was sentenced to life imprisonment with fine of Rs.10,000 and in default of payment of fine to suffer R.I. 2 years. Only Muhammad Akram accused was found guilty and convicted of the offence under section 404, P.P.C., and he was awarded 2 years R.I. and fine of Rs.2,000 and in default of payment of fine to suffer R.I. for six months. Half of the fine awarded under section 302/149, P.P.C., was ordered to be paid to the legal heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C., was extended to the accused.

3. All the six convicts appealed against their conviction and sentences as aforesaid before the Lahore High Court. A learned Division Bench of that Court allowed the appeals of Umar Hayat and Muhammad Aslam and set aside their conviction and sentences. As a result of acquittal of Umar Hayat and Muhammad Aslam in the case on all charges, the remaining four accused in the case were also acquitted under section 148, P.P.C. However, the conviction of remaining four accused, Sardar Khan, Muhammad Akram, Asmatullah and Muhammad Ashraf under section 302/34, P.P.C., was maintained by the High Court and accordingly, the sentences of death and awarded to them were confirmed. The conviction and sentence of Muhammad Akram accused under section 404, P.P.C., was also not interfered by the High Court. Leave was granted in the case to consider the following proposition:-- "Leave to appeal is granted to examine whether the required corroboration of the testimony of interested witnesses was available particularly so when the same evidence has led to the acquittal of two others (Umar Hayat and Aslam) implicated in the crime. "

4. We have heard Mr. Asif Saeed Khan Khosa, learned counsel for the appellants. Mr. Ibrahim Satti, learned counsel for the complainant and Mr. Ch. Muhammad Akram, the learned counsel for the State. According to the F.I.R. lodged in the case by Sultan Sikandar Khan (P.W.10) within 45 minutes of the occurrence on 25-2-1986 at Police Station City Mianwali, on the fateful day, the complainant accompanied by Saadullah Khan and Noor Khan (the two deceased in the case) had gone to attend the public meeting of Minister Maqbool Khan. The public meeting ended at about 4-30 p.m. The complainant started journey with the two deceased, Muhammad Amir and Alam Khan, on foot towards bus stand. At about 5 p.m., when they reached near Ada Larian/Bus Stand, Talagang, Saadullah Khan and Noor Khan were a few paces ahead of the complainant, Amir and Alam Khan. They wanted to catch the bus. Noor Khan deceased was carrying his .12 bore licensed gun. At that moment from north eastern side, in front of Saadullah and Noor Khan, Sardar Khan, Umar Hayat, Asmatullah,. Muhammad Akram, Muhammad Aslam and Muhammad Ashraf appeared. Muhammad Aslam was armed with 7MM rifle while rest of the accused were armed with .12 bore guns. They raised 'Lalkara' that today they (Saadullah and Noor Khan) will not go alive as they had come to avenge the murder of their brother. The first was shot by Sardar Khan which hit Noor Khan at his head. The second fire was made by Umar Hayat which hit Saadullah Khan on the back side of his head. The third fire came from Asmatullah which also hit Saadullah. Muhammad Akram, Muhammad Ashraf and Muhammad Aslam also fired from their respective fire-arms which landed on Noor Khan. Thereafter, all the accused continued firing on Saadullah and Noor Khan. The accused also gave butt blows to Saadullah Khan. When the accused made sure that Saadullah Khan and Noor Khan were dead, they took away the licenced gun and bag containing cartridges belonging to deceased Noor Khan while fleeing from the scene of offence. The incident was witnessed by the complainant (P.W.10), Muhammad Amir (given up) and Alam Khan (P.W.11). The motive for the murder was stated to be the earlier murder of Bahadur Khan, brother of Sardar Khan and Umar Hayat, by Noor Khan deceased in 1956. It was further stated that 5/6 months before the incident, Noor Khan and others had fired at Sardar Khan and others for which a case under section 307, P.P.C., was registered against Noor Khan and to avenge this incident the accused fired at Noor Khan (deceased) but he luckily escaped and a separate case was registered about this incident too against the accused party by the deceased, Noor Khan. 4-A. Mr. Asif Saeed Khosa, the learned counsel for the appellants raised the following contentions in support of the appeal:-- (i) That the eye-witnesses produced by the prosecution were chance witnesses. Their presence at the scene of offence was not accounted for satisfactory; , (ii) That the eye-witnesses were highly interested; and therefore, their testimony could not be accepted without corroboration from an unimpeachable and independent piece of evidence; (iii) That the eye-witnesses were not reliable and confidence inspiring as they made improvement in their evidence before the Court over their previous statements; (iv) That the statement of eye-witnesses having been disbelieved in respect of two acquitted accused, the same could not be safely relied upon for convicting the remaining accused in the case; (v) That the site plan in the case did not support the version of eye witnesses; (vi) That the medical evidence did not support the version of eye-witnesses in the case; (vii) That the motive alleged by the prosecution against the appellant was not a live motive. (viii) That the recovery of fire-arm from the appellants was of no consequences in the absence of a positive report from ballistic expert. (ix) That the alleged recovery of the gun of the deceased Noor Khan from Muhammad Akram accused should not have been believed as in the F.I.R., it was not alleged that the gun of deceased Noor Khan was taken away by Muhammad Akram; (x) That the alleged absconsion of the accused could not be led support to the prosecution case in view of the law laid down by this Court in the case of Aminullah v. State (PLD 1976 SC 629) and Machia v. State (PLD 1976 SC 695 j.

5. Mr. M. Ibrahim Satti, the learned Advocate Supreme Court for the complainant, supported the judgment of High Court and raised the following contentions:-- (i) That Alain Khan (P.W.11) was an independent witness, as he was not related to the complainant. He, therefore, had no motive to involve the appellants falsely in the case; (ii) That the other eye-witnesses in the case Sikandar Hayat (P.W.10) was related to both the parties, the deceased and the appellants, and therefore, he too could not be described as an interested witness having motive to involve the appellants falsely in the case; (iii) That Sardar Khan and Muhammad Akram did not deny their absconsion after the incident and as such the Courts below rightly considered this as a circumstance providing corroboration to the prosecution case; (iv) That the promptly lodged F.I.R. in the case which contained full account of the incident and the names of all the accused proved presence of the eye-witnesses on the spot and excluded the possibility of deliberation before lodging of the F.I.R. (v) That the motive was fully live in the case as at the time of murder of Bahadur Khan, in 1956 his brother Sardar Khan was a minor and six months before the incident Noor Khan attempted murder of accused and a night preceding the incident deceased Noor Khan was fired upon by the accused party; (vi) That the medical evidence fully corroborated the prosecution case as the number of injuries suffered by the two deceased commensurate to the number of accused in the case; (vii) That the site plan could not contradict the prosecution case as it was not a substantive piece of evidence; and (viii) hat the failure on the part of police to send the gun after recovery, to ballistic expert could not affect the credibility of the prosecution case.

6. Mr. Ch. Muhammad Akram, the learned counsel for the State adopted the arguments of Mr. Ibrahim Satti and supported the judgment of the High Court. Large number of cases were cited at the bar which will be referred at the appropriate stage.

7. Before considering the above contentions on merits, it would be appropriate to state here first, some of the broad legal principles enunciated by this Court which should be kept in mind while deciding a case involving capital punishment. One such principle is that, if an interested witness claiming to be an eye-witness charges a person with the commission of an offence, the fifst thing which the Court has to determine is, whether he saw the occurrence and was in a position to identify the accused and secondly, whether he should be believed for convicting the offender without corroboration. If the interested witness has charged only one person with the commission of offence or has charged more than one person and the number of persons charged by him appear to be reasonable from the circumstances of the case, then in the absence of anything in the evidence which rendered it unsafe to rely on his evidence, his evidence is to be accepted without corroboration as substitution is a thing of rare occurrence g and cannot be assumed readily and he who asserts substitution must lay foundation for it. But if the Court finds that the interested witness has exaggerated the number of accused, the Court will insist for corroboration of his testimony from some additional circumstances in the case. (see Niaz v. State PLD 1960 SC 387) The next question arises, in what manner the corroboration f to the testimony of the interested witness is to be sought by the Courts before relying on it for conviction. The corroboration to the testimony of an interested witness need not always be from an independent witness supporting the story put forward by the interested witness. Corroboration may be sought from any circumstance in the case which would satisfy the mind of the Court that the witness has spoken the truth. What would be these circumstances, is not possible to lay down with precision as these would vary from case to case according to the facts and circumstances of each case. Corroboration in the case of an interested witness need not be of the same probative force as in the case of an accomplice (see Nazir v. State. PLD 1962 SC 269).

8. An 'interested witness' in a criminal case is one, who has motive to involve the accused falsely in the 'case. Therefore, mere friendly relation or C relationship of the witness with the deceased or complainant party is no ground to discard his evidence describing him as an interested witness (see labal alias ` K Bhala v. State, 1994 SCMR 1).

9. The maxim "Falsus in uno falsus in omnibus" has not been accepted by the superior Courts in Pakistan as having universal application. Therefore, it does not, necessarily, follow that where the Court does not accept the evidence p of a witness against some of the accused in a case, the Court cannot accept his evidence against the other accused. The Court often sifts the grain from the chaff while accepting the evidence of a witness against some of the accused in a resident of Wanda Qataliwala Dakhali Abbakhel, while Alam Khan (P.W.111 resided at Madi Khelanwala, Dakhli Moosakhel, and therefore, their presence a; the scene of offence alongwith the two deceased who were resident of different areas. at one and the same time was unnatural and open to serious doubts. The argument of the learned counsel has not impressed us. The incident had taken place at the bus stand which was a public place. In such a case even a passerby may give evidence who happened to be present at the time of the incident and his evidence could not be discarded being a chance witness. In the case before us, the two witnesses and the two deceased had gone to attend the public meeting of a Minister, Maqbool Khan and the incident took place while they were returning together after attending the said public meeting to catch buses for their homes from the bus stand. It was not suggested in the cross-examination of the two eye witnesses that there was no public meeting of the Minister, Maqbool Khan on that date Besides, the two eye-witnesses in the case, the Investigating Officer Muhammad Ashiq (P.W.14) in his statement claimed that he was also on duty in the said public meeting on that day and his statement was not challenged in cross-examination. Therefore, there was ample evidence on record to show that on that day a public meeting was addressed by the Minister. The learned counsel for the appellants tried to show from the cross-examination of the two eye witnesses that their presence in the public meeting was doubtful as they admitted that the Minister Maqbool Khan did not belong to their party and they were unable to state what the Minister said in that meeting. The fact that the two eye-witnesses did not belong to the party of the Minister, who addressed the public meeting, is not sufficient to prove that they did not attend the meeting. Similarly, the fact that the two eye-witnesses were unable to state what the Minister said in the public meeting, did not necessarily disproved their presence in the said meeting It is not necessary that the public meeting addressed by a Minister belonging to a particular party is attended by members of that party alone. The public meetings are open to public-at-large and are not restricted to the members of the party which holds the meeting. The people attend public meetings for variety of reasons. Some may even go to attend a public meeting as a pastime. It is also not necessary that a person attending the public meeting must remember what was said or transpired in the public meeting. Apart from it, in the present case the public meeting was held in February 1986 while the witnesses were examined in Court more than three years after the meeting. In these circumstances, they could not be expected remember what the Minister had said in that meeting. We are, therefore, of the view that the two eye-witnesses duly accounted for their presence on the spot and the Courts below rightly believed their presence on the scene of offence at the time of incident.

12. Even otherwise, the F.I.R. was lodged in the case within 45 minutes of the occurrence and the names of all the accused and the witnesses were given in E the F.I.R. According to appellants own showing the two eye-witnesses were resident of different places and if they were to be called from their respective residences after the occurrence, it was not possible to lodge the F.I.R. within 45 minutes of the occurrence. Therefore, lodging of the F.I.R., so promptly and appearance of the names of the witnesses therein, do support the inference that they were present at the spot. To overcome this difficulty, the learned counsel argued that the time for registration of F.I.R. was deliberately changed and not correctly recorded by the police. To support his contention, the learned counsel for the appellants argued that neither F.I.R. number nor time of occurrence, nor the names of eye-witnesses were mentioned in the inquest report prepared by the police officer at the spot. The Investigating Officer in his state rent categorically stated that he was entrusted the case file in the evening and he immediately proceeded to the spot. He prepared the injury statements and inquest reports of the two bodies at the same time. No doubt in his cross-examination, P.W.14 admitted that time of occurrence and F. I. R., number were not mentioned in the inquest report but denied the suggestion that it was so because the F.I.R. was not registered by that time. The learned counsel for the complainant rightly pointed out that it was' just an omission on the part of the police officer who prepared the inquest report and was not a mala fide action as in the injury statements of the two deceased which were prepared simultaneously, the F.I.R., number was very much mentioned. We, therefore, find no force in the contention of the learned counsel for the appellants that the two eye-witnesses were not present on the spot at the time of incident and that in order to prove their presence, the police altered the actual time of recording of the F.I.R. and falsely entered it as 5-45 p.m.

13. The next contention of Mr. Asif Saeed Khosa, the learned counsel for the appellants, is that the eye-witnesses were highly interested and in view of the admitted enmity their evidence could not be accepted without corroboration from some unimpeachable and independent piece of evidence in the case.

14. We have already stated earlier the broad principles for appreciation of evidence of an interested witness in a criminal case, and therefore, these need not be repeated here. We have also found that the presence of the two eye witnesses examined in the case, at the time of incident, has been satisfactorily established. The incident had taken place at 5 p.m., on 25-2-1986 at the bus stand, a public place, and the accused were well-known to the witnesses. At the time of incident, the eye-witnesses were at a very short distance from the deceased. In these circumstances, the eye-witnesses were in a perfect position not only to watch the whole incident but also to identify the accuse. The two deceased in the case suffered 9 fire-arm injuries (entry wounds) besides 4 blunt injuries which commensurate with the number of accused in the case, six in number. Therefore, the eye-witnesses had not attempted to exaggerate the number of accused in the case. The learned counsel for the appellant has, however, very vehemently contended that the eye-witnesses were highly interested because of the deep rooted enmity between the parties. P.W.10 Sultan Sikandar was not only related to the two deceased but was also related to the accused party as would appear from his following statement before the Court:-- "I know the accused present in Court. Umar Hayat and Sardar Khan accused are real brothers. Asmat Ullah accused is the son of Umar Hayat accused. Ali Khan father of Muhammad Aslam and Muhammad Akram accused is a real maternal uncle of Umar Hayat and Sardar Khan accused. Muhammad Ashraf accused is the brother's son of Muhammad Aslam and Muhammad Akram accused. Mehr Khatun, my mother, was a real sister of Hayat Bibi, mother of Ali Khan above. " The above relationship Sultan Sikandar Khan (P.W.10) with the accused was admitted by Umar Hayat, Muhammad Akram, Muhammad Aslam, Sardar Khan, Muhammad Ashraf and Asmatullah accused, in their statements under section 342, Cr.P.C. In cross-examination P.W.10 denied that he got registered a case against Umar Hayat accused in 1947 under section 307, P.P.C. He also denied that Bahadur Khan, brother of Umar Hayat accused, was a witness in a case in which he (P.W.10) was accused of causing injuries to Ata Muhammad Khan of Wandha Durraniwala, Mauza Abbakhel, in 1953. He also denied that he was an accused with others in the case registered under section 307, P.P C., in 1953 for firing at Umar Hayat's brother Bahadur Khan. He, however, admitted that his son Khan Amir was also an accused with Noor Khan in a case under section

307. P.P.C., in which allegation of firing at Umar Hayat was made 5/6 months before the incident. He, however, denied that any allegation of firing was made to that case against his son Khan Amir. The witness was subject to searching and lengthy cross-examination but nothing substantial could be brought on record to establish direct enmity between the witness and the accused except that in one of the cases registered by the accused party against Noor Khan deceased, his son was also nominated as an accused with him. Apart from it, nothing worthwhile could be brought on record to discredit the testimony of P.W.10. Keeping in view the direct and circumstantial evidence established beyond doubt, the presence of P.W.10 at the spot, at the time of occurrence, his ability to watch the incident and identify the accused, absence of any direct enmity with the accused and his relationship with the deceased and the accused, we do not find anything in the evidence of P.W.10 which rendered his testimony unsafe for reliance in. the case. We are, therefore, of the view that the two Courts below rightly considered the evidence of P.W.10 as confidence inspiring.

15. In so far the evidence of the other eye-witnesses, Alam Khan (P.W.11) in the case is concerned, nothing could be brought on record in his cross examination to establish that he was related to the deceased or had any motive to involve the accused in the case falsely. The suggestion given to this witness towards the end of his cross examination in this regard was denied as follows:- "It is incorrect that I have deposed falsely about recoveries from Muhammad Ashraf and Asmat Ullah accused as also about the recoveries from the spot because of relationship with the deceased and enmity with the accused. It is also incorrect that I was neither in Mianwali on the day of occurrence nor witnessed the incident." The explanation given by P.W.11 for his presence at the scene of offence was plausible and has been accepted by the two Courts below. We could not be persuaded to take a contrary view. P.W.11 fully supported the prosecution cases besides corroborating the material points of the statement of P.W.10. The learned counsel for the complainant rightly described him as an independent witness having no motives to involve the accused falsely in the case.

16. Mr. Asif Khosa next contended that the motive alleged into case against the accused was not a live motive as the parties lived in peace for about 3 decades, after the murder of Bahadur Khan in 1956. The contention of the learned counsel does not appear to be correct. Sardar Khan, brother of Bahadur Khan, had given his age in 1989 as 40 years. Therefore, at the time Bahadur Khan was murdered, he was only about 7 years of age. The possibility that Sardar Khan nursed the grudge against the deceased Noor Khan for the murder of his brother Bahadur Khan, could not be ruled out totally. Apart for it. 5/6 months before the incident, Noor Khan had allegedly fired at Sardar Khan for which a case under section 307, P.P.C. was registered against the deceased and to avenge this incident a day before the occurrence Sardar Khan etc. fired at Noor Khan deceased for which a case under section 307, P.P.C. was registered against Sardar Khan and others at the instance of Noor Khan deceased. It is, therefore, quite clear that motive alleged against the accused was still alive when the incident occurred and it corroborated the ocular testimony in the case.

17. The learned counsel for the appellants next argued that the medical evidence in the case contradicted the ocular testimony. It is contended that the bullet injury on the person of Noor Khan deceased could not be explained in view of acquittal of Muhammad Aslam in the case who alone was said to be armed with 7MM rifle. It is further contended by the learned counsel that Dr. $her Anwar Khan (P.W.2) who conducted the post-mortem of the dead bodies of Noor Khan and Saadullah deceased, had expressed the opinion that the fire-arm injures on the person of Noor Khan deceased could be the result of two fire shots while the injuries on the body of Saadullah deceased could have been caused by one fire shot. If this opinion of doctor was taken into consideration by the two Courts below the learned counsel contended, the Courts below would have reached the conclusion that the eye-witnesses had exaggerated the number of accused. Similarly, P.W.2 had opined that the blunt injuries on the person of deceased could be the result of his fall on the ground and if butt of the gun was used it could cause more damage but this statement was also ignored by the two Courts below. The learned counsel further argued that according to the site plan, Exh. PA, there were only four accused namely, Sardar Khan, Umar Hayat, Asmatullah and Muhammad Aslam, who had fired from their respective fire arms on the deceased from a distance of about 15 to 17 feet while according to eye-witness six accused participated in the firing on the deceased. It is also contended by the learned counsel that injury No.6 on the person of Noor Khan deceased and injury No.3 of Saadullah deceased carried blackening around the wound which was not possible if they were fired from a distance of 15/17 feet. On these premises the learned counsel argued that the ocular testimony should not have been believed by the Courts below The arguments of the learned counsel do not appear to be based on a correct appreciation of the evidence on record.

18. According to both the eye-witnesses (P.Ws. 10 & 11) in the case, Muhammad Aslam accused was armed with 7 MM rifle while rest of the accused were armed with .12 bore guns. Both the witnesses positively attributed fire shot by Muhammad Aslam from his 7MM rifle on Noor Khan deceased, and therefore, the bullet injury found on the person of Noor Khan deceased was fully explained. The fact that the High Court acquitted Muhammad Aslam giving him the benefit of doubt as no rifle could be recovered from him, in no way discredited the evidence of the eye-witnesses which found corroboration from existence of a bullet injuries on the person of Noor Khan deceased. The statement of the doctor (P.W.2) that the inures on the person of Noor Khan deceased could be the result of 2 fire shots and the injures on the body of Saadullah deceased could have resulted from one shot, was just an opinion and a possibility which did not exclude or contradict the positive assertion of two eye witnesses. No question was asked to P.W.2 to demonstrate that the injuries caused to the two deceased could not have been the result of more than one shot. Similarly, the presence of blackening around one of the injuries on the person of the each of the two deceased was also fully explained in the evidence of the eye witnesses. It is in the evidence of P.Ws. 10 and 11 that the accused while firing on the deceased went so close to him that they gave butt injures to the deceased. Therefore, existence of blackening' ` on be of the injuries on the person of deceased Noor Khan and Saadullah was reasonably explained. The learned counsel also argued that according to doctor's evidence, the blunt injuries on the person of deceased Saadullah were the result of fall of the deceased on the ground and if the butt of the gun was used, it could cause more damage. The doctor (P.W.2) in his evidence made the following statement regarding blunt injuries on the person of deceased Saadullah:-- "Injuries Nos.3, 4, 5, 6 and 7 of Saad Ulah Khan deceased were with fire arm whereas the remaining had resulted from blunt weapon and were simple in nature and could also result from fall on hard surface like metalled road, etc. Butt of a gun can also be used as a blunt weapon and if wielded with full force causes more damage compared with the blunt injuries of Saad Ullah Khan deceased."

19. From the above statement of the doctor, it did not follow that the blunt injuries on the person of Saadullah deceased could not be caused by the butt of the gun. We, therefore, find'no contradiction between the ocular testimony and the medical evidence.

20. The learned counsel next contended that in the site plan prepared in the case at the instance of police only presence of 4 accused who took part in the firing was mentioned while in the evidence before the Court the eye-witnesses implicated 6 accused. Therefore, the eye-witnesses were contradicted by the site plan, Exh. P.A. It is true that in the site plan the draftsman had shown presence of only 4 accused at point No.4 from where the accused fired at the deceased. The site plans are, however, prepared only to explain or to appreciate the G evidence on record in the case. Site Plan by itself is not a substantive piece of evidence so that it could contradict the ocular account in the case (See Taj Muhammad v. Muhammad Yusuf, PLD 1976 SC 234 and Mst. Shamim Akhtar v. Faiz Akhtar PLD 1992 SC 211). We are, therefore, of the view that omission H to mention in the site plan, Exh. PA, the names of all the accused, could not take away the probative force of the ocular testimony in the case.

21. Mr. Asif Khosa, the learned counsel for the appellants also contended that the recoveries of fire-arms from the appellants and the recovery of alleged gun of deceased Noor Khan from Muhammad Akram accused were of no significance in the case. The learned counsel contended that in the absence of a positive report from ballistic expert, it could not be said that the fire arms recovered from the appellants were the same which were used in the commission of the offence. Similarly, the son of deceased Noor Khan, Muhammad Abdullah (P.W.9) who was examined to prove that the gun recovered from Muhammad Akram belonged to his father deceased Noor Khan, admitted in his cross any corroboration to the ocular testimony in the case examination that the numberof thegun of his father was 882 while the gun Exh.P.11 produced in the court born the No. 222 .The learned counsel accordingly , argued that the recoveries of fire arms in the case did not provide any corroboration to the ocular testimony in the case. The recoveries of the fire-arms from the appellants were not relied by the High Court for sustaining the conviction and sentences of appellants under section 302/34, P.P.C. Recovery of I crime weapon and report of ballistic expert or other expert evidence in the case, are only confirmatory or explanatory of the direct and other circumstantial evidence in the case. Therefore, such evidence does not out-weigh the trustworthy direct evidence in the case. We are, therefore, of the view that even if the recovery of fire-arm is kept out of consideration, it would not affect the fate of this appeal which is mainly based on direct evidence. We are, however, inclined to agree with the contention of learned counsel for the appellants that in view of the admission of P.W.9 that the gun belonging to his deceased father bore No.882 while the gun Exh.P.11, said to have been recovered from Muhammad Akram accused bore No.222, the prosecution failed to establish the charge against Muhammad Akram appellant under section 404, P.P.C. beyond reasonable doubt.

22. The last circumstance which the learned Courts below took into consideration, to provide strength to the prosecution story, was the absconsion of two accused Sardar Khan and Muhammad Akram in the case after the incident. Mr. Asif Saeed Khosa, the learned counsel for the appellants contended that abscondence by itself does not prove guilty mind and it may equally be consistent with the innocence. In support of his contention, the learned counsel relied on the following paragraph from the case Aminullah v. State (PLD 1976 SC 629):-- "I now turn to the question of abscondence. According to the prosecution, the fact that the appellants absconded was consistent only with their guilt. The submission is based on the assumption that the guilty man tries to escape from the police whilst the innocent man rushes to the police to vindicate his innocence. But this assumption is itself based on several assumptions, so that it would not be safe to hold that the abscondence of an accused automatically amounts to evidence of his guilty mind. Thus, for example, apart from the question of the public confidence in the integrity of the Investigating Agency the conduct of the investigation in a particular case might be such as to lead the accused to think that the investigation was biased in favour of the complainant. And, on the other hand, it would be difficult for an accused to explain away a very long period of abscondence. Munir in his Law of Evidence (1974 Edition) observes at page 61: 'The conduct of a person in absconding after the commission of the offence is evidence to show that he was concerned in the affence but it is usually a very small item in the evidence on which a conviction can be based. Absconding is equally consistent with innocence and guilt. It is a proper matter to be considered alongwith the other facts of the case, whether they bear upon guilt or upon innocence. It is well-known that different persons are differently constituted, and that some accused persons, though innocent, deliberately abound rather than fear the ordeal of a criminal trial.' In my humble opinion, this passage states the correct law. Next as to the corroborative value of abscondence I would only refer to the Federal Court's judgment in Mesal and another v. The Crown (1971 SCMR 239). Cornelius and Shahabuddin, JJ. Who pronounced the majority judgment of the Court observed as page 244: 'While the fact of an alleged offender having absconded may be regarded as providing some kind of support to another evidence which in itself is strong enough to sustain a conviction for the crime charged, such conduct by itself never has the effect of remedying defects in the other evidence led to show participation in the crime. The reason is simple, namely that a man may wish to avoid the consequence of being reported against for the commission of serious crime as ardently if he is not guilty as he might if he is guilty.' I am in respectful agreement with this view, which was followed by the Federal Court in Abdul Rauf v. The Crown (1971 SCMR 256). The same view wa4 taken by Cornelius, C.J. in Siraj Din v. Kala and another (PLD 1964 SC 26) and by Sajjad Ahmad Jan, J., in Khan Zaman v. Kachkol and another (1972 SCMR 574). There are of course judgments in which this Court had held that the abscondence of the accused furnished corroboration of the prosecution evidence, but the question is always of the facts and circumstances of each case. But the view taken in Mesal' case has never been dissented from by this Court, and I deprecate the tendency to exaggerate the importance of abscondence by the accused."

23. The above observations of Dorab Patal, J. relied by the learned counsel for the appellants, reflect the minority opinion in Aminullah's case. Secondly, in that case the learned Judge as a fact found that absconsion of the accused was not proved. There can be no cavil with the proposition that abscondence by itself is never sufficient to prove the guilt of the absconder. However, it would not be correct to say that abscondence in no case provides corroboration to the other J evidence and circumstances proving the guilt of the absconder. Therefore, what would be the value and place of the evidence regarding absconsion of the accused in a case would largely depend on the facts and circumstances of that case. In the case before us, there was enough evidence on record to show that Sardar Khan and Muhammad Akram accused absconded after the murder of Noor Khan and Saadullah. They were arrested after about 16 months of the incident. The burden of satisfactory explanation of their absence from their normal place of residence was on them. In the case of Ali Khan v. State (PLD 1980 SC 109), the long abscondence for a period of one year by the accused, who were accustomed to serious criminal litigation was considered., as follows:-- "

11. Ali Khan was a school teacher by profession. He was required to attend to his school duties regularly and punctually. He had been marking his attendance also. His absence even for a day could not go unnoticed or remain unexplained. His sudden disappearance for short while could possibly be explained as an impulsive act of 'sheer timidity', aimed at avoiding 'risk of disgrace', 'torture of police' or the ' ordeal of a criminal trial'. Such a long absence, in this case of over a year, could not possibly be explained by reference to an ephemeral emotional reaction when the parties were already accustomed to serious criminal litigation. He turned up or was apprehended only after his property was attached and was in the process of being auctioned. The reasons given for such a prolonged abscondence have not satisfied any of the Court, dealing with the matter. The relevance and the corroborative value of abscondence cannot be denied on any interpretation of law applicable to it. Its strength or weakness, sufficiency or otherwise can be a matter of debate in a given case. It is, therefore, the facts of each case which will finally determine, the place and the weight to be given to abscondence for proving a case beyond reasonable doubt. In evaluating the factors, the antecedents of the absconder, his occupational habits and limitations, the period of abscondence, the specific explanation for it have all to be considered in juxtaposition with the other evidence on the record. Where the eye-witnesses are natural, found to be present and capable of identifying the culprits, are held to have truthfully deposed about the event, and corroboration is sought nor under a mandate of law, but more on the basis of established principles of judicial caution, it may, as in this case, prove decisive for the value that it has. "

24. The explanation offered .by Sardar Khan and Muhammad Akram accused for their long absence of about 16 months from their normal place of residence without even informing their family members, was a strong circumstance which supported the prosecution case against them. The learned Judges of the High Court after detailed discussion reached the conclusion that two accused after the incident had absconded and found their absconsion as a circumstance corroborating the ocular testimony in the case. We do not find any infirmity in the reasoning of the learned Judges of the High Court.

25. Mr. Asif Saeed Khosa next contended that acquittal of Umar Hayat and Muhammad Aslam accused in the case by the High Court created serious doubts as to the veracity of two eye, witnesses in the case and therefore, it was not safe to award capital punishment on the basis of the eye-witnesses who were not believed by the Court in respect of two accused in the case. We have already pointed out that the maxim 'Falsus in uno falsus in Omnibus' has not been accepted by this Court as having universal application. The learned High Court while acquitting Umar Hayat and Muhammad Aslam in the case did not disbelieved the two eye-witnesses (P. Ws. 10 & 11) but following the rule of caution that no innocent person is punished, gave them the benefit of doubt as no recoveries of fire-arms could be made from them after their arrest. Therefore, acquittal of Umar Hayat and Muhammad Aslam giving them the benefit of doubt K by the High Court in no way affected the prosecution case against the remaining accused against whom the prosecution succeeded in proving the case beyond reasonable doubt on the basis of ocular evidence which found corroboration K from medical evidence and motive and also from abscondence in respect of Sardar Khan and Muhammad Akram. We, therefore, uphold the conviction of appellants under section 302/34, P.P.C. `

26. The last question which remains to be considered in the case is, whether the normal penalty of death was rightly awarded to the appellant. 27.- The learned counsel for the appellants contended that it was at best a case of chance encounter between the parties as there is nothing in the evidence to show that the appellants were aware of the time and route of the deceased. It is further contended by the learned counsel that it is not shown in the evidence that whose shot proved fatal. The learned counsel also argued that out of the appellants, Asmatullah and Muhammad Ashraf are aged 24 years and being very young need to be treated leniently. It is also contend that Asmatullah had no motive and had given only butt blows to the deceased.

28. In a murder case, if the prosecution proves the case beyond reasonable doubt and also establishes the motive for the murder, the normal penalty of L death is to be awarded. If the normal penalty of death is not awarded, the Court has to make out a case for reduction of sentence on the basis of mitigating circumstances. In the present case, all the appellants took part in the effective firing on the two deceased. The death of the two deceased occurred due to fire arm injures suffered by them. The prosecution also succeeded in proving motive M against the appellants. In these circumstances, no case for lesser sentence is made out. The appeal against conviction and sentences under section 302/34, P.P.C., of all the appellants is dismissed. However, the conviction and sentence awarded to Muhammad Akram under section 404, P.P.C., are set aside. N.H.Q./S-72/S Appeal dismissed.