1968 P Cr (PLP)

ABDUL GHANI KHAN KHATTAK, J.‑By his order dated 20th September 1966, the Additional Sessions Judge, Mardan, convic ted Mazan (28 years) and Masal (26 years), sons of Mir Ghazan, residents of village Taja, Police Station Kalu Khan, under section 302/34, P. P. C. and sentenced them each to death for the murder of Mir Hasham, aged 45 years, resident of village Jalal. They have come up in appeal against their convictions and sentences. A reference under section 374, Cr. P. C., is also before us for confirmation of the death sentences. This judgment will dispose of the appeal and the reference both.

2. The occurrence took place on 19‑11‑65 at about 8‑30 a.m. by the bank of Asota canal. The report Exh. P. A. was made by Nadir Khan (P. W. 9) at 11 a.m. in the Police Station Kalu Khan, at a distance of 3/4 miles, recorded by Abdul Hafiz, A. S. 1. (P. W. 13). The deponent also produced two empty shells of '12 bore Exh. P. 1, allegedly picked up by him from the spot. The recovery memo. with regard to these empty shells is Exh. P. F. The dead body was also carried to the Police Station at the time of making the report. The Police Officer, after preparing the injury sheet and inquest report of the dead body of the deceased, set out for the spot where he reached at 1 p.m. He inspected the spot from where he recovered one empty '12 bore cartridge Exh. P. 2 from a field vide recovery memo. Exh, P. H. He re covered a pair of blood‑stained. chaplis Exh. P. 3, allegedly of the deceased, vide memo. Exh. P. J. Another empty shell of ' 12 bore Exh. P.4, three cardboard discs Exh. P. 5, and four pellets Exh: P. b were taken into possession vide memo. Exh. P. J. Bloodstained earth was taken from the spot vide memo. Exh. P. L. The site plan was prepared at the pointing out of the P. Ws. The accused ‑surrendered in the Police Station on 26‑11‑65, and were arrested.

3. Dr. Faqir Ilahi (P. W. 1) conducted post‑mortem exami nation on the dead. body of Mir Hasham deceased on 19‑11‑65 at 2‑30 p. m. and found the following injuries:‑ (1) A firearm entrance wound on the left side cheek, 3/4' in diameter. Charring round the wound was present. It bad gone inside the skull due to which skull bone, parietal and occipital fractured. (2) A firearm entrance wound on the right side of abdomen. above the iliac bone 3/4" in diameter. Charring around was present. (3) A firearm entrance wound on the right lateral side of abdomen, 5' above wound No.

2. The wound was 1/4' in diameter. (4), A firearm entrance wound on the front of abdomen, each 1/4 in diameter. (5) Four firearm entrance wounds on the front of chest, each 1/4 to diameter. (6) and (7) Due to one shot, two on the upper left arm and 5 on the lateral side of chest each 1/4" in diameter. (8) Three firearm entrance wounds on the left hand and two on the wrist at its back, each 1/4' in diameter. (9) Three firearm exit wounds, two in front of the left wrist joint and one in front of the left hand, each 1/3" in diameter. (10) Left humerus fractured. On internal examination skull and‑ 9th and 10th right ribs were found fractured. Pleura was injured on both sides and chest cavity was full of blood, besides both lungs, poricardium, heart, blood vessels, abdominal walls, peritoneum, diaphragm, stomach, pancreas both brances and brain injured. Death was due to injury to the lung, heart, liver, intestines and brain, which were badly injured.

4. The presecution version given by Nadir Khan is:‑ On the material day soon after morning prayers time, the deceased in the company of his nephew Nadir Khan P. W. started from their village to attend a civil case in the Court of Civil Judge, Mardan. After having gone for about a furlong they noticed Said Malik Shah and Kher said P. Ws. following them. They waited for Said Malik Shah and Kher Said who lined them at "Sang Batai Char". On being inquired, it was given out that the deceased and his nephew were bound for Mardan to attend a civil case, and were told that Said Malik Shah and his companion were going to Kalu Khan to offer condolence on the death of one Dad Khan. When the party reached together Asota Canal at a certain point they parted. Said Malik Shah and Kher Said P. Ws. started along the route leading to Kalu Khan while the deceased and Nadir Khan proceeded to wards Shewa Adda. The deceased took off his chapplis in order to cross the canal. He put his foot into the canal and in the meanwhile two shots rang out. At that time Nadir Khan, who was following the deceased at a distance of 5/6 paces, saw the two appellants betting up from their positions by the opposite bank of the canal. The deceased ran for his life in the direction where Said Malik Shah and Kher Said P. Ws, had gone while Nadir Khan ran for safety in the opposite direction. During the flight Nadir Khan heard the report of 4 or 5 more shots. He could not say whether those shots hit the deceased or not. The witness, how ever, saw the appellants chasing the deceased. The appellant left the spot after the deceased fell down. Kher Said and Said Malik Shah P. Ws. called back Nadir Khan, and on approaching the victim he was found expired. Said Malik Shah and Kher Said P. Ws. remained at the spot with the dead body and Nadir Khan went to the village from where ‑he brought a cot on which the deceased was carried to Shewa‑Swabi Road, from where he was taken in a tonga to the Police Station.

5. The motive for the occurrence is that about ten years before the occurrence Mir Ghazan, father of the appellants, was murdered, for which the deceased and his brothers Muhammad Amir, father of Nadir Khan P. W. and Mir Aftab were charged, out of whom Mir Hasham deceased was acquitted and the other, accused were convicted and sentenced under the F. C. R. In addi tion to this a civil case with regard to dispute over land was also pending between the parties in which the deceased was to appear on the day of the incident. Besides Nadir Khan the prosecution examined Kher Said and Said Malik Shah as witnesses of the occurrence.

6. In their statements from the dock the appellants denied their complicity in the murder and pleaded alibi. Neither of them produced defence. They claimed to have been falsely implicated on account of suspicion and enmity, and stated: "We have blood feud with Nadir P. W. and the other P. Ws, besides being of doubtful antecedents, are the partymen of the deceased family. Feroz Shah, uncle of Kher Said P. W. had appeared as a witness for the defence of Muhammad Amir, Mir Aftab and Mir Hasham deceased in the aforesaid murder case of our father . . . . ." It may be mentioned that Shamatai P. W. who witnessed the re covery of certain articles stated that the appellants had gone to Swat two days before the day of occurrence, which shall be dis cussed at the proper stage in the discussion. There can be no two sayings about the fact that Said Malik Shah and Kher Said were always available to the deceased party to furnish security for them. An uncle of Said Malik Shah appeared in defence in the murder case of the father of the appellants. It can, therefore,' be said, as pointed out by Mian Ziauddin appearing for the appellants that they are interested in the deceased and their testimony cannot be safely relied upon, for corroborating the evidence of Nadir Khan who is enemy of the appellants. We agree that as an abundant caution the ocular account of all the three witnesses should further be supported by confirmatory evidence which undoubtedly is not lacking in the case.

7. Said Malik Shah and Kher Said have substantially sup ported the version given by Nadir Khan. They stated that when they had reached near Asota Canal they proceeded along another path leading to village Kalu Khari while the deceased and his companions proceeded ahead to cross the canal. When they had proceeded about 15 paces from the point where they had parted they heard the report of two shots. Soon after they saw the deceased coming out of the canal and running to wards them followed by the appellants and at the same time they saw Mazan making a detour to them which changed the course of the deceased who headed to the North, and in the meanwhile Masai fired at him from a close range ad hit him. As a con sequence of this shot the deceased fell down three or four paces ahead. Both the appellants then went near the deceased and fired one shot each from a close range. The appellants then ran in the direction of Shewa Banr. After the departure of the appellants the witnesses called Nadir, who 'had run up‑stream. All of them went to the victim and found him dead. The witnesses stated that Nadir Khan P. W. bad picked up two empty shells from near the dead body of the deceased. Both have given similar state ments with almost no contradiction. As both of them were at the same place when their attention was drawn by the ringing of shots. therefore, it is conceiveable that the observation of one may have been similar to that of the other‑

8. Mian Ziauddin, learned counsel for the appellants, argued that there has been considerable delay in reporting the occurrence. The argument proceeds on the ground that the deceased was to attend a case in a civil Court at Mardan. During the days of occurrence the Court was to start work from 9 a. m. therefore, the deceased must have started earlier than the time given by the witnesses. With regard to the time of departure P. W. Nadir Khan stated that just after morning prayers time they had star ted from their village to Mardan. Another ground for this argu ment is that according to the doctor the time between death and post‑mortem examination was within nine hours, it was, therefore, argued that the occurrence should have taken place not later than 5 a. m., and in view of the distance of the spot from the police station, which is 3 to 4 miles, the report has been delayed at least for more than two hours. However, Said Malik Shah (P. W. 11) stated:‑ "it is correctly recorded that the sun rose when we reached Khawar 15 paces away from our hujra and that the spot is about 2 furlongs from that place." The time that was taken in covering the distance of two furlongs has also to be taken into consideration. According to the Calender the sun rise time is 6‑46 and by this calculation the time of occurrence cannot coincide with the argument of the learned counsel.

9. It was next argued that the first information report does not contain the following particulars:‑ (1) It does not state that the deceased had just stepped down in the canal when he was tired at. (2) That the F. I. R. shows that the accused were taking posi tion in the path, and canal has not been mentioned. (3) That it does not disclose that the deceased ran for his life towards the West in the direction where Said Malik Shah and Kher Said P. Ws. had gone. The deponent stated that after the first volley of shots the deceased started running followed by the assailants who fired more shots which hit the deceased, dropped him and there he expired. The F. I. R. per se is never the statement in a case for the prosecution. Mere omissions of certain details in the evidence of the maker of the report can neither reflect on his sole testimony nor of those whose evidence otherwise does not suffer from inherent infirmities and contradictions. It need not contain minute details for it is not the last word of the prosecution case. The test is whether the story subsequently told by the deponent is different from the one told in the F.

1. R. It was observed in the case of Gaman v. Emperor (A 1 R 1923 Lab. 913) :‑ "There is nothing in law to the effect that a first information report must give every detail or any detail. It should be sufficient to induce the police to leave the police station and investigate the affair."

10. The Police Officer found at point No. 1 cardboard pieces, pellets, empty shell of ‑12 bore, and chapplis allegedly of the deceased. The recovery of the pellets indicates that the canal bank was in the background of the victim which obstructed‑ the pellets and were thus available to the investigating Officer. This position presents the victim in a posture that he was about to walk across the canal when he was fired at thus leaving behind the chap plis at the canal bank. Ordinarily one has to put off footwear for wading across water. The presence of chapplis is therefore quite in accord with normal human conduct. This confirmatory evidence affords unqualified explanation of the place where the victim was fired at. It has also pinned down with legal certainty that the in criminating articles at point 1 could not have been the effect of a fire from a place other than the one (Point 2 in the plan) indicated by Nadir Khan at the spot. If Nadir Khan bad been introduced as a false witness the location of the assailants could not have been with as much exactitude as we find in the record of the case. Moreover, if Nadir Khan is a procured witness why did he not give ocular account of the‑remaining part of the occurrence. It makes his statement natural. He may have apprehended his own life in danger and naturally may have run for safety. After the first incident all that we have from him is that he heard the ringing of shots. This version again is natural that while in flight he could have no time to look back and witness the last scene of the action. He could like an untruthful witness as well say that he witnessed the assailants firing at the victim when he was at a safer distance. He comes to his injured uncle after he was called by the other P. Ws. to come back after the departure of the assailants from the spot. Under the circumstances his evidence inspires confidence and the argument of Mian Ziauddin that Nadir Khan is an adventitious witness is materially contradicted by the circumstantial evidence. The picking up of the two empty '12 bore shells from near the dead body suggests that he is the earliest arrival to the victim and substantially negatives the suggestion that he may have been informed by some who might have come across the dead body and who chose to remain behind the scene.

11. This brings us to the evidence of Said Malik Shah and Kher Said P. Ws. They both parted from the deceased party and the two parties took along different routes. I am not con vinced why the element of parting is introduced by the prosecu tion, if they were foisted there to give a false evidence. Why did they refrain from witnessing the occurrence from its initial stage? If they were brought to bolster up the case nothing could stop them from witnessing the opening part of the violence. There is nothing in the evidence that their vision was screened off by something intervening the spot and the place where they claim to have been present. They could as well say that they were in a position to see the initial firing or could have claimed to be in the close vicinity of the scene of occurrence to obviate clear visibility. Their ignorance of this important fact is no less strong indication of their being at the position where they claim to have been at the material time. It is important to note that they have deposed to the same part of the occurrence. If they were in fact introduced for supporting falsehood the anxiety of the clever tutor (allegedly) must have ascribed different rolls to them i.e. at least to corroborate Nadir Khan P. W. The defence has suggested that the three witnesses were introduced to depose in accord with the topography of spot after it was critically in spected. The argument does not fit in the facts of the case and is more of an imaginary character than real. Both the witnesses were available in the Police Station. The report was drawn up at 11 a. m. and the Investigating Officer started from the Police Station at 12‑30 p. m. During the intervening period their state ments could have been recorded and it is in the evidence that their evidence was recorded soon after the F. I. R. was completed. This takes the anchor sheet off the argument advanced against their presence at the spot. Reverting back to the site plan and the pictorial diagram of the deceased the following points bring home their presence at the spot. These are:‑ Injuries Nos. VI anti VII on the deceased appear to have been caused to him from flanking position beyond a charring range. This injury is explained by Said Malik Shah and Kber Said that Mazan. detoured the deceased (apparently from the right flank because the position of the witnesses falls to the right of the victim if he were heading towards them). Again the course of fight of the deceased after having gone towards the position of the witnesses suddenly turns towards the North. This version makes it clear that the deceased was conscious of the presence of Said Malik Shah and Kher Said therefore he headed towards them, and then changed the course after having been intercepted by Mazan appellant. The trail of blood along the course of flight and the presence of an empty shell of 12 bore in the field explains that the account of these witnesses is in accord with the circumstantial evidence and is not the outcome of the efforts of a zealous Investigating Officer for building up a false case. Pad ding up and concoction should not be assumed against the prose cution unless established from the record of a case. The wit nesses stated that the assailants fired one shot each at the deceased from a charring range, which stands corroborated by recovery of the empty shells from near the dead body. Medical opinion with regard to the number of shots causing injuries II and III is vague which in my view is not sufficient to displace ocular evidence which appears to be true and credible.

12. Now remains to be considered the objection of the defence that Nadir Khan denied at the trial that he had witnessed the first two shots having been effective. Nadir Khan was behind the deceased when the first volley of shots rang out there fore be could not have been definite about its result because the victim and the witness ran in opposite direction.

13. The blood‑stained shirt Eah. P. 13 though not traced t human origin connects Masai appellant with the crime. My Lord t the Chief Justice in the case of Ghulam Rasul v. Ali Akbar and others (A 1 R 1923 Lab. 913) was of the view. "Recoveries of blood‑stained clothes and hatchet, but Sero logist unable to analyse stains due to disintegration of blood Recoveries, 'so far as they go', held, supported direct evidence, ‑ . . ."

14. The endeavour made by Shamatai P. W. who witnessed a recovery memo may be just ignored, in view of the over whelming evidence against the appellants. In a similar situation the case of Isral Gul v The State (P L D 1963 Perth. 124) the learned Judge observed:‑ "To accept the view that where some witnesses from the prosecution let down the prosecution case by distortion of facts or suppression of truth, wholly or in part, the whole of the prosecution case must fall down as a house of cards would amount to giving a powerful lever to the defence to be quite freely employed to win over some prosecution witness to seal the doom of the prosecution case. The best approach in such situation is to reject the discredited witness but not to discredit the prosecution case if it is otherwise supported by trustworthy evidence. Again, it is erroneous to consider that the statement of a prosecution witness in spite of its proved falsity binds the prosecution because he comes from the prosecution camp unless he is declared hostile to show that he has deserted the pro secution. If the statement of such a witness is false in contrast to the other evidence to the case which is true, it has to be ignored without leaving any effect on the incidents of the prosecution case as borne out by dependable and trustworthy evidence." It follows, therefore, that the abscondence of the appellants simultaneously after the occurrence further corroborates the ocular testimony against them.

15. The evidence against the appellants has convinced me' to the degree of moral certainty about their guilt and I feet co erced in upholding their convictions and sentences. Since the de ceased was acquitted in the murder case of the father of the appellants, the vendetta on that score cannot be considered as a mitigating circumstance for awarding the lesser penalty. The appeal is dismissed. The sentences of death are confirmed. SHAKIRULLAS JAN, J.‑Mazan (38) and Masal (26), sons of Mir Ghazan, Afghan, residents of Taja, District Mardan, were convicted under section 302 read with section 34, P. P. C. and sentenced to death by the learned Additional Sessions Judge, Mardan, by his order, dated 20‑9‑1966, for having in furtherance of their common intention committed the murder of their co villager Mir Hasham aged 45, son of Khan Mir, resident of village Jalal, by firing at him from shotguns on the morning of 19‑11‑1965 near Asota Canal within the limits of village Sltewa at a distance of 3/4 miles from Police Station, Kalu Khan. The two convicts have preferred a joint appeal against their convictions and sentences. The reference for the confirmation of‑death sen tences is also before us, and we propose to dispose of the appeal and the reference by this judgment.

2. The facts of the case as narrated at the trial are that on the day of occurrence, soon after morning prayers, the deceased accompanied by his nephew Nadar (P. W. 9) left the village for Mardan to attend the Court of the Civil Judge in connection with a Civil suit, instituted by the two appellants against the father of Nadar P. W., Muhammad Amir, the deceased, Moh tasham and Mir Aftab for the possession of some land. After covering a distance of one furlong on their way from the village, they noticed Kher Said (P. W. 10) and Said Malik Shah (P. W. I1), residents of village Jalal following them. The deceased and Nadir Khan P. W. stopped for them, who joined them at a place known as `Sang Batai Ccbr' and on their enquiry as to where they were proceeding, the deceased and Nadir P. W. told them that they were on their way to Mardan in connection with a civil case. Kher Said and Said Malik Shah P. Ws. informed them that they were going to Kalu Khan to offer condolence on the death of one Dad Khan. They proceeded on their way when on reaching near Asota Canal, Said Malik Shah and Kber Said P. Ws. took the route leading to Kalu Khan. The deceased took off his chappals with a view to wade through the canal water. He had put his one foot in the canal water when two shots rang out. At that time, Nadir P. W. was six paces behind the deceased. In the meantime, he saw the two appellants getting up from their posi tion by the opposite bank of the canal The deceased ran towards the West in the direction where Said Malik Shah and Kher Said P. Ws. had gone, while Nadir P. W. ran back towards the east, and while fleeing from the spot, he heard the reports of 4 or 5 more shots, but he was unable to see as to whether these shots had hit the deceased or not. Kher Said and Said Malik Shah P. Ws. on hearing the reports of the first two shots, saw the deceased coming out of the canal and running towards them. They then saw both the appellants making a debtour towards the deceased, and so the latter changed his direction of flight towards the north. In the meantime, Masal appellant fired a shot at the deceased who was hit and fell on the ground 3/4 paces ahead. The two appellants then went close to the deceased and fired one shot each from a close range, and then ran in the direction of "Shewa Banr" Nadir P. W. went to the spot where Mir Hasham had fallen and found him lying dead. He then, went to, the village from where he brought a cot and placing the injured on it, he was taken to the road side from where his dead body was taken in a tonga to Police Station, Kalu Khan where the report (Exh. P. A.) of Nadir P. W. was recorded by Abdul Hafiz A. S. I. ‑(P. W. 13) on the same day at ‑11 a.m. The two empty shells (Exh. P. 1) recovered from the spot by Nadir P. W, were pro duced by him before the A. S. I., which he took into possession per recovery Memo. Exh. P. F. He prepared the injury sheet (Exh. P. B.) and inquest report (Exh. P. C.) and sent the dead body under the escort of Shamshad F. C. (P. W. 3) to the mortuary for post‑mortem examination. The A. S. I. left for the spot, reaching there at 1300 hours after covering a distance of 3/4 miles. He inspected the spot and recovered from there an empty shell (Exh. P. 2) of ' 12 bore from the field of one Sultan and took it into possession per recovery Memo. Exh. P. H. He took into possession the blood‑stained pair of chappal (Exh. P. 3), belonging to the deceased from the spot per recovery Memo. Exh. P. J. He also picked up another empty shell (Exh. P. 4), of *12 bore, 3 cardboard pieces (Exh. P. 5), four pellets (Exh. P. 6) from the spot per re covery Memo. Exh. P. K. He took into possession the blood stained earth and sealed it in a parcel per recovery Memo. Exh. P. L. He searched the house of Masal appellant from where he recovered and took into possession the shirt (Exh. P. 13) and shalwar (Exh. P. 14) having specks of blood freshly washed vide recovery Memo. Exh. P. S. These clothes were sent to the Chemical Examiner for examination. The report of the Serologist shows that the blood‑stains on the above‑mentioned clothes were disintegrated and their origin could not be determined. Both the appellants appeared before the A. S. I. in the Police Station on 26‑11‑1965, and he took them into custody.

3. The post‑mortem examination on the dead body of the deceased was performed by Doctor Faqir Illahi (P. W. 1) on 19‑11‑65 at 2‑3'J p. m. who found the following injuries:‑ (1) A firearm entrance wound on the left side cheek ' in diameter. Charring round the wound was present. It had gone inside the skull due to which skull bone, parietal and occipital fractured. (2) A firearm entrance wound on the right side of abdomen, above the iliac bone 3/4" in diameter. Charring around was present. (3) A firearm entrance wound on the right lateral side of abdomen, 5' above wound No.

2. The wound was 3/4' in diameter. (4) A firearm entrance wound on the front of abdomen, each 1/4' in diameter. (5) Four firearm entrance wounds on the front of chest, each 1/4' in diameter. (6) and (7) Due to one shot, two on the upper left arm and five on the lateral side of chest each 1/4` in diameter. (8) Three firearm entrance wounds on the left hand and two on the wrist at its back, each 1/4' in diameter. (9) Three firearm exit wounds, two in front of the left wrist. joint and one in front of the left hand, each 1/3' in diameter. (10) Left humerus fractured. On internal examination skull and 9th and 10th right ribs were found fractured. Pleura was injured on both sides and chest cavity was full of blood, besides both lungs, pericardium, heart, blood vessels, abdominal walls, peritoneum, diaphragm, stomach, pancreas, both small and large intestines and liver as well as mem brances and brain injured. Death was due to injury to the lung, heart, liver, intestines and brain, which were badly injured.

4. The appellants, when examined, pleaded not guilty to the charge. They admitted that there was a litigation between Mst. Nawaba, their maternal grand‑mother and the deceased and his brothers, pending in the Court of Civil Judge, Mardan. Explain ing as to why Nadir Khan, Said Malik Shah and Kher Said P. Ws. had deposed against them, they stated:‑ "We have blood feud with Nadir P. W. and the other P. Ws. besides being of doubtful antecedents, are the party men of the deceased family. Feroz Shah, uncle of Kher Said P. W. had appeared as a witness for the defence of Muhammad Amir, Mir Aftab and Mir Hasham deceased in the aforesaid murder case of our father. In this behalf I produced certified copy Exh. D. C. Furthermore, Said Malik Shah and Kher Said and their relations Faqir Said and Feroz Shah had been furnishing sec urity bonds on behalf of deceased and Nadir Khan P. W from time to time. In this behalf I produced certified copies of Bail Bonds Exh. D. D., Exh. D. E.; Exh. D. F., Exh. D. G., Exh. D. H., Exh. D. 1. and Exh. D. J." Explaining their absence from the village, they stated that they bad left their village with their camels for Swat two days before the occurrence and on return they learnt about the charge and voluntarily surrendered themselves at the police station. They concluded that they are innocent and falsely charged.

5. The prosecution examined Nadir Khan (P. W. 9), Kher Said (P. W. 10) and Said Malik Shah (P. W. 11) as eye‑witnesses. The recovery of empty shells, cardboard pieces and pellets from the spot, the abscondence of the two appellants and the blood stains on the clothes of Masal appellant were relied upon by the prosecution as circumstantial evidence, which in the opinion of the learned Assistant Advocate‑General supports the statements of the eye‑witnesses, regarding their presence on the spot at the time of the occurrence.

6. I have carefully gone through the judgment of my learned brother Abdul Ghani Khan, J., and it is with profound respect that I do not find myself in agreement with his observations. The evidence on the record shows that there is enmity between the deceased and the appellants. It was about 8 or 10 years before the occurrence that Mir Ghazan, father of the two appellants was murdered. Muhammad Amir, father of Nadir (P. W. 9), his bro ther Mir Aftab, and Mir Hasham deceased were charged. Of them, the deceased was acquitted while the other two were con victed and sentenced to imprisonment under the F. C. R. by the Deputy Commissioner. It, therefore, follows that the statement of Nadir P. W. who has also enmity with the appellants cannot be accepted without corroboration. It is true that Kher Said (P. W. 10) and Said Malik Shah (P. W. 11) have no direct enmity with the appellants, but they seem to be the partisans of the deceased.

7. A careful perusal of the statement of Nadir Khan (P. W. 9) would show that he was not present on the spot and seems to be a chance witness. At page 35, line 10 from bottom he stated: "It is correct that I had never accompanied my father and uncles including the deceased in the above case for hearing except on the day of occurrence. I came along with the deceased in order to effect‑ compromise with the accused party as was previously agreed upon by all of us." In the first information report, he stated that on reaching Wand Shewa, Kher Said and Said Malik Shah P. Ws. took a different path when in the meantime, the two appellants armed with topaks who had taken up position on the path, suddenly got up and fired one shot each at the deceased who was hit with these shots and took to his heels. The two appellants pursued the deceased and fired more shots at him with which the deceased was also hit who fell on the ground and died instantaneously. It may be pointed out here that according to the first information report, the two appellants emerged from the place of their hiding, which is on the path, and fired one shot each at the deceased who was bit, and then they fired more shots with which the deceased was again hit, although the number of the second round of the shots has not been given. At the trial, be, however, stated that on reaching Asota Canal, the deceased took off his chappals with a view to wade through the canal water, and had put one foot in the canal water when two shots rang out. When confronted with his report (Exh. P. A.), he stated that he had not stated therein that the deceased was hit by the first two shots, fired by the two appellants. He stated at page 36: "Two shots were fired at the deceased while .he was on the brink of the Asota Canal while three shots were fired at him, when he was running for his life. In all five shots were fired by the two accused. The subsequent three shots hit the deceased. Out of the first two shots, one may have hit the deceased but I cannot say whether both hit him or not. It is incorrectly re corded in my report Exh. P. A. that the first two shots hit the deceased and thereafter the deceased ran for his life." The state ment of the witness recorded at the trial would, therefore, show that the first two shots fired at the deceased by the appellants were ineffective, and he was hit with the last three shots, whereas accor ding to the F. I. R., the first two shots were also effective. According to the medical evidence, the injuries on the person of the deceased could be the result of at least six shots, whereas according to the eye‑witnesses, the deceased was hit with the last three shots, which contradicts their statements. Kher Said (P. W. 10) admit ted that a daughter of Said Kalam, who is an uncle of Said Malik Shah P. W. is his wife. Said Faqir is the paternal uncle of Said Malik Shah P. W., whereas Feroz Shah is his (Kher Said) uncle. Mohtasham is a brother of the deceased. He admitted that he and his uncle Said Faqir had stood sureties for Nadir P. W. in 1962, and so it follows that he is a partisan of the deceased and Nadir P. W., said his statement requires corroboration the statement of this P. W. is contradicted 'by the first information' report. He stated that on hearing the two shots, he saw the deceased coming out of the canal and running towards them, and Masal appellant fired a shot at the deceased who fell. The two appellants went close to the deceased and fired one shot each from a close range. The record further shows that he is a man of doubtful integrity. He admitted that he was a history sheeter in Register No. 10 for about 3 or 4 years. He had enmity with certain lumberdars of his village and at their instance he was put in Register No.

10. A report was lodged against him by one Wasif Shah of Kalu Khan, complaining that he (the witness) has sold his step‑mother to him for Rs.

400. Said Malik "Shah (P. W. 11) told the Committing Magistrate "that Masil accused fired the third shot at the deceased when he was running and when he hit him, the deceased still continued running and fell at some distance ahead", but it was not recorded in his above mentioned statement. He also admitted that he stood surety for Mir Hasham deceased in 1962, 1964 and 1965.

8. The examination of the statements of the three eye witnesses would show that whereas Nadir (P. W. 9) has enmity with the appellants and is also related to the deceased, Kher Said and Said Malik Shah P. Ws. are the partisans of the deceased and are always available to the deceased party as sureties, and so in these circumstances, the statements of the three eye‑witnesses require corroboration. The discrepancies pointed out in the statements of the eye‑witnesses would, however, show that their presence on the spot at the time of the occurrence is not free from doubt. The Assistant Sub‑Inspector had recovered four empty shells of ‑ 12 bore from the spot, which were not sent to the Arms K Expert for examination to find out as to whether they were fired from one or more guns, and therefore, it cannot be said with certainty that those four empty shells recovered from the spot were fired from two shotguns with which the two appellants were allegedly armed.

9. Nadir (P. W. 9) deposed that they had left the village to attend the Court of the Civil Judge, Mardan after morning prayers time before sunrise. Doctor Faqir Elahi (P. W. 1) who had performed post‑mortem examination on the dead body of the deceased on 19‑11‑1965 at 2‑30 p. m. was of the opinion that the time between death and post‑mortem' examination was within 9 hours, and so it follows that the deceased was killed at about 5‑30 a. m. Tile doctor further deposed that "Since the stomach was badly injured, I did not find any food contents in it. If the deceased had taken his normal meals at morning, then the contents in his stomach should have been observed by me, provided no damage was done to the stomach. If the stomach was injured as in the present case, the contents would have come into the abdominal cavity. I did not find any solid food contents in the abdominal cavity".

10. Taking the medical evidence into consideration, I have come to the conclusion that the deceased had left his village for Mardan early in the morning so as to reach the Court before 9 a. m. before taking his morning tea long before sunrise. A reference to the calendar would show that s, sunrise on the day of occurrence was at 6‑32 a. m., whereas the report in the Police Station, which is at a distance of 3/4 miles from the spot was lod ged at 11 a. m. It is true that some time was spent in bringing a cot from the village to the spot, which are on mile apart, but then the dead body of the deceased was taken in a tonga to the Police Station which must have taken about half an hour. The statement of the Assistant Sub‑Inspector shows that he took half an hour to reach the spot from the Police Station in a tonga. The delay in making the report has not been explained satisfactorily and from which it follows that the deceased was coming all alone to attend the Court, in the small hours of the morning (because Nadir P. W., as pointed out above, had never accompanied him before to the Court) when he was shot by some unknown person, and on coming across his dead body, his relations after a good deal of deliberation and consultation picked up the appellant falsely on account of the previous enmity.

11. As a result of the foregoing discussion, I would, there fore, accept this appeal, set aside the convictions and sentences of the appellants and acquit them. Since there is difference of opinion between us, the file is to be laid before his Lordship the Senior Judge for nomination of a third Judge. FAIZULLAH KHAN, J.‑ Mazan, aged 38 years, and his brother Masal, aged 26 years, son of Mir Ghazan, residents of village Taja, District Mardan, were convicted under section 302/34, P. P. C. and sentenced to death by Mirza Abdullah Jan, Additional Sessions Judge Mardan, by his order dated 20th September 1966, for the murder of Mir Hasham, aged 45 years, son of Khan Mir, resident of village Jafal, by firing at him with shot‑guns on the morning of 19th November 1965 near Asota Canal. Their appeal against their convictions and sentences as also the murder reference were heard by a Divisional Bench com prising Mian Sbakirullah Jan and Abdul Ghani Khan Khattak, JJ. My learned brother Mian Shakirullah Jan was of the view that none of the three witnesses namely, Nadir Khan (P. W. 9), Kher Said (P. W. 10) and Said Malik Shah (P. W. 11) was present at the time of occurrence, that Nadir Khan (P. W. 9), nephew of the deceased, was an "interested" witness and that the other two eye‑witnesses were "the partisans of the deceased and are always available to the deceased party as sureties." His Lordship pro ceeded to observe:‑ "The discrepancies pointed out in the statements of the eye witnesses would, however, show that their presence on the spot at the time of the occurrence is not free from doubt." The following factors weighed with his Lordship is holding that the three eye‑witnesses were not present at the spot:‑ (1) That there was considerable delay in lodging the report in that the occurrence appeared to have taken place in the early hours, while a belated report was lodged at 11‑00 hours at Police Station Kalu Khan, which was at a distance of 3/4 miles from the scene of occurrence. (2) That the 6 empties, 2 produced by Nadir Khan at the time of lodging the report, and the 4 recovered from the spot by the Assistant Sub‑Inspector, had not been sent to the Ballistics Expert for his opinion whether the empties were fired from one and the same firearm or more than one. In paragraph 10, his Lordship summed up the discussion thus‑ "A reference to the calendar would show that sunrise on the day of occurrence was at 6‑32 a. m., whereas the report in the Police Station, which is at a distance of 3/4 miles from the spot was lodged at 11 a. m. It is true that some time was spent in bringing a cot from the village to the spot, which is one mile apart, but then the dead body of the deceased was taken in a tonga to the Police Station, which must have taken about half an hour. The statement of the Assistant Sub‑Inspector shows that he took half an hour to reach the spot from the Police Station in a tonga. The delay in making the report has not been explained satisfactorily, and from which it follows that the deceased was coming all alone to attend the Court, in the small hours of the morning (because Nadir P. W., as pointed out above, had never accompanied him before to the Court) when he was shot by some unknown person, and on coming across his dead body, his relations after a good deal of deliberation and consultation picked tip the appellant falsely on account of the previous enmity."

2. My learned brother Abdul Ghani Khan Khattak, J. on the other hand while admitting that Nadir Khan (P. W. 9) was an "interested" witness held that the other eye witnesses Kher Said (P. W. 10) and Said Malik Shah (P. W. 11) "were always available to the deceased party to furnish security for them", and "their testimony cannot be safely relied upon for corroborating the evidence of Nadir Khan who is enemy of the appellants". His Lordship further observed "that as an abundant caution the ocular account of all the three witnesses should further be supported by confirm story evidence which undoubtedly is not lacking in the case". His Lordship, however, was of the view that confirmatory evidence of the three eye‑witnesses was supplied by the following factors:‑ "(1) The police officer found at point No. 1 cardboard pieces, pellets, empty shell of 12 bore, and chapplis allegedly of the deceased. The recovery of the pellets indicates that the canal bank was the background of the victim which obstructed the pellets‑and were thus available to the Investigating Officer. This position presents the victim in a posture that he was about to walk across the canal when he was fired at thus leaving behind the chapplis at the canal bank . . This confirmatory evidence affords unqualified explanation of the place where the victim was fired at. It has also pinned down with legal certainty that the incriminating articles at point 1 could not have been the effect of afire from a place other than the one (point 2 in the plan) indicated by Nadir Khan at the spot. If Nadir Khan had been introduced as a false witness the location of the assailants could not have been with as much exactitude as we find in the record of the case. (2) The picking up of the two empty 12 bore shells from near the dead body suggests that he is the earliest arrival to the victim and substantially negatives the suggestion that he may have been informed by some who might have come across the dead body and who chose to remain behind the scene. (3) That Said Malik Shah and Kher Shah P. Ws. were present at the scene of occurrence in that "they have deposed to the same part of the occurrence. 1f they were in fact introduced for supporting falsehood the anxiety of the clever tutor (allegedly) must have ascribed different roils to them i.e. at least to corroborate Nadir Khan P. W". (4) That "the trial of blood along the course of flight and the presence of an empty shell of ' 12 bore in the field explains that the account of these witnesses is an accord with the circumstantial evidence . . . .". (5) That "the witnesses stated that the assailants fired one shot each at the deceased from a charring range, which stands corroborated by recovery of the empty shells from near the dead body". (6) The blood‑stained shirt Exh. P. 13 though not traced to human origin connects Masal appellant with the crime. (7) That the appellants had gone in abscondence and were arrested on 26th November 1965."

3. I have been very elaborately taken through the material evidence and after hearing Mian Ziauddin, learned counsel for the appellants, and Sardar Fakhr‑i‑Alam, Assistant Advocate General, for the State, I respectfully agree with the conclusions reached by Mian Shakirullah Jan, 3. that the case has not been brought home to the appellants beyond reasonable doubt and' that none of the three eye‑witnesses was present at the scene of occurrence. I now proceed to give the reasons which have pre. vailed with me in reaching this conclusion:‑ (1) The facts leading up to this case have been very elaborately and fairly stated by my learned brothers and I need not recapitulate the same in detail, but would content myself by saying that the three eye‑witnesses are not truthful witnesses and they have falsely come forward to depose as eye‑witnesses being interested. All the three eye‑witnesses are chance witnesses in the sense that Nadir Khan (P. W. 9), nephew of the deceased, had no reasons, whatsoever, of accompanying the deceased to Mardan where he was attending the Court of Civil Judge in connection with the civil suit instituted by the two appellants against the deceased, father. of Nadir Khan (P. W. 9), Muhammad Amir, and others. Nadir Khan (P. W. 9) on his own showing admitted that he had never accompanied the deceased or attended the civil Court on any of the previous hearings. The story that he was attending the Court with a view to effecting a compromise does not in the least ring true in that it is on the record that on the day of the occurrence the objections filed by the deceased were dismissed by the Civil Judge. Again, if Nadir Khan (P. W. 9) had accompanied the deceased, it is difficult to believe that the two gunmen should have spared him in that admittedly the motive for killing the deceased is that about 8 years before the occurrence Mir Ghazan, father of 'the appellants, was murdered, and Muhammad Amir father of Nadir Khan (P. W. 9), his brother Mir Aftab and Mir Hasham deceased were charged for the murder, but the deceased was acquitted, while the other two accused were convicted and sentenced under the F. C. R. Nadir Khan (P. W. 9) did not suggest that any attempt was made at his life by the two accused notwithstanding the fact that he was a few paces behind the deceased when the two accused fired one shot each at the deceased while he was crossing the canal. (2) Dr. Faqir Ilahi (P. W. 1), who had conducted post‑mortem examination on the dead body of the deceased on 19th November 1965 at 2‑30 p.m. had opined that the time between death and post‑mortem examination was within 9 hours. The time of occurrence at the earliest would be 5‑30 a. m. The medical opinion reinforces the view reached by Mian Shakirullah Jan, J. that the deceased was going alone and had been shot in the early hours and when the news of his death reached the village, Nadir Khan P. W. and others arrived at the scene of occurrence and then lodged a belated report at Police Station Kalu Khan, at a distance of 3/4 miles from the spot, at 11 a.m. (3) Kher Said and Said Malik Shah P. Ws., as already stated, are partisans of the deceased and they too are chance witnesses and there is nothing on the record besides their bare statements that one Dad Khan of Kalu Khan had in fact died a day before the occurrence and they were proceeding to Kalu Khan to offer condolences. (4) According to the Doctor, the gun‑shot injuries on the deceased had been caused by six independent shots some of which had. been fired from very close range in view of the presence of the charring marks. It is difficult to believe that the assailant or the assailants should have dared firing so many shots at the deceased if he were accompanied by as many as three other persons. It appears that the deceased was all alone and therefore the assailant or the assailants had no fear of being detected and they took things very easy and persisted in the attack. (5) As already stated, as many as six empty shells were recovered, but strangely enough the investigating agency or the prosecution agency did not think it worthwhile to have the opinion of the Ballistics Expert, whether the empties were fired from one firearm or more than one. In case the Ballistics Expert had opined that the empties were fired from two different firearms, that evidence would have furnished very material corroboration of the testimony of the eye‑witnesses,

4. In the result, respectfully agreeing with Mian Shakiruliah Jan, J. I would accept the appeal, set aside the convictions and sentences of the appellants and acquit them. The death sentences are not confirmed. Appeal accepted.