1968 P Cr (PLP)

The defence of the accused was a plea of complete innocence. The prosecution relied on the direct testimony of Niaz Muhammad (P. W. 1). He fully supported the prosecution story. His testimony also found support from the evidence of Ghulam Farid (P. W. 3), who saw the accused loading his pistol immediately before the incident, and of Ghulam Sabir (P. W. 4) and Jalil (P. W. 5), who saw the accused immediately after the incident running towards Jhanda Bazar with a pistol in hand. The Additional Sessions Judge who tried the case, while dis carding the evidence of the prosecution witnesses as "not only unconvincing but preposterous", observed: "Under these circumstances and particularly when no motive for the crime against the accused is alleged, much less proved, because Niaz Muhammad (P. W.) in his cross‑examination conceded, that he had no knowledge that the deceased owed any money to the accused, the whole story told by these witnesses appears to be a concoction, and that too not subtle one, but most shabby and. clumsy, which no sane man shall believe. Such concoction, as rightly stated by the accused, appears to be made on bare suspicion against him, because the deceased met his end in his place, and possibly for that reason the relations of the deceased, through those connected with them, and averse to the accused, namely, the P. Ws. noted above, in collusion with the investigating agency, managed it." He then pointed out that according to the Sub‑Inspector, he had examined all the witnesses on 21‑7‑64 from 7‑15 to 10 p.m. and then again called them to the Police Station on 24‑7‑64 for recording their statements under section 164, Cr. P. C. The witnesses, however, stated that they were not examined on 21‑7‑64 on the spot. According to Niaz Muhammad, he was examined at the Police Station on the third day of the occurrence and according to Ghulam Farid, Ghulam Sabir and Jalil, they were examined on the second day of the occurrence. In view of the above discrepancies in their evidence, he came to the conclusion: " . . . that the entire investigation was tainted, and the writing of the case diaries was deferred till the second or third day of the occurrence, when they were actually examined and the record of their statements were ante‑dated." For the above reasons, he did not think it safe to rely on the evidence of the prosecution witnesses and accordingly acquitted the accused. On appeal by the State, the High Court in order to resolve the conflict between the evidence of the Sub‑Inspector Muhammad Farid and the prosecution witnesses as to the time of recording of their statements, examined Abdul Mastan Khan, who was at the relevant time, D. S. P., Peshawar City, as a Court witness. From the evidence of Abdul Mastan Khan and Muhammad Farid they being satisfied that the witnesses were examined on 21‑7‑64, made the following observations:‑‑ "There appears to be some confusion in the minds of the witnesses regarding the date on which they were examined, and this confusion was apparently created, because after having been examined on the spot on 21‑7‑64 by the S. I., they were summoned to the Police Station on 24‑7‑64 for getting their statements recorded under section 164, Cr. P. C. and, therefore, they stated that they were examined on the 2nd or third day of the occurrence by the Police. We are, therefore, clear in our mind that the statements of these witnesses were taken on the first day, i.e., 21‑7‑64 on the spot, and so there is no force in the observation of the learned Additional Sessions Judge that `the entire investigation was tainted', and the writing of the case diaries, was deferred till the second or third day of the occurrence." The learned Judges then came to the conclusion that the evidence of the disinterested witness Niaz Muhammad was supported not only by the witnesses who saw the appellant running armed with a pistol immediately after the occurrence, but also from the other physical circumstances. In this view of the matter, they set aside the acquittal and convicted and sentenced the appellant as stated above. The learned counsel for the appellant has contended that the evidence of eye‑witness Niaz Muhammad should have been rejected as unreliable for the following reasons:‑ (i) that he did not immediately report the .incident to the Police Station (ii) that his statement was recorded on the third day by the Police; (iii) that his story was inherently improbable. The learned counsel has also contended that much reliance should not be placed on the evidence of the chance witness Ghulam Farid and the interested witnesses Ghulam Sabir and Jalil. We have re‑examined the evidence keeping in view the above criticism of the learned counsel. Niaz Muhammad, the solitary eye‑witness, is a student aged about 16 years. He gave his evidence in a straightforward manner and stood the cross -examination well. He is a completely disinterested witness. The defence could not even suggest any motive whatsoever for his giving false evidence in this case. Furthermore, we do not find any inherent improbability in his story. It is quite natural for this boy aged 16 years to run to his uncle and to inform him of the incident. Hence, no adverse inference should be drawn against him for his failure to go to the Police Station. Further more, simply because there was some conflict between his evidence and that of the Sub‑Inspector with regard to the time of his examination by the latter, he could not be regarded as an unreli able witness. It is really surprising that the Additional Sessions Judge failed to fully appreciate the convicting evidence of this disinterested eye‑witness. We also see no good ground for doubting the evidence of Ghulam Farid, Ghulam Sabir and Jalil, which lends support to the evidence of the eye‑witness. It also does not stand to reason that the Police would concoct a story to falsely implicate the appellant who is a student. Upon a review of the whole case and of all the evidence led, we are satisfied that the learned Judges of the High Court rightly found this appellant guilty of murder. Hence, in our opinion, there has been no such failure or miscarriage of justice as would justify an interference with the order of the High Court. We, therefore, dismiss this appeal. Appeal dismissed.