1974 P Cr (PLP)

4. The Investigating Officer on reaching the spot took possession of the bloodstained earth from three separate places where the injured persons had fallen. He also took possession of two 32 bore cartridges from near the spot.

5. The appellants were arrested on 31st of July, 1969, from their house by Syed Nasir Bedar Elahi (P. W. 19) S. H. O. Police Station Sangjani. On 4th of August, 1969, Fazal Elahi led to the recovery of his licensed pistol from his house which was taken into possession vide memo. Exh. P. N. This recovery was deposed to by Bashir Ahmad (P. W. 12) and Syed Nasir Bedar Elahi. On the same day Muhammad Yaqub led to the recovery of pistol of 303 bore with empty P. 5 in its chamber which was taken into possession vide memo, Exh. P. B. Haider Hussain Shah (P. W. 111 and Syed Nasir Bedar Elahi (P. W. 19) deposed to this recovery. According to Mr. Gulsher Muhammad Malik (P. W. 10) who examined the weapons and the crime empties P. 1 and P. 2 found from the spot, the empties had been fired from the recovered from Fazal Elahi. The crime empty found in the pistol recovered at the instance of Muhammad Yaqub appellant was found to have been fired from .303 bore pistol. The chemical examination showed that the earth collected from the three places was soiled with human blood.

6. The evidence of motive is deposed to by Fazal Elahi (P. W. 14) and Abdur Rashid (P. W. 15). It was stated by these two witnesses that Fazal Elahi appellant and his son were unhappy because of the fact that 6 Dost Muhammad had also started competing with them by opening a utensils shop two months before the occurrence. This shop was mainly opened for training Abdur Rashid P. W. in the trade. Four days before the occurrence there was a quarrel followed by grappling between Abdur Rashid, his father Dost Muhammad and his brother Shabzada on one tide and the three appellants on the other as both sides were openly soliciting customers and trying to persuade them to make purchases from their respective shops. Fazal Elahi P. W's. shop is opposite the shop of Dost Muhammad and only one shop intervenes between his shop and that of his name‑sake who is the appellant before us. He appears to us to be a completely independent and natural witness. All that was brought out in cross‑examination from him is that there was enmity between the Kashmiris and Syeds of Taxila. But that is besides the point as the appellants are Mochis by caste. The prosecution has not alleged any other motive. We think that the motive has been amply proved by the prosecution.

7. The ocular testimony comes from the mouth of Abdur Rashid (P. W. 15), Noor Elahi Bhatti (P. W. 16) and Muhammad Saleem (P. W. 17). Abdur Rashid P. W. is the son of Dost Muhammad deceased. Noor Elahi P. W. is a Bhatti by caste while Muhammad Saleem P. W. is a Kashmiri. It appears from the cross‑examination of the prosecution witnesses that the case of the defence was that one Mir Abdur Rehman who was a very influential person and was related to Dost Muhammad deceased had been responsible for engineering the case against the appellants. This relationship was denied by the witnesses and there is nothing on the record to substantiate the pica of the defence that Abdur Rehman had any interest in engineering the case against the appellants. No sugges tion was made to show that. Abdur Rehman had any enmity with the appellants. It was also the case of the defence that there was bad blood between the Kashmiris and the Syeds of Taxila and there being a grim background of enmity between these two tribes, the Syeds had committed the murders but the appellants who are Cobblers by caste have been roped in. It need not take us much time to reject this plea because there is no material on the record to substantiate this plea of substitution.

8. The occurrence took place in the broad daylight and there being no previous background of enmity between the parties except the trivial quarrel which took place between them four days before the occurrence dug to soliciting of the customers on both sides, it cannot be said that the eye‑witnesses produced at the trial can be termed as interested in to sense in which we understand this word in legal parlance. All the three witnesses are the natural witnesses. Noor Elahi has his shop in the same bazar and he saw Shahzad Khan deceased passing in front of his shop followed by Yaqub appellant. He also saw Fazal Elahi and Matloob proceeding towards that side. He fully corroborates the prosecution story deposed to by Abdur Rashid. I was suggested to him that one Dadu 'The witness expressed ignorance about the fact maternal uncle of his father disowned any knowledge about the abduction of the wife of Feroze Chaukidar or the relationship of Dadu with Fazal Elahi appellant. The cross‑examiner was at pains to show, that this witness had some affiliation with Kashmiris and it was suggested to him that he was serving with Bashir Ahmad P. W. who runs a tailor's shop. The witness denied the suggestion and asserted that he was running a tea shop and was occupying an evacuee property allotted in his name. Nothing material was urged to persuade us to look at the evidence of this witness with suspicion.

9. Muhammad Saleem (P. W. 17) is of course a Kashmiri but his merely by being a Kashmiri is not enough in itself to hold that he is a partisan witness. He has his shop at a distance of 4/5 yards from the place of occurrence and is again a natural witness of the occurrence. The only slight contradiction, in his evidence is that he stated at the trial that Qayyum had received all the three shots before he fell down but before the Committing Magistrate he had said that Fazal Elahi and Yaqub accused fired one shot each at Qayyum who had fallen down. This witness had not accompanied Qayyum to the hospital. He is not related to the deceased and was not expected to do so. He is a Graduate and was preparing for his M. A. Examination during the days of the occurrence.

10. The material part of the cross‑examination of Abdur Rashid P. W. is about the locale of injuries and the distance from which shuts were fired. 1n the F. I. R. this witness had stated that Shahzad Khan had received an injury on his forehead. Similarly he had stated that Dost Muhammad also received the injury at his forehead. The medical examination, however, shows that the injury on the forehead was an exit wound. It was, therefore, urged by the learned counsel for the appellants that this witness had not seen the occurrence. The other two eye‑witnesses, namely, Noor Elahi and Saleem had stated that Dost Muhammad and Shahazad Khan had been bit on the head and had been bleeding on the forehead. The medical evidence shows that both the deceased had the wounds of exit on their foreheads. In the excitement of the moment it was not possible ft r Abdur Rashid P. W. to have observed where the bullets struck in the first instance and after seeing the blood oozing out of the foreheads of these two persons, be might have thought that the bullets had hit their foreheads. We do not regard this as a material discrepancy.

11. Ch. Nazir Ahmad Khan, the learned counsel for the appellants, invited our attention to the post‑mortem examination of Abdul Qayyum and argued that since the elector found only four firearm injuries on the person of Abdul Qayyum, out of which according to him two were wounds of exit, he stressed the point that the pact ascribed to Matloob appellant was falsified by the medical evidence. Dr. Zaffar Iqbal Bhutta (P. W. 2), who performed the pox‑mortem examination of Abdul Qayyum has not specified the wounds of entry and wounds of exit as be has done in the case of other two deceased persons. It cannot, therefore, be said that two were entry mounds the other two exit wounds. We have referred to the medical retort of Dr. Ernest Lal who in the first instance examined Abdul Qayyum in injured condition. That doctor found six injuries on the person of Abdul Qayyum out of which the two wounds on the right arm and one wound on the right buttock had charred edges. This would show that prima fade three bullets had hit Abdul Qayyum. We may also point out that all the witnesses, two of whom i.e. Noor Elahi and Muhammad Saleem were completely disinterested, unanimously stated that Matloob fired the first shot at Abdul Qayyum. The medical examination conducted by Dr. Ernest Lai shows that three bullets bad hit the deceased Abdul Qayyum but even if preference is given to the post‑mortem report it can at best be said that one of the shots fired by Fazal Elahi and Yaqub appellants might have missed. It is not possible in view of the unanimity of the evidence against Matloob appellant to reject the eye witness account in so far as it relates to his participation in the commission of the offence.

12. We do not think that the evidence of recovery of the weapons of offence from Fazal Elahi and Yaqub appellants and the evidence of the Ballistics Expert showing that these two weapons were used in the commission of the offence can be safely relied upon. The empties were recovered from the spot on 28th of July, 1969. Syed Nasir Bedar Elahi (P. W. 19) claimed that he had sent the empties to the Director Forensic Science Laboratory directly from the spot through Sher Ali constable on 29th of July, 1969. Sher Ali appeared as P. W. 6 at the trial and corro borated the statement of the former. He had, omitted to mention before the Committing Magistrate the fact that he had been banded over some sealed parcels by the S. H. O. at the spot. He is, however, contradicted by Khadim Hussain (P. W. 2) who claimed that he had been given three sealed parcels on 8th of August, 1969, by Muharrir A. S. I. for delivery in the Forensic Science Laboratory. He said that two of the parcels contained pistols while the third contained empties.. Muhammad Sharif Head constable (P. W. 7) said that he was handed over on 4th of August, 1969, three parcels two of which contained pistols and the third contained live cartridges for being used as test empties. The Investigating Officer never said that he had taken hold of any live cartridge for being used as test empties and sent the same to the Malkhana for onward transmission to the Forensic Science Laboratory. The evidence of the prosecution as to the date of which the empties were sent to the Laboratory is self-contradictory. If the empties were sent on 8th of August, 1969 alongwith the weapons, the evidentiary value of the opinion of the Ballistics Expert will be reduced to nullity. The usual safeguards which make such evidence believable were not applied. Both Fazal Elahi and Yaqub appellants are father and son and the recovery has been effected from the same house. It is unlikely that Yaqub would keep a used cartridge as evidence against him for some days. Bashir Ahmad (P. W: 12) does not strike us as a very reliable witness. He is a tenant of Mahmood Sultan a brother of Abdur Rashid (P. W. 15) although he stated before the Committing Magistrate that he did not know who was the owner of the shop he was occupying. He made a number of statements which suggest that be is not a reliable witness. Moreover, in the report Bent by the Forensic Science Laboratory there is a reference only to one letter of the Superintendent of Police addressed to the Director on 8th of August, 1969. If the empty cartridges had been sent earlier by some other letter or docket the reference would have found place in the report of the Director Forensic Science Laboratory. In the circumstances, we therefore, do not think it safe to rely on the recovery of the weapons and the opinion of the Ballistics Expert.

13. We, however find that the ocular testimony in this is unassailable fully. The F.I.R. was lodged promptly. We find that the offence has been fully brought home to the appellants. We dismiss their appeal and confirm the sentences of death passed on them. The appeal and the murder reference are disposed of accordingly. Appeal dismissed.