' SHAH ABDUR RASHID, J.-Ajmair alias Jamair was tried along with his father Nasar Khan son of Akram Khan and Malik Mas Khan son of Hameed on charges under section 302 read with section 34 of the Pakistan Penal Code for having committed, in furtherance of their common intention, the murders of Masal Khan and his brother Yousaf Khan by firing at them, in the area of Khawaja Hawas Koroona within the jurisdiction of Police Station, Shabqadar on the 12th day of July, 1976 at Kacha gharma time Ajmair alias Jamir was convicted on two counts under section 302, P.P.C. And sentenced to death. He was also sentenced to pay a fine of Rs, 2,000 on each count or to undergo rigorous imprisonment for one year in case the death sentences are not confirmed. The fine, if realized, is to be paid to the heirs of the two deceased persons. Nasar Khan and Malik Mas Khan were, however, acquitted.
2. Ajmair alias Jamir has appealed against his convictions and sentences and the learned Sessions Judge has also forwarded the record of the case to this Court for confirmation of the death sentences under section 374, Cr. P. C. This order shall dispose of the appeal as well as the reference.
2. On 12th July 1976 at 11-30 a. m. Mst. Khadai (P.W. 11) the mother of the two deceased brothers made a report at Police S4ation, ghabqadar. This report when translated into English would read as follows :- "Four days back Nasar son of Karat= resident of Khawaja Hawas Koorona came to our house in village Shagga Tehsil Swabi and said that I and my sons Masal Khan and Yousaf Khan (deceased) with household effects should migrate from our village to his village Khawaja Hawas Koroona.
Since Nasar son of Karame resident of Khawaja Hawas Koroona is our collateral, my sons agreed on that very day and I and my sons left the residence of village Shagge and came to village Khawaja Hawas Koroona. Today at kacha gharma time Ajmair son of Nasar resident of village Khawaja Hawas Koroona came to our house and told my son Masal Khan to go with him for cutting the grass. Ajmair was at that time carrying a gun in his hand. My son Masal took up sickle and went with Ajmair. After some time shots were fired. At this I and my son Yousaf Khan came out of our house and went towards the side from where shots were fired. We saw that Ajmair was carrying a gun in his hands and was coming towards us. When he reached near us he fired at my son Yousaf.
My son Yousaf, on being hit, fell down and died, Ajmair told me that he had murdered Masal Khan as well. On saying this he went away. The occurrence was seen by me and several other persons.
The motive is that Ajmair was annoyed at our residing in their house. The said Ajmair has murdered my sons at the instance of Malik Mas Khan. The dead bodies of my sons are lying on the spot. I make complaint for the murder of my sons against Ajmair son of Nasar".
4. The above report of Mst. Khadai (P.W. 11) which is Exh. PA was recorded by Aftab Ahmad (P.W. 15) who at that time was posted as A.S.I. At the Police Station, Shabqadar. He registered the case and proceeded to the spot along with Mst. Khadai (P.W. 11). Reaching there at 12-00 hrs. He found the dead bodies lying on two cots. He prepared the injury sheets of the deceased persons and also held the inquest on their dead bodies. He inspected the spot and prepared the site plans (Exh. PB and Exh. PB/1). He took into possession the blood-stained earth from the place where Masai (deceased) was killed and made a sealed parcel thereof. From that very place he took into possession two empties of 12 bore gun. These are Exh. P-1. They were made into sealed par-els.
Blood-stained earth was also taken into possession from the place where Yousaf Khan was killed.
Mst. Khadai (P.W. 11) produced a license of the gun to the witness which was taken into possession.
The licence is Exh. P-3.
5. The post-mortem examinations on the dead bodies of the two deceased persons were performed by Lady Dr. Nusrat Ara (P.W. 1) on the same day i,e, 12th July 1976 at 4-00 a. m. And 4-50 p. m. The appellant was allegedly arrested in the tribal area of Mahmand Agency by the Political Staff of the Political Agent alongwith gun (Exh. P-11), a bandolier (Exh. P-12) and a knife (Exh. P-13).
The appellant was brought by Subedar Major Zarif Shah of Muhmand Agency (P.W. 13) to the Police Station and was handed over to Ajab Khan S.H.O. (P.W.10) who arrested him and also took the custody of the shot-gun, bandolier and the knife.
6. The acquitted accused, namely, Malik Mas Khan and Nasar Khan were not arrested during the investigation as a pre-arrest bail had been allowed to them.
7. The gun which had been recovered from the appellant and two empties which were recovered from the place where Masal deceased had been killed were sent to the Forensic Science Laboratory and the report of the Expert is Exh. P-Z/1.
8. That the two deceased persons, namely, Masal Khan and Yousaf Khan did not meet natural deaths but were the victims of offence is established from the statement of Lady Dr. Nusrat Ara (P.W. 1). As already stated she had performed the post-mortem examinations on the dead bodies of the two deceased persons. The post-mortem examination on the dead body of Masai Khan was performed at 4-00 p. m. On 12th July 1976, the day on which the offence had been committed. The following injuries were found on external examination
(1) A fire-arm inlet wound one inch long cavity deep, charring mark present in the center line on the back at the level of tenth intercostal space. Contents of vertebral column were protruding out, ninth and tenth ribs fractured with corresponding vertebra.
(2) Six outlet pellet marks on the front of abdomen starting from the pit of stomach on the area of 4" wide and 6" long.
' The Lady Doctor recovered two pellets from the area from the abdominal wall. The internal examination disclosed that the membranes over the spinal cord had been injured. The spinal cord itself was injured at the level of tenth intercostal space. Tenth thoracic vertebra was fractured. The wall of the chest on the back at the level of tenth intercostal space was also injured. The ninth and tenth ribs were fractured. The abdominal walls were also injured on the front. Peritoneum and diaphragm on the right side too were injured. The stomach was, however, normal. It was empty and contained a little quantity of half-churned food. It was pierced by pellets. Small and large intestines were also pierced. The liver was torn into small bits.
9. With regard to this deceased person the witness opined that the death was caused due to the injury to liver which had been found torn into pieces resulting in severe hemorrhage. The other factor which contributed to the death was neurogenic shock as vertebral column at the level of tenth thoracic vertebra was seen crushed. The Doctor also recovered two pellets and one cord from inlet and outlet wounds which weighed 100 grains. The death, according to the opinion of the witness, occurred instantaneously. The time between death and post-mortem examination was less than twelve hours.
10. The external examination on the dead body of Yousaf Khan whose autopsy was performed at 5- 50 p, m. Disclosed the following two injuries :-- (1)An inlet-fire arm wound one inch long cavity deep on the back right side one inch away from vertebral column at the level of eighth and ninth ribs which were fractured. Charring marks present around the wound.
(2)Seven outlet pellets marks on the front of abdomen in the area of 5" x 7" (five and seven inches) area.
' Three pellets were recovered from the abdominal wall. These weighed 150 grains. On internal examination the Doctor found that eighth and ninth ribs on the back of right side were fractured.
Pleurea and right lung too were injured. Abdominal wall on the front, peritoneum, and stomach had been pierced by pellets. Small and large intestines were also injured and the liver was torn into pieces. The stomach was found to be empty. The bladder was full and was in normal condition.
11. In the opinion of the Lady Doctor the death of Yousaf Khan occurred due to fire-arm injury to the liver which had been completely damaged and torn into small bits producing hemorrhage and neurogenic shock. The Lady Doctor also recovered pellets weighing 150 grains from the front abdominal wall. The death, in the opinion of the Doctor, occurred instantaneously on receiving the fire-arm injury. The postmortem 'examination had been performed within twelve hours of the death.
12. In order to establish the guilt of the accused the prosecution had relied on the following pieces of evidence
(a) Eye-witness account of Mst. Khadai (P.W. 11), the mother of the deseased persons and Mukamil Shah (P.W. 12) her son.
(b) The conduct of the accused in running away immediately to the tribal territory after the occurrence.
(c) The arrest of the accused by the Political Staff of Mahmand Agency in suspicious circumstances.
(d) The possession of crime gun by the accused.
(e) The judicial confession of the appellant, made before Syed Wakil Shah, M.I.C. (P.W. 7).
( f ) The matching of empties recovered from the spot with the gun recovered from the appellant (on the basis of Expert's report).
13. The learned trial Judge had disbelieved the testimony of Mukamil Shah (P.W. 12) and rightly so because this witness was not mentioned in the first information report which had been lodged without loss of time by Mst. Khadai (P.W. 11). He also ruled out the ri-C acted judicial confession of the appellant for the reason that it had been recorded after the appellant had remained in police custody for a number of days. He however, accepted the eye-witness account of Mst. Khadai (P.W.
11) and the Expert's report (Exh. P-Z/1) which supported her.
14. Mr. Muhammad Shafique, learned counsel appearing for the condemned appellant, has first of all contended that the entire prosecution case falls to the ground when judged in the light of the background in which the offence is said to have been committed. He contends that the prosecution have miserably failed to bring on record any motive for the commission of offence and that in fact even Mst. Khadai (P. W. 11) who is the main witness and the mother of the deceased persons is not consistent with regard to the motive. It was also pointed out that the said witness had been changing her version from time to time which fact itself shows that she was not at all aware of any motive and the convict has been roped in merely on suspicion without any basis whatsoever.
15 In the first information report (Exh. PA), the translation of which we have reproduced above in the opening paragraphs of this judgment, shows that Mst. Khadai (P.W. 1 I) does not say as to what enmity or ill-will the appellant had against the two deceased persons. She does not attribute, in the said property, any direct motive to the appellant though in the end of the report she does say that the appellant had committed the murders at the instance of his landlord Malak Mas Khan, the acquitted accused. At the trial, however, quite a different story was given by her with regard to the motive which is reproduced below in her own words : - "The motive for the offence is that Ajmair accused was aggrieved as to why we had occupied the adjacent koala in their house and had come from our village to cultivate the land of Malak Mas Khan on tenancy : besides this we have no other enmity with the said accused."
' Mukamil Shah (P.W. 12) though disproved to be an ever-witness of the occurrence has not given any version of the motive and in fact inthe examination-in-chief he categorically state hat the deceased and he bad no enmity with the accused. In cross.: mention, however, he stated as follows :- "I cannot say why Malak Mas Khan ordered the accused Ajrnair along with Nasar Khan to fire at the deceased. In fact Masal Khan had enmity with his relative Imam Said and it is possible that they by killing my brother wanted to bring charge against Imam Said."
16. Mst. Khadai (P.W. 11), although in the first information report had stated that the murders were committed at the instance of Malak Mas Khan the acquitted accused, nevertheless she subsequently filed an affidavit to the effect that Malak Mas Khan had no hand in the tragedy and that she had not named him as one of the culprits before the police. In her statement at the trial, however, she does mention the names of Malak Mas Khan as well as Nasar Khan, the father of the convict for the abetment of the offence though no major part has been attributed to them.
17. The above resume of the evidence with regard to the motive would show that even Mst. Khadai (P.W. 11), the mother of the deceased persons and Mukamil Shah (P.W. 12), their brother are not positive about the actual reason which had prompted the appellant to commit the murders of the two persons who were related to him. The learned counsel for the appellant, as already stated, contends that since there is no motive whatsoever, the evidence of even Mst. Khadai (P.W. 11), who claims to be an eye-witness, should not be believed because no sane man would commit the murder of his relative unless there are reasons to prompt him to commit the heinous crime.
18. In our view though the motive for committing an offence always exists yet it is not essential for the proof of the guilt of the accused person. Instances are not lacking where gruesome murders have been committed without any motive and there are many reported cases in which murders have been committed but the motive had throughout remained a mystery. The motive is a double- edged weapon. On the one hand it prompts the culprits, to commit the offence and, on the other hand, it creates a suspicion in the mind of the relatives of the victim that the person who had motive to commit the offence would be the A actual murderer. Again if motive does not exist for committing the murder it can rightly be argued that there is nothing for the complainant party to charge a person in the absence of any motive. In the instant case the motive is not established but even then Ajmair appellant has been directly charged for the commission of the offence. This fact itself shows that Mst. Khadai (P.W. 11) has not charged Ajmair accused without any reason. Either she does not know the motive for the commission of the offence or the motive is such which she was not prepared to disclose at the trial. The same is the case with Mukamil Shah (P.W. 12) her son.
Most probably the second theory that the witnesses know the motive but in order to save the honor of some persons they are not prepared to bring it to light is correct.
19. In the case of Azeon Khan v. The State (1) my learned brother Mian Burhanuddin, J. While discussing the question of existence and non-existence of the motive, observed as follows : ...... We know from the experience of the Criminal Courts that atrocious crimes of this sort have been committed from very slight motives, not merely from impulse or revenge but to gain a small pecuniary advantage and to drive off for a time pressing difficulties. Therefore, we are of the view that when there is other evidence of the guilt of an secused person, the existence of a motive is a circumstance corroborative of the case against him. But motive is a fact which is within the personal knowledge of the person doing the act and which no human being but the party himself can divine. Thus failure to discover the motive for an offence does not signify its non-existence; and failure to produce the evidence of motive though it may be adduced with weakness of the whole body of proof, is not fatal as, in law proof of motive is no more necessary than the proof of any other relevant fact."
' In .View of above facts we are of the opinion that absence of proof of motive does not by itself weaken the prosecution case regarding the actual offence.
20. We shall now take up the evidence which has been adduced in the case to prove the guilt of the convicted appellant. As already stated the first piece of evidence is the ocular testimony of Mst.
Khadai (P.W. 1l) and Mukamil Shah (P.W. 12) the mother and brother respectively of the two deceased persons. The evidence of the latter has not been azcepted by the learned trial Judge and, as already observed, it did not deserve acceptance for more than one reason. Mst. Khadai (P.W. 11) had lodged the report soon after the occurrence. If her son Mukamil Shah (P.W. 11) had been a witness to the occurrence we see no reason why his name should not have appeared in the first information report. Again his evidence has no intrinsic value whatsoever. He says that he and Zareef were cutting grass in a sugar-cane field when he saw Malak Mas Khan and Naser Khan the acquitted accused, standing on a Pulla of a nearby field. According to him Ajmair appellant fired on Masai Khan deceased upon the instruction of the two acquitted accused persons. If he had seen the murder being committed, in his presence, of his real brother it was highly improbable that he should not have come to rescue or raised hue and cry to attract the other persons. Mst. Khadai (P.W. 11) does not say that she was attracted by the hue and cry of Mukamil Shah (P.W. 12) or of Zareef who was allegedly cutting grass with Mukamil Shah (P.W. 12). According to his own version after the deceased Masai Khan was fired at he and Zareef had crawled in the field to escape from the spot to save their own lives. This is a conduct which does not fit to a person living in the society to which the witness belongs. With stronger reasons the testimony of this witness can be discarded because he, in spite of claiming to be an eye-witness of the occurrence and being a male member of the family, should have ordinarily gone to the P.S. To lodge the report had he witnessed the occurrence. In our society the female members come out to take such action only when the male member is not available or he is not in a position to do that is required. His failure to proceed to the police station himself instead of sending of Mst. Khadai (P.W. 11) to lodge the report establishes that he was
(1) P L ID 1979 Pesh. 36 ' not at all present when the occurrence took place. The learned trial Judge has very wisely ignored to act upon the testimony of this witness and I can do no better but to rule out the presence of this witness from the spot for the reasons just mentioned and the reasons which the learned trial Judge has given in his order.
21. Mst. Khadai (P.W. 11) who lodged the first information report has been believed by the trial Judge and we too think that she had witnessed the occurrence and her testimony, as far as it incriminates Ajmair accused, is free from any reasonable doubt. The occurrence took place at kacha gharma vela on 12th July 1976 and she lodged the report at 11-30 aim. Which time too is kacha gharma vela. This shows that the report was lodged without any loss of time and the witness had gone directly to the police station after seeing the occurrence. There was no time for her to consult her sons or for that matter any of her well-wishers. There is, therefore, no possibility of concocting a false story against Ajmair accused against whom even the suspicion of any motive is not brought to light.
22. The learned counsel for the appellant has contended that Mst. Khadai (P.W. 11) is a witness who says one thing at one occasion and another thing at another occasion. She is a witness who can change her version from time to time and, therefore, it is not safe to rely on her testimony. He refers to the first information report where only Malak Mas Khan, the acquitted accused, was stated to be the instigator of the crime and her statement at the trial where she brings in Nasar Khan, the father of the accused, also to be the instigator. Again he refers to her affidavit dated 22nd July 1976 (Exh.
PG) wherein she had resiled from the first information report by saying that she did not say before the police that her sons had been killed at the instance of Malak Mas Khan, the acquitted accused.
The learned counsel argues that a witness of this type who can be moulded from time to time to make any statement which suits a particular person should not be believed specially in a criminal trial on murder which can bring to gallows an innocent person. We do not think there is much substance in this argument. The motive for the offence is always in the mind of culprit and a witness cannot be sure thereof. Mst. Khadai (P.W. 11) has not, in the first information report, directly charged Malak Mas Khan for any overt act but had simply stated that Ajmair had committed the murders at the instance of Malak Mas Khan. Obviously this is a statement which expresses suspicion only and no part in the tragedy has been attributed to Malak Mas Khan in the first information report. No doubt in her affidavit she resiled from that statement but that fact in itself would not make her wholly untrustworthy. _ Likewise her statement at the trial does not in her examination-in-chief attribute any part to the two acquitted accused, including Malak Mas Khan, whose name was mentioned in the first information report as a suspected culprit though she did say that she was charging Ajmair appellant for actually firing and the other two accused for the abetment of the offence. The fact cannot be ignored that,Mst. Khadai (P.W. 11) is a woman of 70 years age, illiterate and belonging to the backward rural area She is not expected to be exact in all the details nor can she have the intelligence to be cunning enough to concot a plausible story to bring in the innocent persons. It is for this reason that she has not in the examination-in-chief been able to make any case against the two atquitted persons'.
23. The learned counsel then argued that as the witness has given different r stories at different occasions she should be disbelieved as a whole being not a truthful person. It is settled law that in Indo-Pak. Sub-Continent the rule that the veracity of the witness is indivisible is never recognized.
The Courts have always been trying to perform the difficult task of "winnowing the grain from chaff".
The maxim that a witness who is false on one point is false on all points is not recognized and there is a chain of authorities in support of this view which it is not necessary for us to refer as it is no longer a disputed proposition of law.
24. Mst. Khadai (P.W. 11) had reiterated in her evidence at the trial the main facts which she had mentioned in the first information report. According to her on the day of occurrence she and her sons were present in their house at Khawaja Hawas Karona where they had shifted a few days back on the request of Nasar Khan, the acquitted accused and the father of the appellant when the appellant came. Before his arrival her two sons Mukamil Shah (P.W. 12) and Zareef had already left the house for cutting grass. Ajmair appellant and Masal Khan Deceased also went to the fields.
Ajmair appellant took the licensed gun of Masal Khan deceased along with him. After about an hour she heard reports of two fires from the directions of the fields. At this she and her son Yousaf Khan rushed towards the spot. Yousaf Khan was ahead of the witness when Ajmair appellant came from front and shouted at Yousaf Khan to run for his life. Yousaf turned his back on which the appellant fired at him. He was hit and fell on the ground and succumbed to his injury. The learned counsel for the appellant contends that in the first information report no mention of Yousaf's turning his back on the calling of Ajmair, appellant is mentioned and that this improvement had been made to bring the evidence in line with the medical testimony. No doubt this is so but then the fact cannot be denied that in the first information report normally the minor details are not mentioned. The state of mind in which a mother, after the deaths of her two sons is expected to be, is sufficient for giving her concession for ignoring to mention certain points. Even if the statement at the trial is taken to be an improvement over the first information report, her testimony cannot be brushed aside simply for that reason. Obviously the composure, which the mother of the deceased persons gained during the interval between the occurrence and the time of evidence, made her wiser and she in her keenness might have improved her story to bring it in line with the evidence of the Lady Doctor. This act of her would not, however, make her a false witness in all particulars. In fact when Yousaf Khan deceased was confronted by the accused it was natural for him to turn his back when he found the appellant to be armed with a gun. This was naturally an act which was expected of him and if Mst. Khadai (P.W. 11) has not mentioned this in the first information report it does not alter the strength of her evidence. Again the learned counsel pointed out that in the first information report Mst. Khadai (P.W. 11) had stated that Ajmair accused had come to their house armed with a gun. At the trial, however, she changed her testimony and stated that the gun belonged to her son Masal Khan deceased for which he had a licence and that this was taken by Ajmair appellant while leaving the house. This improvement is no doubt there hut, as already observed, Mst. Khadai (P.W. 11) is an old lady and perhaps in order to attribute greater part to the person who killed his sons she had mentioned that he had come with a gun to their house. She was not conscious that there would be an Expert's opinion to establish that the gun was the same which was licensed in the name of her son.
25. The learned counsel also pointed out that in the first information report Mst. Khadai (P. W. 11) had not mentioned that her two sons had already left for cutting grass when the convicted appellant and her son Masai deceased went out of the house. This omission, in the first informal tion report, is too minor to be given any weight and, in our view, does not amount to any material contradiction.
26. The learned counsel then argued that in the first information report it had been stated by Mst.
Khadai (P.W. 11) that her son Masai Khan had taken with him a sickle when he left with Ajmair appellant for cutting the grass but strangely enough when Aftab Ahmad, A. S. I. (P. W. 15) came to the spot he did not find either sickle or cut grass.
27. As far as the cut grass is concerned, there is nothing on record to show and in fact it is not the prosecution case that Masal Khan deceased and the- appellant did cut the grass after they had left for that purpose. The absence of grass from the spot is, therefore, of little consequence. The absence of sickle would have been material to some extent in the ordinary circumstances but if the entire case is taken into consideration it would be evident that the complainant party was freshly settled in village Khawaja Hawas Korona and they had no other relative or acquaintance there except the accused party themselves. When Mst. Khadai (P.W. 11) went to the police station, it is quite natural-that before the arrival of the I.
0. Somebody might have removed the sickle from the spot specially when Malak Mas Khan the elder of the village and who is the landlord had also been named by her. The absence of recovery of sickle in the particular circumstances of the case too, therefore, is of little help to the accused appellant.
28. The statement given by Mst. Khadai (P.W. 11) at the time of lodging the report tallies with the medical evidence to a large extent. It is pertinent to note that the dead bodies had not been seen by Aftab Ahmad (P.W. 15) who had investigated the case and, therefore, the statement of Mst.
Khadai (P.W. 11) who is an old lady, without the aid of any person experienced in the nature of injuries could not have given a version, if she had not seen the occurrence, to tally in material particulars with the medical evidence. On the body of Yousaf Khan deceased there were two injuries and even a literate person could have said that two shots were fired by the culprit but the version of Mst. Khadai (P.W. 11) that only one shot was fired goes to show that she had actually seen the occurrence. The learned counsel for the appellant contends that in the presence of Yousaf Khan deceased, who was present in the house when the first shot was tired, Mst. Khadai (P: W. 11) could not have gone with him to see what had happened and that this aspect of the story does not ring true. We are unable to subscribe to this argument inasmuch as Mst. Khadai (P.W. 11) is the mother of Masai. She had seen that her son and Ajmair had left earlier with a gun and the report of the fires had also come from the side towards which they had gone. She would have been the first person who would have rushed to the spot being the mother of the person about whom she apprehended that he might have been shot. Her going with Yousaf deceased towards the side of the occurrence is therefore, not only natural but is also convincing inasmuch as if she had not gone towards the side from where the report of fires was heard her conduct would have been unnatural and not in line with the conduct of a mother.
29. In view of what has been said above we are fully in agreement with learned trial Judge that Mst.
Khadai (P.W. 11) had witnessed the occurrence. At the expense of repetition we would reiterate that her going to the police station just after the occurrence and making the report against the appellant is a material fact which strengthens her testimony which can hardly be disbelieved.
30. The testimony of Mst. Khadai (P.W. 11) in the circumstances of the case is sufficient to establish the guilt of the appellant. However, there is other evidence also which supports her version. As already stated Ajmair accused was arrested on the same day in the tribal area where he was found by the Political Staff of the Political Agent in suspicious circumstances. He had not given any explanation in his statement recorded under section 342, Cr. P. C. As to how he happened to be in the tribal area just after the occurrence. The learned trial Judge, in this respect, had put the following question to the appellant :- "Q.--Were you arrested along with the gun belonging to the deceased by the Frontier Constabulary ?"
To which the appellant replied as follows :- "A. -No, There was no charge against me for having fired with the gun of the deceased and later on the gun of the deceased was planted on me to make the prosecution case strengthen, the document produced by the prosecution was subsequently written in different ink and that document has also not been proved legally."
' The above statement, as it appears on the face of it, was given on the advice of counsel who defended the appellant at the trial. But the evidence of Sub. Major Zarif (P.W. 13) establishes beyond reasonable doubt that the appellant had been arrested in the tribal area along with the knife, gun and bandolier and was brought on the next day to the Police Station, Shabqadar. There is no reason to disbelieve the testimony of Zarif Shah (P.W. 13) who is an independent witness and is not interested in the outcome of the trial. It is thus established that soon after the occurrence the appellant went to the tribal area in order to abscond but was apprehended in time.
31. No doubt Gula Khan (P.W. 3) who was only a marginal witness to the recovery memo made some concession in favor of the appellant in cross-examination when he said that the appellant lived in the settled area as well as in the tribal area because the people of the village had dual residence. This concession is of no consequence because in his examination under section 342, Cr.
P. C. The appellant did not mention this fact. It is an established law that when a marginal witness, who is produced for no B other purpose, makes certain confession in favor of the accused unconnected with the matter of recovery such concessions should not be seriously looked into and should not be taken to be helpful to the accused person.
32. From the above fact it is evident that Ajmair appellant, soon after the occurrence, went to the tribal territory along with the gun, which was the weapon of crime, in order to escape apprehension and this conduct of his is a relevant fact which goes against him to prove his guilt and to corroborate the testimony of Mst. Khadai (P. W. 11) who had seen the occurrence.
33. As already observed the gun (Exh. P. 11) was in possession of Ajmair accused when he was arrested in the tribal territory. This is established from the statement of Sub. Major Zarif Shah (P.W.
13) who is an independent witness. This gun was taken into possession by Ajaib Khan, S. H.
0. (P. W. 10) in presence of Mabarik Shah, F. C. (P.W. 2) when the accused was handed over to them by Sub. Major Zarif Shah (P.W. 13) on 13th July, 1976, the next day after the day of occurrence. This had in due course been sent to the Forensic Science Laboratory through the Superintendent of Police and the report of the Expert of the Forensic Science Laboratory (Exh. P. Z. 1) is to the effect that the empties found from the spot were fired with the gun (P. W. 11) which had been recovered from the appellant. The learned counsel for the appellant first of all contends that the gun and the empties had been kept for a long time with the police and, therefore, the report of the Expert loses its value inasmuch as it become doubtful if the empties were the same which had been recovered from the spot. He pointed out that the gun and the empties were sent to the Senior Superintendent of Police on 19th July whereas the empties had been taken into possession on 12th and the gun on 13th July, 1976. According to him no plausible reason for delay has been given. In this connection the learned counsel for the appellant has referred to the case of Rehman v. The State (1) wherein delay in sending the crime articles for the examination of the Expert was considered to be a circumstance against the prosecution. The case is however, not on all fours inasmuch as in that case the delay was coupled with the evidence of interested and stock witnesses of the police which fact prevailed with the learned Judges to discard the testimony of Expert's witness. As against this the case of Sharifuddin v. The State (2) is more applicable to the circumstances of the case. In that case it was held that mere delay in sending the recovered weapons to the Expert would not detract from the evidence of the prosecution witnesses. In this case there was a delay of about six months which was not taken into consideration. In the present case the question of fabrication has been raised in appeal only and no such question was put to the prosecution witnesses which could have suggested that the police might have fabricated the evidence and would have sent empties other than those recovered from the spot for comparison with the shot- gun which had been recovered from the appellant. In our view there is nothing to suggest that the two empties were not recovered from the place where Masal Khan deceased was killed or that the gun (Exh. P-11) was not recovered from the appellant when he was arrested by the Political Staff of Mahmand Agency and brought to Police Station, Shabqadar. The evidence has established that the empties recovered from the spot had been fired from the gun which had been recovered from the appellant. This circumstance shall directly connect the appellant with the crime. The learned counsel for the appellant has contended that the Expert has used only one test empty for comparison which is not sufficient evidence to establish that the empties had been fired from the crime shot-gun. In the case of Muhammad Aslam v. The State (3) it was held -thatt he Ballistic Expert's opinion based on only first one test empty cannot be ruled out even if no photographs had been taken. The Expert's opinion, in these circumstances, is not open to any challenge.
34. The learned trial Judge has discarded the judicial confession on the ground that it had been recorded after the appellant had remained in the police custody from 13th July to 17th July and that there was a
(1) PLD 1968 Lah. 464 (2) 1974 P Cr. L J 107
(3) 1970 SCMR 450 ' possibility of the appellant being tort urged to make confession. He also pointed out to the admission of the Investigating Officer who had stated that prior to that the appellant was not produced before the Magistrate because he was not willing to make the confession. In our opinion the mere fact that the appellant remained in the police custody for about four days does not make the confession inadmissible if it is established from the record that at the time of making the confession there was no pressure or coercion on the maker thereof. The admission of the I.
0. Too is immaterial inasmuch as there was no necessity of producing the appellant to the Magistrate if he was not making the confession. He had been questioned during all this period in order to find out as to what had happened and if he finally made the confession that confession would not lose its evidentiary value if it is established that it was made voluntarily. It is pertinent to note that though torture on the part of the police is alleged by the defense, the appellant had not in his statement under section 342, Cr. P. C given the details of the torture to which he was subjected.
The mereallegation of torture by itself is nothing more than an allegation. If there was a real torture then there- was nothing to prevent the appellant from disclosing the method of torture.
35. We have read the judicial confession of the appellant and the statement of the Magistrate Saeed Wakeel Shah (P.W. 7). It appears thatthe appellant was given full opportunity to think over the matter. It was explained to him that the confession can be used against him and it may lead to his conviction. Certain parts of the Magistrate's statement are material and it shall not be out of place to reproduce them here in order to give an idea that the confession was voluntary. He says : - "I removed handcuffs and explained to him (the appellant) that I was a Magistrate and the accused was brought before me for recording his confessional statement. Under the law he was not bound to make such a statement. In case he makes this statement it will be used in evidence against him. I gave him one hour to think over his decision and after the expiry of the same I recorded his confessional statement (P-2). It was read over to him and after admitting the same to be correct he thumb-impressed it. Before recording the said statement I have observed all the legal formalities."
' This statement clearly shows that the Magistrate had taken over the precaution to prompt the appellant to make the statement only if he desires so. Even if there was any pressure on the appellant previously that had been duly removed by the Magistrate when the appellant was brought to him. In the case of Sharifuddin Pirzada v. Sohbat Khan (1) it was held that mere fact that a person making the confession remained in police custody for some time does not lead to the conclusion that the confession was tutored. It was further observed that when a full opportunity is given to the accused to explain the circumstances under which they were making the confession, such a confession has to be relied upon. In view of the above facts we are, therefore, of the opinion that the learned trial Judge has erred in ignoring the confession of the appellant which though retracted had been made voluntarily.
36. The learned counsel for the appellant then argued that the confession of the appellant does not tally with the prosecution version and,
(1) PLD 1972 SC 363 therefore, it should not be acted upon. No doubt in the confession (Exh. D A) the appellant had made a lengthy statement charging Malak Mas Khan for instigating him but as far as the killing of the two deceased persons is concerned he had frankly admitted that he had fired at. Masai Khan deceased as also at Yousaf Khan deceased which fires resulted in their deaths. The other details are not necessary as far as the guilt of the appellant is concerned and they would be relevant only if the case of Malak Mas Khan was also under consideration.
37. The net result of the above discussion is that the guilt of the' appellant is established firstly by the ocular evidence of Mst. Khadai (P. W. 11). Secondly by the conduct of the accused in running away immediately after the occurrence to the tribal territory. Thirdly by his arrest along with the crime gun which tallies with the crime empties C recovered from the spot and lastly from the judicial confession which the appellant made before Saeed Wakeel, M. I. C. (P.W. 7). In these circumstances, therefore, the appellant has rightly been convicted under section 302, P. P. C. (two counts) for committing the murders of Masai Khan and Yousaf Khan deceased.
38. The learned counsel for the appellant then contended that the murder of Masai Khan was not witnessed by any person and it is not established as to under what cirrcumstances the killing had taken place. He contends that since the start of the trouble is not established from record and no motive has been proved the appellant does not deserve to be sentenced to the normal penalty of death for the murder. In this respect reliance has been placed firstly on the case of Muhammad Sharif v. The State (I) and secondly on the case of Kharait Illahi v. The State (2). In the first case it was held that when immediate cause of occurrence is not known and the prosecution story put forward concerning motive is found to be false, extreme penalty of death is not called for. In the second case the learned Judges had opined that where immediate cause of attack is not established lesser penalty should be awarded to the accused person.
39. In our view also, as far as the murder of Masai Khan is concerned, the appellant does not deserve the extreme penalty of death because the cause which prompted the appellant to commit his murder is shrouded with mystery. Had the case come to light the possibility of mitigating D circumstances cannot be ruled out. However, the appellant had committed the murder of Yousaf Khan indiscriminately and it is established from the evidence of Mst. Khadai (P.W.
11) that when he came in front of her and Yousaf deceased the appellant fired at the victim who died instantaneously. This was an act of rashness and brutality on his part and he should not escape from the normal penalty of death for committing the murder of Yousaf Khan deceased.
40. On the request of the learned counsel we examined Dr. Muhammad Nawaz Khan, Radiologist, according to whose opinion the appellant's age was between 20 and 22 years. He is positive that his age is neither less than 20 nor more than 22 years.
At the time of the commission of offence the age of the appellant was thus 17 years to 19 years.
ThelF learned counsel contends that the appellant was of raw age at the time ofl
(1) PLD 1971 Lab. 708 (2) 1975 P Cr. L J 1301 ' commission of the offence and for that reason too he does not deserve to be awarded the extreme penalty of death. We are, however, unable to persuade us to the view that a person of raw age committing the murder cannot be sentenced to death. In the case of Sheikh Hassan v. Bashir Ahmad (1) it was held that the .Age of the accused being only sixteen years was not sufficient reason for not inflicting the normal penalty of death. In this case reliance had been placed on several cases in which the same view had been taken. We also hold that mere youth of the appellant would not help him in escaping from the normal penalty of death which is provided for an offence under section 302, P.P.C.
41. The net result of the above discussion is that we uphold the convictions of the appellant under section 302, P. P. C. For committing the murder of Masal Khan deceased and Yousaf Khan deceased (two counts). For committing the murder of Masal Khan deceased, however, the sentence of death is altered to that of imprisonment for life. The sentence of death for committing the murder of Yousaf Khan is, however, upheld. The order regarding fine and the payment thereof is also upheld. The death sentence as far as the charge for the murder of Yousaf Khan deceased is concerned is confirmed under section 374, Cr. P.C. But as far as the murder of Masal Khan deceased is concerned it is not confirmed.
(1) PLD 1966 Pesh. 97