P L D 1959 (W (PLP)

ABDUL HAMID, J.‑By his order dated 10‑7‑1958, the Sessions Judge Dera Ismail Khan convicted Qadar Khan of the offence of murder under section 302, P. P. Code and sentenced him to transportation for life. This is an appeal by the convict against his conviction and sentence. The facts out of which the conviction arose are that on 2‑8‑1957 at about morning meal time (9 or 10 a.m.) Bahadur Khan brother of Qadar Khan accused was shot dead in front of his house at a distance of a few paces from it. The medical evidence showed that he had nine pellet wounds out of which seven were in the vicinity of the nipple, one gunshot wound on the back of right chest, two pellet wounds in the back of right arm, and ten incised wounds on the inner and outer walls of right axilla and front of right upper arm. These wounds clearly indicate that in the first instance a sharp weapon was used against the deceased and he warded off the blows with his right hand and received ten incised wounds on his right‑arm in that attempt. After that two shots were fired at him, one from some distance from the front, and the other from close quarter from behind, though not from within the charring range. The accused and the deceased were brothers and lived in adjoining houses. Their lands were perhaps also joint. The first man to arrive on the scene was one Gulla Jan, a tenant of both the deceased and the accused. He said that he was ploughing his masters land at a distance of about 80 paces and heard a shot fired. He then went towards the house of the deceased and found him lying dead in front of his door. A single barrel shot‑gun, licensed in the name of the deceased and the accused, was lying with him. The inmates of the deceased's house, his wife a son and a daughter also came out of the ho use and after removing the deceased inside he went to the Police Station for report. He found none else on or near the spot. None of the inmates of the house came forward to give any statement. In the report which was lodged at 1‑30, p.m. nobody was charged nor was anybody mentioned as a person who had witnessed this occurrence. The Sub‑Inspector on arrival found some blood in front of the deceased's house. A single barrel shot‑gun with cartridges was produced before him by Qadar Khan accused. That gun gave no smell and there was no other indication of its having been recently used. On the following day two witnesses, Sakhi, Jan (P. W. 5) and Mir Azam (P. W. 6) who are collaterals amongst themselves and are also the collaterals of the accused and the deceased, made statements to the Police which they later on repeated in Court. They said that they were proceeding to their village and were on a path passing close to the scene of occurrence and saw Qadar Khan accused and Bahadur Khan deceased coming out of their houses. Bahadur Khan was abusing Qadar Khan and Qadar Khan thereupon fired two shots at Bahadur Khan, one from a distance and the other from close quarter. They were at that time at a distance of about 108 paces from them. They left that path and proceeded straight to their village by the main route. They did not mention this fact to any body on the spot and throughout the trial it remained almost a mystery how the Investigating Officer came to know that these two persons lead witnessed the occurrence and on what information he approached them for their statements. There is no suggestion in the evidence about any motive for this offence. The statement of these two witnesses that the deceased was heard abusing the' accused was relied upon as the stimulus for this offence. From the plan it appears that these witnesses were at a distance of about 108 paces from the scene of occur rence. It is doubtful whether abuses passing between the deceased and the accused could be audible from that distance. The accused denied the commission of this offence and said that he was charged at the instance of Sakhi Jan and Mir Azam, the two alleged eye witnesses in this case. The learned Sessions Judge placing full reliance in the veracity of Sakhi Jan and Mir Azam convicted the accused of actual firing on the deceased and of causing his death. The only question on which the success of the prosecution in this case depends is whether the evidence of Sakhi Jan and Mir Azam is acceptable or not. Besides the statements of these two witnesses there is not a word on the record by which the accused can be connected with this offence. The learned Sessions Judge made, at great length, attempt to find in some other facts of this case which are admitted or are otherwise undeniable, support for their evidence, but we are of opinion that necessary and real corroboration is in fact not available. We have given to the evidence of these two witnesses our very careful consideration as the conviction depends on their evidence only. We are of opinion that their statement ought not to have been accepted as true at all, and the learned Sessions Judge was in error in accepting their evidence as true. It is obvious that these persons are not natural witnesses in the sense that they had any ostensible reason to be present on the scene of occurrence at that moment. Their houses and lands are not in the vicinity of the place where murder has taken place. They say that they were proceeding to their village Mama Khel from Nauring and arrived at that place at the very moment when the deceased was murdered. That is a pretext which is easy to invent and is always to be found in the mouth of witnesses who bring themselves to the scene of occurrence. It was in any case be a very lucky coincidence, and perhaps one beyond belief, for them to have arrived at the scene of occurrence exactly at the time when this incident took place. It looks as if this casualty was waiting for their arrival and destiny had arranged that they y might be the witnesses of it. They say that they took a path which passed in front of the house of the accused and abandoned the main road to their village because it had rained and the main road was in mud. Hakim Khan Lambardar of Mama Khel (P. W. 7) stated that it had not rained on that day. He also said that the path which the two witnesses are said to have selected is not a path leading to Mama Khel but is only the boundaries of the fields. Out of these witnesses Sakhi Jan, though admittedly a collateral, appears to be on inimical terms with Qadar Khan accused. According to Sakhi Jan's own admission he appeared as a witness in a murder case against Wazir Azam a cousin of Qadar Khan. When collaterals are hostile the antagonism penetrates all bounds. These two witnesses, according to their own admission, are cousins of the deceased and if they had in fact seen the deceased killed in their sight they would have undoubtedly run to his assistance. They were two against one and had little to fear. They could have at least raised alarm and attracted other people. According to their evidence the accused left the scene after killing the deceased. If that is so they could have waited for a while, if they were not bold enough to face him, and after his disappearance could have proceeded to the house of the deceased to render assistance to his widow and children to the disposal of the body and would have been in other respects their sharers in grief. They could have at least informed them of what they had seen and had offered themselves as witnesses. They could even come back from their village the same day to tell this story to them. These are steps which even distant acquaintances would take on' occasions like this and it is unbelievable that two collaterals instead of adopting that course proceeded straight to their houses. If they have not adopted that course then they were either not the witnesses of this occurrence, or were at inimical terms with the accused and the deceased, and in either case their evidence is not believable. If they had witnessed the occurrence and it was their intention to give evidence out of philanthropic motive of bringing the offender to justice, they should have themselves reported the matter to the Police. They did not do that either. If there had been no enmity how could they, being collaterals come forward as witnesses in a murder case against so close a relative. We are of opinion that in the circumstances of this case there are grounds to believe that these two witnesses had no reason to be present at the scene of occurrence at that crucial moment. Their conduct shows that they did not witness the occurrence at all. In believing their statements the learned Sessions Judge has not properly appreciated the evidence. The support which the learned Sessions Judge found from other evidence in corroboration of their statements is of no value: If they said that the deceased was not wearing a shirt, that the twp shots were fired one from distance and the other from somewhat close range, and that the occurrence took place in front of the deceased's house there was, by the time they made close statements, information available about the existence of those facts. The scene of occurrence was known to all from the presence of the blood. The body of the deceased had by then been examined and was found to bear injuries from shots fired from remote and close distances. It was also known soon after the occurrence that the deceased's body was without a shirt. These facts were known to all concerned and could be put into the witnesses' mouths to bring their statements into accord with facts. If they had been the witnesses of this occurrence and were near enough to see the attack on the deceased and even to hear abuses from a distance of 108 paces, they would have explained the presence of ten incised wounds on the deceased's right arm. It is obvious that these wounds were received by him in the same transaction and in a scuffle of a fairly long duration. They have not been stated to have been inflicted after his death. Ten blows were inflicted on his arm which he used as a shield against his assailant, or extended it to catch the assailant or his weapon. It is strange that these witnesses did not speak a word about those wounds and about that part of the transaction. For these defects and for other flaws which have been discussed above the evidence of these two witnesses is unbelievable and we are unable to accept their statements that they chanced upon the scene at that time when the murder took place and witnessed the entire affair with their own eyes. We are of opinion that they were hostile to the accused and the deceased arid took revenge on them. One was dead from a man's hand and they wanted to kill the other with their evidence. If the evidence of these two alleged eye‑witnesses is eliminated the prosecution stands bereft of the whole foundation. The other evidence on record contains no suggestion at all about the guilt of the accused. While on this subject we may be permitted to say, by way of caution no doubt that the evidence of a casual witness. who out of all hours of the day chances upon the scene of occurrence at the time when the offence is committed should be subjected to a greater scrutiny than the evidence of witnesses who by reason of the circumstances of the case have a probable cause to be present at that time and witness the affair. Prudence would counsel that the evidence of the former should not be accepted if there is a smell of enmity between him and the accused, or in there is something to incline him towards the prosecution, unless there is material corroboration in support of that evidence in such facts of the case as are true and are beyond manipulation. Like the learned Sessions Judge we are also of the view that in this case a good deal has been suppressed to shield the real culprit. We have no reason to doubt that the inmates of the house, the wife, the daughter and. the son of the deceased were so close to the scene of occurrence that they were in a position to see a major part of the event. Ten incised wounds and two shots' fired from two different distances must have taken long enough to attract the inmates of the house to the scene, and they in our view have witnessed, if not the whole, at least a. part of the event and they are well aware of the real assailant. But they have deliberately chosen to be silent because they decided to screen the author of the crime in whose protection they are now interested. We are also of opinion that Gulla Jan was also in a position to throw a good deal of light on this incident but he has also, chosen to tread in the footsteps of his masters. It may be that this murder is the work of the accused and it is in the interests of the survivors of the deceased to have him from punishment, but this at best is a surmise and a surmise is not a substitute for proof. The author of this crime is being protected by those who would have been his accusors, and if reliable evidence is being deliberately withheld by those who are interested) in the prosecution, and the person brought in Court is being sought to be convicted on evidence which is palpably false, the prosecution is bound to fail. We are not prepared to base con viction on evidence, which according to our view is palpably false, however strong may be the suspicions against the accused arising from other facts of the case. The guilt of the accused was not proved by reliable evidence. The conviction rests on surmises and suspicions which are not capable of sustaining conviction. The conviction is therefore set aside and the accused is hereby acquitted. He may be set at liberty forthwith. K. B. A. Conviction set aside.