P L D 1964 (W (PLP)

FAIZULLAH KHAN, J.‑‑Nisar Hussain son of Muhammad Idris, aged 50 years, Afghan of Akbarpura has been convicted by Mr. Shafiur‑Rehman, Sessions Judge of Peshawar, under section 302, P. P. C. and sentenced to death for the murder of his co‑villager, Abdur Rehman son of Shahi Khan, aged 35 years. He appeals against his conviction and the sentence and the case is also before us for confirmation of the penalty of death under section 374, Cr. P. C.

2. The prosecution story briefly is that the appellant was married to the sister of Qari Abdul Muntaqim (P. W. 8), but on account of marital complications the appellant's wife left him and started staying with her brother. The appellant later on took another wife Mst. Husan Pari (P. W. 7). Abdur Rehman deceased was domesticated son‑in‑law of Abdul Muntaqim (P. W. 8). The deceased was running a grocery shop in the village and he was also dealing in milk. On 9th January 1963, early in the morning, the deceased was proceeding to his shop. Fateh Gul (P. W. 4), a nephew of the deceased, who is also living with Abdul Muntaqim, was going a few paces behind the deceased with a view to purchasing milk. Said Jalil (P. W. 5), who was proceeding to make water, met the deceased and Fateh Gul (P. W. 4), and told the deceased that he should "finish his work at his shop earlier so as to accompany him to the bazar for making purchases." They saw the appellant standing in front of his house in the lane armed with a licensed S. B. gun. As soon as the deceased passed the appellant, the latter fired at him, which hit him and felled him to the ground. The appellant then entered his house. Fateh Gul and Said Jalil P. Ws. raised a hulla which, among others, attracted Ghulam Habib (P. W. 6) from a nearby mosque of which he is the Imam and found the deceased lying injured. He went to the mosque where Qari Abdul Muntaqim is the Imam and apprised him of the occurrence. The latter, after being informed, went to the scene of occurrence and found the deceased lying dead, and all of those who were present charged the appellant for firing at the deceased. He then went to the nearby Police Post situated in the village and lodged the F. I. R. Exh. P. A/1, at 7 a. m. with Abdul Jalil A. S. I. (P. W. 13). In the report the deponent stated that in the morning he had gone to the mosque for prayers and was sitting there when Ghulam Habib (P. W. 6), informed him that his son‑in‑law had been killed by Nisar Hussain with a gunshot. He further stated that after the information he went to the spot, satisfied himself, and found his son‑in‑law lying dead in his lane. The deponent also stated that the motive for the offence was due to the bad blood which was created on account of marital com plications between the appellant and his wife, as a result of which he had brought his sister to his house and was living with him.

3. Abdul Jalil A. S. I. (P. W. 13) after recording the report went to the spot, prepared the injury sheet and inquest report, and sent the dead body for post‑mortem examination. He also prepared the site plan Exh. P. R. and recovered an empty 12 bore crime shell Exh. P. 1 from point No. 4 in the site plan. Mian Muhammad Akbar Shah S. I. (P. W. 14) arrested the accused from his kotha and recovered a licensed S. B. shotgun Exh. P. 2 and tamacha Exh. P. 12 along with 9 live Gartridges and two copies of the licenses Exh. P. 28 and Exh. P.

29. The empty crime shell and the licensed gun Exh. P. 2 were sent to the ballistic expert Mr. Muhammad Salim Khan. (P. W. 3), who deposed that the crime shell had been fired from the licensed S. B. shotgun Exh. P. 2 of the appellant.

4. Dr. Abdur Rauf Khan, (P. W. 2) performed post‑mortem examination on the dead body of the deceased on 9th January 1963, at 1 p. m. and found the following injuries on external examination:‑ (1) An entrance gunshot wound, 1 " x 1-1/3", on the right lower back, six inches below the lower angle of scapula and 2", from the mid‑vertebral line. (2) Four exit gunshot wounds each being, " x ", on the front of left lower chest, covering an area of 3" x 3" and 3'' below the nipple. On internal examination the left 6th rib was found fractured. Pleura on left side, left lung, heart, abdominal walls, periton eum, large and small intestines, diaphragm and spleen were found injured. Stomach was injured and empty. Death was caused due to injuries to heart, left lung, spleen, stomach and intestines, as a result of firearm.

5. Fateh Gul (P. W. 4) and Said Jalil (P. W. 5), were ex amined as eye‑witnesses in the case and they reiterated the prosecution story as indicated above. Ghulam Habib (P. W. 6) recounted the story that he informed Qari Abdul Muntaqim (P. W. 8), in the mosque, after having heard the shot and being attracted by the alarm raised by Fateh Gul and Said Jalil P. W.'s who told him that the deceased had been fired by the appellant. Mst. Husan Pari, wife of Nisar Hussain appellant, was examined at the trial as P. W.

7. She stated that she was asleep when the shot was fired, and that the appellant had not gone out for his prayers. The learned Sessions Judge on the request of the Public Prosecutor transferred the statement of the witness before the committing Court under section 288, Cr. P. C. by recording a short order, which reads:‑ "As the statement of the witness at the trial is materially different from the one made in the commitment Court, the latter was read over to her, she admitted to have made it and stated that she had made it due to fear and under pressure. The statement is read over and transferred to the sessions file under sections 288, Cr. P. C." The material portion of the statement of Mst. Husan Pari was to the following effect:‑ "I was asleep and therefore I cannot say when the accused had got up and had gone out of the house. The accused had no talk with me that night. The accused returned home at prayers time. He was armed with a gun and a pistol. When ire left the house, I heard the report of fire shot. This was followed by hue and cry. Out of fear I closed the door of the kotha after myself. The accused returned. He knocked at the door of my kotha, in which I had shut myself. I did not open it to him. He then shut himself in the other kotha of my house. I did not open the door of the kotha in which I had shut myself till the arrival of the police."

6. The appellant pleaded not guilty to the charge, and expressed ignorance of having produced the gun, the tamacha and the live rounds to the police. He, however, stated that his relation with his wife, who was sister of Abdul Muntaqim was not bad and they did not quarrel.

7. The learned Sessions Judge while addressing himself to the question whether Fateh Gul (P. W. 4) and Said Jalil (P. W. 5) were truthful witnesses in view of the fact that their names had not been mentioned in the F. I. R. in para. 10 observed: "As regards the presence of Fateh Gul (P. W. 4) and Said Jalil (P. W. 5) at the time of the occurrence near the spot there is a plausible excuse for Fateh Gul to be present there but the presence of Said Jalil (P. W. 5) has not been satisfactorily explained in the manner in which this witness tried to explain it." At the close of para. 12 he observed:‑ "Said Jalil (P. W. 5) has not been able to offer sufficient justification for his going from east to west at the time of the occurrence." In para. 13, the learned Sessions Judge observed that since Fateh Gul (P. W. 4) and Said Jalil (P. W. 5) had not been mentioned as eye‑witnesses in the F. I. R., their testimony "would not be sufficient independently in arriving at the conviction and sentence of the accused in spite of the fact that Said Jalil (P. W. 5) is not related or an interested witness nor is Ghulam Habib (P. W. 6)." The learned Sessions Judge thought that (1) the statement of Mst. Husan Pari before the committing Court and (2) the report of the ballistic expert that the crime shell had been fired with a licensed shotgun, furnished the confirmatory evidence. He ac cordingly found the appellant guilty, and sentenced him to death, as already indicated.

8. Khan Abdul Latif Khan, learned counsel for the appel lant, made the following three submissions:‑ (1) That the learned Sessions Judge was wholly wrong in believing Fateh Gul (P. W. 4), nephew of the deceased, to be present at the time of occurrence, in particular when he disbelieved Said Jalil (P. W. 5) both of whom had not only not been mentioned in the F. I. R., but they gave identical version of the occurrence, (2) that the statement of Husan Pari (P. W. 7) before the committing Court could not be read as substantive evidence under section 288, Cr. P. C. in view of the non‑observance of the mandatory provisions of section 145, Evidence Act under which it was incumbent on the learned Sessions Judge to have con fronted the witness with particular portions of her statement before the committing Court which was not reconcilable with her statement at the trial, and (3) that in case Fateh Gul (P. W. 4) was also disbelieved, there was no evidence barring the statement of the ballistic expert that the crime shell had been fired from the licensed S. B. shotgun Exh. P. 2 of the appellant and that this evidence by itself was not sufficient for resting the conviction of the appellant for the charge of murder.

9. Mr. Sher Bahadur Khan, A. A. G., on the other hand argued that Fateh Gul (P. W. 4) was a truthful witness, and that the learned Sessions Judge had erred in disbelieving Said Jalil (P. W. 5). He, however, conceded, and we think rightly, that the statement of Mst. Husan Pari could not be treated as sub stantial evidence for non‑observance of the statutory requirements of section 145, Evidence Act under which the attention of the ,q witness is to be drawn to those parts of the statement before the committing Court which are not reconcilable with her statement at the trial with a view to affording him an opportunity to reconcile or explain if possible the contradictions.

10. The decision of the case largely hinges on the decision of the question whether on facts and circumstances of the case Fateh Gul (P. W. 4) and Said Jalil (P. W. 5) can be considered as truthful witnesses especially when their presence was not mentioned in the F. I. R. by Abdul Muntaqim, who after being apprised of the occurrence by Ghulam Habib (P. W. 6.) returned to the spot and then lodged the report. I have given this question my anxious thought and I am unable to persuade myself to believe that any one of them had actually seen the occurrence. I now proceed to give my reasons in reaching this conclusion.

11. It is perfectly clear to my mind that Fateh Gul (P. W. 4) and Said Jalil (P. W. 5) were not present at the time of the occurrence, for it is impossible to believe that if they were present at the time of occurrence their presence should not have been noticed by Abdul Muntaqim (P. W. 8), who according to his own showing went to the scene of occurrence, when apprised of the occurrence by Ghulam Habib. It is indeed very extraordinary that he should not have noticed their presence at the spot. Again, Fateh Gul (P. W. 4) is nephew of the deceased and living with him in the same house and it is impossible that his maternal uncle was killed in his sight he should not be found by Abdul Muntaqim (P. W. 8) on the spot. It is im portant to repeat that in the F. I. R. the deponent had clearly stated that after being informed by Ghulam Habib, he went to the spot and satisfied himself. The words used in vernacular are: The words "TASSALLI KI" are very significant, for the dependent had gone to the spot it is but natural to expect him before he went to the Police Post to satisfy himself and ask the persons present on the scene of occurrence as to whether any one of them had seen the occurrence and in case Fateh Gul and Said Jalil P. Ws. were actually present he was bound to notice their presence. At any rate it is hard to believe that any one of these witnesses if they were actually present, should not have on their own told Abdul Muntaqim that in their sight the appellant had killed the deceased. It is also important to observe that though Fateh Gul (P. W. 4) stated in examination‑in‑chief that "Ghulam Habib came to the spot and went to inform Abdul Muntaqim who also came there" the witness did not say that he had told Abdul Muntaqim that he had seen the occurrence. There is another reason which would show that Fateh Gul P. W. was not accompanying the deceased at the time of the occurrence and this is that according to Fateh Gul's own showing the deceased was running a grocery shop and also selling milk and that he (Fateh Gul) was following the deceased In order to fetch milk. If the deceased was going to his shop at the time of the occurrence, Fateh Gul who was living along the deceased in the same house could very well know that he could not be able to get the milk from the shop as the deceased had not yet opened his shop.

12. Said Jalil P. W. on cross‑examination stated:-- "I do not know whether Qari was brought by Ghulam Habib to the spot or not. I remained at the spot till the arrival of the police. As a number of persons had gathered at the spot, I did not notice whether Qari had come with the police to the spot or not." In case the witness was present on the scene of occurrence or had gone to the scene of occurrence before the arrival of Abdul Muntaqim, he was bound to notice the presence of the father‑in -law of the deceased. This gives a clear lie to his statement that he was present on the scene of occurrence.

13. And finally it will not be consistent with the safe administration of justice to rely on the testimony of witnesses whose presence is not mentioned in the F. I. R., especially when the report is lodged by a close relation of the deceased who after being informed of the occurrence actually went to the spot and made inquiries about the occurrence. It will be convenient here to quote the pithy observation of Shabir Ahmed, J. in Khalil v. The State (P L D 1956 Lah. 840). At page 843, his Lordship observed: "With regard to Karam Dad (P. W. 7) the learned counsel for the appellant urged that as his name did not figure in the First Information Report as an eye‑witness in spite of the fact that Sher Khan (P. W. 4) who made the report had been to the scene of the occurrence and learnt details before he left for the police station, the witness could not be accepted as a witness of truth." His Lordship though disposed to consider the witness as truthful, observed, "I have carefully considered the statement of the witness and am inclined to consider it truthful, but it appears to me that in view of the fact that his name found no place in the First Information Report the safer course would be to keep his state ment out of consideration".

14. This brings me to the evidence of Ghulam Habib (P. W. 6), It was suggested that the witness was wholly a dis interested witness and since he had stated that Fateh Gul and Said Jalil p. Ws, were present on the scene of occurrence and had informed him that the deceased was killed by the appellant, we should bold that they had actually seen the occurrence. I am unable to accede to this argument. No doubt Ghulam Habib appears to be a disinterested witness, but even on a cursory reading pf his statement it is manifest that Fateh Gul and Said Jalil P. Vas, had not told him that they had actually seen the deceased being killed by the appellant. At best his statement could be taken to mean that when he (Ghulam Habib) arrived at the scene' Fateh Gul and Said Jalil charged the appellant for the murder, but it is quite different from their having told Ghulam Habib that in their sight the appellant had shot the deceased. It will be convenient here to reproduce the material portion of the statement of Ghulam Habib (P. W. 6), when he said:‑ "I heard the report of a shot fired, followed by alarm. I came out of the mosque. I found Abdur Rehman lying injured on the ground and Fateh Gul and Said Jalil P. Ws. present there. I was told by these two that Nisar accused had fired at the deceased and injured him. I went after Qari Abdul Muntaqim, informed him about it."

15. Khan Abdul Latif Khan also raised a point that the statement of Ghulam Habib in regard to what Fateh Gul and Said Jalil p. Ws. had told him was inadmissible, in that the term "by‑standers" within the meaning of Illustration (a) to Section 6, [Evidence Act, 187,2] means the persons who are present at the time of the occurrence and not the persons who gather on the spot after it. The argument in my view is substantial, in that the statement of Ghulam Habib in regard to what the aforesaid witnesses had told him is inadmissible in evidence unless and until we hold that they had witnessed the occurrence. I am fortified in this view by the decision in Nasir Din v. Emperor (A I R 1945 Lah. 46) where in at page 47 Teja Singh, J., delivering the judgment for the Division Bench, observed:‑ "In our opinion the word `by‑standers' means the persons who are present at the time of the beating and not the persons who gather on the spot after the beating. Accordingly only the statements made by the persons who witnessed Fakiria's murder could be proved, but Mst. Aishan Bibi said that the remark that she heard was made by people whom she found on the scene on her arrival. She did not say that these persons included Shadi Lal and the other witnesses. The remark made by persons other than the eye‑witnesses could only be hearsay, because they must have picked up the news from others." The decision in Jowala Sahai v. Emperor (A I R 1914 Lah. 569) goes to the length of holding that a statement made by eyewitness of the murder to person who came to the scene of occurrence after the murderers had left the place, was inadmissible. At page 571 their Lordships summed up the discussion on this very point, as follows:‑ "In the case before us, we find the murderers had left the place, the transaction had terminated and then the alleged statement was made to the persons who came to the scene of occurrence after hearing the noise. We cannot therefore regard this statement as forming part of the same transaction as the murder and must hold that it cannot be used against the accused. The case in Chain Mahto v. Emperor is very similar and lays down the correct rule."

16. The statement of Mst. Husan Pari before the committ ing Court which was treated as substantial evidence under section 288, Cr. P. C. is to be ruled out from consideration for non‑observance of the statutory injunctions contained in section 145 of the Evidence Act under which before a witness can be dubbed as a purjurer his attention is to be drawn to those parts of statement before the committing Court which are irrecon cilable with his statement at the trial with a view to affording him opportunity to explain or reconcile if possible the contradic tions. If any authority is needed in support of the above view. I would not go beyond the high authorities (1) of the Privy Council in Bal Gangadhar Tilak and others v. Shriniwas Pandit and others (A I R 1915 P C 7) and of the Supreme Court in Tara Singh v. The State (A I R 1951 S C 441).

17. This brings me to the evidence of Mr. Muhammad Salim Khan, Ballistic Expert (Exh. P. 3) who deposed that the crime shell Exh. P. 1 was found to have been fired from the licensed S. B. shotgun Exh. P. 2 of the appellant. A Division Bench of the Court of Judicial Commissioner in Mir Abbas Hayat Khan v. Emperor (A I R 1937 Pesh. 99) had to consider the evidentiary value of the ballistic expert. Their Lordships at page 101 summed up the discussion thus:‑ "On general principle also, we wish to lay it down that the opinion of the expert has a corroborative value only and is useful for ascertaining whether the direct evidence is true or not. We consider it absolutely unsafe to base a conviction on that opinion only, when there is no other evidence in the case; for it can never be said with certainty that the weapon with which the crime is said by the expert to have been committed, though found in possession of the accused person, was in his possession when the offence was committed."

18. It follows from the above discussion, that though the evidence of ballistic expert has a corroborative value, it alone cannot be made a basis of conviction. However, morally convinced a Judge may feel as to the truth of a particular fact, unless there is a legal proof of its existence, he cannot take it as "proved", and moral certainty or suspicion, however, grave, cannot be allowed to take the place of proof. In this connection I may profitably quote the words of caution of Mr. Justice Darling in the trial of Steinie Morrison when addressing the jury, he said:‑ All that about the revolver, and so on, is very suspicious, gentlemen, but you know you must not convict a man on one suspicion; you must not convict him on a thousand suspicions; you must not add a thousand suspicion circumstances together and say, `that is proof'. No you must find some where a solid anchorage upon which you can say, `I am secure of this basis'. "

19. As a result of the foregoing discussion, I accept the appeal, set aside the conviction and sentence of the appellant, and acquit him. The death sentence is not confirmed. MUHAMMAD DAUD KHAN, J.--‑I agree. K. B. A. Appeal accepted.