P L D 1975 Peshawar 131 (PLP)

SHAH NAWAZ KHAN, J.

Kafayatullah son of Matiullah aged about 26 years and Zarifullah son of Sahibullah aged about 42 years caste Afghan, both residents of Nowshera Kalan, District Peshawar, were tried in the Court of Mr. Muhammad Azam Khan, Additional Sessions Judge, Peshawar under section 302/34, P. P. C. for committing the murder of Anar Khan deceased and under section 307/34, P. P. C. for making attempt on the life of P. W. Inayat Khan, both also residents of Nowshera Kalan, in furtherance of their common intention, on the 5th of December 1971 at about 4 p. m. by firing at them with tamachas in Nowshera Kalan. One Inayatullah was also charged along with the two convicts for the same offences, but he died before the commencement of the trial. At the conclusion of the trial both the convicts were found guilty of the offences under sections 302/34 and 307/34, P. P. C. and were convicted accordingly. Accused Kafayatullah was sentenced to death for the murder of Anar Khan under section 302/34, P. P. C. while his co-accused Zarifullah was sentenced to life imprisonment for the said offence. For the offence of attempt on the life of P. W. Inayat Khan both the convicts were sentenced under section 307/34, P. P. C. each to undergo R. I. for three years. This appeal is directed against the said conviction and sentence of the two convicts, while the learned trial Judge has made reference under section 374, Cr. P. C. for the confirmation of death sentence passed on Kafayatullah accused. Criminal revision has also been filed by the complainant party for the enhancement of the sentence of Zarifullah accused by imposing death penalty on him and also for the imposition of fine on both the convicts. This judgment will, therefore, dispose of this appeal and the murder reference as also the Criminal Revision No. 5 of 1974.

2. The prosecution case in brief is that on the day of occurrence, deceased Anar Khan and Anayat Khan (P. W. 8) were returning from the house of their maternal uncle at about 3-30 p.m. When they reached near the hujra of Malik Munir Khan, they came across Saadullah Khan, Muqab and P. W. Wilayat Shah who were standing there. After having formal exchange of words with them, they proceeded onwards. But at a short distance from that place, they saw the two convicts and their companion Inayatullah (since dead), armed with tamachas Zarifullah accused fired a shot at Inayat Khan (P. W.) who was hit on his leg. Kifayatullah and Inayatullah both simultaneously fired shots with their tamachas at Anar Khan deceased who was hit on his back as a result of which, he fell down. Inayat Khan P. W., however, managed to run away from the spot, to escape further harm and entered the hujra of Sher Bahadur. People collected at the spot immediately thereafter and they placed Anar Khan (then alive) on a cot and took him to Police Station, Nowshera Kalan. Some persons also took P. W. Inayat Khan from the hujra of Sher Bahadur to the police station where the deceased himself lodged the F. I. R. in the presence of P. W. Inayat Khan, which was recorded by H. C. Gul Badshah (P. W. 7) as no other senior officer was then present in the police station. The F. I. R. Exh. P. A., was also endorsed by P. W. Inayat Khan, wherein the two convicts and their companion Inayatullah (since dead) were charged for effectively firing with tamachas, in furtherance of their common intention, at the deceased and P. W. Inayat Khan. The deceased also thumb-impressed the F. I. R., whereafter both the injured persons were despatched to Civil Hospital, Nowshera under police escort while the said head constable sent a copy of the F. I. R. after A. S. I. Muhammad Abbas Khan (P. W. 10) who received the same at Nowshera boat bridge whereafter he left for the spot for investigation. The F. I. R. was lodged at 4-25 p.m. wherein it is mentioned that the occurrence took place at 4 p.m.

3. The deceased then alive, but in a critical condition, was examined in Civil Hospital, Nowshera by doctor Syed Johar Shah, Medical Officer Incharge (P. W. 1) on the same day at 4-45 p.m. who found the following injuries on his person :- (1) A firearm wound of entrance 1/3' x 1/3" x cavity deep in the middle of the back, just to the left of the spine. No charring. No exit. (2) Another firearm wound of entrance 1/3" x 1/3" x cavity deep on the lower part of the back just above natal cleft. No charring and no exit. The injuries were dangerous to life and were caused within a duration of 45 minutes with firearm. He also examined Inayat Khan (P. W. 8) on 5-12-1972 at 5-10 p. m. and found the following injuries on his person. (1) A firearm wound of entrance 1/3" x 1/3' x muscle deep on the posterolateral aspect of lower part of leg. No charring. (2) A firearm wound of exit 3/4" x 1/2" x muscle deep on the anterolateral surface of left leg, about its middle about 3 above the level of Injury No.

1. The nature of the injury was simple and was caused with firearm within a duration of one hour.

4. Abbas Khan A. S. I. (P. W. 10), who, as indicated above, on receipt o a copy of the F. I. R. had proceeded to the spot, reached the scene of "occurrence at 5-05 p.m. He then prepared the site plan Exh. P. F. at the instance of Saadullah (not produced as a witness). He made a search for the accused but they were not present. In the mean time Anar Khan deceased succumbed to his injuries in the hospital shortly after he was examined by the said doctor, as aforesaid Doctor Syed Johar Shah (P. W. 1) then performed the post-mortem examination on the dead body of Anar Khan deceased on 6-12-1972 at 8 a.m. upon which the above-mentioned external injuries on the body of the deceased were confirmed. A bullet was recovered from the front wall of the abdomen. On internal examination, walls of the abdomen, stomach, intestines, as well as kidney of the deceased were found injured. In his opinion death of the deceased was due to shock and haemorrhage resulting from the injuries caused with firearm. The post-mortem report Exh. P. D/1 was prepared by the said doctor under his signature which was later proved by him in Court, to be correct.

5. The case was partially investigated by A. S. I. Abbas Khan (P. W. 10) and partly by S. I. Said Ali Khan (P. W. 6). The two convicts and their deceased companion Inayatullah Khan had disappeared after the commission of the crime and had reportedly absconded. Inayatullah was, however, apprehended on 9-12-72 and warrants of arrest under section 204, Cr. P. C. were issued against both the appellants but the same were returned un-served as the accused could not be traced out with the result that proclamation under section 87, Cr. P. C. was issued but to no effect. The two convicts, as stated by Said Ali Khan S. I. (P. W.), were ultimately arrested on 16-2-1973.

6. It may be useful to mention the inter se relationship of the accused as well as of the complainant party and their past enmity which ultimately led to the present occurrence. Both the convicts are inter se cousins and Inayatuilah (since dead) their co-accused, was their uncle. Anar Khan deceased was the aunt's son of Inayat Khan (P. W. 8). Wilayat Shah (P. W. 9) is the Tarboor of P. W. Inayat Khan and the sister of the former is also married to the latter. Sometime before the occurrence, Saadatullah son of Inayatullah uncle and co-accused of the two convicts was fired upon but instead a stranger was hit and killed as a result thereof, for which Naimat Khan and Azmat Khan cousins of Anar Khan deceased were charged and convicted. Perusal of Exh. P. A/2 would show that the F. I. R. in that case was lodged in the police station by Zarifullah one of the present appellants. Perusal of Exh. P. A/1 also placed and proved on record would show that earlier in January 1971, the said Azmat Khan was fired upon and injured, for which offence besides others, the aforementioned Saadatullah was also charged. This leads to the conclusion that strong enmity existed between the parties, hence strong motive for the occurrence.

7. At the trial, out of the eye-witnesses mentioned in the F. I. R. the prosecution abandoned Saadullah, at whose instance the site plan Exh. P. F. was prepared on the spot, as he had been won over by the defence. Muqab Khan was abandoned as being an unnecessary witness. The Public Prosecutor also gave up Mahbub Khan, Fateh Muhammad and Mehr Gul earlier cited as P. Ws. because they were also unnecessary witnesses. Inayat Khan (P. W. 8) who was himself injured in the occurrence and Wilayat Shah (P. W. 9) who was mentioned in the F. I. R. to be an eye witness, were tendered in the witness-box as P. Ws. Out of the remaining witnesses examined on the side of the prosecution, Gul Badshah (P. W. 7) besides recording the F. I. R. Exh. P. A. had also prepared the injury sheets Exh. P. B. and Exh. P. C. of the deceased and Inayat Khan respectively F. C. Maqbul Ali (P. W. 2) was entrusted with the search warrants Exh. P. G. and Exh. P. G/1 against Zarifullah and Kifayatullah accused. He made vigorous search for them but could not find them and was thus obliged to return the same as unserved. He was also entrusted with the task of execution of proclamations Exh. P. G/2 and Exh. P. G/3 (under section 87, Cr. P. C.) against these accused and he affixed copies of the same on the respective residential houses of the accused and returned the originals to the Court concerned. Sher Baz (P. W. 3) is a marginal witness of the recovery memo. Exh. P. E. through which the shirt Exh. P. 1 Sweater Exh. P. 2, jacket Exh P. 3, Banyan Exh. P. 4, all blood-stained and having cut marks and shalwar Exh. P. 5 belonging to the deceased as also the shulwar Exh. P. 6 of Inayat Khan (P. W. 8) and a vial containing a spent bullet (Exh. P. 7) were taken into possession by the Investigating Officer in his presence. Awal Nabi (P. W. 4) had accompanied the deceased (still alive) and P. W. Inayat Khan from the Police station to the hospital. According to him, the deceased later died in hospital. Later he brought Exhs. P. 1 to P. 7 from the hospital and produced the same before the Investigating Officer who took the same into possession vide memo. Exh. P. E. Obaidullah (P. W. 5) a relation of Anar Khan deceased had identified the dead body of the deceased in the mortuary at the time of post-mortem examination.

8. Inayat Khan (P: W. 8) has deposed that he was accompanying the deceased and they were returning from the house of their maternal uncle when they were attacked and fired upon with tamachas by the two accused, put on trial and their companion Inayatullah (now dead). He supported the F. I. R. lodged by the deceased in his presence and further stated that besides some others Wilayat Shah (P. W. 9) had also witnessed the occurrence. Wilayat Shah P. W. has fully supported the narration of P. W. Inayat Khan. The presence of Inayat Khan (P. W. 8) at the time of occurrence on the spot could not be doubted as he was himself injured in the incident and it was a daylight occurrence while in the F. I. R. Exh. P. A. which was lodged immediately after the occurrence Wilayat Shah (P. W. 9) was also mentioned by the deceased to have witnessed the occurrence.

9. Both the accused in their respective statements while admitting previous enmity with the complainant party denied the allegations that they had either murdered Anar Khan deceased or had made an attempt on the life of P. W. Inayat Khan by firing at them with tamachas on the date, time and place of occurrence or to have absconded after the commission of the crime. They pleaded innocence and stated that they have been falsely implicated on account of enmity. Explaining his absence Zarifullah accused stated that on the date and time of occurrence he was in Garhi Habibullah (Hazara) while Kafayatullah in his effort to justify his absence stated that on the relevant date and time be was in Rawalpindi. In support of their alibi they produced three witnesses. Muhammad Naseem H. C. P. S. Garhi Habibullah (D. W. 1) and Syed Pir Muhammad Shah. S. I. (D. W. 2) have stated that on 5-12-1972, Zarifullah accused lodged a report in P. S. Garhi Habibullah at 3 p.m. about the loss of his belongings which was recorded in the Roznamcha. Major Nasir Ahmad (D. W. 3) has stated that on 5-12-1972 Kafayatullah accused was present in Rawalpindi where he signed a contract on behalf of his father who is an enlisted Contractor of the Army, as his attorney. The witness later issued a certificate on 12-12-72 to Kafayatullah accused at the latter's request to the effect that he i.e. accused Kafayatullah was present in his (witness's) office on 5-12-72 from 7-30 a.m. to 3-30 p.m.

10. The learned trial Judge rejected the defence evidence, hence the plea of alibi of the accused appellants and accepting the ocular testimony of P. Ws. Inayat Shah and Wilayat Shah and holding that the dying declaration (Exh. P. A) of the deceased was genuine, be held both the accused appellants guilty of the offences for which they were charged and convicted and sentenced them as aforesaid.

11. Mr. A. K. Brohi, the learned counsel for the appellants while assailing the impugned finding of the learned trial Judge has expressed his doubts about the genuineness of the F. I. R. He maintains that keeping in view the medical evidence, the probability was that the deceased was not capable of making statement when taken to the police station for report. Moreover Anar Khan's statement was recorded by the police under section 154, Cr. P. C. in a conventional manner but H. C. Gulbadshah (P. W. 7) has stated that before recording the report of Anar Khan (deceased) he gave him time to think over as if he was recording his dying declaration. Learned counsel for the appellants took exception to the conduct of Inayat Khan (P. W. 8) who told H. C. Gul Badshah to record the report of the deceased which he would endorse, which means, that he would have endorsed no matter what was stated by Anar Khan deceased. Another objection of the learned counsel for the appellants that the F. I. R. was got thumb-impressed by the deceased and that no explana tion has been offered that he could not sign the same does not carry any weight as it may be that the deceased was not a literate person. Moreover, the perusal of the F. I. R. Exh. P. A. would show that even Inayat Khan (P. W. 8) has thumb-impressed the same. Mr. Brohi's next attack on the conduct of prosecution is that in the F. I. R. as also in the statements of the two eye-witnesses examined at the trial, it is clearly mentioned that the occurrence was also witnessed by Muqab and Saadullah Khan. Moreover Sarzamin whose presence on the spot at the time of occurrence, is mentioned in the site plan Exh. P. F. was the first rather the only person examined on 5-12-72 by the Investigating Officer Abbas Khan A. S. I. (P. W. 10). But none of them has been produced by the prosecution at the trial although by no means they were unnecessary witnesses and no cogent reason has been given by the prosecution as to why they were abandoned. Besides, it is not clear as to why the other witnesses, particularly those mentioned in the F. I. R. were not examined under section 161, Cr. P. C. on the same day i.e. on 5-12-1972 and their examination, as such, was postponed to the following day. Mr. A. K. Brohi, the learned counsel for the appellants, while stressing his point about the doubtfulness of the prosecution version, as presented, also took note of the fact that according to the F: I. R. and the statements of P. Ws. Inayat Khan and Wilayat Shah, accused Zarifullah fired shot injuring P. W. Inayat Khan on his leg from the same position at which he and his co-accused had been seen by the deceased and the eye-witnesses immediately before the occurrence but according to the medical evidence, the entrance wound on the leg of P. W. Inayat Khan was lower than its exit. He argued that it meant that the victim, at the time of occurrence, was at a level higher than that at which the assailant was, which leads to the possibility that the assailant was either in a lying position when he aimed his tamacha at the victim and opened fire or the occurrence took place elsewhere or in, any other manner, than presented. To fortify his argument, he made mention of the inability of the Investigating Officer to find or collect any blood stains from the place where the two victims allegedly received injuries. He maintains that only foot prints, but not blood stains could suffer disintegration because of trampling. He maintains that old enmities and blood-feuds between the parties are admitted, therefore, on facts stated on record, it should have been for the complainant party to take revenge by initiating aggression and not for the accused party.

12. Learned counsel for the appellants argued that Inayat Khan (P. W. 8) in his statement at the trial said that. "Anar Khan deceased reported the occurrence and so did I", which means that he i.e. Inayat Khan (P. W. 8) made a separate report which is not forthcoming and instead there is only endorsement in the F. I. R. that Inayat Khan supports the report of the deceased. Mr. Brohi was critical of the speed with which so soon after the occurrence the matter was allegedly reported to the police. He maintains that it was a daylight occurrence, having taken place in a thoroughfare which might have attracted many people to the spot who must have first procured the cots and then placed the injured persons on the same and then taken to the police station which according to entries in the relevant column of the F. I. R. Exh. P. A. is at a distance of one mile from the scene of occurrence, but strangely enough all these formalities consumed only 25 minutes. He complained that normally it is the delay in lodging the F. I. R. which attracts objection but in this case, the switch button operation also appears to be doubtful. This argument of the learned counsel for the appellants lacks force because the promptness shown as such, instead minimizes the chance of false charge or of cooking the matter.

13. Mr. Brohi wondered if the deceased and P. W. Inayat Khan should have not taken precautions when they saw the accused, their old enemies, armed with pistols and just pass by unalarmed to allow the assailants to fire at them. He also criticized the statements of the two eye-witnesses, relied upon for conviction and maintains that the same are contradictory, discrepant and improbable. He doubted if, as stated by P. W. Wilayat Shah, no one who came to the spot would have asked them about the occurrence, nor they would have told any one about the occurrence, although it was quite natural for those who came to the spot to enquire about the occurrence and for those who were present at the spot, particularly the eye-witnesses, to tell them what happened, unless none knew anything and the matter was constructed thereafter.

14. In the F. I. R. Exh. P. A. the deceased had stated that he was hit on his back with one shot out of the shots fired at him with pistols by Inayatullah (since dead) and Kafayatullah appellant. In the injury sheet Exh. P. B. also, only one injury on the spine of the deceased has been recorded by H. C. Gulbadshah (P. W. 7) but the medical evidence shows that there were two firearm entrance wounds on the body of the deceased. In the opinion of Doctor Syed Johar Shah (P. W. 1), both the injuries on the deceased being of the same dimensions could be caused with the same type of weapon. Mr. Brohi maintains that both these injuries could, therefore, possibly be caused by a single assailant using one and only one weapon, or at the most two, if it is conceded that P. W. Inayat Khan was fired upon by an assailant, other than the one who caused fatal injuries to the deceased but even then, it would be doubtful as to who was the one or at the most the two assailants, when actually three have been charged and in view of the possibility of exaggeration and presence of strong enmity with consequential possibility of false charge against some, at least one, it would be an open question as to who is innocent. It would, therefore, be risky, hence dangerous to record conviction of capital sentence on these grounds. He urged with vehemence that the witnesses, whose statements had been recorded in the Court of the committing Magistrate but who were abandoned, if produced at the trial might have given evidence in favour of the defence and, therefore, inference adverse to the prosecution could be drawn.

15. In support of his argument that the two eye-witnesses examined at the trial being interested persons and of partisan character should have not been relied upon in the absence of circumstances strong enough to remove inherent doubts attached to the evidence of interested and partisan witnesses, learned counsel for the appellants placed his reliance on the judgment of the Supreme Court given in Thoba and another v. The State (PLD 1963 SC 40) followed throughout in Bagh Ali anal 4 others v. The State (PLD 1973 SC 321). Therein it is held that, ocular evidence of interested and partisan witnesses, in order to carry conviction on capital charge,, must be supported by strong circumstances that might remove inherent doubts attaching to such impeachable source.

16. Stressing his point that non-production of the eye-witnesses who had been examined in the Court of the committing Magistrate, at the trial being necessary witnesses would lead to an inference adverse to the prosecution, learned counsel for the appellants placed his reliance on Shah Nawaz v. Lal Khan and 2 others (1972 SCMR 266) wherein their Lordships of the Supreme Court were pleased to observe that an inference adverse to the prosecution could and should be drawn in the case of non-examination of eye-witnesses mentioned in F. I. R., if the circumstances of the case demanded that witnesses should have been examined. Arguing that the prosecution case stands destroyed by its own evidence, learned counsel for the appellants urged that the defence plea of alibi being very forceful should be accepted. In his effort to justify the absence of the accused appellant from Nowshera Kalan, Mr. Brohi referred to the statement of Said Ali Khan S. I. (P. W. 6) who has stated that the accused appellants are working in the Punjab as Contractors. He urged that it could not be stated with any reason that the accused appellants absconded after committing the crime and that they evaded arrest for sufficient time thereafter. But this is not the case of the defence. Zarifullah accused never claimed that he was ordinarily residing elsewhere. Instead his case is that he was a casual visitor to Garhi Habibullah whereto he had gone on 5-12-1972 from Nowshera Kalan, while Kafayatullah accused, according to his own defence, just happened to be in Rawalpindi on the day of occurrence to sign a document of contract on behalf of his father. So the habitual and normal residence of the accused was not and had never been a matter in] dispute and the service of search warrants under section 204, Cr. P. C. and of proclamation under section 87, Cr. P. C. had, therefore, been properly made at Nowshera Kalan at the ordinary place of residence of the accused appellants, in consequence whereof the continued absence of the accused and their evading arrest and hiding themselves from the clutches of law, did amount to abscondence.

17. Learned A. A.-G. who appeared for the State conceded that the prosecution did fail to produce some material witnesses but contended that no adverse inference could be drawn for such failure and in support of his argument he relies on an authority of the West Pakistan High Court reported as P L D 1962 Pesh. 91 wherein it was held that "The defence was at liberty either to examine the abanonded witnesses, as its own witnesses or to have them examined as Court witnesses. The defence, however, failed to avail of either of the two remedies open to it. Therefore, the initial adverse inference against the prosecution was neutralized. Further that such presumption could not be extended to the point that the testimony of such witnesses would necessarily have supported the defence version." In Muhammad Shafi and 3 others v. State (1972 PCr.LJ 292) a Division Bench of the Lahore High Court held that- "non-production of all witnesses by the prosecution does not raise any adverse presumption against the prosecution, when no oblique motive was proved for withholding such witness." In that case the prosecution did not produce two witnesses mentioned in the F. I. R. One was given up as having been won over and other was given up as being not necessary, since he had to give details already given by other prosecution witnesses. In a very recent judgment of the Supreme Court of Pakistan given in The State v. Mushtag Ahmad (PLD 1973 SC 418) it has been held that- "nothing turns on the failure to examine all the witnesses, if on the evidence actually produced in the case the offence with which the accused was charged is brought home to him beyond any reasonable doubt."

18. In the instant case besides the F. I. R. which is being treated as a dying declaration of Anar Khan deceased, two eye-witnesses, namely, Inayat Khan (P. W. 8) and Wilayat Shah (P. W. 9) have been examined from the side of the prosecution. The presence of Inayat Khan (P. W. 8) as indicated above, could not be doubted as he was himself injured in the occurrence which took place in broad daylight on a thoroughfare. The name of Wilayat Shah (P. W. 9) as an eye-witness has been mentioned in the F. I. R. Exh. P. A. which was lodged soon after the occurrence and in the words of Mr. A. K. Brohi rather in a switch button operation. No doubt both the eye-witnesses are inter se related and were also related to the deceased, yet their presence on the spot at the time of occurrence is proved beyond doubt. With respect to the presence of Inayat Khan (P. W. 8) on the spot at the time of occurrence, even Mr. Brohi had no doubt in mind.

19. In Safdar v. The State (1973 P Cr. L J 402) it is held by a Division Bench of Lahore High Court that the mere fact of eye-witnesses being related to the deceased would not by itself be a valid ground in rejecting their testimony even if it suffers from falsehood in some unimportant particulars, if otherwise it could not be shown to have been actuated by enmity or malice. It is further held that recording of conviction of accused person on the evidence of such eye-witnesses consistent in all material aspects and also corroborated by abscondence of accused from village after the occurrence when the accused had a motive to kill the deceased, will be justifiable.

20. It was held in The State v. Noran Shah and another (P L D 1967 Pesh. 274) that- "In a murder case where there is enmity between the parties and the eye-witnesses are related to the deceased, the statements of such eye-witnesses require corroboration. However, for corroboration, it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth." 3n that case the abscondence of the accused from the village for about three days, after the murder was committed, was considered sufficient corroboration of the statements of the eye-witnesses regarding their guilt.

21. In The State v. Aminullah and another (P L D 1972 Pesh. 92), it is held that- "the relationship by itself would not render witnesses "interested" unless they are shown to have some motive for falsely implicating the accused. There cannot be any inflexible rule that the statement of an interested witness cannot be accepted without corroboration." It is further held therein that- "the fact that soon after the occurrence they (accused) had disappeared from the village and did not surrender to the police until after ten days, would show that they had absconded and, therefore, this circumstance would serve as corroborative evidence of the testimony of the eye-witnesses, if at all it needed any corroboration."

22. In the case under appeal, the abscondence of the accused lasted more than 2 months and to be more precise two months and 11 days. Learned counsel for the appellants, as indicated above, has laid great stress on the failure of the prosecution to prove beyond reasonable doubt that during the days of occurrence the accused ordinarily resided in Nowshera Kalan, whereafter it could be determined as to whether they bad absconded or not. It is undisputed that both the accused appellants did not surrender before the police although warrants under section 204, Cr. P. C. had been issued and proceedings under section 87, Cr. P. C. had also been taken against them. It was on 16-2-1973 when they were ultimately arrested by the police as stated by Said Ali Khan S. I. (P. W. 6). Kafayatullah accused, according to the statement of Major Nasir Ahmad (D. W. 3) had applied to him for a certificate to the effect that the former was present in the office of the latter on the 5th of December 1972, from 7-30 a.m. to 3-30 p.m. and that in fact the witness did issue the required certificate (copy Exh. D. W. 3/2). This shows that; Kafayatullah accused was fully aware of his involvement in this case and it was in his effort to procure evidence for his alibi that he needed such, certificate. The certificate was issued to him on 12-12-1972, yet he did not care to present himself before the police. Zarifullah accused1C according to Said Ali Khan S. I. (P. W. 6) had produced a copy of a, report purportedly lodged on 5-12-1972 in Police Station Garhi Habibullab by the said accused. It is not clear as to when it was produced butt what could be gathered from the statement of P. W. Said Ali Khan S. I it must have happened either before or after 12-12-1972 up to 18-12-72 when the D. S. P., Nowshera was In-charge of the investigation, whereafter the said S. I. resumed the charge of the investigation which means that Zarifullah accused appellant was also aware of of his involvement in this case for which he was trying to procure evidence to prove his alibi. Even actual arrest of the accused appellants on 16-2-73 appears to be doubtful because the record of the case shows that Kafayatullah and Zarifullah accused appellants had secured bail before arrest from Sessions Judge Peshawar on 5-2-73. Under the circumstances the factum of abscondence of the two accused is clearly established which betrays their guilty conscience. Therefore, the ocular evidence recorded in this case is fully supported by this strong circumstance, besides the dying declaration of the deceased.

23. There is complete consistency in the statements of Inayat Khan (P. W. 8) and Wilayat Shah (P. W. 9) on material facts. Some discrepancies in the evidence of the eye-witnesses in respect of some unimportant matters which to our mind are superficial would not be sufficient to discard their, evidence. On receipt of a copy of the F. I. R. at Nowshera Boat Bridge A. S. I. Abbas Khan (P. W. 10) proceeded straight to the spot reaching there at 5-05 p.m. It was the time when Anar Khan deceased expired in hospital and Inayat Khan (P. W. 8) the other injured person was under medical care in hospital and Wilayat Shah (P. W. 9) was with the deceased and P. W. Inayat Khan and the fact that the Investigating Officer was obliged to prepare the site plan Exh. P. F. on the spot at the instance of a person other than those mentioned in the F. I. R. as eye-witnesses indicated that the Investigating Officer had not taken alongwith him any eye-witness to the spot. Moreover the accused had gone in hiding and the primary concern of the Police should have been to apprehend them. In these circumstances the failure of the Investigating Officer to record the statements of the witnesses under section 161, Cr. P. C. on the same day i.e. on 5-12-1972 should not lead to an inference that probably none had witnessed the occurrence and that the matter was constructed afterwards. In Mehr Ali and others v. The State (1968 SCMR 161) the Supreme Court held with majority view that- "the mere fact that these witnesses were examined on the next day, will not throw any doubt as to their presence at the time of occurrence."

24. In the case under appeal, so far as Inayat Khan (P. W. 8) is concerned, he completely endorsed the report Exh. P. A. of Anar Khan deceased So far as Wilayat Shah is concerned his name had been mentioned in the F. I. R. to be an eye-witness of the occurrence. Under the circumstances the examination or not of P. W. Inayat Khan or P. W. Wilayat Shah on 5-12-1972 by the police under section 161, Cr. P. C. would not have made any difference.

25. In the matter of contrasting the wound of entrance on the leg of P. W. Inayat Khan with that of exit, several factors are required to be taken into consideration, e.g. whether the shooter was standing, lying or kneeling and as to whether the victim was in a similar or different position. The direct evidence is to the effect that both the assailant and the victim were in the standing position, hence in the same position at the relevant time. Generally a bullet fired from a firearm has a tendency to continue in a straight line from the point of entrance to the point of the wound of exit. But very frequently such wound is not straight but curved and in the opinion of Doctor Taylor contained in his book entitled: Principles and Practice of Medical Jurisprudence, the reason for such wound being not straight but curved is that the missile is deflected from its original course by slightest obstacles such as bones etc. Further that the deflection of projectiles may occur not merely when they come in contract with bone, but when they meet skin, muscles, tendons or membranes; the bullet then takes its course in the spaces between these different structures. In a particular case, as reported therein, a bullet which entered at the ankle had been known to make its exit at the knee; and another which entered at the back of the left shoulder, passed around the inside of the scapula and was found below the right ear.

26. As indicated above, the accused appellants produced three witnesses in defence. Two gave statements in favour of Zari fullah and one in favour of Kafayatullah accused. Muhammad Naseem H. C. (D. W. 1) stated that at mad No. 21 of Roznamcha there is a report of Zarifullah son of Sahibullah caste Afghan, aged 40/42 years, resident of Nowshera Kalan, Mohallah Bara Kheh This report was entered on 5-12-72 at 3-00 p.m. Copy of the report is Exh. D. W. 1/1 which shows that this accused lodged a report in P. S. Garhi Habibullah (Tehsil Mansehra) to the effect that he had lost a purse which contained Rs. 350 in currency notes and some other articles of no particular value and also a chaddar worth Rs.

45. He did not charge any one for the theft of the same. Therein he is also shown to have stated that he had never before visited Garhi Habibullah and that he had come from Nowshera on that very day with a view to enter into a transaction about the purchase of a bus from Syed Gulab Shah and Abid Hussain Shah of Pagla. H. C. Muhammad Naseeem (D. W. 1) in his cross-examination admitted that the report of zarifullah accused was not entered in the register of F. I. R. which was available in the police station at the relevant time. Further that on the basis of that report no case was registered. He also admitted that the pages of the Roznamcha on which such reports are entered do not bear any serial number and that even plain papers could be added to the Roznamcha for the needful. Sayed Pir Muhammad Shah S. 1. (D. W. 2) deposed that on 5-12-1972 he was posted to Police Station Garhi Habibullah. He knew Zarifullah accused who made a report in that police station on 5-12-1972 in his presence which was recorded by the Moharrir in the "Roznamcha". 1n cross-examination he admitted that earlier he had remained posted to P. S. Nowshera Cantonment. He also admitted that he did not investigate that incident nor Zarifullah accused came to the police station after getting his said report recorded, meaning thereby that the said accused did not care to enquire about the recovery, if any, of his loss, thereafter. Major Nasir Ahmad (D. W. 3) appeared in support of the plea of accused Kafayatullah that the latter was in Rawalpindi on the date and at about the time of occurrence. According to this witness, accused Kafayatullah was in his office at Rawalpindi on 5-12-1972 to sign a contract on behalf of his father who is a listed contractor. Placed on record is the photostat copy of the "MES Con tractor's Order Sheet", maintained in the office of the Garrison Engineer/ S. D. O. It is Exh. D. W. 3/l. It purportedly contains the signature of Kafayatullah dated 5-12-1972 with respect to a petty contract of the value of Rs. 444 only. Also placed on record is a photostat copy of the certificate dated 12-12-1972 issued by D. W. 3 in favour of Kafayatullah accused which is to the effect that Kafayatullah accused was present in the office of S. D. O. B&R II-East Rawalpindi Cantt on 5-12-1972 up to 15-30 hours. Major Nasir Ahmad (D. W. 3) admitted in his cross-examination that since his arrival on 15-8-1971 to work at the present assignment, no other contract has been given to Kafayatullah accused. He also admitted that no register or roll call or any record is maintained in their office about the presence of any contractor on any day.

27. The learned trial Judge disbelieved the defence evidence of Zarifullah accused by holding that the report in the daily diary was most probably fabricated after the occurrence by S. I. Syed Pir Muhammad Shah (D. W. 2) who might be having connections with the accused, having served in Nowshera, with a view to create evidence in favour of the said accused and save him from the clutches of Law. He also rejected the defence evidence of Kafayatullah on the same ground and in particular he took exception to the conduct of D. W. 3 (Major Nasir Ahmad) who even after leaving the witness-box at the conclusion of his statement, did not stop, but went on saying even while leaving the Court as observed by the learned trial Judge, that he had himself seen the accused in his office. This betrays his partiality hence his out of routine interest in accused Kafayatullah. It may be pertinent to point out that certificate (Exh. D. W. 3/2) was prepared and signed by S. D. O. and the same was countersigned by this witness, but the witness in his own statement in examination-in-chief has categorically stated that when Kafayatullah accused applied on 12-12-1972 for the required certificate, the witness made necessary verification from his subordinates and then issued the original of Exh. D. W. 3/2. This shows that had he himself seen Kafayatullah accused in his office on 5-12-1972 as he is now so definite about that fact, there was apparently no need for seeking verification and he being quite sure about the relevant fact of recent occurrence could on his own issue the required certificate. Instead, this witness got that certificate prepared and signed by the S. D. O. and then countersigned the same himself. Under the circumstances, the concerned S. D. O. would have been a more appropriate witness to testify the said fact but probably the accused being conscious that the S. D. O. might not be prepared to state on oath which he would not believe to be true, preferred to produce Major Nasir Ahmad instead, who by the conduct exhibited, has proved himself not to be a dis interested witness, hence not qualified to be believed much less relied upon.

28. Strangely enough Zarifullah accused also felt obliged to lodge a report in P. S. Garhi Habibullah on the same day and at about the same time when the occurrence took place and that too with respect to a matter for which, in normal circumstances, he should have not felt the necessity of lodging a report with the police, more so when he was not charging any body for theft and also when he had no intention to pursue the matter. Moreover it does not appeal to reason that he would have gone from Nowshera Kalan to Pagla in Mansehra Tehsil to negotiate for the purchase of a bus with only a paltry sum of Rs. 350 on his person. And was it just a coincidence that on that very day and only a few hours before the tragedy occurred Inayatullah (now dead) a co-accused of the appellants with the same accountability was able to secure admission in a hospital other than the one whereto the deceased and P. W. Inayat Khan had been taken for medical care, to be able to repel the direct charge of his involvement in the crime as deposed to by the said two eye-witnesses and as also stated so in the dying declaration of the deceased. The above discussion would, therefore, lead to an irresistible conclusion that the crime was perpetrated in a well-planned manner and, therefore, we have no hesitation in agreeing with the finding of the learned trial Judge that the defence evidence is fabricated and is the result of concoction attempted upon to save the accused persons from the clutches of Law. Even the effect, if any, of such attempt was nullified by the accused by their own subsequent conduct in continuing to remain in abscondence to evade arrest which fact betray their guilty conscience, sadly reflecting on their bona fides.

29. Discrepancies in the statements of the two eye-witnesses, taken note of by the learned counsel for the appellants touch upon very minor differences in the depositions of the two eye-witnesses, hence superficial. It is obvious that in the situation like this and under the circumstances stated on record, neither Inayat Khan P. W. nor Wilayat Shah P. W. could possibly tell the exact distances of the relevant points shown in the site plan. P. W. Inayat Khan as indicated above had endorsed, without any reservation, the F. I. R. lodged by the deceased and therefore, by stating that he had stated this or that in the F. I. R. he was certifying what was mentioned by the deceased in the F. I. R. which he had also endorsed and not that he was admitting that he had made a separate F. I. R. as such there was no contradiction in his statement on that score.

30. As indicated above, in his F. I. R. Exh. P. A. which is being treated as dying declaration, the deceased has charged both lnayatullah and Kafayatullah accused for simultaneously firing at him but his added that he was hit and injured on his back with one of those shots. But P. W. Dr. Syed Johar Shah had found two entrance wounds caused by firearm on the body of the deceased, both quite close to each other. Since the deceased was subjected to simultaneous fire, it might have created an impression in his mind that he had received only one injury. But as observed in Mehr Ali and others v. The State (1968 SCMR 161) the power of observation of a person under attack might not be so precise as of others witnessing attack. In the instant case both the eye-witnesses have stated that &afayatullah and Inayatullah both fired at Anar Khan deceased with their tamachas and injured him. Therefore, the above inconsistency is not of much significance. It is also possible that H. C. Gul Badshah (P. W. 7) who prepared the injury-sheet of the deceased (Exh. P. B.) wherein he erroneously mentioned only one injury on the back of the deceased, might have been instrumental in giving such impression to the deceased. Moreover Anar Khan deceased being then under extreme mental and physical stress and strain and being in a critical condition might have not been able to give full details while lodging F. I. R. In that view of the matter, we do not think that this discrepancy is of any significance.

31. In the result of the above discussion, we have come to the conclu sion that on the evidence on record, the guilt of both the accused appellants under sections 302/34 and 307/34, P. P. C. is proved beyond any reasonable doubt. We consequently uphold their conviction. As to/ the question of sentence, we are of the view that the capital punishment awarded to Kafayatulluh accused-appellant under section 302/34, Y. P. C: is, under the circumstances, a normal penalty required to be imposed on him. We, therefore, confirm death sentence awarded to Kafayatullah accused-appellant. As to the sentence awarded to Zarifullah accused appellant under section 302/34, P. P. C. we are of the firm view that undoub tedly this accused had acted in common concert with his co-accused Kafaya tullah and Inayatullah (since dead), but according to the F. I. R. as also according to the statements of the aforementioned two eye-witnesses, Zarifullah accused was the first to open fire and his target was Inayat Khan P. W. who luckily escaped death, although he was injured. Zarifuliah accused, according to the evidence on record did not fire a second shot. In these circumstances, the imposition of lesser penalty provided by Law on Zarifullah accused was not unjustified. We, therefore, maintain the conviction and sentence of both the accused appellants on both the counts. Consequently, this appeal is dismissed. The revision petition is also dismissed to the said extent. However, under section 544-A of the Cod of Criminal procedure, the accused on conviction as such, were also t be burdened with payment of compensation to P. W. Inayat Khan as also to the heirs of Anar Khan deceased. The learned trial Judge has failed f to comply with these mandatory provisions of Law and he has not recorded any reason for not so doing either. We, therefore, direct that Rs. 2,500 shall be paid to Inayat Khan P. W. and Rs. 5,000 to the heirs too Anar Khan deceased by way of compensation to be recovered from the convicts in equal share which is to be regarded as an additional sentence of fine imposed on the accused-appellants. S. A. H. Appeal dismissed.