P L D 19 7 5 Peshawar 164 (PLP)

6. An effort has been made to make capital out of the fact that while the F. I. R. (Exh. P. A./1) lodged by Roz Gul doer; not show that the deceased was sitting when he was fired at, the doctor has expressed an opinion on the basis of the course that the bullet adopted (from the right side of the head through the neck and ultimately injuring left lung) that the deceased was fired at from above downwards. To my mind nothing turns upon the opinion of the doctor in this behalf.

7. Firstly, the course that a bullet adopts is not predictable, for, bullet might be deflected due to impact on or resistance offered by A various types of tissues bones etc. and many other variables. In this view of the matter, I am supported by the observations in Taylor's, Principles and Practice of Medial Jurisprudence, Volume I (at page 446) which are as follows: The deflection of projectiles may occur not merely when they came in contact with bone, but when they meet skin, muscles, tendons or, membranes; the bullet then takes its course in the spaces between these different structures. A bullet which entered at the ankle has been known to make its exit at the knee; and another, which entered at the back of the left shoulder, passed around the inside of the scapula and was found below the right ear. This deflection of bullet by slight obstacles has been ascribed partly to the obliquity with which it strikes, and partly to the rotary motion in its axis. The same deviation has been found to occur when the bullet was fired near or at a distance provided that it was fired from an old-fashioned fire-arm, or was a rounded missile. The modern small-bore rifle bullet has a much greater tendency to preserve its course, though there are many published cases which indicate that deflections are frequent.

8. Secondly, the tendency of the witnesses to bring their statement: in line with the medical evidence is not infrequent but this will not by itself establish that they have seen the occurrence. It appears that the medical report was available by the evening of the 15th of March 1973 and the next morning when the spot was inspected in the presence of the two witnesses; they attributed a sitting position. Reference to the site plan (Exh. P. C.) against Note 'D' will be helpful.

9. Lastly, an F. I. R. is seldom an exhaustive document and many, things are missed. For instance in the present case itself the 'Karwai Police' (note of the Head Constable) clearly says that Roz Gul pointed: out the appellant to the H. C. but main body of the F. I. R. as taken down, from the mouth of Roz Gul, does not refer to it. Again though a sum, of Rs 346, a Wrist-watch, rifle alongwith bandolier etc. belonging to the, deceased were recovered from the spot, these things were neither mentioned: by the informant, namely, Roz Gul nor police officer, namely, Muhammad Jamil in his 'Karwai Police'. In this context I should like to add that though it was represented to the police officer who prepared the site plan that the deceased was sitting at the time of the incident, the statement of Roz Gul before the C. M. long afterwards is also silent or this point: It comes to this, there are some matters which do escape from the memory of a witness when he is narrating an event.

10. As a matter of fact the First Information Report in this case and `Karwai Police' are complementary to each other and as such the case has, got its own special features. The occurrence took place at 9-50 and the, formal report was lodged to Muhammad Jamil H. C. at 10-30 a.m., that: is to say, within forty minutes. The report was no doubt lodged at the spot to the police officer who was immediately there but it is noteworthy, that in the circumstances in which Muhammad Jamil was placed he had no time to take down the report first and to defer action on matters by far more important.

11. The crucial forty minutes require to be explained and I venture to make my own assessments. Muhammad Jamil H. C. was forty paces, away from the occurrence when he heard the two reports. He was told that some one had been murdered and he, therefore, came to the occurrence. There is nothing on the record to show that Muhammad Jamil had a stately walk as some policemen do in like situations or he ran towards the spot. There is no doubt that when he arrived at the spot he would have made an endeavour to ascertain facts and this he could only do without loss of time if Roz Gul was present there and then. Minimum time to my mind which the H. C. might have taken for the aforesaid is two minutes and may be that it took a little more. The appellant is said to have been arrested at Kolalan Banda at a distance of six furlongs from the spot and assuming that he was running at the rate of a minute per furlong which means about 8 miles an hour, it should have taken him at least six minutes before he arrived at the place of his, apprehension by the two levy men. The place of apprehension according to Roz Gul is not visible from the spot. But there is nothing to show that the appellant could not be seen running by the time Muhammad Jamil arrived. By then, the appellant might have run 2/3 furlongs and this is not such a distance that it will be difficult to point out a running man. I am inclined to give about five minutes to the apprehension of the appellant by the two levy men and at the rate of three miles an hour three furlongs of return journey of the appellant in the custody of the two levy men would have taken about 7 minutes. If one is to accept that by the time the appellant had travelled three furlongs the police party headed by the H. C. appeared, it comes to this that at this point there was, is halt for about ten minutes at least. The appellant was arrested, he was searched and in the search '32 bore pistol without charger, licence, copy, microphone, six blood test receipts, and a sum of Rs. 300 were' recovered, memo was prepared assuming that the paper was handy and a decision was taken that the appellant should be sent to the police station without bringing him to the spot. Thereafter, three furlongs should have taken at least 7 minutes more before that the H. C. could be at the occurrence without any loss of time. When the aforementioned break-up is added together it makes a total of 36 minutes and leaves only four minutes for explanation. There is evidence on the record that it was a crowded place and that people had to be removed before that Muhammad Jamil started writing the report and this might have taken the additional, four minutes.

12. On the view of the matter that I take, I am convinced that there wasp no delay whatsoever in lodging of the report, apprehension of the accused and the recoveries from him and the deceased. There was hardly any time fore Muhammad Jamil to think and it appears that he did every thing at that, time in a straightforward manner. The very fact that memo (Exh. P. B) was got witnessed by the two District levy men would show that he wanted to do the things in a way they came in his way. That there was no padding by Muhammad Jamil becomes clear from the fact that though in his `Karwai Police' he mentioned that Roz Gul pointed out the appellant to him when he was running, he did not mention this in the report. He could supply the omission and if wanted to change, he could easily write another 'murasila'. Again the very fact that recovery of the pistol with charger with a cartridge in the chamber was mentioned in tie 'Karwai Police' without ascertaining that an empty was available would show that he was doing things in an above-board manner. That no empty has been recovered from the spot will lend credibility to the H. C. If he wanted to fabricate evidence, a cartridge was already there in the chamber and it could have been fired and shown as a recovery. That Muhammad Jamie did not smell the pistol would show that he was not capable of fabricating evidence and in, all probability he was either an unusual man in the investigating staff or inexperienced according to the prevalent police practices.

13. Furthermore, the 'murasila' (Exh. P. All) alongwith 'Karwai Police' establishes it beyond any shadow of doubt that the appellant was arrested within forty minutes of the occurrence. Had it not been so, it would have been indeed too bold a step for a police officer as also the informant to have stated that he had been already arrested. This will by itself obviate the necessity of reference to the statement of Khani Gul (P. W. 6), the District Levy-man to establish the arrest of the appellant through him. It is well said that men may lie but circumstances will not. Here in the instant case, Khani Gul (P. W. 6) has put the prosecution in an extremely awkward position but they should thank their stars that the statement is against the weight of evidence and despite ingenuous efforts to suppress the truth it is ridiculous in the extreme and unbelievable. True that he is a marginal witness of the memo and he is not supporting it and incidentally is not corroborating Muhammad Jamil about the arrest of the appellant through him but it will be indeed a perverse logic to believe all that a person has, stated in Court even though that statement has been demonstrated to be false.

14. The anxiety of the prosecution to effect the recovery of a pistol from the suspect is understandable but what could they get by planting a microphone and a sum of Rs. 300 as also a licence from Quetta as respect the arm upon him. This licence was not in the name of the appellant's brother. Again in the time that Muhammad Jamil H. C. had at his disposal how could he arrange an unlicensed pistol without a charger, blood-test chits bearing the name of the appellant's brother who was lying injured in a hospital at Peshawar. It is true that the appellant has denied all the recoveries mentioned in (Exh. P. B) except the recovery of Rs 300 from him but admiss on on this last point lets the cat out of the bag. No sooner he admits that the sum of Rs. 300 was recovered, it becomes duty to explain :how and when he was arrested and in this respect he is silent.

15. Be that as it may, there is something inherent in the statement of Khani Gul (P. W. 6) which will show that he is suppressing the truth when he says that the appellant present during the trial bad never been seen by him before then and that he had arrested a man whom he had only once seen in Hangu and had never met that man again. Why H. C. Muhammad Jamil should have at all substituted the appellant for the man arrested by Khani Gul. There is nothing on the record to show that Muhammad Jamil bore any malice towards the appellant. The statement of Khani Gul excluding of course concessions that he was determined to make, will read as follows: I cannot say whether I affixed my thumb-impression on memo. (Exh. P B.) or not. The police had asked me to thumb-impress it ...... When the police was taking my thumb-impression, I did not ask him as to why he was taking my thumb-impression. The man whom we had arrested was running and coming from Doaba side. When we arrested him we met the police in Algada. We met the police at a distance of 2/3 furlongs away from the place of arrest. There was a huge crowd that a man had been murdered and people had been running. In reply to the question of cross-examiner, Khani Gul adds: The person was sitting for pissing. It will thus appear that Khani Gul was not in a position to deny that they did arrest a man and that that man had come running from Doaba side. Further more, the man who was arrested was very naturally passed on to the police when they met them two-three furlongs away from the place of arrest. The reply to the cross-examiner that the person was sitting for pissing is hardly believeable and appears to an attempt to make the confusion worse confounded. Why at all Khani Gul should 'have thumb-impressed a paper without ascertaining its contents. An illiterate person will never oblige anybody without first ascertaining as to why 'his thumb-impression was being taken. The police could certainly find out other witnesses if they wanted to fabricate the document and the arrest. Later in the day Malik Sarwar Khan (P. W. 4) witnessed certain recoveries from the deceased. The impression that Khani Gul's statement leaves in my mind is that he has been won over and that the statement of H. C. 'Muhammad Jamil in the circumstances on the point of the appellant's arrest and recoveries from him having the full support of the `murasila' (Exh. P. A/1) which was later incorporated in F. I. R. shall take precedence. It was indeed impossible for Muhammad Jamil to do any hanky panky for almost within an hour and half of the completion of documents by him and before that he could carry out spot inspection, he had to hand over the investigation to the S. H. O.

16. That the S. H. O. himself was a straightforward-person would stand amply demonstrated if one refers to the site-plan (Exh. P. C.) It may be mentioned that the copy on the book prepared for the use in this Court is not quite correct and (Exh. P. C.) itself requires to be looked into. The S.H.O. was shown Points `A' and 'E' on the 15th of March 1973. Points B, C and D were shown to him on the 16th March 1973. His notes are dated and separately signed. If the S. H. O. wanted to fabricate what could stop him from preparing fresh site-plan showing that all these positions were indicated to him on one and the same day, that is to say, 15-3-1973, either by the eye-witnesses or by Muhammad Jamil from whom he took over the investiga tion. Padding, therefore, stands clearly ruled out.

17. There is no doubt that Muhammad Jamil disowned certain state ments before the committing Magistrate but it seems to me that nothing turns upon those parts of his statement to which exception has been taken. What he stated before the trial Judge was supported by the record and by the S. H. O. Bahadur Khan. He was indiscreet when he stated before the committing Magistrate without seeing the record that he and his party-men were carrying rifles in the 'Mela' and added that the two eye-witnesses showed the spot to the S. H. O. on the very day of the occurrence while the fact of the matter was that by the time the S. H. O. arrived they bad already gone to the mortuary at Hangu. Those parts of the statement of this witness before the committing Magistrate which he corrected during the trial will not make him an untruthful person altogether particularly when his narration of the occurrence and arrest of the appellant and recoveries from him are supported by documents which were promptly prepared. Indiscretions of the type listed by my learned brother Qaisar Khan, J. will not make him an out right untruthful person. Even so "falsus in uno, falsus in omnibus" has all along been discarded by the superior Courts of the country and the integrity of a witness is now not indivisible, if any authority on the point is needed, I will refer to Yawaib Khan and another v. The State (PLD 1970 SC 13).

18. It is indeed impossible to believe that the appellant could have been arrested within minutes of the occurrence without prompt action by the police at the pointing out of Roz Gul.

19. It is true that Abdul Baqi the second eye-witness could not be produced by the prosecution either before the committing Magistrate or during the trial despite the fact that he was married to the sister of the deceased. The prosecution says that the witness was untraceable. What Roz Gul actually stated on the point is "Shafiq is not traceable now-a-days." The cross-examiner did not question him as to the basis on which he was making that allegation. He only made a suggestion and the reply given by him is as follows: It is also incorrect to suggest that Shafiq is avoiding appearance in the Court because the charge against the accused is false. The fact is that he is not traceable and it is incorrect to suggest that he was in the village. It is correct that he was not examined before the committing Magistrate and he became untraceable after his statement under section 164 was recorded ...... The S. H. O. who appeared as P. W. 7 also stated that he was not traceable but he was also not questioned on what basis he was going to say so. It is true that S. H. O. has stated that the witness was in tribal territory and Gul Rais (P. W. 8) who was deputed to serve the process (Exh. P. X.) upon the witness has elaborated that according to his report the witness was in Bootan in tribal territory. Strictly speaking, the statements of the two police witnesses that Abdul Baqi was in the tribal territory are nothing but hearsay. They could only speak on the basis of their search for the witness that he was not available in Torawari-the village in which he resided. How could they say a thing which they heard from other people who have not been produced. It might well be as is the case sometimes that the witness has been done away with and his whereabouts are not known to his relations. Nothing can be said with certainty but at the best what can be said on the basis of the failure of the prosecution to produce Abdul Baqi is that he might not have supported the prosecution and this will not necessarily show that the prosecution case was false. If the defence was so sure that Abdul Baqi's account would have proved the appellant's innocence they should have produced him. The prosecution's failure to produce Abdul Baqi may be due to the untraceability as has been alleged by them or for the reason which the defence puts forward but what deference it would have made if the prosecution had delayed the trial by insisting on production of Muhammad Shafique. He was also a relation of the deceased and his account would not have advanced the prosecution case an inch. If Roz Gul is zero, Muhammad Shafique was also a zero and two zeros will not make anything. Both the witnesses as already observed in the beginning of the judgment are related to the deceased and the prosecution concedes that there was previous enmity. It may be mentioned that though the appellant in his statement during the trial denied that deceased had anything to do with the injury of his brother Yar Gul and has also kept his lips tight over enmity with the deceased or the two eye-witnesses, on a reference to the police record, one finds that there is a background. In the circumstances corro boration of whatever account Roz Gul gave or Muhammad Shafique might have given was required as has been observed by my two learned brothers.

20. Before I part with the case I should like to say that as I see it the occurrence took place without any preliminaries whatsoever. No sooner the appellant saw the deceased he came from behind and when he was towards his right side, he fired at him two shots. The attack was unexpected and Roz Gul was stated to be unarmed. He could have taken the gun from the deceased and followed the appellant but why he was not so motivated should not condemn him as an untruthful person. He might have been coward; he might have been stunned; he might have been wise and did not want to shoot as that might have resulted in the death of one or more innocent persons. People were there moving about. He could not also be sure that he could kilt with impunity the person who had committed the murder and was running away from the scene of occurrence. In any case when the police arrived at the spot and was at the track of the appellant alongwith people why he should have acted in a manner fraught with dangerous consequences. Since the occurrence, to my mind, took place suddenly, the question of warning the deceased will not arise.

21. The upshot of the whole discussion is that I am convinced that Roz Gul did see the occurrence and that immediately after the occurrence the appellant was seen in flight by Muhammad Jamil and arrested alongwith the' pistol, charger of which was missing but a cartridge was in its chamber There is no question of the substitution of the appellant for the real culprit, for, no time was available to the prosecution for such a venture. 22. 1 will maintain the conviction and sentence of the appellant and dismiss his appeal. S.A. H. Appeal dismissed.