P L D 1961 (W (PLP)

SAJJAD AHMAD, J.‑

The appellants Resham Gul, Bakhmal Jan and Nur Zaman have been convicted for murder on three counts and sentenced to death on each. In addition, they have been convicted under section 404/34, P. P. C. for misappropriation of a shotgun which was in possession of one of the deceased persons, Muhammad Jan, and also under section 429/34, P. P. C. for the mischief committed by them in killing the she camel worth more than Rs. 500 on which the deceased were riding at the time of the occurrence. On the two last mentioned counts they have been sentenced to one year's rigorous imprisonment each without specifying their consecutive or concurrent nature. They have appealed and their sentences of death have also been referred to us for confirmation under section 374 of the Criminal Procedure Code.

2. The appellants are inter‑related Takhmal Jan's step mother is a sister of Resham Gnl and he is also his distant cousin. Nur Zaman appellant is the sister's son of Resham Gul. The fourth accused, named Haq Nawaz, brother of Resham Gul, was also implicated in these crimes but he had allegedly absconded after the occurrence and is still at large.

3. The victims of this crime were the three deceased persons, namely, Muhammad Jan and Akram, both real brothers, and Gul Muhammad Jan, a son of the former.

4. There was a long standing enmity between the parties which served as the motive for this crime. A year before the occurrence, Haq Nawaz, the absconding accused, and Resham Gul appellant had fired at Jan Khan, a relation of the deceased, as a result of which Haq Nawaz was sentenced to two years' rigorous imprisonment and Resham Gul was sentenced to pay a fine of Rs.

200. The said Jan Khan retaliated by firing, at and injuring Majid and Mehr Dil, relations of the appellants. The wife of Bakhmal Jan appellant, named Mst. Sakina, had deserted her husband and the appellants suspected that Jan Khan, mentioned above, had seduced her. Similarly, Shah Pari an aunt of Bakhmal Jan appellant had also been enticed away and suspicion for this fell on Muhammad Jan deceased. Even after the present occurrence the blood fued between the parties had manifested itself in fatal incidents, in one of which Qamar Zaman, brother of Nur Zaman, appellant, lost his life and in another Adam Khan, a brother of deceased Muhammad Jan, was killed at the hands of the accused party.

5. The present occurrence is alleged to have taken place at rotiwela on the 24th of May 1958. According to the prosecution case, all the three deceased were going towards Lakki, riding on a she camel, followed by P. Ws. Miram Jan and Shahjahan, who were coming behind at some distance on foot. When they were passing through a graveyard along the path, which connects the Shahab Khel and Langar Khel villages, the appellants and the absconding accused, who were lying in ambush, fired at them, killing Muhammad Jan, Akram and Gul Muhammad Jan and the she camel on the spot. P. W. 11 Miram Jan reported the occurrence at Police Post Abbasa, which is situated at a distance of 7 or 8 miles from the scene of occurrence. The report was lodged at 1‑30 p.m. on the same day, wherein the salient facts of the occurrence were mentioned in some detail. It was stated in the report that all the four accused‑persons had simultaneously fired the shots at the whole lot of the complainant party, i.e., at the three deceased persons and at the first informant himself and his companion, Shahjahan. The actual firing is described in the following words:‑-- This allegation about the firing at Miram Jan and Shahjahan was the subject‑matter of a separate charge against the appellants for attempting the murder of Miram Jan and Shahjahan, of which they have been acquitted by the trial Judge. It was stated in the first information report that the accused persons after the firing had run away in the direction of Landewa.

6. P. W. Muhammad Ayaz Khan, Assistant Sub‑Inspector, and P. W. Gulmatin Khan, S. H. O. Police Station Lachi, conducted the investigation. The dead bodies were sent for post mortem examination which was conducted by P. W. 2, Dr. Gul Badshah. The post mortem of the corpse of the she camel was conducted by P. W. Syed Rahman Shah, Veterinary Assistant Surgeon, Lakki. They were all found to have gunshot injuries, and it is important to take a note of these injuries which suggest that they were caused from different directions. On the person of Muhammad Jan deceased: a majority of the injuries were pellet entrance wounds on the right, one on the lower part of the f out of the neck, two on the postrolateral aspect of the left lower chest and another entrance wound over the upper part of the left posterior axills. His ninth injury was a depression of the face; 3" x 4", which had resulted in the breaking of both of his jaws. The last mentioned injury, according to the medical evidence, was the immediate cause of the death of Muhammad Jan and was caused by blunt means. Probably this was due to a violent impact with the ground when the deceased fell facewards after he was knocked down by the gunshot injuries. Akram Khan's injuries were also caused by firearms, the entrance wounds being mostly on his left side, covering the area of his body from the left hip bone upwards. In the case of Gul Muhammad Jan deceased the pellets appear to have hit him on his left as well as the right side. Apart from the pellet injuries, in the case of Muhammad Jan deceased it seems that a bullet was also fired at him, as a piece of bullet (Exh. P. 7) was recovered from under injury No. 5 on his person. Some other pieces of bullets ware also recovered from the spot. The she camel had sustained pellet injuries and a pellet (Exh. P. 1) was recovered from its corpse.

7. During investigation the police had enlisted the services of a tracker, P. W. 8, Rab Nawaz. He was taken to the spot on the 25th of May 1957, for an examination of the foot‑prints which had been preserved for purposes of lifting their moulds. He lifted the moulds of some of the foot‑prints which he found near about the scene of occurrence, including Exhibit P. 2 which he identified later to be that of Resham Gul appellant. According to his deposition, P. W. Rab Nawaz found that the track which he had noticed at the spot was of four persons going from the scene of occurrence to north‑west in the direction of 5 Landewa. The track went up to about two and a half miles from the scene through fields and then it got mixed in the public path way and could not be traced further.

8. A search for the arrest of the accused was made all over in the neighbouring villages which proved fruitless. It was not until the 12th of January 1960, that .the police were able to secure their arrest in a rather hazardous venture. P. W. 15, Muhammad Akbar Khan S. H. O. Police Station Qumar Mashani, learnt that the appellants, 'who had been declared proclaimed offenders, were present in Wanda Ibrahimwala. A raiding party was taken there and the three appellants were found present in a kotha and chappar. They were asked to surrender but they refused to do so and held out a threat of resistance followed by actual firing at the police party. After some exchange of shots between them and the police, the appellants finding themselves surrounded made a surrender. Nur Zaman appellant was at the time having a S. B. shotgun with a bandolier containing 17 cartridges. Resham Gul handed over his 11 shot‑rifle along with a knife which he was carrying and a bandolier containing live and spent ammunition and also a dagger. Bakhmal Jan was also armed with 11 shot 103 rifle with bandolier containing ammunition and a dagger which he also surrendered to the police. It is in evidence that the accused were later put on trial for the offence of having fired at the police party to evade apprehension and were convicted under section 307, P. P. C. and sentenced to three years' rigorous imprisonment each.

9. The prosecution case against the appellants depends primarily on the ocular testimony furnised by the statements of P. Ws. Miram Jan and Shahjahan. This has been subjected before us to a severe criticism as the evidence of interested persons on the ground that they are close relations of the complainant party, Miram Jan being a first cousin of the deceased Muhammad Jan and Akram and Shahjahan being the latter's uncle. It is further contended that not only are they interested witnesses because of their relationship with the deceased party, but they are definitely hostile to the accused, being themselves on terms of serious enmity with them, which is not denied by the prosecution. These factors do certainly compel a very close scrutiny of the testimony of these witnesses but if it is found to be true and does not lack support from corroborative evidence, it is not to be rejected merely because of its partisan character. The best test of the veracity of a witness's evidence in a criminal case is its own inherent value, checked on the tests that may be afforded by the circumstances of the case itself. It would be difficult to place reliance on a witness who may outwardly appear to be wholly independent but whose testimony may be found to falter on such tests, and similarly the evidence of a relation‑witness or a relation‑cum‑hostile witness may induce conviction and may be acceptable as evidence of truth if it stands the test of veracity. Exaggeration and embellishments can be condoned up to a degree but care has to be taken that they do not go to the length of weaving a web of mufti‑colour threads which get inextricably knit up and it becomes difficult to separate one from the other, and to unravel the knots, without destroying the whole web. In the administration of criminal justice the worst headache for a Judge is created when innocent persons are roped in along with the guilty and the direct evidence unscrupulously charges them all in the same C breath. 1f the circumstantial evidence in a case affords no help to discriminate between the guilty and the innocent and the Judge becomes helpless in that determination, the whole evidence will have to be discarded. But in this country where standard of truthfulness on the part of witnesses who are normally drawn in criminal cases is yet to reach a desirable height, evidence of al witness should not be totally rejected unless on considerations commonly employed for judging judicial testimony, it becomes difficult to accept any part of it with easy mind. The question arising in regard to the two eye‑witnesses in this case, is, firstly, whether they were present and had witnessed the occurrence, and, secondly, whether if they were present and were able to see the occurrence, their evidence does not suffer from defects of a character which render it doubtful. After a careful deliberation and after applying all the tests available to us we have formed the view that the evidence of the two eye‑witnesses is substantially true in respect of the complicity of each one of the appellants in these crimey. Their presence at the spot does not present any difficult. They were going to Lakki in the company of the deceased primarily for the purpose of a Court hearing in a case under section 107 of the Criminal Procedure Code, pending against men of their party, including Muhammad Jan and Akram Khan deceased and P. W. Shahjahan himself as respondents. Gul Muhammad Jan, the third deceased person, had been injured by a she camel on the thigh and in addition to the attendance in the Court of the R. A. C. Lakki for the 107 case which was fixed for the 28th of May 1958, it was necessary to have the injury of Gul Muhammad Jan treated by a doctor. Gul Muhammad Jan's post‑mortem examination showed, besides gunshot injuries, a circular abrasion 4 in diameter on the inner and front side of the upper part of the thigh with a lacerated wound in the lower part which, according to the medical evidence, was the result of a bite by the camel and its duration tallied with the time as alleged by the prosecution. It is true that Miram Jan was not already involved in the 107 case and there were yet four days to go for the hearing of that case when the complainant party allegedly set out for their journey on the 24th of May and both these objections have been pressed into service for rejecting the testimony of the P. Ws. as untrue. It has been admitted and is obvious from the file of 107 proceedings (Criminal File No. 533/3 of 1958 of Mauza Abbas Marwat, Goshwara No. 691) that some of the respondents had still not entered appearance in the proceedings and simultaneously with their appearance they would have been asked to furnish interim security bonds. There is thus truth in the version of the prosecution that the deceased persons and the two P. Ws. had left for Lakki four days in advance of the Court hearing in order to arrange for sureties that were needed and added to it was the necessity to have the injury of Gul Muhammad Jan treated by a doctor. The evidence of Sikandar Khan of village Shahab Khel, which was recorded under section 512, Criminal Procedure Code, and was brought on the record of the trial owing to the death of Sikandar Khan, amply proves this fact. According to his evidence; which has not been impeached before us on any ground whatever, the deceased persons and the two P. Ws. had visited him on the morning of the day of occurrence in his village Shahkhel to request him to serve as one of the sureties and he had promised to follow them to Lakki for that purpose but later the same day he heard about this tragedy.

10. We have no reason to doubt the statement of P. W. Sikandar Khan which at once explains the purpose of the departure of the deceased and the P. Ws. from their home village four days in advance of the Court hearing and also very definitely establishes the fact that the two P. Ws., namely, Miram Jan and Shahjahan, had visited Sikandar Khan together shortly before the occurrence.

11. The promptitude with which the first information report was lodged by Miram Jan, wherein the presence of Shahjahan P. W. was also mentioned, is another factor pointing to the presence of both these P. Ws. with the deceased and their having seen the occurrence itself. According to the evidence, the occurrence had taken place at rotiwela, which could not have been before between 9 and 10 a. m. in the last week of May and the report was lodged at 1‑30 p.m. the very same day at Police Post Abbasa, which is situated at a distance of 7 to 8 miles from the spot on a sandy tract. The complainant party had left their village Abbasa after sunrise and had travelled about 7 to 8 miles before being confronted with this dastardly attack and some time must have been spent in the meeting with Sikandar Khan P. W. at Shahab Khel. This easily brings the time of the occurrence at 9 to 10 a.m. at the earliest. It must have also taken quite some time for these P. Ws. to attend on their murdered relations and then to get back to their village Abbata and therefrom to lodge the report in the‑same village. The report at 1‑30 p.m., therefore, was lodged without any delay and the graphic account that it gives of the occurrence could not have been rendered by a person other than the one coming directly from the spot after having witnessed the occurrence and this can safely be said about P. W. Miram Jan.

12. It has been argued by the learned counsel for the appellants that if P. Ws. Miram Jan and Shahjahan had been there, they could not have been spared by the appellants, as they were their enemies as much as the deceased persons. The immunity of these witnesses from any harm during the occurrence does not belie their presence on the spot. They were at some distance from the deceased persons at the time; coming behind them on foot and it is safe to presume that when the volleys of shots were fired these P. Ws. must have instinctively taken steps to avoid the view and the shots of the assailants. The fact mentioned in the first information report that they were also fired at by the appellants seems to us to be a loose way describing the shooting event. The first informant Miram Jan when stating was naturally identifying himself and his companion Shahjahan with the victims of the shooting.

13. It has been contended by the learned counsel for the appellants that the medical evidence definitely points to the shots having been fired from different directions at the deceased persons, but the first information report does not say so. On the contrary, it states that the shots were simultaneously fired, showing that the witnesses were not able to see who was firing and from which direction. The witnesses have stated at the trial that while the three appellants had taken positions towards the west, the absconding accused was towards the east of the path on which the complainant party was coming and that they had fired the shots in two volleys. These events are not mentioned in the first information report, but this is only an omission of punctilious details. It was expressly mentioned in the first information report that the shots were fired simultaneously as a result of which three persons and an animal were killed, and even a false version of the shooting could not have attributed this total result to cane volley, and if a second volley was specifically stated by the P. Ws. at the trial, we do not consider that it was an improvement made by false witnesses to adjust their version with the medical evidence. The fact that more than one shot was fired on each one of the victims and that a rifle was also used as a weapon of offence, apart from the shotguns, which is apparent from the bullet injury of Muhammad Jan and recovery of bullet pieces from the spot and the further fact that the tracker, P. W. Rab Nawaz, found tracks of four persons towards the direction of Landewa from the scene of occurrence, indicate that four culprits participated in the crimes. The fact that the culprits had run away towards Landewa was explicitly mentioned in the first information report and on this point we find the evidence of Rab Nawaz, tracker, of considerable corroborative support. It is true that the evidence of foot‑prints lacks scientific accuracy and exactitude, but the evidence of an experienced tracker based on reasons and comparisons tested by the Court's own observation and accepted is not without considerable value. P. W. Rau Nawaz is an experienced tracker and it should not have been difficult for him to tell the number of persons who have together taken a particular track at one time. The trial Judge from his own observations found close similarity between the mould Exh. P. 2 and the mould of the foot‑print of Resham Gul appellant, prepared by Rab Nawaz, after he was able to identify it at the parade held under the supervision of P. W. Syed Qasim Jan. There is a merit in the testimony of Rab Nawar which cannot escape notice inasmuch as. he did not play in the hands of‑the prosecution by falsely lending his expert opinion to fix up the identity of the foot‑prints of all the persons arrayed at the trial. He picked up the foot‑prints of Resham Gul alone which were identifiable with one of the moulds Exh. P. 2 that he had lifted from the scene of occurrence.

14. It has also been contended by the defence that the place of occurrence is strewn with bushes and trees, big and small, and the culprits must have fired shots under their cover and concealed behind them to avoid their identity. This argument is built on the statement of P. W. Miram Jan to the following effect :‑-- "In the graveyard there is one Ghaz tree, one Sangara tree, Ber trees and several bushes here and there which are about 2 feet high. The Ber trees are towards the east of the grave yard. I did give a statement before the Committing Magistrate. I have heard my statement before the Committing Magistrate: "To the west of the thoroughfare where we laid ourselves were reed bushes. There are trees of Ber, Ghaz and plants of Sangara in the graveyard of both sides of the thoroughfare. If one is going on the thoroughfare and somebody is sitting in the graveyard in the bushes, he cannot be seen but he can see the man going on the thoroughfare. This is correct." This statement can, at the utmost, suggest in line with the prosecution case that the culprits had laid iii ambush for their victims behind the bushes for a surprise attack on them, but it cannot be further extended to mean that they had fired at them from behind the places of concealment and were not recognised. It was a broad daylight occurrence and the identity of the culprits 'could not have been missed by the persons who knew them and who saw them not from a very long distance in the process of firing and then decamping from the spot within their sight. It is difficult to presume that all the shooting was done by the assailants in a stationary position concealed behind bushes and that they were also able to make good their escape hidden from the view of the P. Ws.

15. The abscondence of the appellants and the manner in which they were arrested after they had put up a violent resistance, although not by itself a conclusive factor, lends further corroboration to the prosecution case. It is, indeed, a culpable conduct which requires satisfactory explanation and none has been offered by the appellants that they had absconded after the occurrence and remained at large for quite a long time and their alleged co‑accused, Haq Nawaz, is still absconding. Finally, when the appellants were apprehended, they did not surrender peacefully but tried to evade their arrest by violent means. Their explanation that they were absent from the village all the time as they were working for their livelihood in the Punjab is too thin a pretext to carry conviction.

16. On all the circumstances of the case, as noticed above, we find that the guilt of each one of the appellants has been brought home to him for the offences for which he has been convicted. We uphold their convictions and sentences, including the confirmation of the death sentence awarded to them. The appeal is dismissed. K.M.A. Appeal dismissed.