1. MUHAMMAD YAQUB ALI, J.-On the afternoon of the 9th February 1965, a gruesome murder took place in the verandah of the District Bar Room, Mianwali, in full public view. Within few minutes of the incident the respondents and another were charged for the crime. Out of them Fateh Khan, respondent, had placed the barrel of a shot gun close to the back of Habibullah, deceased, and fired a shot which felled him to the floor instantaneously. Thereafter Muhammad Hayat, Rohtas Khan and Murid Abbas, respondents caused him as many as seven injuries with knives mostly in the region of the chest. The fifth accused Noor Khan, father of Fateh Khan, respondent, then shouted that the mission having been completed the assailants should make good their escape.
2. Thereupon all five of them bolted away from the Court compound.
3. The attack was witnessed by Habibullah, P. W. 9, Saifullah, P. W. 11, Adam Khan, P. W. 12 and Muhammad Nawaz, P. W.
13. Habibullah, P. W. 9, had come to the District Courts to attend to a case in the Court: of Mr. Masud Ahmad Ansari, Magistrate, in which his brothers Umer Hayat and Muhammad Nawaz were being tried along with the deceased under sections 13 and 14 of the Criminal Law (Amendment) Act. His brothers were in judicial custody while the deceased was on bail. Adam Khan had come to Court to stand surety for Umer Hayat. Saifullah had come there to apply for a gun licence, while Muhammad Nawaz was to attend to a case in which his brother-- in- law Muhammad Azim was being tried on a charge under section 302, P. P. C. Abbas Khan, P. W. 7, brother-in-law of the deceased too arrived at the spot shortly after the incident. Leaving him behind to guard the dead body, Habibullah, P. W. 9, left for making report to the Police.On the way he met Syed Fazal Hussain Shah, S. H. O., Police Station Saddar, Mianwali, in the corridor of Court building not far from the scene of murder and mode to him the statement Exh. P. C. TheS. H. O. Lead come to the District Courts to appear as a witness in a murder case and his attention was attracted by the commotion caused by the murder. The statement was recorded at 1-30 p. m. And sent through a Foot Constable to the Police Station where Haq Nawaz Khan, Head Constable, drew he formal report, Fxh. P, C. 1-45 p. m.
4. After recording the report Syed Fazal Hussain Shah came to the spot and found tile aforesaid witnesses present near the dead body lying in the verandah of the Bar Room close to the Court room of Mr. Masud Ahmad Ansari. An empty cartridge and a pair of shoes left behind by one of the culprits were taken into custody from the scene of crime and made into scaled parcels. After the preparation of the inquest report which was attested by Habibullah and Abbas Khan, P. Ws., the dead body was sent to the Local Civil Hospital where autopsy was performed by Dr. Nawab Din at 5 p. m.
5. Among others the statements of Saifullah, Adam Khan and Muhammad Nawaz, P, Ws. Were recorded by Syed Fazal Hussain Shah, S. H. O., on his arrival at the spot which vouched for their presence when the incident took place. The higher police officers also visited the spot within an hour of the murder and supervised the investigation already underway.
6. The accused were arrested a few days after the occurrence and eventually placed for trial before the Sessions Judge; Mainwali, on charges under sections 148 and 302/149, P. P. C. Primary evidence of crime was given by the aforesaid eye-witnesses. The account given by them was consistent throughout and confirmed by the report of the post-mortem examination. There was also the evidence of motive on the part of the accused who were connected inter se. Rohtas Khan and Noor Khan are brothers. Fateh Khan is son of Noor Khan, while Muhammad Hayat is the first cousin of Noor Khan and Rohtas Khan. Murid Abbas is not related to the rest of the accused, but belongs to their clan. 10/12 years before the present occurrence, Muhammad Nawaz, a brother of Habibullah, deceased, and his relative Muhammad Hayat and Muhammad Khan had killed Amir Abdullah, brother of Muhammad Hayat, accused. They were convicted for the offence under section 302, P. P.
7. C. And while the first-named was hanged, the others were sentenced to transportation for life.
8. Blood feud was thus the motive for killing Habibullah, deceased.
9. Leave to appeal was granted to the State to consider the pleas that the acquittal of the respondents was based upon mere surmises and misconstruction of the evidence of the eye- witnesses. It was also emphasized that the evidence on the point of motive was not properly appraised by the learned Judges for it was inconsistent to hold on the one hand that the witnesses were inimical and the other to find that there was no strong motive for the accused to kill Habibullah who had many other enemies.
10. Our examination of record bears out the grounds raised in support of the appeal. The facts are that Habibullah, deceased, was, along with Umer Hayat and Muhammad Nawaz, the brothers of Habibullah, P. W., being tried in the Court of Mr. Masud Ahmad Ansari, Magistrate, Mianwali, under sec--tions 13 and 14 of the Criminal Law (Amendment) Act, The deceased was on bail, while the other two were in judicial custody. 9th February 1965, was the date fixed for the hearing of the case against them. The deceased and Habibullah, P. W. 9,had come from their village Roukri to attend the hearing, while Adam Khan, P. W., had come from his village Musakhelto stand surety for Umer Hayat. The hearing of the case was over by 1 p.m. The deceased accompanied Mr. Amanullah Khan, Advocate, counsel for the accused, to the Bar Room and had a talk with him for a few minutes in the verandah. In the meantime Habibullah, P. W., followed Umer Hayat and Muhammad Nawaz to the judicial lock-up, but as the police guards did not permit him to talk to his brothers he returned back and was at a distance of 32 feet when he saw the deceased being attacked by the respondents in the verandah of the Bar Room. The victim having been done to death, Noor Khan cautioned them to make good their escape. All five of them then bolted away from there and could not be traced for a few days. Muhammad Hayat, Rohtas Khan and Noor Khan were arrested by Syed Fazal Hussain Shah, on 18th February 1965, and Murid Abbas on 22nd October 1965.
11. As mentioned .In the beginning, Habibullah, deceased, was killed in full public view in the Court premises. A large number of persons witnessed the crime out of whom four whose state--ments were recorded on the spot by Syed Fazal Hussain Shah, S. H. O., furnished primary evidence of crime against the accused. Their presence was established .Beyond any doubt, but the learned Judges in the High Court expressed the view that none of them had seen the attack on the deceased and discredited them as unreliable.
12. The treatment of the evidence of the eye-witnesses is contained in para. 8 of the judgment.
13. Dealing first with the statement of Habibullah, P. W. 9, it was noticed that during the trial he expressed ignorance as to whether Adam Khan, P. W., had stood surety for Umer Hayat or Haq Nawaz, accused, in the case under sections 13 and 14 of the Criminal Law (Amendment) Act, but when confronted with his statement before the commit--ting Magistrate he recalled that Adam Khan had stood surety for Umer Hayat. In the words of the learned Judges "the witnesses had no way out and trotted the excuse that due to passage of time he did not recollect for whom Adam Khan had actually stood surety". As Umer Hayat and Muhammad Khan were the brothers of Habibullah, we are unable to appreciate what difference did it make whether Adam Khan had stood surety for one or the other. The fact that Adam Khan had stood surety in the sum of Rs.
14. 50,000 for Umer Hayat, brother of the witness, was used by the learned Judges for not relying on the testimony of Adam Khan. Capital was next made of the inconsistency in the statements of Habibullah as to whether Mst. Hayatan, were of his brother Muhammad Nawaz, came from village Musakhel or from "Musakhel side". From this it was concluded that "the witness seems to have little respect for the truth".
15. It was next pointed out that having admitted before the committing Magistrate that the were of Habibullah, deceased, was the sister of Abbas Khan, P. W., Habibullah, P. W., denied this fact during the trial. In this Habibullah was supported by Abbas Khan who appearing as P. W. 7 categorically denied that his sister was the were of Habibullah, deceased. It was, however, admitted that the were of Abbas Khan was the sister of the deceased: Abbas Khan was not an eye-witness and his presence at the spot when Syed Fazal Hussain Shah arrived there was proved by his attestation of the inquest report. The lie detected by the learned Judges was, therefore, not on a material point to discredit Habibutlah for it. Lastly it was emphasised that while he stated during the trial that Fateh Khan had fired at the deceased from a close range of three inches, he had described the distance before the committing Magistrate as one karam i. e. 5.5 feet. The learned Judges lost sight of the fact that when an assailant fires a gun from a distance of about five feet the muzzle is, on account of the extended arm of the gunman and the length of the barrel, almost close to the target and not five feet away.
16. As in the case of Habibullah, P. W. 9, the criticism of the remaining eye-witnesses was equally unsustainable. Presence of Saifullah, P. W. 9, was disbelieved as he had not applied for a gun licence on the day of occurrence. The explanation given by the witness that he could not apply for the licence on account of his occupation with the murder of Habibullah was, however, ignored in this behalf.
17. Adam Khan's statement was disbelieved as he had expressed his inability to recall whether he had stood surety for-Umer Hayat or Muhammad Nawaz. Also because he did not know them from before and had come forward to stand surety in the sum of Rs. 50,000 at the instance of his brother-in-law Mohammad Azim who was an undertrial in a case under section 302, P. P. C. And detained along with Umer Hayat and Mohammad Nawaz in the same judicial lock-up. It was not denied by the defence that Adam Khan had stood surety for Umer Hayat on the day of occurrence in the Court of Mr. Masud Ahmad Ansari. This fact was mentioned by him in his statement under section 161, Cr. P. C., as brought out in cross-examination by the defence counsel. He had also deposed before the committing Magistrate that he stood surety for Umer Hayat in the sum of Rs.
18. 50,000.
19. If the statement was doubted, the easiest thing for the defence was to summon the records from the Court of Mr. Masud Ahmad Ansari which would have established beyond any doubt whether Adam Khan had stood surety for Umer Hayat or not. On the contrary questions were asked from the witness to indicate that he had stood surety at the instance of Habibullah, P. W. 9, and not at the instance of his brother-in-law Mohammad Azim.
20. Nothing specific was said about the credibility of Mohammad Nawaz; P.. W. 13, except that Mst.
21. Hayatan, his second degree cousin, was married to Habibullah, P. W.
9. This witness along with Adam Khan, P. W. 12, and Muhammad Akbar, P. W. 8, belonged to Musakhel at a distance of 13 miles from Mianwali. Their presence was, however, disbelieved in the view that "There was nothing improbable about these witnesses having come to the spot on hearing of the occurrence". This surmise was plainly contrary to the established facts and the crime. As seen the statement of was recorded at 1-30 p.m. The formal F. Tat the Police Station on the basis of this The higher police officials arrived, Superintendent of Police, at the investigation. The presence of the eye-witnesses was men-- tioned in the F. I. R. And the inquest report and their statements under section 161, Cr. P.
22. C., were recorded by Syed Fazal Hussain Shah soon on the spot. The learned Judges were, however, led to believe that these persons had come to know of the occurrence at Musakhel and thereafter came to Mianwali to act as eye-- witnesses. Musakhel is connected with Mianwali by a metalled road and buses ply frequently on this route. In spite of this facility relied upon in this respect by the learned Judges it was a physical impossibility that these witnesses were at Musakhel when Habibullah was killed and yet they managed to be present at the spot when Syed Fazal Shah, Sub- Inspector Police, arrives: there at 1-30 p. m. Or when the senior police officials reached the scene to supervise the investigation.
23. The learned Judges next observed that the F. I. R., recorded at the spot, and this practice on the part of the police officials was deprecated. It was ignored that Syed Fazal Hussain Shah, Sub- Inspector Police, was to appear as witness in a murdered case on the day of occurrence. He was present in the District Courts when Habibullah was, murdered in the verandah of the Bar Room. It was, therefore, natural that his attention was attracted and he was proceeding to the scene of crime when Habibullah. P. W. 9, met him on the way and he recorded his statement near the place where Habibullah had been done to death. In the circumstances; it was not one of those cases in which a police official on receiving the report of crime comes. To the scene, carries out preliminary investigation and then records the F. I. R.
24. The next surmise that the deceased was killed by someone else as- he had many enemies and at the time of occurrence lie happened to have been implicated in a case under section 3921, P. P. C.
25. For robbing a Head Constable of a rifle is belied by the circumstances already referred to Habibullah's presence was established. The incident had taken place in broad daylight so that the identity of the assailants could not be in doubt. Habib-- ullah would not, therefore, the real culprits to escape and substitute them with the accused mentioned in the F.
1. R.
26. The reasons given by the learned Judges in disbelieving the eye-witnesses were thus far-fetched and on their face belied by the circumstances in which Habibullah deceased was murdered. Our examination of the evidence has led us to believe that the charge of murder was brought home to the respondents beyond' any reasonable doubt. They were in this view rightly convicted by the trial Judge and grave miscarriage of justice took place by their acquittal in the High Court.
27. We accordingly, allow the State appeal and setting aside the acquittal of the respondents by the High Court restore their convictions recorded by the Sessions Judge, Mianwali, in his order dated the 8th April 1966. As Fateh Khan was held out expectation of life by the High Court as far back as 8th April 1967, we do not propose to exact from him the penalty of death. All the respondents shall accordingly suffer the sentence of transportation for life under section 302/34, P. P. C.