1969 P Cr (PLP)

As regards the shooting, be said that Raza Khan fired the first shot, and Akram fired the second shot, and that Fazali Raziq was hit by the first shot, and fell down. It was not said that any shots were fired at Fazali Raziq by Badshah or Gul Rahman. In this respect, Abdul Wahab improved upon the report in his evidence for he said that all the four fired; Raza Khan fired first and then the other three fired in a volley at Fazali Raziq. There was an alteration also in another respect. As regards the weapons, he said that all the four mere were armed with rifles and shot‑guns but he could not see which had a gun and which had a rifle. In cross‑examination he admitted having said in the report to the police that Raza Kh,.m had a D. B. shotgun and Akram, had a S. B. shotgun, but said that the statement in that report that only two persons had fired was not correct. Two other eye‑witnesses gave evidence namely Behram. (P. W. 6), brother to Fazali Raziq's wife, and Tilla Mohd. Both these persons belong to another village, and are friends to each other. They were attracted to the spot by shouts that Abdul' Wahab was being murdered, and were a few paces behind when Fazali Raziq was shot. Behram's statement at the trial was that he could not say whether Raza Khan had a shotgun or a rifle but it was proved that to the police he had said that Raza Khan and Akram had shotguns while Badshah and Gut Rahman had rifles. His statement at the trial that Raza Khan fired first and hit Fazali Raziq was proved to conflict with his statement to the police that all the four men fired at once and he could not say whose shot hit Fazali Raziq. Tilla Mohd. declared unequivocally that all the four men fired simultaneously. Neither at the trial nor to the police did he give any detail regarding the kind of fire?arm carried by each of the accused persons. The value of this evidence has to be tested against the circumstance that the deceased Fazali Raziq was hit by no more than single bullet which went through his head from the front to the back. The distance between Fazali Raziq and the four alleged gun‑men has been estimated to be only 27 feet. It is unlikely that at that range, any of the gun‑men could have wholly missed Fazali Raziq, and this would certainly be more true of those who used shotguns than of those who used rifles. The complete absence of pellet wounds on the person of Fazali Raziq therefore furnishes a strong indication of falsity in the prosecution evidence. Falsity also appears through the absence of mention in the detailed initial report of the firing of any shots by Badshah and Gul Rehman, the two men who were specifically stated to be carrying rifles. The learned Judicial Commissioners who were dealing with an appeal by all the four accused persons against convictions under sections 302/34, P. P. C. and 394, P. P. C. give effect to the doubt thus created by acquitting Badshah and Gul Rahman. They thought that Abdul Wahab's injuries which were four contused wounds, a contusion and an abrasion, all of very small dimensions, could not have resulted from an attack by four persons using guns. That is apparently the ground for their acquitting Badshah and Gut Rahrnan of the charges under sections 323/34 and 394/34 as well. Their judgment clearly shows that they placed a high degree of reliance upon the First Information Report. They have observed that in that report, Abdul Wahab had said that Raza Khan fired the first shot which hit Fazali Raziq, and "Akram fired the second shot, though, ineffectively". They referred to Behrams's statement at the trial that "it was Raza Khan's first shot which hit the deceased and felled him down", and as regards Behram's further statement that all the other accused persons also fired at Fazali Raziq in a volley, they found that it was disproved by the presence of only one injury on the body of Fazali Raziq. Their conclusion is set out in the following words :‑ "Keeping in view Behram's statement in Court and that of Abdul Wahab in the F. I. R., we think that Raza Khan alone was guilty of the murder of Fazali Raziq." The learned Judicial Commissioners were not unaware of the clear statement in the First Information Report, upon which they were relying, that Raza Khan had a shotgun. They were aware also that there were no pellet marks on the dead body, but only a bullet wound caused clearly by a rifle shot. They have overcome this difficulty in the following manner. Finding that a great deal of the evidence was patently false, they have preferred to rely upon their own belief of what happened, as will appear from the following passage:‑ "We feel convinced that what really happened was that Abdul Wahab P. W. was peacefully going in front of the Hujra of Abdul Rauf, when Akram and Raza Khan met him by chance. Their presence in the Hujra of Abdul Rauf was natural because the latter happens to be their maternal uncle. They were annoyed with Abdul Wahab P. W. on account of the report having been made on the previous day, and their maternal‑uncle Khalilur Rehman having been arrested by the police and kept in the lock‑up for the night. Trey did not mean any harm to Abdul Wahab P. W. but just wanted to teach hire, a lesson. So they caught hold of him, brought him into Hujra, and deprived him of the shotgun and the bandolier which he had in his possession. Abdul Wahab's shouts and cries, which he must necessarily have raised, when he was being beaten and deprived of the fire‑arm, attracted Fazali Raz?iq deceased to the spot. Seeing him corning, Raza Khan either Faith the shotgun which he had snatched from Abdul Wahab ;

2. W., or with another shotgun or rifle fired a shot at him and filled him outright." On this basis, the conviction of Akram Khan under section 302, P.P.C was set aside, but the convictions of both Raza Khan and Akram Khan under section 394, P. P. C. were maintained, the sentences being materially reduced. Raza Khan's conviction under section 302, P. P. C. and the sentence of transportation for life were maintained. The variation between the above account of "what really happened", and the statements of the eye‑witnesses in the case, are many and obvious. It is to be regretted that the learned Judicial Commissioners could not have made their conviction as to "what really happened coincide more nearly with the testimony before them. For, it must be observed, and with emphasis, that the duty before them was to decide the case on the judicial evidence and not on personal beliefs. Their belief that Raza Khan fired either with Abdul Wahab's shotgun or with another shotgun or with a rifle, is supported by the evidence only to the extent that Raza Khan's shot was fired with the gun that he himself had been carrying from the outset, which was a shotgun. There is no evidence whatsoever to show that Raza Khan used Abdul Wahab's shotgun, and ever if there were, the difficulty created by the nature of the single injury on the dead body would not have been overcome. Unless it was shown, not by conjecture but by evidence, that Raza Khan came into possession of a rifle, the belief of the learned Judicial Commissioners that he fired the first shot would not suffice to make him liable for killing Fazali Raziq. There is no evidence whatsoever to indicate that Raza Khan, having initially been armed with a shotgun, seized a rifle from anyone else, and fired at Fazali Raziq with the rifle. In the circumstances, there being evidence to show that some of the alleged assailants had rifles, and there being statements at the trial by each of the three prosecution eye‑witness that these riflemen also fired at the same tune, the possibility cannot be overlooked that the death of Fazali Raziq resulted from a shot fired by one of these rifle‑men. There is consequently a doubt created of a very tangible character regarding the liability of Raza Khan for the death of Fazali Raziq. In view of the further finding of the learned Judicial Commissioner that there was no pre‑concert or plan among the accused persons to commit the crime of murder, but that Raza Khan's act was an individual act performed on the spur of the moment, there is no question of applying any form of constructive liability to him. In the circumstance, the conviction of Raza Khan under section 302, P. P. C. cannot be sustained. As regards the conviction under section 394, counsel for the petitioners was not able to challenge it on any cogent grounds. There is ample evidence on the record to support the conviction of each of the appellants in respect of the assault made upon Abdul Wahab and the snatching away of his fire‑arm. The mere act of Badshah in delivering this weapon and the bandolier to the police station about half an hour after Abdul Wahab's report of murder had been registered does not suffice to avoid the conclusion that the fire‑arm was taken away with the object of causing wrongful loss to Abdul Wahab. It is quite clear that considerable force was used in the process. We accordingly allow the appeal of Raza Khan against his conviction under section 302 and acquit him of that charge. The conviction and sentence of the two appellants under section 394 are maintained. Appeal accepted.