1980 PLP 126 (SCMR)

DORAB PATEL, J.

Qasim Khan and his servant Qadar Gul were shot dead on 18th February, 1973, and according to Sabz Ali, the brother of petition 12-P of 1977), his brother and his brother s servant had been shot dead in taxi by Yusuf Shah and the first two respondents in Criminal Petition 12-P of 1977). These respondents to whom we will refer as the respondents were tried by an Additional Sessions Judge, Mardan for Peshawar High Court which was heard with the reference from the Sessions Court and as the learned Judges of Peshawar High Court rejected the reference, set aside the conviction of the respondents and allowed their appeal, the State filed a petition for, leave being 13‑P of 1977, whilst Sabz Ali Shash filed another petition for leave being 12‑P of 1977 , therefore, this .order will dispose of both, these petitions. Although, Mohammad Shoaib arid Said Rehman were named by Sabz Ali as‑eye‑witnesses of the occurrence in his F.I.R.. the prosecution examined only Sabz Ali and his nephew Mohammad Rahim to prove the occurrence. Now, Sabz Ali said in his evidence that although his brother, who was a wealthy man had a car on the day of the occurrence, his brother had engaged a taxi and it was driven by Said Rehman. Qasim Khan sat with the driver in the front seat whilst he (Sabz Ali) one Mohammad Shoaib and Qadar Gul sat in the back seat. Then, according to Sabz Ali, he saw the respondents standing in the chowk of Baghdada, so they stopped the taxi and although the respondents were armed they were invited to sit in the taxi. This means that there were seven people in an ordinary Toyota. Be that as it may, according to the witness, on reaching village Chichar, Yusuf Sbah respondent requested that they should be taken to village Jangidher, therefore, Qasim Khan ordered Said Rehman to drive in that direction. Next, according to Sabz Ali, on reaching Thakedoor Karoona Qasim Khan told the respondent Yusuf Shah to return immediately a loan of Rs. 2.000 which he had advanced to him the previous day "through a cheque". But, this, according to the witness, led to an altercation. Further according to the witness, at that convenient moment "my sister's son Mohammad Rahim was also standing" next to the taxi. Finally, according to the witness, the respondent Yusuf Shah took out his 30 bore automatic pistol and "started firing at my brother immediately. Khan Ghalib caught hold of Mohd. Shoaib, P. W. Again said Mohd. Shoaib P. W. caught hold of Yusuf Shah accused. Khan Ghalib at that time took out his pistol and aimed at me, but Qadar Gul deceased caught hold of him. I ducked down to save my skin. However with the fire shots of Khan Ghalib accused, Qadar Gul was hit, and fell down on me. Khan Ghalib fired five shots at Qadar Gul, but I cannot say the number of pistol shots. Both the deceased expired in the car. The witness then claims to have informed his relations in the village nearby and then gone by bus to the Police station to lodge the F. I. R. The usual investigations commenced but the trial was delayed because the respondents absconded for a long time. However, they were ultimately apprehended and tried by the Sessions Court. In support of its case, as we pointed out, the prosecution examined Sabz Ali and Mohammad Rahim as eye‑witnesses of the occurrence, but did not e9amine Said Rehman and Mohammad Shoaib, although these were the two persons who were named in the F. I. R. as eye‑witnesses. And, for the purpose of these petitions, it is sufficient to state that the prosecu tion, also examined Abdul Marian Khan, Inspector, who carried out the investigations, and Mohammad Afzal Khan, Manager, Habib Bank to prove a payment of a sure of Rs. 2,000 by the deceased to the respondent Yusuf Shah. And, although the doctor, who carried out the post‑mortem of the deceased was not examined, his post‑mortem reports were proved and as we will presently show the case hinges on the medical evidence. The respondent did not produce any evidence in their defence and pleaded that they had been falsely implicated on account of enmity. However, they were able to prove through the cross‑examination of Sabz Ali that Sabz Ali and his brother were somewhat unusual characters addicted to violence and the witness had to admit in his cross‑examination that apart from the feud with the family of the respondents, Qasim Khan had been charged for another murder but the case had been settled. He had also been involved in two other cases under section

307. P. P. C., but these cases had also been settled. Although the prosecution did not examine the two persons, who were named in the F.I.R. as eye‑witnesses of the occurrence and although Mohammed Rahim had not been named as an eye‑witness in the F. I. R. lodged by his uncle, the learned Additional Sessions Judge, who tried the respondents was highly impressed by the ocular evidence. And strangely enough he reached the extraordinary conclusion that the ocular evidence was supported by the medical evidence. He also held that the prosecution had proved the motive of the respondent, Yusuf Shah for murdering Qasim Khan and the learned Additional Sessions Judge was further of the view that this evidence was corroborated by the abscondence of the two respon dents, therefore, he convicted them for murder. The learned Judges of the Division Bench of the Peshawar High Court, who heard the appeal of the respondents and the reference from the Sessions Court, made a very careful examination of the evidence (we say so with respect) and reached the conclusion that Sabz Ali and Mohammad Rahim were not witnesses of truth and had not seen the occurrence, therefore, they held that the abscondence of the respondents was of no corroborative value and acquitted them. Hence these petitions for leave. According to Sabz Ali the first respondent fired two or three shots And three empties of a 30 bore automatic pistol were recovered from the rear seat of car. This would suggest that the respondent Yusuf Shah was sitting in the rear seat and had fired at Qasm Khan from behind. And this would also be in accordance with the medical evidence. Therefore, this cast doubt on Sabz Ali's evidence that the respondent Yusuf Shah was sitting in the front seat of the taxi with his deceased brother. However, Sabz Ali had said in his F. I. R. that this, respondent was sitting in the rear seat, therefore, the learned Additional Sessions Judge took the view that the discrepancy between the evidence of the witness and his statement in the F. I. R. was not material because the witness had forgotten the correct position through lapse of time. No doubt the High Court would not have been justified in interfering with the appreciation of evidence by the trial Court if the matter had rested here. But, as we pointed out only three empties had been recovered and according to Sabz Ali seven or eight shots had been fired by the respondent, whilst, according to Mohammad Rahim nine to eleven shots had been fired by the respondents, therefore as both the respondents were carrying automatic pistols the prosecution failed to count for at least five to eight empties, and this is a circumstance difficult to reconcile with the claim of the two eye‑witnesses that the assailants were sitting inside the little taxi. Another circumstance difficult to reconcile with the ocular evidence is the recovery of blood stained earth from the rear seat of the car and unfortunately both these circumstances escaped the attention of the trial Court. But there was yet another circumstance far more important which was ignored by the trial Court. This was the admission of Abdul Marian Khan the Investigation Officer that "the right rear door pane was shattered with firing." As neither of the so‑called eye‑witnesses even referred to this damage to the car it casts doubt on their presence at the occurrence. Additionally, we observed earlier that the trial Court was of the view that the ocular evidence was supported by the medical evidence and we indicated our astonishment at this view. The reason for our observation was that on the description of the occurrence by the two eye‑witnesses, it is obvious that the assailants had fired at point blank range. But, according to the medical evidence, not a single entrance wound on either of the deceased had marks of charring. Therefore, far from supporting the ocular evidence, the medical evidence proves that the ocular evidence was false and further this glaring discrepancy between the ocular evidence and the medical evidence which was ignored by the learned Additional Sessions Judge, casts very great doubt on the claim of the so‑called eye witnesses to have seen the occurrence. However, there was yet another circumstance crucial to Sabz Ali's claim to have witnessed the occurrence, which was ignored by the Sessions Court in its very mechanical appreciation of evidence. On the description of the, occurrence given by the witness, it would follow that the witness's clothes would have got blood‑stained and that was his claim in evidence and he went to the length of saying that he had gone to the Police Station in his blood‑stained clothes. But, we were astonished to find that these clothes were neither secured by Abdul Marian Khan, who investigated the case nor forwarded to the Chemical Analyser. And Abdul Marian Khan's explanation was that Sabz Ali's clothes were not blood‑stained. The learned Judges of the High Court preferred Abdul Marian Khan's evidence to that of Sabz Ali and in the circumstances we do not think that any other view was possible. And, the cumulative effect of these circumstances, according to the learned Judges of the High Court, was that Sabz Ali had falsely claimed to have witnessed the' occurrence. We agree with this conclusion and in any event, it cannot possibly be contended that the view thus taken by the learned Judges was not a reasonable view. Therefore, we would not be justified in interfering with it in a petition for special leave. The learned counsel, however, submitted that Sabz Ali's evidence was supported by that of Mohammad Rahim and the submission was that as Sabz Ali had no motive to implicate the respondents falsely, we would not be justified in rejecting Mohammad Rahim's evidence, merely, because he was an interested witness. But the learned Judges of the High Court have not rejected Mohammad Rahim's evidence on the ground that he was an interested witness. They have pointed out that his evidence was completely falsified by the medical evidence. They have, stressed the fact that his uncle had not mentioned his (Mohammad Rahim's) name as a witness in the F I R which was supposed to have been lodged promptly. The learned Judges have then pointed out that the police statements of this witness was also not recorded on the day of the occurrence and in view of these and other circumstances listed in their judgment, they held that this witness had falsely claimed to have seen the occurrence. We agree with the view of the learned Judges of the High Court, but in any event, the view taken' by the learned Judges was a possible and reasonable view and it cannot possibly be contended that there is any error of law in their finding that Mohammad Rahim had not seen the occurrence. The learned counsel then submitted that Sabz Ali had proved the' motive for the occurrence, and this was also the view of the trial Court. But the learned Judges of the High Court held after carefully examining the evidence that the view taken by the trial Court was not correct and we see no error‑of law in the finding of the High Court. Finally, both Mr. Jalaluddin Khan and Mr. Mohammad Ajmal sub mitted that the F I R had been lodged promptly and that this was a circumstance which corroborated Sabz Ali's evidence because Sabz Ali had no motive to implicate the respondents falsely. It is true that the respon dents have not been able to prove that Sabz Ali was inimical to them. But they have proved beyond doubt that Sabz Ali was not a witness of truth and therefore, his evidence cannot be accepted without corroboration. Further, his claim that he had lodged the F. I. R. promptly rests solely on his own evidence, and we may explain here that whilst the F. I. R. was lodged at 11‑30 a. m., according to the witness, the occurrence had taken place at about 10‑00 a. m., therefore, Mr. Jaluddin Khan submitted that there had been no delay in lodging the F. I. R. because Sabz Ali had taken the dead bodies with him to the police station by bas and this was an operation which must necessarily have taken time. The difficulty in the way of accepting the submission is that Sabz Ali could easily have gone to police station in the taxi, the more so, as the dead bodies were in the taxi. He was cross‑examined on this aspect of the case and his reply was that he had asked the driver Said Rehman to take him to the police station but Said Rehman "replied that he was not sure about the working of the car." But, Said Rehman was not examined and Sabz Ali's claim that the taxi was defective is belied by the evidence of Abdul Marian Khan, the investigation Officer. Therefore, the witness's explanation of the delay in lodging, the F. I. R. was rightly rejected by the learned Judges of the High Court. In the result, was see no, reason for interfering with the careful appreciation of evidence by the High Court and no case has been made out for the grant of special leave. The petitions are without merit and are therefore, dismissed. Petition dismissed.