1969 P Cr (PLP)

S. A. RAHMAN, J.‑

The appellant Abdur Rahim and his three nephews Fazlullah, Hamidullah and Fazal Rahi, were tried on the charge of murdering one, Libab, convicted and sentenced to transportation for life each, by the trial Judge. They were also awarded seven years' rigorous imprisonment each, on the charge of attempting to murder Libab's wife, Mst. Roshanai, the sentences being ordered to run concurrently. On appeal, the West Pakistan High Court, Peshawar Bench upheld the convictions and sentences of Abdur Rahim, but allowed the appeal of the other convicts, giving them the benefit of doubt. Special leave was given to Abdur Rahim to appeal to this Court to examine the question whether the petitioner's conviction could be said to be in order simply because he carried marks of injuries on his person indicating his presence at the spot, when the prosecution evidence has been disbelieved and found tainted with "important with suppression". The parties were at logger‑heads over the possession of piece of land situate in front of the accused's house, on which manure used to be heaped. The accused claimed to be the owners of that land, but Khoidad, father of Libab deceased, and his partisans controverted that claim, alleging that the accused bad encroached on other land beyond the four marlas which was within their proprietorship. The accused had brought an action in the Civil Court for establishing their right to the whole land in dispute. This was pending at the time of the incident in the present case. The occurrence took place on the 14th January 1956, in village Mohib Banda, at about 8 a. m. Libab deceased was said to have been returning, after tethering his bullocks in his hujra, towards his house, when in the land he was shot at, opposite the accused's house, by the four culprits. Mst. Roshanai, the wife of the deceased, came up and threw herself upon her husband's body to save him from further harm. She too was injured by a pellet when a shot was fired by one of the culprits. Assistant Sub‑Inspector Sabz Ali P. W. 16 happened to be in village Pabbi, some four or five miles from the spot. On hearing shots being fired, he proceeded to the scene of occurrence. There he took down the statements of members of both parties, and on their basis, two counterparts were drawn up. This officer recovered some 90 pellets from the walls of various houses in the vicinity of the site of crime, some having been extracted from the walls of the accused's house. He also took possession of two licensed shot guns surrendered by Fazal Rahim and Abdur Rahim accused, which showed signs of having been freshly used. Two other shot guns belonging to Libab deceased and his father, Khoidad, bearing similar indications of recent use, were also recovered by the Investigating Officer. The medical evidence showed that the deceased Libab had a bullet wound of entrance on the left side; of the back, the exit wound being on the right side of the abdomen, another entrance wound on the back of the right hand and an exit wound on its palm and a grazed fire‑arm wound on the sole of his left foot. A bullet was recovered from the front of his left leg, above the ankle joint. Mst. Roshanai, wife of Libab, was found to bear a fire‑arm wound, 4 inches below and outwards of the right knee‑joint. From the accused's side, Abdur Rahim was found injured. He had a pellet entrance wound on the root and back of the little finger of his right hand, another pellet entrance wound on the right side of his neck and an exit wound at the back of the neck. One pellet was extracted from the neck injury by the doctor. His daughter, Saadat, aged 10, was also examined by the same doctor. She had a round abraded contusion, 1/6 in diameter, on the outer side of her right thigh. This was a simple injury caused by a pellet striking her at a low velocity. The prosecution sought to establish their case by the direct testimony of Khoidad P. W. 8, Mst. Mahtaba P. W. 7, Nur Gul P. W. 9, Mst. Roshanai P. W. 10, Mst. Totai P. W. 11 and Murad Khan P. W.

12. These witnesses are closely related to the deceased Libab. According to the learned Judges of the High Court, the prosecution evidence in the case suffered from two main defects. All the witnesses deposed that the four accused were lying in ambush for the deceased and fired at him when he was returning from his hujra towards his house. The witnesses being close relatives of the deceased, the learned Judges thought that it was not believable that at the relevant time, these witnesses should have been present on the scene of occurrence "for no obvious reason". A little consideration should have convinced the learned Judges that most of the P. Ws. lived in houses contiguous to the site of crime and consequently their claim to be present at the spot could not invite adverse comment. The second defect in the evidence, according to the learned Judges, was that it contained "important suppressions", inasmuch as it did not explain the injuries on Abdur Rahim and Mst. Saadat. The learned Judges observed that in their opinion, the story about the ambush and the firing in the manner suggested by the P. Ws. was unbelievable and that the prosecu?tion evidence would only be acceptable to the extent to which it was supported by other undeniable facts like the injuries on the deceased and the accused, recovery of the freshly discharged fire‑arms from the possession of the accused and the deceased and of the pellets from the walls of the houses in the neighbourhood of the scene of occurrence, including those of the accused. The want of candour on the part P. Ws. becomes intelligible when we recall that some of them were hauled up as accused in the cross case. The learned Judges reconstructed what, according to them must have happened. They hazarded the opinion that on the day of occurrence, Abdur Rahim accused and perhaps some or all of the remaining three accused were removing manure from the heap when Khoidad prevented them from doing so, in spite of the fact that a temporary settlement had been effected between them, the previous day. Thereupon a quarrel arose between the parties, in which Libab and Khoidad on one side, and Abdur Rahim and perhaps also Fazal Rahim and one or both of the other accused, on the opposite side, participated. Rifles were brought out by the accused party and shots were fired, causing fatal injuries to Libab. Mst. Roshanai, his wife who came up from her house was also slit with one of the shots. When Libab dropped dead, the accused returned to their house. Thereafter, Khoidad and his men, came with their guns and fired in the direction of the accused, thus causing injuries to Abdur Rahim and his daughter, Saadat. On this view of the case, the learned Judges thought it safer to convict only Abdur Rahim who bore pellet injuries on his person. This was accepted as a confirmatory circumstance, showing his presence at the spot, at the material time. The defence version was that because of the dispute over the site of the manure heap, Libab deceased and his father, Khoidad, attacked Hamidullah and Fazlullah with gunshots. These two accused ran to their house. Further firing on the part of the complainant led to Abdur Rahim and Saadat being injured, while they were taking shelter in their house. Fazal Rahirs then fired a few shots in the air in order to scare away the complainants' party. There was here a vague implication that some of these shots may have hit Libab and his wife. One witness was examined in defence in support of this version, in the person of Rafi Ullah. With the help of Mr. Mahmud Ali for the appellant, we have gone through the evidence on record ourselves, as we considered that the findings recorded by the learned Judges of the High Court lacked both precision and clarity. Out of the ocular witnesses, there is absolutely no reason to doubt the presence of Mst. Roshanai, wife of the deceased, at the spot considering that she herself was injured. Murad Khan has his house opposite to that of tile accused, and it is, therefore, extremely likely that he also witnessed the occurrence. Mst. Totai P. W. 11 is a sister of the deceased and her husband's house happens to be close‑by. There is nothing inherently improbable in her claim to have seen what happened. Even if the criticism of the testimony of Khoidad, Mst. Mahtaba and Nur Gul P. Ws. be accepted as valid on the ground that their deposi?tions at the trial were at variance with their statements made to the Investigating Officer, on certain points of detail, and because of the absence of injuries on their persons, we have no reason for withholding credit from the other P. Ws. in this case as regards the broad features of the incident. A graphic description of the occurrence was given by the wife of the deceased, which appears to carry conviction. The P. Ws. suggested that a shot fired by Hamidullah accused from some distance was responsible for the injuries caused to Abdur Rahim and Mst. Roshanai, who, between them, were struggling to get possession of the body of Libab deceased after he fell, This does not appear to us to be a very far‑fetched suggestion and would leave only the one injury caused to Mst. Saadat to be explained. This girl's injury may very well have been the result of a shot fired by a partisan of the complainants from a distance, after Libab had been injured. That there was then exchange of fire between the parties seems to be borne out by the presence of gunshot marks on the wall of the houses of both sides. The defence version, as put through Rah Ullah D. W. 1 and the appellant's statement at the trial left the explanation for the fatal injuries of the deceased, Libab, to mere conjecture. The location of the injuries on the body of Libab is plainly inconsistent with any plausible theory of self-?defence suggested on behalf of the accused. After a careful review of the evidence on record, we have reached the conclusion that the part assigned to Abdur Rahim appellant in the incident was established beyond reasonable doubt. To the extent of his responsibility for the murder, we find ourselves at one with the opinion of the learned Judges of the High Court. If by way of caution, they acquitted the other convicts in appeal, that circumstance alone should not affect the case against Abdur Rahim who bears evidence of participation in the incident in the shape of injuries on his person and against whom the prosecution evidence is consistent and coherent. On the merits, therefore, we find no strong ground to interfere with the judgment of the High Court. Mr. Mahmud Ali, however, raised another legal point which had not been specifically taken in the grounds for special leave to appeal. He invited our attention to the fact that on the authorisation of the Deputy Commissioner, the Assistant Public Prosecutor sought permission to withdraw the case from the vial Judge under section 15 of the Frontier Crimes Regula?tion and the Court agreed to that course by order dated the 18th lane 1956. On the 31st November 1956, however, the commissioner sent a communication to the Deputy Commissioner to the effect that the Provincial Government was not in favour of the case being referred to a Council‑of‑Elders and directed that the case should be proceeded with in the Court of law where it was previously pending. Mr. Mahmud Ali attempted to argue that the Provincial Government could not pass such an order under the provisions of the Frontier Crimes Regula?tion. When his attention was drawn to the position that the Commissioner's direction amounted to a revisional order passed by that officer, under the Regulation, he assailed the competency of the Commissioner to give such a direction on the plea that the "Commissioner" meant the "Revenue Commissioner" in this context. Apart from the fact that the authority known as the Revenue Commissioner no longer exists, after the integration of the old N.‑W. F. Province into the Province of West Pakistan, the learned counsel was unable to substantiate this argument by reference to any such definition of "Commis?sioner" in the F. C. R. These contentions really pertain to ques?tions of fact which ought to have been raised in the Courts below. They cannot be permitted to be agitated for the first time in this Court. No other point arises for consideration in this case, and we dismiss the appeal. Appeal dismissed.