ABDUL HAKEEM KHAN, C. J.-This appeal against acquittal of Lal Pasand and four others, of the charges under sections 148 and 302/149 of the Pakistan Penal Code, by order dated JO-7-1974 of the Sessions Judge, Peshawar, has been moved by the State and the learned Additional Advocate- General who has appeared on behalf of the appellant submits that the trial Court has not appreciated the evidence in its true perspective and that as a matter of fact the eye-witness account given by Firdos Khan, Intizarullah, Saadullah Khan and Asir Jan supported by the Medical evidence, recovery of the empties, pellets, card board disc respectively Exhs. P. 3, P. 6 and P. 2 from the spot coupled with abscondence of the respondents for good four months will bring the guilt home to them.
2. The prosecution story as given in the F. I. R. (Exh. P. A) is that at Peshin time the deceased Rambail Khan had gone along with his sons Intizarullah (P. W. 8) and Abdus Sattar Khan to look after his maize crop in Bela. Firdos Khan (P. W. 6) who happens to be the brother of the deceased and who has lodged the F. I. R. Also followed them to see his land so as to ascertain whether it was fit for ploughing by tractor. At digar time when the informant along with his deceased brother and nephews was repairing to his village via the brick kiln of Saadullah Khan and was near the road (evidently G. T. Road) the deceased sat for urinating. The others however proceeded slowly onwards to the village but when they crossed the brick kiln they heard the report of fires from behind. On turning round they saw Bashirullah, Said Hassan, Lai Passand, Zarif Khan and Faridullah firing at Rambail deceased. They were in ambush in a lowlying land and were on the look out of the deceased. After getting injured Rambail deceased ran towards the house of Saadullah Khan while the accused respon--dents pursued and fired at him. The deceased entered the house of Saadullah Khan to save himself but the accused went inside and in the presence of Sohbatullah Khan son of Col. Saadullah Khan and other residents of the house murdered Rambail Khan deceased. The informant and his other companions ran towards the village for Chigha but when they came back by then the respondents had decamped and Rambail Khan deceased was lying murdered. The dead body of Rambail Khan was then taken to the house and thereafter Firdos Khan went to the Police Station for report. It was further asserted in the report that all the accused respondents were bearing Topaks and the motive for the crime was that 7/8 years prior to the occurrence Said Ali Shah father of Bashirullah and Faridullah respondents was murdered and in - that connection Rambail deceased and Firdos Khan were charged but they were acquitted by a Jirga. It may be mentioned that the F. I. R. Is not legible in so far as the claim of Firdos Khan that he was also charged is concerned but this is an admitted fact that he was also charged and for corroboration one may refer to F. I. R. (Exh. P. A/1).
3. In support of their case the prosecution produced Firdos Khan and Intizarullah respectively P. W. 6 and P. W.
8. They also produced Saadullah Khan who is a retired Superintendent of Police as P. W. 7 and Asir Jan who happens to be the grandson of Saadullah Khan as P. W.
9. Firdos Khan and Intizarullah have endeavoured to support the prosecution case asp put in Court in its entirety and as far as Saadullah Khan and Asir Jan are concerned the main burden of their testimony is that they-heard the report of firing which was approaching towards their house and that they saw one empty handed person getting into the house followed by another empty handed person and then came a person armed with a single barrel shot-gun. The first person who had entered was made to get up by the second empty handed person while the former was sitting near the car of Saadullah Khan, P. W. And the person armed with the single barrel shot-gun fired a shot at the deceased while the mouth of his gun was almost at the chest of the victim and killed him.
Thereafter the curved handle of the stick which Saadullah Khan was carrying was placed by the latter round the neck of the gunman but since his neck was thin he extricated himself after a struggle of 20 to 30 seconds, and then ran away.
4. Lai Pasand accused respondent was identified by Saadullah Khan P. W. 7 in an identification parade conducted on 28-12-1973 but Asif Jan could not identify any one of, the two assailants when a similar parade was conducted for his benefit on 2nd of March, 1974.
5. It may be mentioned that the accused respondents denied their participation in the occurrence but as far as their abscondence is concerned they said that they had applied for bail before arrest and the same was rejected by the Sessions Court on 16- 10-73 and was also turned down by the High Court and it was thereafter that they surrendered themselves to the Police. They further admitted their relationship inter se, that is to say, Faridullah and Bashirullah were brothers and the same was the case with Lai Pasand and Said Hassan. All four of them were first cousins and the maternal-aunt of Bashirullah and Faridullah was wife of Zarif Khan respondent, but they did not produce any defence.
6. The learned trial Judge discredited the testimony of Firdos Khan and Intizarullah holding that they were interested witnesses. He also doubted the presence of Intizarullah and his second brother with their father at the field for it was not mentioned in the-F. I. R. That they had gone to fence the field and again implements with which the field was fenced could not be produced. He disbelieved the witnesses for another reason, namely, that though they asserted that Lai Pasand had placed his gun at the body of the deceased Rambail Khan when Bashirullah accused respondent was holding him, there were no charring or burning marks. He also referred to the improvement made by Firdos Khan inasmuch as in the F. I. R. Firdos Khan contended that every body had Topak with him but during the trial their case was that Bashirullah bad a Tamancha with him. He also adverted to the omission in the F. I. R. That Bashirullah and Lai Pasand only entered the house of Saadullah Khan while the other three respondents remained outside. He doubted the presence of the two witnesses for yet another reason, namely; if they had been present there they would have also been fired at. As far as identification by Saadullah Khan is conncerned the learned trial Judge ignored it for the reason that in there only sixteen persons had participated out of whom five were the present accused and only eleven were under trial prisoners. This according to the learned trial Judge was much short of the ratio laid down by the authorities, namely, there should be at least nine or ten innocent persons for one suspect or accused. He also could not rule out the possibility that the police had pointed out the accused to the witness. The abscondence was brushed aside with the remarks that mere abscondence was not enough when he had disbelieved the eye-witness account. It may be mentioned that the learned trial Judge prefaced his observations with the finding that there had been an inordinate delay in lodging of the report and that the contention of Firdos Khan that he waited for the bus for 3-4 hours was unnatural for Nowshera is connected by the G. T. Road and buses and wagons are freely available.
7. We agree with the learned trial Judge that there was inordinate delay in the lodging of the report.
The occurrence took place at digar time which should be about 6-00 p m. On the 9th August of 1973 but the. Report of the matter could not be lodged at Police Station Nowshera Kalan which is just six miles away till 10-10 p. m. There is also admission of Firdos Khan P.W. 6 that there is an Additional Police Post on the main G. T. Road towards Nowshera which we assume is quite close to the scene of occurrence but the complainant did not go even there. Be that as it may it is a fact that Grand Trunk Road is much frequented road and that all sorts of vehicles are available every now and then. There is also a bus stand at Pirpai. The contention of Firdos Khan that he was waiting for a lift for 3-4 hours is indeed unconvincing.
8. It is settled law that where there is a delay and net has been thrown wide enough to entangle more than one neck in this case of five close relations the delay will be disastrous to the prosecution, moreso when there is B previous enmity. For enmity we only need refer to the statement of Firdo Khan P. W. 6 and the F. I. R. Exh. P. A./1.
9. In this case Saadullah Khan and Asif Jan are the two disinterested witnesses. Though both of them have deposed that they heard several fire-arm reports before that the two empty handed persons entered their house followed by another person armed with a single barrel shot-gun, it will not be safe to assume that those persons included Faridullah, Said Hassan and Zarif Khan accused respondents. Again even though Saadullah Khan admits that the deceased was accompanied by his relatives at the time of occurrence but taking into consideration the fact that the witness said that relatives of the deceased including Firdos Khan P. W. Came to his house after about half an hour of the occurrence it will be safe to assume that Firdos Khan and the two sons of the deceased Rambail Khan were not present when the latter was given a fatal shot inside the house of Saadullah Khan. The explanation given by Firdos Khan and Intizarullah P. Ws. That they ran to the village for Chigba after the shooting and came back with their relatives to the spot is indeed ingenious. It does not stand to reason that while one of the assailants was empty handed Firdos Khan and the two sons of the deceased who were standing outside would not have pounced upon him. Equally unconvincing is the assertion of Firdos Khan that though the accused fired great number of shots they "did not fire at us at all". In the conclusion that Firdos Khan and Intizarullah have not seen the shooting, we are further fortified by the fact that in the case as laid down in the F.
I. R. It has been asserted that the deceased was also injured while he was outside. Further--more it has not been asserted that the eye-witnesses did see the deceased being fired at by Lal Pasand while he was being held by Bashirullah rather it was said that all the five accused-respondents entered the house and killed him. And again there is a categorical assertion in the F. I. R. That all the accused respondents were carrying Topaks.
10. For aforementioned reasons we will exclude the eye-witness account given by Firdos Khan and Intizarullah out of consideration and proceed to examine the testimony of Saadullah Khan and Asif Jan P. Ws. As already D, mentioned Saadullah Khan and Asif Jan P. Ws. Are disinterested person.
The first named person is a retired Superintendent of Police while the second person is his grand son. The fatal shot was fired in the house of Saadullah Khan while Rambail Khan deceased had entered it for shelter and was trying to hide himself behind Saadullah Khan's car. The blood-stained earth has been taken from that house and there are pellets marks on its wall at Point No. 8 and in the Chappar at point No. 9 which will make Saadullah Khan and Asif Jan as natural witnesses of the occurrence. This conclusion is reinforced by the evidence that the police discovered card board disc Exh. P. 6 from Saadullah Khan's house and Asif Jan has produced two empties Exh. P. 3 of ' 12 bore before the police saying one was recovered from within the compound and the other from outside.
11. Both these witnesses have a plain story to tell and they are consisten on this point that one empty-handed person followed by another empty handed person entered and then came a person with a single barrel shot-gun. The empty-handed person held the deceased and made him get up while the second person fired from his shot-gun by placing the gun almost at the chest of the deceased. After the fatal fire Saadullah Khan P. W. Tried tohook the gunman with his stick but the latter struggled for 20 to 30 seconds and his thin neck came to his rescue and he ran away. If Saadullah Khan and Asif Jan were partisans nothing could prevent them from naming Lal Pasand as the gunman and Bashirullah respondent as the helper but they did not do so. The respondents surrendered themselves on 21st December, 1973 and Saadullah Khan says that he was called to identify the accused on the 25th December, but that being a holiday the parade was postponed.
He was again called and this time he went in his own car to the Court concerned and this was on the 28th of December when a parade was arranged in the compound of the Judicial Lock-up by Sarfaraz Khan, Magistrate IInd Class (P. W. 10). In this parade Saadullah Khan identified Lal Pasand as the gun man who did the shooting on the eventful day and murdered Rambail Khan deceased.
It is noteworthy that he did not identify any other accuse though Bashirullah who is said to have helped Lal Pasand in the crime was also present in the parade. A similar parade was conducted in March for Asif Jan P. W. 9 but he could not identify any of the accused respon--dents.
12. The learned trial Court did not place any reliance on the identifica--tion report for the reasons that the ratio of the innocents to the suspects was not 1: 9/l0 as has been laid down by several authorities. It also referred to the fact that Saadullah Khan P. W. Had been brought by the Police Officer to the Court and it was thereafter that they went to Jail for identification parade. This considered together with the statement of Sarfaraz P. W 10/ that he asked Saadullah Khan and the Police Officer after that he had arranged the parade to get out led the trial Court to the conclusion that possibility that police had pointed out the accused to the witnesses could not) be ruled out.
13. The learned counsel for the respondents attacks the identification on other grounds as well.
Firstly, that Saadullah Khan had not mentioned the features of the gunman and his associate in his statement before the police. Secondly there was delay in conducting the parade; the accused surrendered on 21/12 while the crucial parade took place on 28/12. Thirdly an identification parade after four months of the event was not depend-- able.
14. As far as the ratio is concerned the learned counsel for the respondents invited our attention to Shabir Ahmed and 4 others v. The State (1972 P Cr. L J 310), Kaim and others v. The State (PLD 1961 Kar. 728) and Wahid Bux and others v. The State (1969 P Cr. L J 1317). These authorities do not appear to be in point. These were dacoity cases during the night while the present is a case of day light occurrence where the identification is by a person who has retired as Superintendent of Police after about 24 years of service in that Department and who happened to be the natural witness of this sordid crime. He had not only shouted at the gunman and his associate but also exhorted the gunman not to commit the crime and eventually entangled the gunman from his neck with his stick for about half a minute. Further more the gunman was not a stranger to the locality and even though Saadullah Khan and Asif Jan might not be knowing his name they might have been seeing him before the occurrence' We will reiterate that identification in this case was by a retired Police Officer who during the course of his training and service had evidently acquired the expertise to identify the people by their features. In this view we are reinforced by his statement that the gun man had a thin neck; green eyes and short stature. Another remarkable aspect of the case is H that Saadullah Khan only identified Lai Pasand. If he was to be bloody -minded or partisan or had to go by the dictates of an A. S. I. Conducting him to the Magistrate who held this parade he could surely identify all. This circumstance is by itself a guarantee against fabrication. Further, he has rightly pointed out Lai Pasand during the trial as well.
15. It is true that identification parade in this case was held after seven days of the apprehension of the accused as was the case in Muhammad Amir alias Muski and 3 others v. The State (PLD 1977 Kar. 695) but it cannot be overlooked that an effort was made to conduct the parade on the 25th December and that being a holiday the parade had to be adjourned. On going through the Diary we find 22nd December was Sunday, 24th December was day before Eid and 26th was second day of Eid.
16. The arguments of the learned counsel for the accused-respondents that holding of the parade after 4 months of the occurrence was an exercise in futility for no one can recall to his memory whom he saw for just two three minutes, though attractive at first sight overlooks quite convenient that Saadullah Khan P. W. 7 like an experienced Police Officer had a close up of the gunman and had memorised his distinguishing features, namely, this neck, green eyes and short stature.
Saadullah Khan's statement before the Court: "I had seen the accused who had fired at the deceased from very close quarter and identified him fully well." demonstrates how much confident he was about his ability to identify the gunman. It .Was argued that Saadullah Khan did not give the distinguishing features of the Police Officer who recorded his statement but with this omission if there was one he has not been confronted. Again it was for the Police Officer who investigated the case to have enquired from him about the reasons for such a categorical statement. In our view time lag can be disastrous in some cases for instance in the case of young and inapt witnesses like Asif Jan but in cases where the ability of a retired Police Officer of the Status and experience of Saadullah Khan is in question on shall have to give due consideration to it. It appears to us that Suadullah Khan had concentrated a lot on Lai Pasand for he happened to be the gunman and it is therefore that his observations enabled him to pick up Lai Pasand correctly even after 4 months. Needless to say that the other person to whom he did not devote much attention could not be identified by this witness.
17. We are also not impressed by the argument of the learned trial Court that since Saadullah Khan had been turned out along with the Police Officer after that the line had been arranged he shall be taken to have seen the identified accused before the parade. What Muhammad Sarfaraz Khan had said in Court is: "When I arranged the line of the fifteen persons participating in the parade I asked A. S. I. Anwar to go out of the courtyard and Saadullah. Again said that I had turned out A. S. I. Anwar and Saadullah outside the courtyard of Judicial lock prior to the arrange--ment of the accused in line."
Quite evidently Sarfaraz Khan had explained his position no sooner the first sentence which was some what confusing was uttered and made a categorical assertion that Saadullah Khan and A. S. I. Anwar were turned out prior to the arrangement of the accused in the line. This statement of Sarfaraz Khan also lends weight to the assertion of Saadullah Khan himself:- "It is incorrect to suggest that I had seen accused Cal Pasand prior to the identification parade or that my driver Muhammad Umar had seen him."
18. Though it is desirable that as many innocent persons as possible should be there when parades are conducted to identify suspects and that ratio of 1: 9/10 would be ideal but this cannot be laid down as an inflexiblerule of law particularly when the occurrence is a day occurrence and the identifying person is from the same village from which the suspect hails and they had many chances to meet without knowing each other's name.
19. Be that as it,may, a reference to Exh. P. X. Identification Parade memorandum will show that five persons were made to stand with fifteen other persons. Saadullah Khan in this case was supposed to identify two of the accused persons and in ultimate analysis this parade will also, be in the ratio of 1:
9. Rather if one takes into consideration the results of the parade Lai Pasand has been picked up from 20 persons, that is to say, ratio would be 1:
19. It is true that Sarfaraz Khan has conceded that there were 16 persons including the five accused but this appears to be in conflict with Exh. P. X.
To the relevant part of. Which his attention was not invited. In our view this concession is under the stress of cross-examination.
20. In this context we will refer to the post-mortem report where contrary to what has been'observed by the learned Sessions Judge the deceased was found with the following injuries:-
(1) A fire-arm entry wound with extensive charring in centre. Of chest 2' below and medially (to the centre) of left nipple 1 ----- X 1 -----.
(2) Fire-arm exit wounds, three in number on left outer and back side of abdomen in the upper part each ----- x ----- in an area of 4--- x 4---.
It may be added that a reference to the remarks of the Medical Officer A, would show that there was extensive charring present, firing distance was within a foot; and death was instantaneous.
The above post-mortem report will lend weight to the testimony of Saadullah Khan who in his turn is supported by his grand son Asif Jan both being disinterested witnesses.
21. Again there is the abscondence of Lai Pasand. The occurrence took place on 9th August, 1973 and he surrendered on 21st December, 1973.1 It is true that he along with his co-accused moved the Sessions Judge foe bail before arrest and also the High Court but on checking the record what we find is that the application before the- Sessions Judge moved on 4-10-73 was rejected on 16-10-73 and that the one moved before this Court was rejected on 15-11-73. It will come to this that from 9th August, 1973 to 3rd October; 1973 and from 15-11-73 to 20-12-73 Lai Pasand was in abscondence. His abscondence before that he moved the Court was for about! 2 months. It will follow that he was not available to the police because, he had moved an application for bail before arrest is not all truth.
22. To sum up, taking into consideration that testimony of Saadullah Khan and Asif Jan, the identification parade, wherein Saadullah Khan identified Lai Pasand respondent; medical evidence, and the abscondence we are left in no doubt that the prosecution has been able to prove its case under section 302, P. P. C. So far as Lai Pasand is concerned.
23. We will accept the appeal of the State so far as Lai Pasand is concerned and finding him guilty of an offence under section 302, P. P. C. Sentence him to death. He shall also pay Rs. 5000, recoverable as fine to the heirs of Rambail Khan deceased under section 544-A, Cr. P. C. In default he shall suffer six months' R. I. If death sentence is not maintained.
24. As far as other respondents are concerned we are inclined to the conclusion that the prosecution has not been able to prove its case by unimpeachable evidence. The appeal of the State so far as they are concerned is dismissed.
25. We have awarded death sentence in the case for we are of the view that respondent Lai Pasand has acted in a very brutal manner when he has fired at the deceased Rambail Khan from a point blank-range in the house of a retired Superintendent Police while the latter was exhorting him t not to perpetrate the crime. He it appears gave a very hot pursuit to the deeeased (and probably fired several shots while he was fleeing) then killed a defenceless person with hands up with the assistance of another person who could not be identified.