P L D 1969 Peshawar 1 (PLP)

(i) that Faris Khan (P. W. 6) had a motive to falsely impli cate his brother, the appellant; and the other so‑called eye witnesses would implicate the appellant in any case, without having seen the occurrence, because the real brother had impli cated the appellant; (ii) that none of the alleged so‑called eye‑witnesses could be considered as real eye‑witnesses, because none of them deposed to having seen the appellant firing at the deceased; (iii) that the name of Akbar Khan (P. W. 8) is not men tioned in the F. I. R.; and, in any case, the statements of the eye‑witnesses are not consistent with the circumstantial evidence; (iv) that the evidence in respect of the identity and recovery of the Chappals Exh. P. 4 is very weak; (v) that 1the statement of Rahim Khan recorded by the committing Magistrate could not have been transferred legally to the Sessions file; and (vi) that, in any case, the sentence of death in the circum stances of the case was not called for.

7. We have beard the learned counsel at length. There is sufficient force in the contentions Nos. (iv) and (v) mentioned in the above paragraph. The only evidence of the Identity of the Chappals Exh. P. 4 is contained in the statement of Aslam Chowkidar (P. W. 9). In his examination‑in‑chief, he stated that he recognised the chappals as that of the appellant because he had seen him wearing those chappals on previous occasions. He further stated that soon after the occurrence, the appellant came to him and asked for the return of the chappals to him but the witness refused to hand over the same to him In his cross‑examination, he stated that one Sami‑ur‑Rehman (an abandoned P. W.) had picked up the chappals from the mosque and had entrusted the same to him. It is most significant to note that he was confronted with his statement made before the police as well as one under section 164, Cr. P. C.; wherein he had not stated that he had seen the appellant wearing the Chappals Exh. P. 4 on previous occasions. He was also con fronted with his statement before the police wherein he had omitted to mention the fact that the appellant had gone to him in the mosque after the occurrence and had asked for the return of the chappals. He failed to offer any explanation for these very serious omissions. In view of the fact that no other evidence has been produced to prove the chappals as belonging to the appellant and also in view of the fact that Faris Khan P, W, did not state anything about the identity of the chappals; the solitary statement of Aslam Chowkidar (P. W. 9) with the serious infirmity, noted above, cannot be accepted as sufficient. The appellant has denied the ownership of the chappals. On the contrary, he stated that they belonged to Faris Khan P. W. The appellant was not made to wear the chappals. At least there is no evidence to that effect. Had the teat parade been conducted for the identity of the chappals as belonging to the appellant, that circumstance could have been used against the appellant. But that evidence is missing in this case. In view of these circumstances, the evidence relating to Chappals Exh. P. 4 cannot be used against the appellant and will be kept out of consideration. The statement made by Rahim Khan P. W. in the committing Court was transferred to the Court of Session in view of the following statement made by Aslam Chowkidar (P. W. 9):‑ "Rahim P. W. has gone to Karachi in search of livelihood and his whereabouts are unknown." On the basis of his statement, the learned Public Prosecutor infor med the Court that the whereabouts of Rahim Khan P. W. were not known. None was deputed to serve any summons on Rahim Khan. The statement of Aslam Chowkidar, quoted above, is insufficient to show that any search was made to find out Rahim Khan P. W. or any effort was made to procure his attendance. In absence of any other evidence on the file, it is not certain whether unnecessary delay and expense would have been involved in the production of Rahim Khan in the trial Court. The conditions laid down in section 33 of the Evidence Act are to be strictly proved in order that a statement made before the committing Magistrate is qualified to be transferred to the Court of Session. The learned counsel for the appellant cited Chainchal Singh v. Emperor (A I R1946 P C 1) and Aminul Haque v. Crown (P L D 1952 F C 63) to show that if a witness has not been cross‑examined in the committing Court and the conditions under section 33 are not fulfilled, his statement cannot be used as evidence at the trial. Mian Burhan‑ud‑Din the learned Assistant Advocate‑General, in fairness to the appellant, has cited a more recent judgment of the Supreme Court reported in the case of Allah Ditta v. The State (P L D 1958 S C 290); which deals with almost an identical question, as is involved in the present case. Quoting with approval the decision of the Judicial Committee in case of Chainchal Singh (L R 72 I A 270), their Lordships held that the statement made by an Investigating Officer, about the uncertainty of the whereabouts of a witness not being from his personal knowledge, could not be utilised for the purpose of section 33, Evidence Act. Their Lordships further observed as follows: "Only such a person could make a statement of fact on that point as bad been engaged in the task of searching for him for the purpose of serving the summons for his appear ance. In the absence of any direct evidence the mere decla ration that "delay and unnecessary adjournment" would be involved in procuring the appearance of Lala was not sufficient for satisfying the relevant condition of section 33 aforesaid which is that it should have been proved that the witness could not be found." In view of the above dictum, it is difficult to accept that the condition laid down in section 33 of the Evidence Act has been f sufficiently proved in the present case. Therefore, the statement of Rahim Khan, transferred to the Sessions Court, cannot be used as evidence against the appellant. There is another aspect of the statement of Rahim Khan p. W. He is said to have seen the appellant while the latter was going out of a narrow land on the north‑eastern side of the mosque, at point No‑ 13 in the site plan Exh. PB. This site plan has been properly proved by Hakim Khan, S. I. (P. W. 11), who stated that it was prepared on the pointing out of the witnes ses. He, in his examination‑in‑chief has specifically mentioned point No. 13 as the place where Rahim Khan met the appellant; while running away after the occurrence. In the cross‑examina tion however, the S. I. made the following statement:‑ The bulb at point No. 11 does not throw light at point No. 13 as the kotha of the hujra of Noor Alam intervenes between the two. The light of bulb at point No. 10 covers half of the lane where point No. 13 is situated. The light of the bulb at point No. 10 does not throw its light at point No. 13: Points Nos. .10 and I1 are the places wherefrom the two Bulbs Exh. P. 1 were taken into possession. There is no other source of light either alleged or indicate throughout the prosecution .evidence. According to the statement of the S. I. the light produc ed by the bulbs at points Nos. 10 and 11 was not available at point No. 13 ; where Rahim Khan P. W. is alleged to have met the appellant after the occurrence. The night being dark and there being no other source of light available at point No. 13, the identity of the appellant by Rahim Khan P. W. becomes very doubtful. For this reason as well, it is not safe to rely on the statement of Rahim Khan, transferred to the Sessions file, for any purpose. Therefore, for both the reasons mentioned above, we will keep that statement out of consideration.

8. The contention of the learned counsel that Faris Khan (P. W. 6), the real brother of the appellant, had a motive to falsely implicate the appellant is not acceptable. It is true that 'Faris Khan had been given about 13 kanals of land while the appellant had beers given about 27 kanals of land by their maternal‑grandmother. It is also true that Faris Khan stated in his cross‑examination that the grandmother had earlier mortgaged a portion of her property for Rs. 1,200 for the sake of the appellant whom she wanted to start a shop. From these facts, the learned counsel argued that it was sufficient to infer that Faris Khan P. W. had motive to falsely implicate his real brother out of jealousy and greed for property. We have noticed that Faris Khan was a student of 10th Class when he appeared as a witness against his brother. He is of young age and is not shown to have contracted or that he has any other responsibility. It is very difficult to believe that a younger brother, who has not yet entered the thick of the life and who is a student of 10th Class, will falsely implicate his real brother, only for the reason that his brother has been given more land than given to him by a relation, i.e., maternal‑grandmother. The love and affection between the brothers, in our minds, is loo strong to allow such small matters to become reason for false implication of a real brother in a case which is punishable with capital sentence. One can imagine as to why the real brother appeared against his own brother as a witness. The same love would deter him from appearing against the brother. But the circumstances in this case are peculiar. The real brother had killed the real father. The conflict of sentiments and emotions being equally balanced could be weighed in favour of deposing the truth, even if that was to result in conviction of the brother. This is particularly so because Faris Khan P. W. is at a stage of his life when moral considerations weigh more than any other consideration. The plea of the appellant that Ghafoor Khan, Rajwali Shah and Faqir Shah were the enemies of his father and that on their instigation Faris Khan had falsely implicated him, has no force. This enmity was not put in cross‑examination to Faris Khan P. W. nor this suggestion was made to him. On the contrary, it was put in a half‑hearted effort, with the hope of eliciting some affirmative reply, to Aslam Chowkidar (P. W. 9). The said witness admitted that the widow of one Yakoot of village Gumbat came to the house of the deceased and there she was serving him, when the nephews of Yakoot wanted to take her back to their house but she refused. She, however, subsequently patched up the dispute with those persons and went to their house. The witness showed his ignorance about Waris Khan having been prosecuted for enticing away the said widow of Yakoot. The matter was not pursued further than that inconsequential admission made by, Aslam Chowkidar (P. W. 9). If there would have been any truth in this assertion of enmity between some other persons and then deceased, the defence could have pursued the matter further and would have produced some documentary evidence about the prosecution of Waris Khan deceased for the alleged enticing, away of the said woman. We asked the learned counsel appearing for the appellant to show us whether he had any documentary evidence in his possession ; but he gave the answer in the negative. It appears that this plea by the appellant is just an afterthought in order to put up some defence Considering the circumstances of the case, we hold that Faris Khan P. W. had no motive to falsely implicate his brother the appellant. In view of this finding, it is unnecessary to go into the question whether or not the two other eye‑witnesses Munawar Khan and Akbar Khan would be toeing the line of Faris Khan because, as the learned counsel put it, he had falsely implicated his real brother.

9. The contentions Nos. (ii) and (iii) raised by the learned counsel about the eye‑witnesses can be considered together. It is true that the name of Akbar Khan (P. W. 8) is not mentioned in the F. I. R. ; but we have noticed that Faris Khan mentioned the names of some persons as eye‑witnesses specifically and mentioned others also as eye‑witnesses generally, whose names, be stated, he could not remember at that time. Akbar Khan P. W. appears to be a person who regularly goes, to the mosque for offering his prayers. It was brought in the cross‑examination of Abdul Baqi (P. W. 4), who had appeared, only to state that he identified the dead body in the mortuary that Akbar Khan P. W. used to say his prayers, sometimes in Boqo mosque and sometimes in Gadano mosque. That witness himself was the Imam of Gadano mosque. After having got these answers in the cross‑examination, it was not put to that witness whether or not Akbar Khan P. W., on the night of occurrence, offered his Isha prayer in the Galano mosque. In view of this circumstance, the statement made by Abdul Baqi P. W. in cross‑examination and in view of the fact that Faris Khan stated in the F. I. R. that he was mentioning the names of those persons only which he could, at that time, recollect, we are certain that the omission of the name of Akbar Khan P. W. in the F. I. R. is inconsequential in this case. The fact that the occurrence took place in the mosque at about Isha time when the deceased was in the act of offering his prayer in congregation, shows that there must be some other persons present in the mosque at that time because it was admittedly, Isha prayer time. This position has not been contested by the defence. If that is so, the fact, that the eye‑witnesses who had deposed against the appellant, claimed to have been present in the mosque for offering their prayers, becomes significant. It is not contested that these persons are not in the habit of offering their prayers in the mosque. That being the position, there is no reason why to disbelieve them when they say that they were present in the mosque when the occurrence took place. It is true that only one shot was fired at the deceased ; but the nature of the injury caused; the fact that there is charring around the wound; and the further fact that a card board was found in the wound, show that the assailant fired at the deceased from very close range, say, within a foot or so. If that is so, the assailant would have been immediately noticed by Faris Khan who was in the second row and by Munawar Khan and Akbar Khan P. W. who were close to the deceased on his right and left. With the situation and positions of the assailant and the witnesses, so constructed and with the help of the site plan, it becomes clear that as soon as the fire was shot the witnesses must have looked towards the assailant, and the distance being very short, they would have immediately recognised him. Therefore, the contention of the learned counsel has no force that these witnesses cannot be treated as eye witnesses in the case. A circumstance appearing in the F. I. R. has been brought to our notice which, according to the learned counsel, is a circumstance which contradicts all the eye‑witnesses. It is. stated in the F. I. R. that all the persons were in the sajda position when the appellant fired at the deceased who evidently was also in the sajda position. The witnesses in their statements: at the trial have stated that all of them were in the jalsa position when the deceased was fired at. Jalsa is the position between two sajdas. None of the eye‑witnesses was confronted with his previous statement that the occurrence took place when the eye‑witnesses were in the sajda position. Even Faris Khan was not confronted with the portion of the F. I. R. mentioned above. Had there been any substance in this point and if the other two witnesses had stated a different position than the one taken before the police, the defence would have confronted these witnesses with their previous statements. In the absence of such a confrontation, we feel that the witnesses cannot be dubbed as false witnesses, because they have not been afforded an opportunity to explain the so‑called discrepancy. The learned counsel also stressed the point that the seat of injury. i.e., the entrance and exit wounds and the places wherefrom the blood, the cap of the deceased, a cardboard and some pellets have been found, show that the deceased was in sajda position when he was fired at. From this, the learned counsel argued that even if the witnesses have not been confronted with their previous statements, they can be said to have stated something in the Court which is belied by the circumstance of the deceased having been killed when he was in sajda position; therefore, they should not be believed. The same consideration, as mentioned above, will apply here. i.e., the opportunity of explaining a circumstance in cross‑examination not having been given to the witnesses, they cannot be dubbed as false witnesses. It is true that all the witnesses stated that they were in jalsa position when the deceased was fired at. It also appears that the deceased may have been in the sajda position or near about that position when he was fired at. We have imagined a congregation led by Imam wherein young and old people are following the Imam in prayers. It is usually noticed that older people are not always in line with all others in raising their heads from the sajda or in going down in the sajda position. The deceased in this case is stated to be of about 65 years of age. It is quite possible that when all others had risen from sajda position and the deceased was in the a.‑t of raising his head from the sajda position, that he was fired at. There is nothing unusual in such .a situation and we find that the statements of the eye‑witnesses are not con tradicted by the circumstance mentioned by the learned counsel. Another circumstance appearing in the statements of Munawar Khan (P. W. 7) and Akbar Khan (P. W. 8) was brought to our notice; and that is that the positions, stated by these witnesses to have been taken by them in the congregation to the right and left of the deceased, do not tally with their positions mentioned in the site plan. There is a discrepancy in the positions mentioned in the statements of the witnesses and those noted in the site plan. This discrepancy is not very difficult to explain. The witnesses appeared to give evidence after about nine months of the occurrence. It is not impossible that they may have, in the meanwhile, forgotten the unnecessary details about the occurrence. The position as to which side of the deceased a particular witness was standing at the time of the prayer, is an insignificant and unnecessary detail. Therefore, this circumstance is also insufficient to dub the witnesses as false witnesses. The learned counsel also argued that the F. I. R. in this case was delayed. The occurrence is stated to have taken place at about 9 p.m. and the F. I. R. was lodged after four hours at a distance of 11 miles. Faris Khan (P. W. 6) has stated that the deceased was taken in a tonga to the Police Station during the night. Aslam Chowkidar (P. W. 9) has stated that the dead body of the deceased was first removed to his house. In these circumstances, it would have taken Faris Khan P. W., who is boy of young age, some time to arrange the despatch of the dead body to the Police Station. Some time must have been taken to arrange a cot and to put the deceased on it and then to take him to the house. Some time must have been taken by the relatives of the deceased at the house. It is something normal in such occurrences like the present one. Nobody bothers about making the report or taking the dead body to the Police Station. Some time must have been spent in arranging the tonga. The placing of the dead body in the tonga, which is an awkward transport for putting the dead body on, and then taking the same over a distance of 11 miles, must have taken considerable time. Therefore, we are of the opinion that no unexplainable delay occurred in the lodging of the F. I. R. in this case. The eye‑witnesses in this case are absolutely disinterested and are not inimical to the appellant. On the contrary, one of them, i.e., Faris Khan is the appellant's real brother. 'there .is no serious infirmity in the eye‑witness account given by these witnesses. The time of occurrence is of night ; but we are convinced that the light from two 60 watt. bulbs was on, in the .courtyard of the mosque when the occurrence took place; and there was sufficient opportunity for the eye‑witnesses to have identified the assailant, who was their co‑villager and was known to them. Therefore, we hold that there is sufficient evidence to convict the appellant for the murder of Waris Khan deceased and thus we maintain his conviction under section 302, P. P. C.

10. There are some circumstances in this case which indicate that the extreme penalty of death should not be exacted from the appellant. It is an admitted fact that the appellant had not been served with any summons, in respect of the suit filed by his maternal‑grandmother, before the present occurrence. The source of his knowledge about the details of the suit has not been disclosed in the evidence. Nobody knows what was his exact knowledge of the part played by his father in the institution of that suit, when the occurrence took place. It is also not known whether the appellant had known about this fact much before the occurrence. May be that he learnt about at immediately before the occurrence. There is some indication in the evidence to support this supposition. Faris Khan (P. W. 6) stated in his cross‑examination that before the prayers the deceased had an altercation with the appellant. The deceased asked the appellant to go away from the mosque. The appellant incidentally was armed with a rupakh. The deceased did not stop at asking the appellant to go away from the mosque but also warned the appellant that the deceased knew, as the witness put it, "how to get his gun stuff in his hole". It is true that a similar suggestion made by the Court 3o Akbar Khan (P. W. 8) was not admitted by him. It is not clear from the statement of Akbar Khan P. W. as to at, what time exactly he reached the mosque. His statement starts with the fact that he joined the congregation which was led by Moulvi Lutf‑ur‑Rehman. It is quite possible that the incident 4 altercation between the deceased and the appellant, deposed to by Faris Khan (P. W.6), had taken place before Akbar Khan (P. W. 8) reached the mosque. Therefore, there is no contradiction between the statements made by these two witnesses with regard to that altercation. In any case, the matter of altercation goes in favour of the appellant, at least, in so far as the question of sentence is concerned. Therefore, we would take that statement as true which goes in his favour and would discard the one on the same point, which either goes against him or is in any way neutral and insignificant, as is made by Akbar Khan (P. W. 8). It has also been noticed in the evidence that the appellant was an opium addict. He is also, stated to have taken to a drug known as Tunol. We are told that this drug is highly intoxicant. It is quite possible that when the appellant was, perchance, armed with a tupakh, he and his father altercated with each other over some touchy matter during which the deceased used the filthy words, quoted above from the statement of Faris Khan (P. W. 6). In these cir cumstances, it appears that the action of the appellant in killing his father was not premeditated. It was at the spur of the moment that after an altercation, in which the deceased had used some filthy language, he fired at him; on the very first opportunity when the deceased was offering his prayer. The learned Assistant Advocate‑General appearing for the State argued that there was sufficient time for cooling down for the appellant after the said altercation. It is possible for as extremely cool‑minded person to have cooled down in that short time. However, the time was not long enough as to have given sufficient time for cooling down of the temper of a drug adict. It must have been raised during the altercation. The deceased had offered only one rakat and was at about the sajda stage of the second rakat when the occurrence took place. It would have hardly taken a minute after the altercation when the deceased was fired at by the appellant. We are of the opinion that the occurrence took place due to the altercation in the mosque between the father and the son and there was no premeditation. Therefore, we are not inclined to confirm the m death sentence passed on the appellant. The same is not confirmed. It is altered to transportation for life. Except with the modification in the sentence mentioned above, this appeal is dismissed. K. B. A. Appeal dismissed. Sentence modified.