1976 PLP 410 (SCMR)

SALAHUDDIN AHMED, J.‑This appeal, by special leave, is from the order of the Peshawar High Court maintaining the convictions and sentences of transportation for life passed upon appellants Asadullah and Fida Hussain under section 302 read with section 34 of the Pakistan Penal Code and altering the sentence of appellant Rahatullah from transportation for life to death. The High Court also imposed a fine of Rs. 2,000 on each of the appellants under section 544‑A of the Code of Criminal Procedure. The incident, which resulted in the death of three persons, namely, Ghawar Khan, his son Muhtaj, and one Abdullah .Jan, took place on the 18th of February 1970, at 10 p, m. at the shop of P. W. Sh Muhammad Yaqab. The prosecution case was that the three appellants, who were armed with guns, fired at and killed the aforesaid three persons, because appellant Rahatullah's father had asked Ghawar Khan deceased for the band of his daughter for Rahatullah, but was refused. On the date of occurrence the appellants rime to the Karyana shop of P. W. Sh. Muhammad Yaqub and sat there. Their behaviour alarmed the witness and he ran out of his shop to the maldan of the 'Hujra' of Karim Khan, and raised an alarm which attracted to the shop Ghawar Khan, Muhtaj and Abdullah Jan, the three deceased persons, and they weir fired at by the appellants. The occurrence was witnessed by P. W. Sh. Muhammad Yaqub and two other persons, namely, P. Ws. Maab Khan and Paras Khan. Ghawar Khan and Mahtaj died at the spot as a result of the firing and Abdullah Jan was injured. The bodies of the two victims as well as Abdullah Jan were taken to the pohre station and a first information report was lodged by P. W. Maab Khan en the same night. Soon after the report had been recorded a statement of Abdullah Jan deceased alleged to have been recorded either by P. W. Naushad or P. W. Gaubar Zaman was banded over to the police Officer lay P. W. Naushad. A Magistrate, P. W. 14 Mr. Lal Badshah Khan. recorded another statement of Abdullah Jan under section 164 of the Code of Criminal Procedure on the '14th of February 1970, at 10‑35 a.m. at the hos1tal. All the accused persons were arrested on the same night but nothing was recovered from them. Some empties were recovered from the spot, but as ran weapon of the offence had been seized, they were not sent to the balliatic expert. The trial Court did not rely upon the evidence of P. Ws. Maab Khan and Pares Khan and upon the two dying statements. It appears that Abdullah Jan died in his village about three months after the occurrence. Tit Investigating Officer heard about his death after he had been buried. There was no post‑mortem examination of Abdullah Jan nor was there any certificate about his death. The learned Assistant Advocate‑General appearing on behalf of the State before the High Court said that whatever evidence had been discarded by the trial Court was rightly discarded and he would not press it into service. The result was that the conviction of the appellants rested solely upon the evidence of P. W. Sh. Muhammad Yaqub, who appears to be a tenant of they compliment P. W. Maab Khan. P. W Maab Khan, as we have already noticed, has been disbelieved by the Courts. In these circum stances. it was essential that the solitary witness P. W. Sh Muhammad Yaqub must be a person of unimpeachable credibility upon whom the Courts could put absolute reliance. It appears that the prosecution case ‑about the motive which inspire the appellants to commit the offence as disclosed in the first information report and in tie evidence of P. W. Sh. Muhammad Yaqub has been ejected by the High Court. The learned Judges of the High Court however, sought to make out a new case of motive, namely, that the appellants had gone to the shop of P. W. Sty. Mohammad Yaqub to commit robbery there but as they did not find any money on the person of the witness, he was pushed out of shop. This is barred on the evidence of D. W. Said Ghulam who aid he learnt this frt3m Abdullah Jan at the hospital. As we have already se, the death of Abdullah Jan or the cause of his death bas been left unproved. The evidence of the D. W. is, therefore, hearsay and. thus, inadmissionable a in evidence. On the contrary P. W. Sh. Muhammad Yaqub himself did not gay anything about the robbery nor was there any mention of it in the first information report. Furthermore, even if the witness had no money on his person in all likelihood there were goods for sale in the shop, but the appellants did not seem to have touched them. Although they were arrested on the same night, nothing was recovered from their possession. This demolishes the case of robbery. As regards the evidence of P. W. Sh. Muhammad Yaqub, it appears from the evidence of the Investigating Officer, P. W. 13, who had prepared the site‑plan that at the time of the occurrence the appellants were at point No. 2 inside the shop, while P. W. Sh. Muhammad Yaqub was at point No. 12 outside the shop, very much away from the door leading into the shop. The Investigating Officer has clearly stated that point No. 2 was not visible from point No.

12. This has seriously affected the evidence of P. W. Sh. Muhammad Yaqub that he saw the appellants firing. There are also material discrepancies in his evidence as to where from the appel lants had actually fired. At the tray he said that the appellant fired from inside the shop, but before the committing Magistrate he appears to have said that they fired from the outer door of the shop. The witness admitted, in cross‑examination that he suffered from weak eye‑sight since 5/6 months before the 16th of November 1971. He, of course, denied the suggestion that for the reason that he suffered from weak eye‑sight he never went to the police station to report about the occurrence. It also appears impro bable that having been horrified by the behaviour of the appellants and having run out of the shop for dear life, he would come back to the scene, of occurrence, and stay so close to the appellants and remain there all the time the appellants fired and killed their victims. In this context yet another improbable aspect of the case should have been kept in mind, and this is that appellant Rahatullah was a school teacher in the village, and, therefore very well known to the people of the village. It 'wee, there fore, not likely that be would go out along with his brother, and another person to commit robbery in the shop of P. W. Sh. Muhammad Yaqab and that without having made the slightest attempt at conce4lment of lilt identity. From the foregoing, it is evident that there is considerable doubt about the manner of the occurrence. The motive as alleged by the prosecution has been disbelieved. The motive as suggested by the High Court dues not appear to be probable. The evidence relied on for this purposed by the High Court is misconceived for P. W. Sh. Muhammad Yaqub never spoke about robbery in his evidence. The major part of the evidence consisting of the evidence of two eye‑witnesses and the two dying statements have been die‑ believed. There was no post‑mortem examination of the body of Abdullah Jan and no death certificate concerning his alleged death. The omission on the part of the Investigating officer to send the three empty shells to the ballistic expert is also a circumstance against the prosecution inasmuch as it might have been found that these shells were all fired from one gun. In the absence of any reliable evidence of the death of Abdullah an, the facts concerning him brought out in evidence were likely to have caused pre judice to the appellants. In these circumstances we think that the appel lants are entitled to the benefit of doubt and we, accordingly, give them this benefit. The appeal is, therefore, allowed and the convictions and sentences of the appellants are set aside, and they are directed to be set a liberty forth with if not wanted in connection with any matter. Appeal allowed,