1969 PLP 839 (SCMR)

Date of hearing : 6th October 1958. S. A. RAHMAN, J.‑Mehrban Shah, was tried for the murder of one, Wali Dad, and sentenced to death by the trial Judge. His conviction and sentence were upheld by the High Court o West Pakistan, Peshawar Bench. Leave to appeal was granted in this case to examine whether there was any credible evidence on record to support the conclusions upon which the conviction was founded by the High Court. The prosecution story was that the deceased was going to wards his house, at about 5 p.m., on the 7th of July 1956, when he was waylaid by Mehrban Shah, Qurban Shah, Zawahir Ali and Mir Sahib, the first‑named being armed with a shot gun and the other three, with country‑made rifles. The shots fired at him by Zawahir Ali, Qurban Shah and Mir Sahib went wide of the mark, but the one fired by Mehrban Shah was effective and caused his death. The incident was said to have been witnessed by Sher Dad, son of the deceased, while he was sitting in the courtyard of his house, along with Sher Azam and Saifullah, P. Ws. The occurrence was reported by Sher Dad, shortly after midnight, at Police Post Thatti Nasratti. As result of the Police investigation, all the four suspects were prosecuted, but the committing Magistrate discharged three of the accused and committed Mehrban Shah alone for trial, to the Sessions Court. There had been bad blood between the complainant's party and the appellant's brothers‑in‑law, owing to a dispute about a `Ber' tree standing on the common boundary of their lands. There were previous incidents of exchange of gun‑shots between them in consequence. Sher Dad and Mst. Resham Jan, wife of Zawahir Ali, had lodged reports with the Police, each charging the other party with attempt to murder. Two cases in pursuance of those reports were pending in Court when the present occurrence took place. It is somewhat significant that Mehrban Shah was the first to resort to the Police in the present case as he lodged a report at Police Thatti Nasratti about half an hour earlier than Sher Dad died. The version put forward by him in that report was with a little variation adhered to at the trial. He alleged that he was coming along with Saadullah Shah and Malik Din, when he encountered Wali Dad and his son, Sher Dad. The former was armed with a 12‑bore pistol and the latter with a shot‑gun. They challenged him and on enquiring why they were after his blood, he was told that he had given them offence by standing surety for his brother‑in law, Zawahir Ali Khan and Mir Sahib Khan, in the 307, P. P. C. case. In spite of his entreaties to them to desist from the attack, Sher Dad fired at him with his shot gun and hit him on the forehead. Sher Dad fired again at the instance of his father, but, according to the appellant's Court version, he accidentally hit Wali Dad instead of Mehrban Shah. In his report to the Police, he had omitted this suggestion of an accidental injury to the deceased, but stated vaguely that he heard other shots being fired though from which quarter or by whom, he could not see. The appellant and his two companions then ran away to their own village. He denied in Court that he had Admitted while giving his report to the Police that Wali Dad had told his son not to shoot him. The learned trial Judge for what appear to be good reasons held the testimony of Saifullah and Sher Azam, the two alleged eye‑witnesses besides Sher Dad, to be undependable. He doubted whether they were present at the site of the occurrence at the material time. He did not regard Sher Dad to be a disinterested or truthful witness either. He observed that Mehrban Shah accused had no direct enmity against the deceased though there was bad blood between his brother‑in‑law on the one side and the deceased and his son, Sher Dad, on the other. He regretted the fact that no independent evidence was forth coming in support of the prosecution case, but relying on the circumstance that the accused had been injured by a single pellet on his forehead and that too not seriously, whereas the deceased, according to the medical evidence, appeared to have been shot at from very close quarters, he convicted the appellant of murder and sentenced him to death. In appeal, the learned Judges of the High Court observed that none of the prosecution witnesses had explained how Mehrban Shah had sustained the pellet injury on his forehead, that the story they had narrated about the alleged firing by Qurban Shah, Zawahir Ali and Mir Sahib Khan was palpably false, and for these reasons they did not accept them as witnesses of truth. After rejecting their testimony as unreliable, the learned Judges proceeded to record the following observations:- "But despite the fact that the truth has been mingled with lies, there are certain facts which have legitimate claim to credence. These are those facts which receive support from independent evidence and from accused's own admission which cannot be easily ignored. From these sources the following facts stand amply proved. The accused and the deceased were both present on the scene of occurrence. There was admittedly bad blood between them which had its root in the land dispute and found expression in the criminal proceedings emanating from cross- firing. Gun‑shots were fired from both sides. ' The deceased was hit from close quarters and his assailant was at an ease when firing. The accused who was slightly injured was fired at from a distance and perhaps also in haste. Sher Dad was no doubt present because the accused admits his presence and attributes his own injury to him. From these facts we are prepared to conclude without slightest hesitation, that it was the deceased who was attacked first. The house of the accused is in close vicinity of the house of the deceased, being about 223 paces apart. The deceased was seen coming to his house by the accused and as he had a grudge to avenge he came out of his house with a loaded gun and fired at him and killed him. He then ran away. Sher Dad, son of the deceased, on seeing this, ran after the accused and fired at him from some distance. It was on account of this firing from distance and also in haste, that only one pellet caught the forehead of the accused. With these conclusions emanating from evidence, the truth of which is above challenge, we are compelled to the deeision that the accused fired first at the deceased and it was his shot that killed him. This happened on the spot and at the time indicated by Sher Dad. To that extent Sher Dad's evidence is believable because it derives support from facts which defy challenge." With all respect to the learned Judges who decided the case, it seems to us that the conclusion reached by them rests on conjecture rather than on evidence to be found on the record. We agree with their estimate of the worth of the prosecution witnesses' testimony and hold that they were not trustworthy. They suppressed the most important fact that Mehrban Shah too had a pellet wound of entrance on the left side of his forehead, 1 1/2" from the upper end of the bridge of the nose and an exit wound on the forehead, in the middle, 3/6" from the wound of entry, and failed to offer any explanation for his injury. They apparently also falsely involved the co‑accused of the appellant in the case. There is no evidence to show from what distance the pellet that hit Mehrban Shah had been fired. The doctor only offered the opinion that the distance between the deceased and the appellant was between 1 to 3 feet, but nothing was elicited from him as to the probable distance between the appellant and his assailant. We confess we are unable to under stand, on what basis the learned Judges rested the finding that the shot that hit Mehrban Shah was fired in haste and from a great distance by someone. The firing of such a shot was not admitted by anyone of the P. Ws. We have merely the word of the appellant to the effect that it was Sher Dad who had injured him with a gun‑shot. He did not admit that he was himself armed or that he had fired at the deceased. It was not open to the learned Judges, after having rejected the prosecution evidence as unreliable, to dissect the accused's statement and accept it in part and reject the rest of it in these circumstances. It seems to us that this became really a case of no evidence and the conviction of the appellant, therefore, cannot be sustained, in the face of the finding that the three eye‑witnesses in the case put forward by the prosecution had not told the truth on material points and were, therefore, not worthy of credence. There was nothing in the evidence on record to rebut the suggestion made by the appellant that he was the victim of the first slot fired during the incident. That aspect of the case has received no consi deration at the hands of the learned Judges though the question which party took the initiative even if here was exchange of shots between them, was of very great importance from the point of view of the defence. This point acquires additional force when we remember that the appellant had no direct motive to take the life of the deceased. In the circumstances, we are constrained to allow this appeal and set aside the conviction and' sentence of the appellant. We order accordingly. Appeal accepted.