1976 PLP 91 (SCMR)

MUHAMMAD GUL, J.‑The petitioner herein alongwith two others was tried for the murder of Aslam Khan. The trial Court convicted the petitioner and sentenced him to death and acquitted the other two co‑accused. On appeal and reference, the petitioner's conviction and sentence has been confirmed by the High Court. He now seeks leave to appeal. The incident took place at peshiwela on 2‑2‑1973. The deceased Aslam Khan was then going along Kucha Zar Din to the flour‑mill of Najam Din. He saw the petitioner and the two acquitted accused each of whom had a fire‑arm. The petitioner carried a topak. As the petitioner went past them. Akbar Gul (one of the acquitted‑accused) exhorted his companions to kill Aslam Khan. As the deceased looked backward, he saw the petitioner taking aim at him and the latter fired at him, hitting him on the back. The deceased staggered towards the flour‑mill where he fell on the ground. Qamar Zaman and Saifuddin are alleged to have seen the occurrence. Aslam Khan related the incident to Kabir and Ghandal P. Ws. naming the petitioner and his two co‑accused as his assailants. Aslam Khan was taken in a truck to the police station Mardan Saddar at a distance of 8/9 miles where he made the report Exh. P. A. at 2‑20 p.m. The report also mentioned the motive for the incident. It was stated that earlier at 10‑00 a.m. on the same day there was exchange of hot words and abuses between him and Sher Gul over a quarrel between the boys belonging to the two families. There was no blood‑feud or enmity between the parties. According to the ante‑mortem medical examination, the deceased had suffered 10 gunshot injuries of which s were entrance wounds in the back with 5 corresponding exit wounds in the front part of the chest. Aslam Khan died later and the above injuries were confirmed on post‑mortem examination conducted by another doctor. The petitioner pleaded not guilty and attributed this case to Najam Din owner of the flour mill with whom he had allegedly entered into partnership but who had mis‑appropriated his share. As to the P. Ws. he stated that they were employees of Najam Din and deposed against him under the influence of their employer. The petitioner's conviction rests on the dying declaration Exh. P. A. This was corroborated by the medical evidence and the evidence of Kabir and Ghandal both of whom were employees at the flour‑mill, and therefore were .natural witnesses. The deceased immediately after the incident related the incident to both of them that he had been hit by the petitioner. The trial Court as also the High Court, however, excluded from consideration the evidence of Qamar Zaman and Saifuddin the two eye‑witnesses named in the F. I. R., but nevertheless held the petitioner's guilt proved beyond dispute. The petitioner's learned counsel submitted that the trial Court and the High Court having excluded the evidence of the only two eye‑witnessess named in the F. I. R., the petitioner's conviction cannot be sustained. It was stressed that the fact that Qamar Zaman and Saifuddin were disbelieved would impair seriously the veracity of Exh. P. A. which was treated as dying declaration and was in the evidence against the petitioner. As rightly pointed out by the learned Judges in the High Court, the fact that the Courts have disbelieved the evidence of Qamar Zaman and Saifuddin would not be enough reason to discard the other evidence which definitely connects the petitioner with the commission of offence. Apart from the evidence referred to above, the petitioner remained a fugitive from justice until 3‑7‑1973. He surrendered only after proceedings under section 87 and 88, Cr. P. C. had been drawn up against him. The other over‑riding fact is that it is a case of broad daylight incident and there is no previous enmity between the parties and there is no reason why the deceased should have falsely charged the petitioner for having fatally fired at him. The fact that the report was lodged at the police station within almost half‑an hour of the incident also eliminates the chances of fabrication or‑false implication. In any event the entire argument of learned counsel confined to seeking a re‑appraisal of the prosecution evidence for which was confined the foundation is not laid. The High Court was careful enough to remit; case to the Sessions Judge for recording the evidence inter alia, of Kabir who though examined during the investigation of the case under section 164, Cr. P. C. was not examined at the trial. He fully supported the evidence of Ghandal P. W. 9 and stated that as the deceased fell down in the premises of the flour mill, he told them that the petitioner had fired at him. This statement is highly relevant res gestae being almost contemporaneous with the transaction itself. Having regard to the totality of evidence both direct and circumstantial produced in the case, we do not consider it a fit case for grant of leave. The petition is accordingly dismissed. Petition dismissed.