1. ' MUHAMMAD KHURSHID KHAN, J-The appellant Abdullah Khan (20) son of Saadullah Khan, Pathan by caste and a resident of village Lakki Meena Khel, was convicted by Mr. Allah Bakhsh Khan, Sessions Judge, Peshawar, on 16th of January, 1979, under section 302, Pakistan Penal Code and sentenced to imprisonment for life and a fine of Rs, 2,000 or in default thereof to undergo simple imprisonment for 6 months more, for having committed the murder of his co-villager Hasham Khan, by firing at him on 12th of June, 1977, at Deegar Wela, in the bed of River Gambila, distant one mile from Police Station Lakki. In the event of the realization of fine, it was ordered to be paid to the heirs of the deceased by way of compensation. The convict has come in appeal against his conviction and sentence. A revision petition has also been filed by Ghulam Qadar Khan for enhancement of sentence awarded to the appellant. This judgment will dispose of the appeal as well as the revision.
2. ' The facts of the case for the prosecution, so far as they are necessary for dealing with the points involved, may be stated thus quite shortly. On the 12th of June, 1977, at Deegar Wela, the deceased Hasham Khan along with Abdullah Jan (P. W. 7), and Rashid Anwar P. W. (since given up) left together to see a Kabaddi match, in the bed of river Gambila. When they reached their destination, they found a big crowd of spectators watching the match. Maazullah Khan (P. W. 8), Ghulam Dastagir (P. W. 9) and Sabz Ali P. W. (since given up) were amongst the spectators. The deceased and his two companions stood by the side of the aforesaid three persons. In the mean time, Abdullah Khan appellant armed with a five shots Rifle and accused Mohtabar Khan carrying a D. B.
3. Shot-gun turned up there. The former fired a shot at Hasham Khan who was hit and fell down. The accused then took to their heels. They were, however, chased by Abdullah Jan, Maazullah Khan, Ghulam Dastagir, Sabz Ali and Rashid Anwar for some distance but in vain. While these persons were following the culprits, with intent to capture them, they were fired at ineffectively by Mohtabar Khan accused. Both the accused made good their escape in the nearby Jungle. Thereupon, Abdullah Jan and his companions returned to the scene of occurrence and on reaching there found Hasham Khan already having breathed his last. The dead body was then removed to the Hospital while Abdullah Jan left for Police Station, Lakki, where he lodged the First Information Report.
4. ' The First Information Report, Exh. P. A. Was recorded by Mr. Muhammad Nawaz then Station House Officer Police Station, Lakki (P. W. 10) to the dictation of Abdullah Jan (P. W.). After the report was recorded, it was read over to the latter who signed the same in token of its correctness. Thereafter, the Sub-Inspector, accompanied by Abdullah Jan P. W., proceeded to the house of the accused but could not find them out there. They then proceeded together to the spot, reaching there at a time when it had become dark. With the aid of a torch, the Sub-Inspector took into possession blood-stained earth and made it into a sealed parcel. After posting a guard at the spot, the Sub- Inspector proceeded to the Hospital. There he prepared the injury statement Exh. P. C. And inquest reports Exh. P. D. And entrusted the dead body of Hasham Khan to Foot Constable Gul Nawaz (P. W.
5. 3), for taking it to the mortuary for post-mortem examination.
6. ' The autopsy on the dead body was conducted by Dr. Chiragh Hussain Shah (P. W. 1), who, on superficial examination, found the following injuries on the dead body
(1) A fire-arm inlet wound 1/4 x 1/4. On the right mid axillary line in the 7th intercostal space.
(2) A fire-arm outlet wound r x r on the left mid exillary in the 7th intercostal space of the left side corresponding to the inlet wound.
7. ' On internal examination, the wall of the thorax, pleurae, right and left lungs, pericardium, and heart were found injured while 7th rib on the right side was found fractured. Death,, in the opinion of the doctor, was due to shock and haemorrhage resulting from injuries to vital organs of the body.
8. ' After the post-mortem examination, the doctor handed over the shirt of the deceased to Foot Constable Gul Nawaz who, in turn, made over the same to the Investigating Officer. It was taken into possession by the Investigating Officer vide Memo. Exh, P. F.
9. ' Both the accused absconded after the occurrence. The Police obtained their warrants of arrest under section 204, Criminal Procedure Code and entrusted them for execution to Foot Constable Tor Gul (P. W. 6). The Foot Constable searched for the accused in their own village as well as in the surrounding villages but with no success. It was reported by him that the accused had gone in hiding. Since the warrants of arrest could not be executed because of the abcondence of the accused, a written proclamation was issued and published as required by the law.
10. ' On the 14th of July, 1977, one Anwar Kamal produced Abdullah Khan accused before Muhammad Ayub Khan (P. W. 5) who had by then succeeded Mr. Muhammad Nawaz as Station House Officer, Police Station, Lakki. The Sub-Inspector arrested the accused there and then. The other accused, Mohtabar Khan, was produced before the Sub-Inspector on 1st of September, 1977, when he was also arrested.
11. ' The report of the Chemical Examiner Exh. P. K. And that of the Serologist Exh. P. L. Disclosed that the earth, and the shirt of the deceased, sent to them for examination, were stained with human blood.
12. That closed the action taken by the Police.
13. ' In all, ten witnesses were examined by the prosecution at the trial to support its case. The case of the accused in the lower Court was that of denial. They stated that the whole family of Hasharn Khan deceased, Abdullah Jan, and Maazullah Khan P. W. Belonged to the faction of Mohammad Akbar Khan who was opposed to the family of the accused headed by Sher Jan Khan. They further stated that the relations between these two opposite groups were extremely strained for the last 4/5 years. The case of the accused further was that Inayatullah Khan brother of Maazullah Khan P.
14. W. Was put up as an eye-witness in a murder case registered at the instance of Muhammad Akbar Khan against Sher Jan Khan and some of his relations, and that in a double-murder case in which Ghulam Dastagir P. W. Was convicted and sentenced to death, Sher Jan Khan had appeared and deposed as a prosecution witness. No evidence, however, was led in defence.
15. ' The trial Judge, giving the benefit of doubt to Mohtabar Khan accused, acquitted him while he convicted and sentenced the appellant as already indicated.
16. ' The question whether Hashim Khan died as a result of firearm injury received by him on the 12th June, 1977, at about Deegar Wela, is not in dispute. It is even otherwise amply proved on the record that he died on account of the injury received by him at the time and on the date aforesaid. The evidence of Doctor Chiragh Hussain Shah (P. W. 1) who performed the post-mortem examination on the dead body of Hasham Khan clearly shows that he had an injury on his person which was ante mortem and appeared to have been caused by a fire-arm. His evidence further was that death was due to shock and haemorrhage caused by the injury. According to the doctor, the injury was sufficient in the ordinary course of nature to cause death, and the death was almost instantaneous. Apart from the evidence of the doctor, the evidence of Abdullah Jan (P. W. 7), Maazullah Khan (P. W. 8) and Ghulam Dastagir (P. W. 9) also clearly establishes that Hasham Khan died on account of the injury he received on 12th June, 1977.
17. ' Before we proceed to discuss the merits of the case, we would like to deal with the question of motive for the present occurrence. The motive, as given by the prosecution, is that in the year 1975, two sons of Muhammad Akbar Khan were killed. Saadullah father, and Sher Ali Jan uncle, of the appellant, and Abdullah Jan uncle of the acquitted accused, namely Mohtabar Khan, were charged for those murders. Hasham Khan deceased was cited as an eye-witness of the occurrence in that case. During the pendency of the case, the appellant and the acquitted accused endeavoured hard to persuade Hasham Khan not to give evidence in that case. The latter, however, did not submit to their wishes and was adament to appear as an eye-witness in the case. Before Hasham Khan could give evidence in that case, he was shot dead by the appellant. In order to prove the motive, the prosecution examined Abdullah Jan P. W.
7. The appellant when examined under section 342, Criminal Procedure Code, did not deny the suggestion made to him that Hasham Khan deceased was an eye-witness in that case. He, however, came forward with the plea that his father and uncle had been falsely implicated in that case. Be that as it may, one fact is clear and that is that Hasham Khan had been cited as an eye- witness in that case and he could not be persuaded by the accused party not to appear as an eye-witness against them. In the circumstances, the statement of Abdullah Jan P. W. With regard to motive for the present crime rings true and also fits in with the circumstances of the case. We cannot, therefore, entertain any doubt in our minds as to the motive given by the prosecution for the present crime.
18. ' We now turn to the merits of the case. The moot question in the case, however, is whether the appellant was responsible for causing the injury to Hasham Khan. In order, to fix the guilt on the appellant, the prosecution have based their case upon the ocular account of the occurrence furnished by Abdullah Jan P. W. 7, Maazullah Khan P. W. 8 and Ghulam Dastagir P. W. 9 and the abscondence of the appellant till 14th July, 1977 when he was arrested. These eye-witnesses supported the prosecution case in all its material particulars and stated that they witnessed the entire occurrence and that Hasham Khan died as a result of fire-arm injury received by him at the hands of Abdullah Khan accused.
19. ' A variety of questions has been mooted on behalf of the appellant against the validity of his conviction. It is first of all stated that Abdullah Jan, Maazullah Khan and Ghulam Dastagir witnesses happened to be mere chance witnesses and for that reason, their testimony did not deserve any credence. We are unable to accept this contention. It is true that they happened to be at the place of occurrence on account of Kabadi match. When a crime is committed at a place, and on an occasion, like the present one, the presence of spectators from the nearby places cannot be rejected by describing their as mere chance witnesses, unless, of course, it is found that witnesses' concerned could not give any satisfactory explanation of their presence at or near the' spot at the relevant time, or there is otherwise any inherent weakness in their testimony. Now in the present case Abdullah Jan P. W. Who happened to be a relation of Hasham Khan deceased stated that both of them went together to see the Kabadi match. Maazullah Khan P. W. During those days, was serving in the District Intelligence with his Headquarters at Bannu. He claims to have gone to the spot to see the match. Mr. Ghulam Dastagir stated that he had also gone to see the match. There does not appear to be anything improbable or unnatural in the explanation of all the three eye- witnesses. We can take judicial notice of the fact that not infrequently villagers from nearby localities do gather to watch Kabadi match, this game being very popular with common men of villages. In such a state of things, we can say without any hesitation on our part that the presence of the eye-witnesses of this case at the spot at the relevant time was neither improbable nor unnatural.
20. ' It was next contended by the learned counsel for the appellant that Abdullah Jan, Maazullah Khan and Ghulam Dastagir were not only interested witnesses but were also partisan witnesses. It was said that they being related interse as well as with the victim of the crime were interested witnesses and were at the same time inimical to the appellant. It was urged that in view of the rule laid down in Wasihullah v. Mirza Ali and others (1) and Bagh Ali and 4 others v. The State (2) strong corroboration by itself sufficient to establish the guilt of the appellant was necessary. Such a corroboration, according to the learned counsel for the appellant, was wanting in this case with the result that the appellant was entitled to acquittal, not as a matter of grace but as of right.
21. ' The criticism regarding the evidence of the eye-witnesses appears to be wholly devoid of merit.
22. Out of the three eye-witnesses, only one, namely, Abdullah Jan, was related to the deceased person of this case. The other two eye-witnesses were not related to them. It is well settled by authority that relationship of the witnesses inter se and with the victim of the crime by itself does not render, "witnesses" interested, unless they are shown to have some motive to falsely implicate the accused. If any authority is needed in support of this view, reliance may be made on PLD 1939 (?) Kar. 92 and PLD 1977 Pesh.
1. In the present case, Abdullah Jan who was related to Hasham Khan deceased had no previous enmity with the appellant and could have thus no motive for falsely implicating him. Likewise Maazullah Khan P. W. Had also no enmity whatsoever with the appellant. Instead, what appears is that he had very cordial relations with the appellant and his relatives. It will thus be seen that he was a disinterested and an independent witness. As regards Ghulam Dastagir P. W., it is no doubt evident that he was a partisan witness but that could make no material difference because of the fact that Abdullah Jan and Maazullah Khan who deposed as eye-witnesses were disinterested and independent witnesses and had no motive whatsoever to implicate the appellant in a false case.
23. The cases referred to and relied on by the learned counsel for the appellant having altogether different facts, cannot be stretched to cover the case in hand.
24. ' While challenging the correctness of the decision appealed against the learned counsel for the appellant strenuously contended that the conviction of the appellant based on the evidence of the three eye-witnesses who had been disbelieved by The trial Judge regarding the part assigned to the acquitted co-accused was improper. It was said that it was not open to the Sessions Judge
(1) PLD 1963 SC 25 (2) PLD 1973 SC 321 ' to rely on the same evidence against another co-accused on the same charge. The credibility of a witness, according to the learned counsel for the appellant, was not divisible to be believed against one and disbelieved against another co-accused. At first sight, the argument has an appeal but when analysed it has no force. A careful perusal of the judgment of the trial Court would clearly show that the three eye-witnesses were never disbelieved in regard to the part assigned to the acquitted accused. The fact of the matter is that no. Doubt Mohtabar Khan accused was accompanying the appellant and was also carrying a fire-arm but that fact alone could not conclusively establish that he had joined the appellant for doing away with Hasham Khan. Since no overt act on the part of the acquittal accused had been proved before the commission of the offence, the trial Court, giving the benefit of doubt to him, acquitted him. In such a situation, it cannot possibly be urged that the evidence given by the eye-witnesses in regard to the acquitted accused had been disbelieved by the trial Court. That being so, it cannot be said that since Mohtabar Khan had been acquitted, the appellant was also entitled to acquittal.
25. ' The learned counsel for the appellant &so raised a point that it is the prosecution's own case that Sabaz Ali and Rashid Anwar also witnessed the occurrence but it was strange that they were not examined as witnesses at the trial. He urged that the said witnesses, if produced at the trial, might have given evidence in favour of the appellant and, therefore, an inference adverse to the prosecution should be drawn. To support the contention that non-examination of the eye- witnesses at the trial being necessary witnesses would lead to an inference adverse to the prosecution, the learned counsel for the appellant placed reliance on Sirajul Mir and others v, The State (1) and our attention has been drawn to the following observations of their Lordships : "26. Having regard to the circumstances discussed we feel that the non-examination of Abdur Rehman and the mere tendering Of Jabbar Ali in the present case arose from oblique motive of the prosecution and further that their evidence was also essential for unfolding the narrative on which the prosecution was based. The mere tendering of Jabbar Ali was as good as not examining a person who was most competent to speak about the occurrence. We feel that the salient tests are only those of oblique motive and essentialness for unfolding the narrative on which the prosecution is based as propounded by the Privy Council. These are the tests and there should not be any other limits to the prosecutor's discretion in the matter of examining and tendering of prosecution witnesses. What witnesses are essential and which motive is oblique, will depend upon the circumstances of each case and it is not possible to specify them. As a rule of prudence, however, a material witness should not be merely tendered but should be asked by the prosecution to give evidence. Tendering should be confined to witnesses of secondary importance only. If the witness is important, the prosecution should call him and examine him in chief and should not tender him, though he can make the examination-in-chief as brief as circumstances permit. If the witness is unimportant, the prosecution may tender him for cross-examination. If the prosecution withholds a witness on the ground of unreliability, some evidence of unreliability.
26. Should be shown. When sufficient evidence has already been led, the tendering of a (1) p L D 1964 Dacca 420 witness will not be treated as withholding of such a witness, unless it is from oblique motive."
27. ' There is no doubt that at the trial, out of the eye-witnesses, the prosecution abandoned Sabaz Ali and Rashid Anwar. The former was given up as having been won over while the latter was abandoned as being unnecessary. The statement of Sabaz Ali even if it were in favour of the defence, would have been of no avail to the defence for the short and good reason that his statement under section 164, Criminal Procedure Code had earlier been recorded in which he does not seem to have made a statement favourable to the accused. As regards Rashid Anwar, no adverse inference could be drawn for his non-production at the trial because no oblique motive has been' shown for withholding him. From the material available on the record of the case, it cannot possibly be said that his testimony would have necessarily supported the defence. The prosecution case has been supported by three eye-witnesses and in the circumstances we are of the view that Rashid Anwar was an unnecessary witness. The rule laid down in the case of Sirajul Mir and others can have no application to the case in band because in that case the rule with regard to inference adverse to the prosecution was found on the consideration that such an inference should be drawn where the witness is essential and he is withheld from oblique motive.
28. This is not the position in the present case in which Sabaz Ali was abandoned as having been won over while Rashid Anwar was given up being unnecessary. In these circumstances, we are of the view that their non-examination at the trial would not justify us to draw an inference adverse to the prosecution.
29. ' The learned counsel for the appellant also took us through the record of the case and referred to a number of discrepancies in the evidence of the eye-witnesses and contended that much reliance could not be placed on the testimony of this kind. The discrepancies pointed out by the learned counsel were, in our opinion, of a minor kind and did not affect the value of evidence of these witnesses. In a case of this nature where witnesses are asked to recite details of an occurrence after a lapse of more than a year, discrepancies of this kind are bound to occur, because some of the witnesses may have observed only some of the facts while others may have observed some others. Taking the evidence of these witnesses as a whole, several facts about which there cannot be the slightest doubt, stand out clearly. The first is that they were present at the place and the time of occurrence; the second is that two of them, namely, Abdullah Jan and Maazullah, were disinterested and independent witnesses and could have no motive for implicating the appellant in a false case; the third is that they were at a very small distance from the appellant when he fired at the deceased and the fourth is that they pursued the appellant for some distance, after the occurrence. The only point which needs serious consideration by us, therefore, is whether the witnesses who claimed to have identified the appellant had the opportunity and time to se his face at the time of the occurrence and were, therefore, in a position to identify him. It is in evidence that the appellant was at a very small distant from the eye-witnesses when he fired a shot at the deceased. He was also chased for some distance by the eye-witnesses after the commission of the offence. The occurrence also took place in a broad daylight. In these circumstances, the eye- witnesses could have no difficulty in seeing the face of the appellant at the relevant time and were, therefore, in a position to identify him. There could thus be no doubt about the identity of the appellant.
30. ' On the above analysis of the evidence and the circumstances appearing on the record, we find that direct evidence consisting Of the testimony of three eye-witnesses which also received support from the abscondence of the appellant for more than a month, was trustworthy and the trial Judge acted properly in relying on it. We would, therefore, confirm the conviction of the appellant under section 302, Pakistan Penal Code.
31. ' We now proceed to deal with the petition of revision preferred by Ghulam Qadar Khan praying for the enhancement of sentence of imprisonment for life to one of death. The Sessions Judge awarded lesser penalty of imprisonment for life for the reasons appearing in para. 17 of his judgment. His observations on the question of sentence are to the following effect:- "It transpires that the accused Abdullah Khan who is hardly 20 years of age had a talk with the deceased Muhammad Hashim during the Kabadi match and something happened all of a sudden, he lost temper and on the spur of the moment opened fire on the deceased. It is possible that the talk was confined to the trial for the murder of two sons of Muhammad Akbar Khan and an attempt was made by the 'accused Abdullah Khan to dissuade Muhammad Hashim from appearing as a witness against his kith and kin. This part of the story has been withheld by the P.
32. Ws. Abdullah Jan and Maazullah Khan at the trial. It does not stand to reason that he would choose the Kabadi match as the venue for the commission of the premeditated crime within the view of hundreds of spectators. I would, therefore refrain from awarding capital punishment to him."
33. We entirely disagree with the Sessions Judge in these observations of his. The evidence given by the three eye-witnesses which is direct and reliable, and has also been relied upon by the Sessions Judge himself, clearly shows that on seeing Hashim Khan, the appellant immediately fired at him, and before the firing, no conversation whatever took place between the two. It is significant to note that there is not an iota of evidence on the record to indicate that before the occurrence, any conversation took place between the appellant and the deceased. No such suggestion either was put to any of the eyewitnesses. In this state of things, there was nothing for the trial Judge in coming to the conclusion that something happened before the occurrence all of a sudden, as a result of which the appellant lost his temper and on the spur of moment, opened fire on the deceased. Since these observations are based on no evidence, and cannot be justified on the facts and circumstance of the case, we are unable to concur in them.
34. ' It appears to us from the evidence on record that the incident was prearranged and pre-planned.
35. It was for this reason that on seeing Hasham Khan, the appellant immediately fired at him. In view of the fact that Hasham Khan could not be dissuaded earlier by the appellant and his relatives from appearing as a witness in the murder case referred to above, the appellant must have made up his mind to do away with him without having recourse to a conversation on the subject at the time of occurrence. The mere fact that the venue for the commission of offence was a place where there was a huge gathering would not justify the conclusion that some conversation might have precede the occurrence. Instances are not wanting where pre-arranged and pre-planned murders have been committed in places frequented by the public.
36. ' It will thus be seen that no mitigating circumstances have been brought out in this case, which could justify leniency in the matter of punishment. The Sessions Judge had thought it fit to give the benefit of lesser penalty to the appellant but we do not see that there was any justification for it.
37. This was obviously a pre-planned incident and that too for taking the life of a person who had done no wrong to the appellant. We are, therefore, unable to find any reason in law for withholding the normal penalty of death in the present case.
38. ' In the result, while dismissing this appeal, we accept the revision petition and enhance the sentence of the appellant from imprisonment for life to that of death. He shall be hanged by his neck till he be dead. . Revision accepted.