P L D 1964 (W (PLP)

FAIZULLAH KHAN, J.

Said Munir, son of Ahmad Nur, aged 28 years, and Attaullah Khan, sort of Akbar Jan, aged 27 years, of Jangal Khel, were tried (1) under section 302/34, P. P. C. for the murder of their co-villager, namely, Nadar Khan, son of Umar Khan, and (2) under section 307/34, P. P. C., for having effectively fired and injured their co-villager Saifur Shah (P. W. 4) in furtherance of their common intention. Mr. Shaft-ur-Rahman, Sessions Judge, Peshawar, at Camp Kohat, found both the accused guilty of both the charges, and sentenced them to death on the charge of murder and to three years' R. I. each, under section 307/34, P. P. C. Both the accused have preferred a joint appeal against their convictions and sentences, and the case of the appellants is also before us for confirmation of the penalty of death.

2. The prosecution story briefly is that on 27th January 1963, it was first of Ramzan. Nadar deceased, at about noon, went to Saifur Shah (P. W. 4), and asked him to accompany him to while away the time. They went to a place known as "Charbagh" where they found about 12/13 persons, including Said Munir and Attaullah appellants gambling. Said Munir was collecting "Nat" from the gamblers. Nadar won a rupee and according to the custom he had to pay one Anna as a "Nat", and when Said Munir demanded the "Nat" the deceased asked him to wait. This led to an altercation between Said Munir appellant and the deceased, but Saifur Shah (P. W. 4) and others intervened before anything untoward happened between them. After the altercation between the deceased and Said Munir the gambling was given up and some of the gamblers dispersed, while others remained on the spot. The two appellants allegedly went to their houses while Saifur Shah (P. IN. 4) Nadar deceased and some of the gamblers sat on a well near the spot. After about half an hour Said Munir and Attaullah appellants returned, having, respectively, armed themselves with a tamacha and a shotgun. Attaullah raised a lalkara and fired a shot at the deceased which missed him but one of the pellets hit Saifur Shah (P. W. 4). The second shot was fired by Attaullah at which the deceased started running towards the east while Saifur Shah (P. W. 4) ran towards the west. Both the appellant pursued Nadar deceased and fired several shots at him, who after being hit fell to the ground and died.

3. Abdul Marian (P. W. 3) lodged the report Exh. P. A/1 with Sher Rehman Khan, A. S. I. (P. W. 16), at 14-25 hours, when the latter after hearing the shots visited the scene of occurrence. In the report the deponent stated that about half an hour back he and Pilla Khan (C. W. 1) were standing near the shop of Saidiqeen when they heard 3/4 shots in the direction of lands known as Charbagh. On hearing the shots both of them ran towards Charbagh and when they reached near the scene of occurrence they saw in the way Said Munir and Attaullah aliao Talo accused, respectively, armed with pistol and an S. B. shotgun ran-past them. On reaching the spot he saw his relative Nadar alias Dadai lying dead. (The deceased is the maternal uncle's son of the deponent). The deponent further stated that he saw Saifur Shah (P. W. 4) running away towards the Village, who had witnessed the occurrence. When the deponent and Pilla Khan reached the spot they saw their co-villager Naeem Khan, son of Ahmad Jan, who had already reached the spot.

4. At the trial Abdul Marian (P. W. 3) gave substantially a different story from the one reported in the F. I. R. He stated that he went from his house to Charbagh where gambling was in progress. He joined the gamblers who numbered about 10 to

12. The two appellants and the deceased were also participating in the gambling. Munir was collecting "Nal". Munir appellant demanded "Nal" from the deceased who had won, but the latter asked him to wait. An altercation ensured which developed into grappling. They effected separation. The witness and the two appellants left for their houses. The witness proceeded to state that when he reached the shop of Zahir Shah he heard 4/5 shots. He and C. W. Pilla Khan went to the scene of occurrence and saw Munir appellant armed with a revolver and Attaullah appellant armed with a D. B. gun going away from the spot. They found the deceased lying injured with an old man sitting by his side, who did not allow them to come near the injured. The witness then repaired for the Police Post Political Serai for lodging the report, but learnt that the A. S. I. had left for Jangal Khel. He returned to the spot and found the A. S. I. with whom he lodged the report. The witness stated that he "had mentioned that a double barrel gun was with Attaullah. It is incorrectly recorded in Exh. P. A/ that it was a S. B. gun. I had not stated in the F. I. R. that Saifur Shah was seen by me running away from me away from the spot. It is incorrectly recorded that Naeem was present when I reached the spot".

5. Sher Rehman Khan A. S. I. (P. W. 16) after recording the F. I. R. Exh. P. A/1 prepared the injury sheet Exh. P. H. and inquest report Exh. P. 1. of the deceased, and he also prepared the injury sheet Exh. P. K. of Saifur Shah (P. W. 4).

6. Safdar Zaman S. I. (P. W. 15) recovered five empty shells of 32 bore (Exh. P. 3) from the field of Pir Kamal Shah and rook them into possession vide memo. Exh. P. D. He arrested Attaullah appellant on 29-1-63.

7. Doctor Abdul Hakim, Assistant Surgeon, Police Hospital Kohat (P. W. 1), performed the post-mortem examination on the dead body of Nadar on 27th January 1963 at 3-30 p.m., ire a most slipshod and perfunctory manner, in that he did not care to give dimension of the injuries he found on the person of the deceased. The deceased had the following injuries:- (1) Inlet wound on the back at the level of 9th rib, 2 " lateral to the vertebral column. (2) Inlet wound in the chest in the enterior axillary line, 6" from the mid line at the level of 5th rib. (3) Linear bruise, 2" long at the level of 5th rib in the mid-axillary line as a result of outlet wound No. 2. (4) Incised wound on the right side of the chin:- (a) " x 1/8" x superficial. (b) 1/8" x 1/8" x superficial. (c) 1/10" x 1/10" x superficial. (5) Bruise on the right ear near the tragus, 1/8" circular superficial. (6) Bruise on the right temple about " circular. (7) Linear bruise on the right maxillary bone, 1 " x 1/8" x superficial. On internal examination he found the 9th rib posteriorly fractured. Thorax wall.-Inlet wound in the back at the level of the 9th rib, 2 " lateral to vertebral column. Pleura, right lung. Wound corresponding to the inlet wound of the back. Death was caused due to haemorrhage and shock on account of injury to lung. Injuries Nos. 1, 2 and 3 were caused by firearm, injury No. 4 by a sharp-edged weapon and injuries Nos. 5, 6 and 7 were caused by blunt weapon. One pellet weighing 70 grains Exh. P. 9 was recovered from the dead body and was handed over to the police. Injury No. 1 was sufficient in the ordinary course of nature to cause death.

8. Doctor Muhammad Salim, Medical Officer, (P. W. 2) also examined Saifur Shah (P. W. 4) in a perfunctory and slipshod manner, in that he did not care to note the depth of the inlet wound which is said to be caused with a pellet. He found an entrance, wound about J" in diameter on the anterior axillary line on the left side, about 3" from the tip of the shoulder. The nature of the injury was simple and was caused by a firearm.

9. The principal witnesses examined by the prosecution In support of the charge against the appellants are Saifur Shah (P. W.4) and Abdul Manan (P. W. 3). One Nazak (P. W. 5) was also examined as an eye-witness in the case, but he has been disbelieved by the learned trial Court, and the learned A. A: G. does not assail the rejection of his testimony, Pilia Khan and one Sadiqeen were respectively, examined as (C. W. i and C. W. 2). The latter, however, disclaimed know ledge of the occurrence.

10. Saifur Shah (P. W. 4) at the trial deposed that at about 12 the deceased went to him and asked him to roam about to while the time being the first of Ramzan and when they reached Charbagh they found about., 12/13 persons including the two appellants busy gambling. Said Munir appellant demanded "Nal" from the deceased who refused and an alter cation ensued. They, however, effected separation before there was any grappling. The gamblers dispersed. The witness and the deceased and some gamblers sat on the wall, while the appellants left for the village with a few others. After about half an hour Attaullah armed with a topak, arrived. The witness proceeded to state "He fired the first shot at the deceased. Munir accused was also there but I did not notice weapon with him. There were many other people at the spot at that time. I was also injured by a pellet from the shot of Attaullah accused. The 2nd shot was fired by Tilla. The deceased ran towards the east and Iran towards the west. I was injured. I came to the Police Post Jangal Khel and reported the matter. The accused Munir was not armed with a tamacha." At this stage of the examination-in-chief the learned Sessions Judge recorded the following Note:- "The P. P. requests that the statement of the witness recorded in the Commitment Court be transferred to the Sessions file, as there is material departure from his earlier statement. The statement recorded in the Commitment Court is transferred to Sessions file under section 288, Cr. P. C. and it has been read over in open Court and the witness had been afforded opportunity to explain the discrepancy." It is important to observe here that the learned Sessions Judge failed to follow the mandatory injunction contemplated by section 145 of the Evidence Act by not drawing the attention of the witness to the particular discrepancies in his statement before, the committing Court with a view to-explaining and resolving the discrepancies. It is regrettable that the learned defence counsel should have failed to exploit the situation to his clients' advantage by cross-examining the witness on material discrepancies in the committing Court and at the trial with the object of showing that the witness was not worthy of credit. The material discrepancies in the statement of the witness before the committing Court and at the trial may be brought out from the following extract from his statement before the committing Court:- "After half an hour or so the accused came back to the spot. Attaullah Jan was armed with a topak and Munir accused was armed with tamacha. We were still sitting when the accused challenged us. We were sitting on a wall near the graveyard of Muhammad Zaman Khan when the accused challenged us. We then got up and the accused Attaullah Jan fired at us. I was hit with a pellet of the shot and the deceased ran away. Both the accused followed the deceased, who was hit with the fire fired by Attaullah Jan accused, Both the accused then fired at the deceased, while he was running towards the village. I also ran towards the village. The deceased eventually fell down when he was hit again with the shots fired by the accused. In the way I was met by P. W. Abdul Manan and Rafiullah alias Pilla Khan."

11. It would be manifest from the comparison of the statements of Saifur Shah (P. W. 4) before the committing Court and at the trial that this witness gave to Munir appellant a clean bill by stating at the trial that he did not see any weapon with him, while in the statement before the committing Court he had stated that Munir was armed with tamacha, and that both the accused fired at the deceased while he was running towards the village.

12. Pilla Khan (C. W. 1), who is perfectly a disinterested witness and whose presence near the spot is admitted by Abdul Manan (P. W. 3), a close relation of the deceased, deposed that he was present with Abdul Manan "at the shop of one, now known as Zahir Shah", when he heard about 6/8 shots. He and Abdul Manan went towards the spot "and saw Munir accused with a tamucha and found Nadar dead. Attaullah was also present there but I did not notice any weapon with him." It is important to observe here that the P. P. did not cross examine this witness at all, with the result that it would be presumed that the prosecution did not challenge his statement. It may also be observed here that Pilla Khan C. W., did not say if he had seen Saifur Shah (P. W. 4) on the spot. The other C. W. Saidqeen, as already stated, disclaimed knowledge of the occurrence.

13. Both the appellants pleaded not guilty to the charges, Said Munir appellant when asked to explain his absence from the village from 27-1-63 to 1-2-63, he stated that "I am a driver of the truck and I had gone with it." When asked about the recovery of fire-arm from his house, he replied that they were recovered by the police. When asked why he was charged, he stated:- "Saifur Shah P. W. is inimical to me because he used to consume spirit, had no faith in God and once I had turned him out of my bairhak, so he has implicated me,"

14. Attaullah appellant at the trial when asked to account for his absence from the village from 27-1-63 to 29-1-63, stated, "I was at Kohat where I was employed" In regard to the weapons recovered from his house, he said, "these were licensed weapons". When asked as to why he was charged, he stated:-- "I had caught hold of a woman through whom the deceased and Saifur Shah used to deal in a smuggled cloth. The matter was reported to the police and they had been proceeded against and Saifur Shah P. W. and the deceased incurred great loss, cloth and money."

15. Khan Abdul Latif Khan, learned counsel for the appellant made the following four main submissions:- (1) That the statement of Saifur Shah (P. W. 4) before the committing Court could not be read as a substantial evidence for the non-observance of the mandatory provision of section 145 of the Evidence Act under which it was incumbent on the Sessions Judge to draw the attention of the witness to the contradictions with a view to affording him opportunity to explain the discrepancies. (2) That Saifur Shah (P. W. 4) and Abdul Manan (P. W. 3) were not worthy of credit, having been completely discredited, and that Abdul Manan P, W, was not present at the scene of occurrence and that he had falsely come forward to support the prosecution story, being a close relation of the deceased. (3) That Pilla Khan (C. W. 1) was apparently a wholly disinterested witness and he gave a lie to P. W. Abdul Manan as also Saifur Shah in regard to complicity of Attaullah appellant. (4) The learned counsel also doubted if Saifur Shah had received firearm injury. He also made a grievance of the fact that five empties allegedly of 32 bore had been recovered by the S. I. under recovery memo. Exh. P. D. out of which three were of small size and two of large size, but the same had not been sent to the ballistic expert with a view to showing if all the five empties had been fired from one and the same weapon or not. It was argued that the evidence of ballistic expert was material in the case to show if the P. Ws. were giving a correct version that all these five empties were fired from one and the same weapon.

16. Mr. Sher Bahadur Khan, Additional Advocate-General, conceded, and we think rightly, that the transfer of the statement of Saifur Shah (P. W. 4) under section 288 and read as a sub stantial evidence at the trial was vitiated for non-observance of the mandatory provision of section 145, Evidence Act under which the witness had to be given an opportunity to explain or reconcile the alleged discrepancies in his statement before the committing Court. He, however, argued that the case against the appellants had been brought home by the statements of Saifur Shah at the trial and that of Abdul Marian (P. W. 3).

17. In a few cases recently we have noticed with regret that some of the Sessions Judges do not apparently understand or, at any rate, do not adopt the proper procedure for exercising the discretion vested in them under section 288, Cr. P. C. to treat as substantive evidence the previous statement of a witness at the trial. We have also observed that a large number of Magistrates and some of the Sessions Judges do not adopt the proper procedure as contemplated by section 145 for admission and proof of the statements made by a witness before the committing Court duly recorded in writing, including the statement made to the police in the course of investigation. I, therefore, take this opportunity of explaining in some detail the essential of section 288 and the procedure to be adopted by the Sessions Judges in using their discretion under section 288 in transferring the previous statement of a witness and the procedure to be adopted in confronting a witness with the evidence duly recorded either in the presence of the accused under Chapter XVIII of the Cr. P. C. or his statement recorded under section 162 of the Cr. P. C. as envisaged by section 145 of the Evidence Act.

18. It will be convenient here to reproduce section 288, Cr, P. C., which is in the following terms:- "The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may, in the discretion of the presiding Judge, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872." It would be plain from reading the language of the section that the section leaves it to the discretion of the presiding Judge whether or not to admit the evidence referred to in it. The power conferred under the section is in derogation to the genera principle that a Court can only act on the evidence given before it, the decision to let in the previous deposition of a witness under this section should be exercised sparingly after care consideration and only when there are sound and reasonable grounds for such a course. The power should be confined cases where the Judge has reason to think that a witness has de posed truly before the committing Magistrate but is not telling the truth before himself and that it is desirable in the interest of justice that the previous deposition of the witness should be brought on the record of the trial. The provisions of section 288 are not to be pressed into service in cases where there are minor e s where a witness had made a substantial discrepancies. In case departure from his statement before the committing Court at the trial in material particular s, but the Judge thinks that the statement at the trial is more plausible than the one made by the witness before the committing Court, the Judge would not be exercising discretion properly to act under section

288. The object of the Sessions trial is to reduce the danger of witnesses being tampered with between the commitment and trial. The words "be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872," were added to that section by an amendment in 1923. Unmistakably, among, others, one of the main object of treating the previous statement as evidence would be to contradict the statement of a witness) made at the Sessions trial and section 145, which is a part of the Evidence Act, falls clearly within the plain meaning of these words and therefore before the Judge decides to exercise his) discretion under section 288 and treat the previous statement of a witness recorded under Chapter XVIII as substantive evidence he must conform with the mandatory provisions of section 145, namely, that the witness should be afforded a reasonable opportunity of explaining or reconciling the contra dictions. It will be profitable here to read section 145:- "A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved, but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." It will be plain from the language of the section that the first part of the section permits that a witness may be cross-examined as to previous statements made by him in writing, or reduced into writing relevant to the subject-matter of the case without such writing being shown to him. But the latter part of the section which reads:- "-but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." Now, it is evident that one of the main purposes of using the previous statement was to contradict and displace the evidence given before the Sessions Court because until that evidence was contradicted and displaced, there is no room for permitting the previous statement to be brought on record and used under section

288. Therefore when these statements (in the committing Court or previous statement recorded into writing) are not put to the witnesses and their attention is not drawn to them in particular to the various contradictions in the manner required by section 145, the statements are rendered inadmissible and as such cannot be read as substantive evidence. The principle underlying section 145 is drawing the attention of the witnesses to their previous statements is founded on the fair play and natural justice that before a witness can be branded as perjurer it is but fair and reasonable that this attention must be drawn to those parts of statements which are irreconcilable with the statement at the trial with a view to giving him the witness opportunity to explain and reconcile the contradictions if possible. It might be possible in certain cases for the witness to furnish a plausible, explanation of the contradictions if he is given an opportunity to do so. There is yet another reason for the rule of evidence of requiring the witness to be confronted with his previous) contradictory statement and it is that the witness may either deny having made the previous statement in which case he would stand completely discredited, in that he would be guilty of not only taking contradictory statements but also guilty of having committed perjury in denying having made a previous statement. The explanation offered by the witness is to be recorded by the Court which would enable it to make a proper assessment of the credit of the witness. This would also enable the appellate Courts to make a fair and proper appraisal of the credibility of the witness. I think the lucid exposition of the wisdom of this rule cannot be bettered than the one given by the Judges to the question put to them by the House of Lords in 1920 in Queen Caroline's care. The reason of the rule is thus stated in the Queen's case itself: "If it be intended to bring the credit of a witness into question by proof of anything he may have said or declared touching the cause, the witness is first asked, upon cross examination, whether or not he has said or declared that which is intended to be proved. If the witness admits the words or declarations imputed to him, the proof on the other side becomes unnecessary, and the witness has an opportunity of giving such reason, explanation, or exculpation of his conduct, if any there may be, as the particular circumstances of the transaction may happen to furnish, and then the whole matter is brought before the Court at once . . . . . . If the witness denies the utterance or claims the privilege of silence, the proof in contradiction will be received at the proper season. But the possibility that the witness may decline to answer the question affords no sufficient reason for not giving him the opportunity of answering and of offering such explanatory or exculpatory matter as I have before alluded to."

19. So far I have been discussing the question untrammelled by authorities, though there is considerable case-law, including the high authorities of the Privy Council and the Supreme Court on the subject. The first authority from which I would like to extract certain terse observations is the decision of the Privy Council, in Bal Gangadhar Tillakand others v. Shrinivas Pandh and others (A I R 1915 P C 7). Lord Shaw, delivering the judgment for the Board, pointed out that there is no warrant whatsoever for using the previous statement of a witness for the purpose of contra dicting or discounting his evidence "unless the particular matter or point had been placed before the witness as one for explanation m view of its discrepancy with the evidence then being tendered". His Lordship went on to say: "On general principles it would appears to be sound that if a witness is under cross-examination on oath he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary, and intelligible rule, and where a witness's reputation and character are at stake the duty of enforcing this rule would appear to be singularly clear. Fortunately the law of India pronounces no uncertain sound upon the same matter. By section 145, Evidence Act, 1972, it is provided that witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to the matters in question without such writing being shown to him or being proved; but, if it is intended to contradict him by the writing his attention must before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.' Their Lordships have observed with regret and with surprise that the general principle and the specific statutory provisions have not been followed."

20. Their Lordships of the Supreme Court of India in a decision, reported in Tara Singh v. The State (A I R 1951 S C 441) had to consider the proprietary of the transfer of the statement of a witness before the Committing Court under section 2.88 and the essentials of section 145 of the Evidence Act. At page 446, Col. 2, Bose, J. delivering the judgment for the Court, summed up the discussion thus:- A hold that the evidence in the committal Court cannot be used in the Sessions Court, unless the witness is confronted with his previous statement as required by section 145, Evidence Act. Of course, the witness can be cross-examined about the previous statement and that cross-examination can be used to destroy his testimony in the Sessions Court. If that serves the purpose of the prosecution, then nothing more is required, but if the prosecution wishes to go further and use the previous testimony to the contrary as substantive evidence, then it must, in my opinion, confront the witness with those parts of it which are to be used for the purpose of contra dicting him Then only can the matter be brought in as substantive, evidence under section

288. As two of the eye witnesses ere not confronted in the manner required by section 145, their statements will have to be ruled out.

". In Emperor v. Rahenuddin Mondal (A I R 1944 Cal. 323) it was held "If it is desired to use any statement contained in the first information report for the purpose of contradicting the first informant, it is essential that the attention of the witness should be drawn to those parts of the document, which it is intended to use for the purpose of contradicting him, in order that he may be given an opportunity to furnish a suitable explanation with regard to the alleged contradiction." I may also profitably extract the following pithy observations of Edgley, J. in Emperor v. Ajit Kumar Ghosh and others (A I R 1945 Cal. 159). At page 165, his Lordship summed up the position thus: "In our view it is not a proper exercise of this discretion for the Judge to allow the deposition of a witness before the committing Magistrate to be used as substantive evidence in a case unless the party seeking to do so draws the attention of the witness to any part of the previous statement under the provisions of sections 145, Evidence Act, with regard to which any discrepancy may arise or unless the Judge himself puts the necessary questions for the purpose of observing this procedure." Continuing further, his Lordship, observed:- "With regard to the use which the learned Judge made of section 288 of the Code we can only say that he failed to exercise any discretion at all within the meaning of the section and it follows that these depositions must be excluded from the record."

21. I would wind up the examination of the authorities by saying that a Division Bench in Fateh Beg and another v. Crown (P L D 1952 Lah. 275) approved the decision of the Supreme Court of India in Tara Singh v. The State referred to above. S. A. Rahman, J. as his Lordship then was observed, that the evidence recorded by the committing Court cannot be used as evidence under section 288, Cr. P. C. at the Sessions trial unless the witness is confronted with his previous statement as required by section 145 of the Evidence Act. At page 281, his Lordship observed:- "We are, therefore, inclined to hold that as the proper procedure was not followed in the present case by the learned Sessions Judge, the previous depositions of the witnesses should not be treated as evidence in the case. We may add that even if we had been of the opinion that no illegality was imported into the procedure adopted by the learned Sessions Judge, we should have still considered it desirable that the provisions of section 145 of the Evidence Act should have been followed. That course should always be adopted, in fairness to the accused as well as to the witness concerned."

22. It follows from the above authorities that the proper procedure for exercising the discretion vested on the Court under section 288, Cr. P. C. to treat the statement of a witness before the committing Magistrate as substantial evidence is that the Judge should be extremely cautious in applying the section and it is only in very exceptional cases that the statement should be put in only when the witness either entirely resiles from the statement made before the committing Court or when he makes a departure from his previous statement on material particular, and before the statement is treated , as a substantial evidence the Judge must allow the counsel who is incharge of the case for the prosecution or the defence counsel, as the case may be to pointedly draw the attention of the witness to particular parts of the statements in the committing Court which should be marked A, B, C etc. and the witness asked to explain the contradictions, and the answers of the witness duly recorded, and in case the witness does not offer any explanation on particular point the Court should record a note in this regard. In cases where the witness is confronted with the statement contained in the F. I. R. or his statement before the police is the witness denies the particular contradictions then the author of the same is called to prove the same.

23. Since the learned Sessions Judge in the instant case has not observed the mandatory provisions of section 145, the/F statement of Saifur Shah before the committing Court transferred under section 288 is to be ruled out from consideration.

24. Having ruled out the statement of Saifur Shah (P. W. 4) before the committing Court we are left with his statement at the trial in which, as already stated, the witness charged Attaullah appellant having come armed with a topak and "fired the first shot at the deceased. Munir accused was also there but I did not notice weapon with him." The witness also in his statement at the trial in the examination-in-chief categorically stated that "there was no grappling. We separated before grappling had taken place." It is significant to note that the witness altogether omitted to mention the presence of Abdul Marian (P. W. 3) at any stage of the occurrence.

25. Abdul Marian (P. W. 3), as stated earlier, on the other hand, contrary to what he stated in the F. I. R., stated that, he had participated in the gambling and on hearing the shots went towards the scene of occurrence and "saw Munir accused with a revolver and Attaullah accused with a D. B. gun going away from the spot." It will be remembered that the witness categorically denied having stated in the F. I. R. that Saifur Shah was seen by him running away from the spot. He also denied having stated in the F. I. R. that Naeem was present when he reached the spot. He, however, on cross-examination admitted that Pilla Khan was accompanying him. It is also important to recall that contrary to his statement at the trial he had stated in the F. I. R. that Attaullah was armed with an S. B. shotgun, and not D. B.

26. It will be re-called that according to Pilla Khan (C. W. 1) he had seen "Munir accused with a tamacha and found Nadir dead. Attaullah was also present there, but I did not notice any weapon with him." The position which emerges from the statements of Saifur Shah (P. W. 4), Abdul Marian (P. W. 3), and Pilla Khan (C. W. 1), is that according to Saifur Shah, Attaullah alone is responsible for the murder of the deceased and gunshot injuries to him, while, according to Pilla Khan, Attaullah was empty-handed while Munir was carrying a tamacha. According to Abdul Manan (P. W. 3) Attaullah was carrying a shotgun while Munir was carrying pistol. In view of the most conflicting evidence of the three witnesses, namely Saifur Shah, Abdul Manan and Pilla Khan (C. W. 1), it remains to decide whether the prosecution has "proved" the case against the accused beyond reasonable doubt.

27. After giving my anxious thoughts to the case, I have formed the opinion that the prosecution has not been able to make out a case beyond reasonable doubt against any one of the accused. The term "proved" has been defined in section 3 of the Evidence Act as follows:- "A fact is said to be proved when, after considering the matters before it the Court either believes it to exist, or considers its existence so probable that a prudent man ought, tinder the circumstances of the particular case, to act upon the supposition that it exists." It will be manifest from the definition of the term "proved" so as to provide for two conditions of mind; first, that in which a man feels absolutely certain of a fact, in other words "believes it to exist," and, second, that in which, though he may not G feel absolutely certain of a fact, he thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence. Judging the evidence of the three aforesaid eye-witnesses in the light of the definition of the term "proved", I am unable to say that the case against the appellants has been proved beyond reasonable doubt. I now proceed to give reasons. 28. lam inclined to think that Abdul Marian (P. W. 3) has falsely come forward as an eye-witness being the sister's son of the deceased. Saifur Shah P. W's. presence at the spot is proved on account of superficial "fire-arm" injury, but his evidence does not in the least inspire confidence and it is impossible to say whether he is giving a correct version of the occurrence, especially when he had made materially different statement in the committing Court in regard to non-complicity of one of the two accused. I also own to serious doubt if the occurrence took place in the manner stated by him. The story narrated by Saifur Shah P. W. intrinsically does not ring true. For instance, the trouble, according to him, originated over the refusal of the deceased to pay "Nal" but strangely enough Said Munir who may have cause to be annoyed should return after half an hour empty-handed while Attaullah who is not shown by the prosecution to be in any way connected with Said Munir or having taken his side in the altercation between him and the deceased, should return to the spot armed with S. B. or D. B. shotgun and start firing. Saifur Shah (P. W. 4) has shown proverbial disregard for truth. He appears to have either shielded Munir or else he is withholding the truth as to how the incident took place. 'The conduct of Saifur Shah in not lodging the report at Police Post Jangal Khel which was quite at hand at his running away from the spot, and the fact that the F. I. R. was not lodged at his instance are very significant, and reflect his guilty conscience (which did not permit him to lodge a report about the incident in spite of superficial "fire-arm" injury). In the circumstances the reasonable possibility of there having been exchange of fires between the deceased and Saifur Shah P. W. on the one side and the appellants or any one of them on the other side cannot be excluded,

29. I am not able to accede to the argument raised by Khan Abdul Latif Khan that Saifur Shah P. W. had not received any "fire-arm" injury, but I would repeat that the doctor conducted the examination of Saifur Shah in most unsatisfactory manner. I am also not disposed to believe him (doctor) when he says that "a pellet was found in the body and was left there as no damage had been done inside." As already indicated earlier, the entrance wound was about 1/8" in diameter and the doctor omitted to give the depth of the injury, which shows that the wound was superficial and if there was any bullet or pellet it could have easily been extracted with a pair of forceps and would not have been left there. Though the doctor has stated that he found a corresponding tear in the shirt of Saifur Shah P. W, the prosecution has not led any evidence to suggest that the shirt had been taken from Saifur Shah In this unsatisfactory state of the evidence in regard to the injury to Saifur Shah all I can say is that he received a "firearm" injury but it cannot be said whether the same was with a gun or a pistol. In this connection I might mention that the doctor in his examination-in-chief had also described the nature of the injury to have been caused by a "fire-arm".

30. I admit this case has given me a lot of trouble, and in particular I have not been able to resolve the reason why Abdul Marian (P. W. 3), who is so closely related to the deceased, should choose to state contrary to what he had stated in the F. I. R. that Saifur Shah was not seen by him running away from the spot. In case Abdul Manan was present on the scene of occurrence and had also participated in the gambling, he could not have omitted to mention this in the F. I. R. and Saifur Shah was bound to mention this fact in his statement before the committing Court and at the trial. Again, in case he was present he would have immediately run to the Police Post Jangal Khel, which was quite at hand, rather that he should go to Police Post Political Serai which is at quite some distance from the scene of occurrence and then return to the spot having been told that the A. S. I. had gone to the spot. I am not prepared to believe that Abdul Marian went to Police Post Political Serai and having found Sher Rehman Khan A. S. I. (P. W. 16) absent he returned to the spot. Sher Rehman Khan A. S. I. gave a lie to Abdul Manan P. W. on this point, in that he stated in cross-examination. "I only received information that firing was taking place at Charbagh. This information was received by me in Kohat Spring, which is about two furlongs from the spot." It, therefore, follows that Abdul Manan P. W. had not gone to the Political Serai. Again, if the A. S. I. was absent from the Police Post, he (the deponent) could have lodged the report with some other official at the Police Post. Abdul Manan (P. W. 3) in the F. I. R. has stated that Attaullah was armed with an S. B. gun, but at the trial he stated that he was carrying D. B. shotgun. It is, however, interesting to note that under recovery memo. Exh. P. F. a contrary-made S. B. licensed shotgun in the name of Muhammad Akbar, father of Attaullah appellant, was recovered, while a D. B. shotgun in the name of Subedar Ahmad Nur, father of Said Munir appellant, was recovered vide recovery memo. Exh. P. F., and it has not been suggested that any of these fire-arms had been used having smelt of being freshly discharged. It, therefore, follows that none of the two appellants, had used the respective licensed shotguns of their fathers. For all the foregoing reasons, 1 would rule out the evidence of Abdul Marian (P. W. 3).

31. This brings me to the statement of Pills Khan (C. W. 1), who seemingly is a disinterested witness and his statement as compared to P. Ws. Saifur Shah and Abdul Marian, appears to be more plausible in particular in regard to the non-complicity of Attaullah accused. It is important to observe here that the public prosecutor did not care to cross-examine this witness at all, with the result that it is to be presumed that his statement exculpating Attaullah appellant was not challenged by the prosecution. It will be recalled that according to the prosecution's own version the trouble arose over the refusal of the payment of "Nat" by the deceased to Munir and, therefore, Munir alone would have motive for feeling insulted. But if we were to believe Pilla Khan (C. W. 1) that Said Munir was carrying a tamacha we are confronted with the difficulty of reconciling as to how the deceased came about the gunshot injuries. This difficulty can be resolved only by assuming that the tarnacha mentioned by him was a particular type of tamacha made in Darra (T. T.) which fires 12 bore cartridge.

32. One more point needs comment and it is the recovery of five empties allegedly of .32 bore, two of which are of large size and three of which are of small size. In view of the difference in the sizes of the five empties, and in the absence of any opinion of the ballistic expert in regard to the bore of the five empties we cannot accept the words of the Sub-Inspector that all the five empties were of .32 bore. None of the appellants or their respective fathers are suggested to have, any license for any pistol. In the circum stances of the case, without intending to be censorious, cannot help remarking that the prosecution would have been well advised to have obtained the opinion of the ballistic expert whether all the empties were fired from one and the same weapon. In case all the empties had been found to have been fired from one weapon it would have furnished corroboration to the prosecution story that one of the persons concerned in the crime was armed with a pistol. On the other hand, if it had been found that the empties had been fired from two or more weapons this would have given a complete lie to the two eye-witnesses. In the circumstances of the case the omission of the prosecution to have the opinion of the ballistic expert in regard to the five empties provides a valid argument to the learned counsel for the appellants to argue that the reasonable possibility of the deceased party too having fired could not be excluded.

33. For all the foregoing reasons, I hold that the prosecution has failed to bring home charge to any one of the appellants beyond reasonable doubt. I, therefore, accept the appeal, set aside the convictions and sentences of both the appellants, and acquit them. The sentences of death are not confirmed. K. B. A. Appeal accepted.