P L D 1969 Supreme Court 293 (PLP)

MUHAMMAD YAQUB ALI, J.‑

Usman Khan, his brother Azama Khan and two sons Sardar Khan and Idrees Khan of village: Shahabkhel, P. S. Badaber, appellants herein, were acquitted by the Additional Sessions Judge, Peshawar, of the charges under section 302, read with section 34, P. P. C. for the murder of Hamza Khan and under section 307, read with section 34,. P. P. C. for murderous assault on Darya Khan and Kachkoli Malang (P. Ws). On appeal by the State all of them have been found guilty by the High Court and sentenced on the first count to transportation for life and on the second count to rigorous imprisonment for five years each from which this appeal under Article 58 (2) of the abrogated Constitution of 1962, has been filed as of right. The occurrence took place in village Shahabkhel on the morning of the 10th June 1967, after sun‑rise. The deceased was sitting on a cot in the courtyard of his Hujra about to be shaved by Lajbar Barber (P. W.) while his brother Darya Khan and Kachkol, P. Ws., were smoking chilam nearby when the four appellants abruptly came there armed with guns. On seeing them the deceased jumped from the cot and fell at a distance of five feet where he was hit by gun shots and killed instantaneously. The other shots bit Darya Khan and Kachkol who entered the kotha near which they were sitting and chained the door from inside. After the appellants left and some fellow villagers arrived at the scene Darya Khan came out and went to the Police Station, Badaber, at a distance of 5J miles from village Shahabkhel and lodged the first information report at 6‑45 a. m. The motive alleged in the F. I. R., was that about two months before the occurrence Mst. Miraja, daughter of Azam Khan, appellant, left her house without the knowledge of her parents and came over to the house of Darya Khan whose son Said Akbar she wanted to wed. Darya Khan sent back Mst. Miraja to her house, but this did not discourage her and she came back to his house on the same evening. Darya Khan sent her back to her parents and to settle the affair, a Jirga was held in which it was decided that Azam Khan will give Mst. Miraja in marriage to Said Akbar and spend Rs. 600 to celebrate the wedding. The settlement, however, fell through and on account of the bad blood caused by this incident the Police challaned both sides under sections 107/151 of the Code of Criminal Procedure. A compromise was arrived at on the first hearing before the Magistrate and the case was got cancelled, but the appellants continued to smart under this insult and to avenge it they killed Hamza Khan and injured Darya Khan and Kachkol, P. Ws., as mentioned above. The eye‑witnesses account was given at the trial by the aforesaid injured prosecution witnesses and Lajbar Barber (P. W). Besides the affair of Mst. Miraja in which the appellants were the aggrieved party there was no enmity between them and Darya Khan, P. W. Similarly, K achkol a Malang and Lajbar Barber were outsiders and had no motive of their own to implicate the appellants. The account given by them was, consistent in all material details, but the trial Judge ruled out the prosecution case on the findings (i) that the medical evidence was inconsistent with the account given by them; (ii) that the recovery of pellets from different points shown in the site plan in vertical direction was at variance with the version that all the four accused had fired simultaneously so that only one report was heard; and (iii) that the opinion given by the Ballistic Expert that two of the four empty cartridges recovered from the scene of crime matched with the gun produced by Idrees Khan was of unsatisfactory character. The pleas of alibi put up by Idrees Khan, Sub‑Inspector in the Special Branch, C. I. D. Office, Peshawar, and Azam Khan, a senior Clerk in the Office of Commissioner, Peshawar, were considered to be not at all convincing and rejected. The learned Judges in the High Court found no substance in these grounds and on their own appraisal of the evidence concluded that the appellants were guilty of the murder of Hamza Khan, deceased, and attempted murder of Darya Khan and Kachkol, P. Ws. Agreeing with the trial Court they considered the pleas of alibi by Idrees Khan as not at all convincing among others for the reason that Sub‑Inspector Gul Badshah with whom he had allegedly stayed at Bannu on the night between the 9th and 10th June 1967, was not produced in defence. We regret to say that the learned Judges did not peruse the record with due care in this respect. Gul Badshah appeared as D. W. 6 and his statement was discussed by the trial Judge in paragraph 16 of the judgment in appeal before the High Court. The other grounds on which the plea of alibi was ruled out however, hold good. The occurrence took place during day time in the Hujra of the deceased and his brother Darya Khan (P. W). The latter was injured and so was Kachkol (P. w). They thus carried the hall mark of their presence. Lajbar Barber was named in the F. I. R., which as seen was lodged with utmost expedition. He was also present at the spot when the S. H. O., arrived there at 8‑15 a.m. to undertake investigation in the case. Why should their testimony be, therefore, discarded ? The trial Judge formed the view that the medical evidence was not in conformity with the account given by them. In paragraph 11 of the judgment he observed as follows: "

11. I have discussed the statements of the three eye witnesses. The version of the eye‑witnesses is not in con formity with the medical evidence. The deceased received an injury on the upper part of the right shoulder joint. There is an exit wound to this injury on the upper and medial border of the right scapula. This injury shows that the deceased was hit from the front side and the direction of the injury has been downward. The second entrance wound is in the upper part of the back close to the vertebral column at the level of the interior angle of the scapula on the left side. There are corresponding six exit wounds situated about 1" apart from each other on the lower part of the chest on the left side. This injury has been caused from the back side making an exit on the front. The injuries have been shown in the pictorial. The prosecution story is that the four accused simultaneously opened fires. The injuries to the deceased should have, therefore, been either on the front side or the back as the entrance wounds." The reason that the wounds of entrance should have been either on the front side or the back of the deceased proceeds on the assumption that shots were fired at an inanimate stationary object. Darya Khan deposed that as soon as the appellants entered the courtyard of the Hujra, Hamza Khan, deceased, on seeing them jumped from the cot, but was hit and fell on the ground three or four paces away from the cot. Blood‑stained earth was recovered from point No. 3 shown in the plan. Some pellets were found at point No. 5 on the ground near to point No. 3 which indicates that one of the two shots hit the deceased as he fell on the ground or was about to fall. More pellets were found embedded in the wall of the courtyard in line with points 3 and 5 at a height of 3 1/2 feet. These were the stray pellets of the first shot which had landed on the shoulder of the deceased. The picture which emerges from the locale of the injuries found on the person of Hamza Khan, deceased, and the places wherefrom pellets were found is that the two shots hit the deceased as his body was moving from one position to another. The injuries found on the body of the deceased thus support the prosecution version rather than contradict it. Mr. Mahmud Ali appearing for the appellants also referred to the injuries on the person of Darya Khan, P. W., namely, a wound of entry below the posterior fold of right shoulder joint, another on the right side of chest on the back of the 8th space; and the third above the left elbow joint. From this the learned counsel desired us to infer that Darya Khan had his back towards the assailants. We are unable to, agree with this appreciation of medical evidence. As far we can envisage, on seeing the assailants pointing their guns at him Darya Khan took a turn to enter the kotha when the first shot landed below his right shoulder and the second on the back. The second ground of acquittal rests on the statement by Darya Khan that the four appellants fired simultaneously so that only one report was heard. This impression of Darya Khan was, however, belied by the fact that while two of the four shots which hit him were fired from point No. 2 in North South direction (points 2, 1, 7, 8, 9) the two .shots which hit Hamza Khan, deceased, were fired from point No. 2 in East‑West direction (points 3, 5, 6). Point No. 1 is where the deceased and Lajbar were sitting on a cot to the South of point No. 2 wherefrom the assailants fired. Point No. 7 is the wooden stay under the shed to the South of point No. I where some pellets were found embedded. Points 8 and 9 are in the same direction where Darya Khan and Kachkol were smoking chilam. This line of fire is thus North‑South. Point No. 3 is to the West of point No. 2 where Hamza Khan was hit. Point No. 5 is to the West of point No. 3 where some pellets were found on the ground while point No. 6 is the boundary wall of the courtyard further West of point No.

6. The two lines of fire being at vertical angle establish that the first two shots missed Hamza Khan as he jumped from the cot and hit Darya Khan and Kachkol at points Nos. 7 and

8. The other two shots which hit Hamza Khan must, therefore, have been fired with a little interval as the muzzles of the guns were turned from North‑South to West‑East direction. It appears that Darya Khan was flabbergasted on seeing the assailants pointing their guns at him. Accordingly he did not even notice that Kachkol who had entered the kotha with him was also hit. Indeed he did not come out until some fellow‑villagers arrived at the scene and he picked up courage to open the door of the kotha. No reliance, could, therefore, be placed on the statement of Darya Khan that all the four appellants had fired a shot each simultaneously. Great stress was laid by Mr. Mahmud Ali on the alibi of Idrees Khan, appellant. He is a Sub‑Inspector Police and at the time of occurrence was posted in Special Branch, C. I. D., Peshawar. The witnesses examined by him in defence deposed that on 1‑6‑1967 the Superintendent of Police, Special Branch, directed him to proceed to Bannu on the 9th and report there to Gul Badshah, Assistant Group Officer, for covering the proceedings of the meeting of the Jamiatul Ulema to be held at Lakki Murwat, 40 miles away from Bannu on the evening of of 10th June. He left Peshawar on the morning of the 9th by motor lorry and reached Bannu at 12‑30 p. m. He stayed there with Gul Badshah on the night between the 9th and 10th June. In the morning Sardar Khan, Foot Constable, D. W. 2, on duty in Police Information Office, Peshawar, telephoned to him that a person came from his village who desired him to know that an occurrence had taken place in Shahabkhel and he should not go there. Idrees Khan then booked a telephone call from the office of Gul Badshah to P. S. Badaber to speak to some one there. Later on, the same day ldrces Khan accompanied by Gul Badshah went to Lakki Murwat and took notes (If the speeches made in the meeting on that night and on the night of the 11th June. After completing the assignment ldrees Khan returned to Peshawar on the evening of the 12th and appeared before the Investigating Officer on the 13th. Shamsuddin, D. W. 1, Group Officer, Special Branch, produced office copy of the directive given by the Superintendent of Police, Special Branch, to Idrees Khan to proceed to Bannu on the 9th .tune 1967, and report there to A. G. O. Gul Badshah. The trial Judge inspected and returned the office copy instead of exhibiting it on the record. The original order was with Idrees Khan who claimed to have handed it over to the Investigating Officer. Sardar Khan, Foot Constable, also produced the trunk call register bearing an entry that telephoi;e No. 120 of A. G.‑O. Bannu was connected on the 10th June 1967. This register too was "inspected and returned" so that it is not known at which time the call was put through and whether it was a personal call for Idrees Khan or an official call. Next Gul Badshah produced telephone trunk calls register of A. G.‑O.'s Office Bannu bearing an entry that a call of three minutes was booked for Badaber P. S. Telephone No. 2276. As this register was also returned by the trial Judge, we do not have the benefit of knowing what precise entry was made and whether the name of Idrees Khan, appellant, was mentioned in it or not. Lastly, Abdur Rahim, D. W. 3, Booking Clerk, Afridi Bus Service, Peshawar, proved that bus‑ticket Exh. PR/1 was issued by him on 9‑6‑1967. The name of the passenger was not entered in the ticket and Abdur Rahim did not depose to having sold this particular ticket to Idrees Khan. The evidence of alibi examined by Idrees Khan in our opinion fell short of positive proof of the assertion that he was present at Bannu when the occurrence took place at Shahabkhel 150 miles away. There are certain features which go against the plea. For example ; (i) no departure report was made by Idrees Khan before leaving Peshawar for Bannu on the morning of the 9tkh, nor did he make an arrival report at Bannu; (if) ,the meeting at Lakki Murwat was to be held at 10 p. m. on ‑the 10th June. The appellant could, therefore, conveniently leave on the 10th morning and reach Bannu by 12‑30 p. m. instead of proceeding there on the 9th; (iii) Badshah Gul, A. G.‑O., was not produced before the Investigating Officer although lie was a very material witness of alibi ; (iv) ordinarily Darya Khan would not have falsely named Idrees Khan as an assailant since he resided in Peshawar city and being a police officer serving in Special Branch, C. I. D., could be on duty at any far off place in Pakistan at the time of occurrence; (v) F. I. R., in which Idrees Khan is named as one of the assailants was lodged at once which eliminated the possibility of delibera tion and concoction; and (vi) last but not the least the witnesses to the alibi were two fellow‑officers in the Special Branch, C. I. D., and a Foot Constable which did not inspire much confidence. However, as the evidence given by the D. WS., was not challenged by the prosecution, it could be urged with some force that Idrees Khan was at least entitled to the benefit of doubt. A word may be said about the testimony of the Ballistic Expert who gave the opinion that out of the four empty cartridges recovered from the scene of shooting two were fired from the single barrel gun licensed in the name of Azam Khan, appellant. As only one single barrel gun was allegedly used in the crime Mr. Mahmud Ali offered two‑fold criticism; (i) that the testimony of this witness was not trustworthy as observed by the trial Judge, because the eye‑witnesses did not depose that guns were reloaded. On the contrary Darya Khan was positive that the appellants did not reload their guns; and (ii) if the Ballistic Expert is correct that two of the empty cartridges were fired from one gun then the eye‑witnesses' account all the four shots were fired simultaneously stood discredited. We find from the testimony of the Ballistic Expert that he had prepared only one composite microphotograph of crime empty C. 3 and empty of the test cartridge fired from the single barrel shot gun No. 92‑BA marked C. His opinion should, therefore, have been confined to only one of the four crime empties though he did state that crime empties C. 3. and C. 4 were found to have been fired from that gun. But nothing turned on this recovery as the gun was produced by Idrees Khan and not by Azam Khan in whose name it was licensed, As lengthy arguments were addressed by Mr. Mahmud Ali on the conflict between the medical evidence and the account given by the eye‑witnesses, we would like to mention that of late a tendency has grown to discard the testimony of seemingly reliable and natural witnesses to a crime on speculation as to the manner in which the deceased person in the case was injured 8 or about the time of occurrence with reference to the contents of the stomach. While we appreciate the anxiety shown by the learned Judges to test the credibility of the eye‑witnesses with reference to the circumstances attending upon the commission of the crime, it falls to be said that Judges are not experts in medical science to form a safe opinion on these matters. It is desirable, therefore, as observed by the judicial Committee in Natha Singh v. Emperor (A I R 1946 P C 187) to summon the doctor who examined the injuries or performed the autopsy as a witness and investigate the reasons for his opinion. The same holds true of the opinion given by a Ballistic Expert. A proper foundation for raising an objection of this nature must also be laid by the defence in the cross‑examination of the medical witness or the Ballistic Expert in the trial Court. In the instant case no question was asked from the doctor to suggest a conflict between the opinion of the doctor and the story given by the eye‑witnesses. Lastly Mr. Mahmood Ali urged that the High Court should, not have interfered with the order of the acquittal as it could not be said that the reasons given by the trial Judge were perverse or wholly illogical or unsustainable. He relied in this behalf on Abdul Majid v. Supdt. & Remembrancer of Legal Affairs (P L D 1964 S C 422), Sheo Sharup and others v. The King‑Emperor (A I R 1934 P C 227 (2)); Gul Nawaz v. The State (1968 S C M R 1168 (2)); Mir Ahmad v. The State (P L D 1962 S C 489); Mitho v. The State (P L D 1962 Kar. 1); The State v. Umed Ali and others (P L D 1967 Kar. 440) and Additional' Advocate‑General, West Pakistan and others v. Rajab and others (P L D 1967 Kar. 221). The principle laid down in these judgments is unexceptional, but its application depends on the facts of each given case. As has been seen the reasons given by the trial Judge in the present case in support of the order of acquittal were wholly artificial. In the circumstances the High Court was justified in setting aside that order except in the case of Idrees Khan, appellant, who in the opinion formed by us was entitled to the benefit of doubt. We thus find no ground to interfere with the convictions and sentences awarded to Usman Khan, Azam Khan and Sardar Khan, appellants, and dismiss their appeal. Idrees Khan, appellant, is given the benefit of doubt and acquitted. His appeal is allowed. K. B. A. Appeal partly accepted.