1969 PLP 98 (SCMR)

Fakhr‑e‑A lam, Additional Advocate‑General (Maqbool Ilahi Malik, Advocate Supreme Court with him) instructed by S. Safdar Hussain, Attorney for Ijaz Ali, Government Attorney on record for the State. Dates of hearing : 29th and 30th October 1968. SAJJAD AHMAD, J.‑This is an appeal as of right by Khadeen, Khan Nawaz and Shafeen, who are real brothers and who along with their fourth brother Shah Alam, were tried by the Additional Sessions Judge, Bannu, on charges of committing, in furtherance of their common intention, the murder of Mir Haider Shah (section 302/34, P. P. C.) and for attempting the murder of P. W. Bazi Gul section 307/34, P. P. C.) and in causing injuries with sharp weapons to P. Ws. Muhammad Nawaz and Umar Khan section 324/34 P. P. C.). They were acquitted by the learned Trial Judge but on a State appeal under section 417 of the Criminal Procedure Code, a Division Bench of the High Court at Peshawar reversed their acquittal and convicted them on the charges of murder and attempted murder. Shah Alam had died in the meanwhile and, therefore, no sentence was passed against him, but each of the three appellants was sentenced to death on the murder charge and 7 years' R. I., for the offence under section 307/34, P. P. C. It may be mentioned here that the State appeal was filed after a revision petition against the acquittal order, lodged by Amil Shah, a son of the deceased Mir Haider Shah had been admitted by a learned Single Judge of the High Court who directed the Additional Advocate‑General to consider the question of recommending to the Provincial Government to tile an appeal. The occurrence took place at 8‑25 a. m., on the 23rd of February 1963, two days before the Eid in the main bazzar of the town of 1iannu, The deceased, Haider Shah, ran a spices shop where his nephew Bazi Gul P. W., came before the occur rence and asked the deceased to accompany him to the bazzar for making purchases for Eid. When they reached the shop of one Ghazi they saw tile appellants and their brother, Shah Alam, coming from the opposite direction. Shafeen and Khan Nawaz were armed with D. B. shot guns, Shah Alam carried a pistol .end Khadeen a '303 rifle. They are alleged to have fired simultaneously on the deceased killing him on the spot. It was also alleged that after the deceased fell down, Khan Nawaz appellant picked up the gun of the deceased and fired at him at a close range. Thereafter, they turned to Bazi Gul who ran away. They fired at him but he was not hit. Bazi Gul took shelter in the shop of P. W. Abdur Rashid, where the culprits chased him and caused injuries to him by, firing at him. Khan Wali, a police constable reached the shop of Abdur Rashid and took Bazi Gul to a hospital in a Tonga. Bazi Gul handed over his pistol (Exh. P. 4) with two magazines. P. W., Muhammad Akbar, S. I, recorded the report (Exh P. A/1) of Bazi Gul, which gave the details of the occurrence as stated above. The appellants also owned a shop in the bazzar of Bannu to which they repaired after the occurrence. There they were apprehended by the police along with their weapons. Shah Alam had absconded, but surrendered on the 3rd of March 1963. The motive for the crime as alleged by the prosecution was that about a year prior to the occurrence Muhammad Nawaz, a cousin of the appellants was the victim of a murderous assault by the deceased, Mir Haider, his son Amil Shah, Bazi Gul P. W., and one Payazar who were prosecuted, but ultimately acquitted by the Court. Khadeen appellant had said in his statement under section 342, Cr. P. C , that he and his brother had no reason to avenge the assault on their cousin Nur Nawaz who was himself alive and had four adult brothers to assist him. According to him he and his other brothers were falsely involved in this case as they had extended financial help to Nur Nawaz for prosecuting the case against the deceased party. It would be relevant to state here that as a result of the assault on Nur Nawaz mentioned above, his partymen including the appellants were bound down in security proceedings against the party of Mir Haider Shah deceased on the other side. The injuries suffered by the complainant party may now be stated. The deceased Mir Haider Shah had sustained two entrance wounds one on the upper part of the left side of the chest and the second on the lateral side of the left buttock. Charring was present on the first but not on the second. There were corresponding exit wounds. In addition he was found to have suffered one grazing wound on the surface of the middle third of the right leg. P. W. Bazi Gul, had two entrance wounds on the lateral side of the right side of the chest and one entrance wound on the back surface of the right forearm. One pellet was removed from his body. The two other persons injured in this occurrence were P. W. 8, Muhammad Nawaz and P. W. 9 Umar Khan, each having received one entrance wound from a firearm. Both of them owned shops in the main bazzar in the vicinity of the place of firing on the deceased, and seem to have been hit by stray pellets while they were inside their shops. A pellet (Exh. P. 3) was extracted from the door of the shop of P. W., Muhammad Nawaz. Both Muhammad Nawaz and Umar Khan are unconnected with either party. They did not even know them before the occurrence. They were, therefore, unable to say at the trial as to who had fired the shots and how they came by their injuries. According to the prosecution case, there were two scenes of this occurrence; one in the main bazzar where the deceased Mir Haider Shah was fired at and killed and the second the shop of P. W. Abdur Rashid situated at some distance away, where P. W., Bazi Gul was chased and injured. This finds corrobora tion from the fact that the police during the investigation recover ed 5 card boards (Exh. P. 1) from the first scene and also a spent bullet from the door of the shop of P. W. Umar Khan, situated nearby that place. At the second scene of occurrence namely the shop of Abdur Rashid, one spent bullet (Exh. P. 9) was recovered from the wall inside the shop, and 2 spent bullets (Exh. P. 10) were extracted from an almirah lying inside the shop as well as 5 pieces of pellets (Exh. P. 11) and 6 card boards (Exh. P. 12). The weapons and the ammunition recovered during the‑ investigation was sent to the Ballistic Expert, P. W. 2 Khairul Bashar Khan, for his opinion. These included an S. B. shot gun (Exh. P. 14) of the deceased which was lying beside his body on the road and contained an empty shell in the chamber and a pistol (Exh. P. 4) of P. W., Bazi Gul which had a charger containing 7 live cartridges and one empty shell (Exh. p. 5). The weapons and ammunition recovered from the accused which were also sent to the Ballistic Expert for his examination were a ‑12‑bore D. B. shot gun (No. 9114) belonging to Khan Nawaz appellant, pistol (No. 814444) belonging to Shah Alarn who is dead, a ‑303 rifle recovered from Khadeen and a D. B. shot gun from Shafeen. According to his opinion crime shell marked C‑9, which had been found in the bandolier containing 9 other cartridges of Khan Nawaz appellant was fired from the right barrel of h‑is D. B. shot gun (No. 9114). The crime bullets marked C‑4, C‑5 and C‑6, recovered from inside the shop of P.W., Abdur Rashid were in ‑his opinion, fired from pistol No. 814444 of Shah Alam. A crime bullet marked C‑3 arid crime shell marked C‑8, were in his opinion, fired from pistol No. 336991 belonging to Bazi Gul P. W. As regards the pistol of Shah Alam, there is no apparent evidence as to when and how was it taken into possession by the investigating officer. The learned Trial Sessions Judge has considered that the circumstance of that crime shell marked C‑9, found to have been fired from the shot gun of Khan Nawaz, was of no consequence, as it could not be said that this shell found in his bandolier along with 11 live cartridges, was fired in this occurrence. It was rightly pointed out by him that there was no need for Khan Nawaz to keep this empty shell in his bandolier as a souvenir. According to the recovery memo it did not smell of fresh discharge. For murder of Mir Haider Shah, the ocular evidence in the case was supplied by P. W. 3 Bazi Gul, P. W. 4 Akbar Ali Khan, P. W. 5 Muhammad Nawaz, P. W. 6 Sardar Khan and P. W. 7 Umar Zaman. The second incident of the murderous assault on Bazi Gul was allegedly witnessed by P. W. 10 Abdul Rashid and P. W. I1 Amil Khan. As regards the set of eye witnesses of the murder incident consisting of P. W. Bazi Gul, Akbar Ali Khan, Muhammad Nawaz, Sardar Khan and Umar Zaman, the learned Trial Judge has dismissed their evidence holding that they are interested witnesses and are unsupported by any independent evidence and that their statements contained material contradictions and discrepancies. The learned Judges of the High Court have considered that P. Ws. 6 and 7 namely Sardar Khan and Umar Zaman, were not connected with the prosecution in any way. It seems to have escaped their notice that Sardar Khan P. W., is nephew of the deceased and his niece is wife of P. W. Bazi Gul. Similarly P. W., Umar Zaman is a cousin of P. W., Akbar Ali who had a close contact with a brother of the deceased and had litigation with the wife of Shah Alam accused. But the greatest weakness in the statements of these witnesses is that they allege that all the accused persons had fired at the deceased simultaneously and had hit him with their respective weapons namely shot guns, a rifle and a pistol from a close range, whereas the result of the firing on the deceased in only two entrance wounds which totally belies their version at once creating a suspicion that in accord with the normal practice of adding the names of innocent persons along with the guilty, the number of the accused in this case has also been added up. The learned Judges of the High Court have found corroboration for the guilt of the accused persons in the fact that according to the Ballistic Expert the crime shell marked C‑9, was fired from the D.B. gun recovered from Khan Nawaz and similarly the crime bullets (C‑4, C‑5 and C‑6) were fired from the pistol recovered from Shah Alam. As already stated above, the learned Trial Judge has discounted the opinion of the Ballistic Expert as regards the firing done from the gun of Khan Nawaz and we think on very good reasons. However there is no doubt that the crime shells (C‑4, C‑5 and C‑6) and bullets recovered from inside the shop of Abdur Rashid were fired from the pistol of Shah Alam which lends a very strong corroboration to his participation in his occurrence. It was not denied that this pistol belonged to him and the fact that the prosecution did not explain the circumstances in which the pistol was produced or recovered, would not negative the use of this pistol in this occurrence. It cannot also be doubted that the pistol of Bazil Gul was also used in this occurrence as the crime shell (C‑8) and the crime bullet (C‑3) were found to have been fired from this pistol. The empty shell which was found in the S.‑B. gun of the deceased (Exh. P. 14) strongly suggest the firing of that gun also. It is difficult to accept the prosecution version that after the deceased was killed, the deceased's own gun was taken over by Khan Nawaz appellant and he fired the shot at the deceased leaving the gun thereafter. But if the deceased had opened fire with his D.‑B., gun first, with a purposeful aim he would have not missed his victims. This leaves the matter in doubt as to when and by whom was the empty shell fired which was recovered from his gun. The learned counsel for the appellants submitted that the fact that the weapons seized from Shafeen, Khadeen and Khan Nawaz immediately after the occurrence were found not to have been used, should be enough to hold that they are innocent. The principal item of evidence in the case however is the ocular testimony. We are inclined to agree with the learned co‑Trial Judge that the direct evidence about the incident of murder unaccompanied by any other corroborative proof was not sufficient to sustain a murder charge. This argument should certainly prevail as far as Khan Nawaz and Khadeen are concerned but we find that there is credible and unimpeachable evidence of the part played in this occurrence by Shafeen appellant and Shah Alam accused. This is supplied by the evidence of the second incident of the murderous assault on Bazi Gut. Bazi Gut who is injured is a witness of the first occurrence and we have no reason to doubt his statement that after the killing of his uncle Mir Haider Shah, he was given a chase and fired at from the platform of the shop of Abdur Rashid P. W., wherein he had taken shelter. Abdur Rashid P. W., is an independent witness and in our view the defence had failed to establish his connection with the deceased party in spite of the effort on its part to prove his relationship by the production of D. W. 1 Mir Hassan Shah. According to Bazi Gut all the 4 accused had chased him but Abdur Rashid confines the attack only to Shafeen appellant and Shah Alam, contradicting in this respect P. W. Amil Shah the other witness of the murderous assault on Bazi Gut who stated that while Shafeen and Khan Nawaz entered the shop of Abdur Rashid and fired at Bazi Gut the two other namely Khan Nawaz and Khadeen were standing near the electric pole. It is a merit of the statement of P. W., Abur Rashid that he adhered to a truthful statement deposing to what he had actually seen without any attempt to blindly toe the line of the prosecution. We feel that the evidence of P. W., Bazi Gut as regards the murder of his uncle Mir Haider Shah and for his own assault, charging all the 4 accused is doubtful so far as the accused other than Shafeen and Shah Alam are concerned. There is no corroboration of this evidence against Khan Nawaz and Khadeen but in respect of Shafeen and Shah Alam there is dependable corroboration supplied by the evidence of Abdur Rashid P. W., the recovery of the crime bullets from inside the shop of Abdur Rashid and the opinion of the Ballistic Expert that some of these bullets matched with the pistol recovered from Shah Alam. After a close examination of the whole case the result which we have achieved is that while the learned Trial Judge was wrong in recording the acquittal of Shafeen and Shah Alam, he was quite right in giving the benefit of doubt to Khan Nawaz and Khadeen. The learned judges of the High Court have not made a correct approach to the case in reversing the acquittal of the latter two and holding that the view of the learned Trial Judge as regards their guilt, was manifestly wrong. In the result we accept the appeal of Khan Nawaz and Khadeen and direct their release if they are not wanted in any other case. The case against Shah Alam has abated as he is dead. We uphold the conviction of Shafeen on the charge of the murder of Mir Haider Shah as well as on the charge of murderous assault on P. W. Bazi Gal, for which he has been sentenced to death along with others under section 307/34, P. P. C. by the High Court. The learned counsel for the appellants has argued that Shafeen was acquitted by the learned Sessions Judge on the 29th of June 1964, but his acquittal was reversed by the High Court on the 7th of December 1967. He had thus gained an expectation of life for more than 21 years between his time of acquittal by the Trial Judge and his conviction by the High Court. We think that this consideration, coupled with the fact that the prosecution had cast its net very widely by implicating four brothers in the crime, two of whom have been acquitted and one has died, the extreme penalty of death need not be exacted from Shafeen appellant. We, therefore, commute his sentence of death to that of transportation for life. We order accordingly. The sentences of transportation for life on the murder count and of 7 years' R. I., under section 307/34, P. P. C.I which we also uphold, shall run concurrently. Appeal partly accepted.