1. ' DORAB PATEL, J.--Khairul Ibrar was shot dead in Charsadda on 24-2-68 at about 1-45 p. m. And the first respondent (hereinafter called the respondent) was tried and convicted by the learned Sessions Judge, Peshawar, for this murder. The respondent challenged this conviction in an appeal and as the sentence passed against him was death, his appeal was heard with the reference. From the Sessions Court, by a Division Bench of the Peshawar Seat of the West Pakistan High\ Court. By their judgment dated 4-9-1969 the learned Judges of the High Court acquitted the respondent and allowed his appeal, therefore,Liaqat Ali, the brother of Khairul Ibrar filed a petition for leave in this Court which was admitted and we have now heard the appeal with the assistance of the learned Advocate-General and Mr. Aman Khan and Mr. Nazirullah Khan, who appeared for the appellant and for the respondent respectively.
2. ' In order to prove the occurrence, the prosecution examined Liaqat Ali, the brother of the deceased, Asghar Muhammad Aqil and Obedullah, as eye-witnesses of the occurrence. Liaqat Ali said in his evidence that he, his brother and the three eye-witnesses had set out from their village on 24-2- 1968 "for going to Parang to purchase tobacco seedings. When we reached near the National Bank situated in Tehsil Bazar, Charsadda, we-saw the accused standing on the road side in front of the Bank. After we passed by the accused for a distance of about 12 paces, I heard the report of a shot.
3. All of us looked back and at the same time the accused fired another shot at my brother with a Tamacha.. My brother was hit and fell down. The accused fired another shot at him but did not hit him. The accused then ran away towards Papra Koruna. I came near my brother while my companions Obedullah, Aqil and Asghar went in pursuit of the accused. A number of persons came to the spot and after putting my brother on cot we started taking him to the Police Station.
4. We, however, met the S. I. Just outside the Police Station near some garages and I reported the matter there to him. The report Exh. P. A. To has been read over and explained to me and is correct.
5. It bears my signatures. The evidence of the other three eyewitnesses is on the same lines as that of Liaqat Ali, but unlike Liaqat Ali, they did not state that the deceased had turned round on hearing the first shot fired by the respondent. Further, according to all the eye-witnesses, whilst Liaqat Ali arranged to take his brother to the Police Station, the other three eye-witnesses tried to pursue the appellant and they were joined in the chase by Mian Dad, A. S. Of the Police Lines, Abbottabad. This witness stated that he happened to be sitting in a shop about 60 paces from the scene of the occurrence, therefore, on hearing the sound of shots fired, he had immediately rushed to the place of occurrence. But, according to the witness, the culprit managed to run away. However, Mian Dad, A. S. I., said that the three eye-witnesses had immediately told him that the murder had been committed by the respondent.
6. ' We pointed out that the F. I. R. Was recorded by the Sub-Inspector of Police, who happened to meet Liaqat Ali as he was carrying the deceased to the Police Station. This Sub-Inspector, Hukmat Khan was also examined by the prosecution and his evidence is important, because the sketch of the place of occurrence prepared by him is of crucial importance to the prosecution case. Further, it was this Officer, who had arrested the respondent on 1-6-1968, and the next day, the respobdent's brother had produced before him a pistol and Bandolier with live cartridges. Now, although no recoveries were made from the place of occurrence, the bullet which killed the deceased was recovered and forwarded by the hospital authorities to the Police, therefore, the, bullet together with the pistol secured from the respondent's brother were forwarded in due course to the ballistic expert Mr. Khairul Bashar Khan and this expert said in his evidence that the bullet recovered from the body of the deceased matched with the pistol forwarded to him.
7. ' Turning now to the case of the respondent, he pleaded innocence and said that he had been falsely charged. As he had been arrested after a delay of rather more than three months, he was asked why he had absconded and he said that he had .Gone to Malakand some two days before the occurrence and when he learnt of the charge against him, he did not return immediately out of fear. The respondent, however, did not produce any evidence in his defence.
8. ' The learned Sessions Judge, who had the advantage of watching the demeanour of the witnesses came to the conclusion after a very careful examination of the ocular evidence that Muhammad Aqil. Obedullah and Asghar had falsely claimed to have witnessed the occurrence, but he was satisfied that Liaqat Ali had seen the murder, and he was impressed by Liaqat Ali's evidence, because Liaqat Ali had no motive to implicate the respondent falsely. In these circumstances, he held that the evidence of the ballistic expert and the abscondence of the respondent was ample corroboration of Liaqat Ali's evidence. Accordingly, he sentenced the respondent to death.
9. ' The learned Judges of the High Court re-examined the evidence and agreed with the finding of the learned Sessions Judge that Muhammad Aqil, Obedullah and Asghar had falsely claimed to have witnessed the occurrence, but they were also not impressed by Liaqat Ali's evidence. This is not surprising, because Liaqat Ali had said that Muhammad Aqil, Obedullah and Asghar were with him and had witnessed the occurrence, therefore, the finding of the learned Sessions Judge that Muhammad Aqil, Obedullah and Asghar had falsely claimed to have witnessed the murder necessarily reacted on Liaqat Ali's evidence. The learned Judges were also of the view that Liaqat Ali's evidence was not supported by the medical evidence nor by the evidence of the Police Officer, Mian Dad, who had tried to capture the assailant. Accordingly, as they came to the conclusion that it would not be safe to rely on Liaqat Ali's evidence, they held that the prosecution had failed to prove the respondent's guilt beyond doubt, and they allowed his appeal and set aside his conviction. Therefore, Liaqat Ali filed a petition for leave which was admitted in order to examine the question whether the respondent's acquittal was in accordance with the principles laid down by this Court for the appraisal of evidence in criminal cases.
10. ' Mr. Aman Khan relied on the judgment of the learned Sessions Judge only to the extent to which it supported his arguments, and submitted that the Sessions. Court had rightly accented Liaqat Ali's evidence, but had erred in rejecting the evidence of the three other eye-witnesses. Further, according to learned counsel, the High Court had erred in rejecting Liaqat Ali's evidence, but in all fairness to learned counsel, he did not go to the length of contending that the High Court had acted perversely in rejecting Liaqat Ali's evidence or that the Sessions Court had acted perversely in rejecting the evidence of the other three eyewitnesses. Therefore, the real question in this appeal is whether we would be justified in a second appeal in interfering with the first appellate Court's findings on questions of fact. And the learned Advocate-General submitted that we would not be justified in interfering with the first appellate Court's appreciation of the evidence. That was also the submission of Mr. Nazirullah Khan, who further submitted that the view taken by the learned Judges of the High Court was the only possible and correct view, and I would first examine Liaqat Ali's evidence.
11. ' Mr. Aman Khan submitted that there were no material discrepancies in the evidence of this witness, therefore, the High Court was not justified in rejecting his evidence. It is true that there are no material discrepancies between the evidence of this witness in the Sessions Court and his statement in the lower Court. But, as I indicated earlier, the learned Judges of the High Court rejected the evidence of this witness, because they thought that his description of the occurrence was false. Therefore, I would recall here that according to the witness, his brother had a quarral some time before the occurrence with the respondent and the respondent had threatened to take revenge on his brother. In this background Liaqat Ali stated that on the day of the occurrence, as they walked past the National Bank Building, they saw the respondent standing there. They then heard a shot which did not hit any one, so according to the witness, they all turned round including the deceased and the deceased was hit by the second shot, fired by the respondent. The respondent then fired a third shot and ran away. Now, the four eye-witnesses were walking with the deceased at the time of the occurrence, and as admitted by Obedullah in his Police statement, the deceased had a quarrel with him also, therefore, as rightly observed by the learned Sessions Judge, it is very strange that although the respondent fired three shots, he did not make any attempt to fire at Obedullah.
12. ' However, it is the discrepancy between the medical evidence and Liaqat Ali's description of the occurrence, which disturbs me and it is necessary to examine the evidence of Dr. Mahmood Ahmad Qureshi, who carried out the post-mortem of the deceased. The doctor said in his evidence- "I examined Khairul Ibrar, aged 20 years, on 24-2-1968 at 2-05 p. In. And found the following injuries on his person:-
(1) A firearm entrance wound 1/4 x 1/4 on the forehead in the mid line between the two eye-brows.
(2) A contused wound 1/2 x 1/8" skin deep on the upper lip right side.
(3) A contused wound 1/2 x 1/8' skin deep on the right aspect of the chin.
(4) Multiple abrasions of various sizes on the front of both the knee joints."
13. The doctor explained as to the first injury that "the deceased was hit from his front side". The doctor also explained in cross-examination that injuries 2 to 4 to the deceased "could possibly be caused by one fall...." As the shot fired by the assailant hit the deceased on the forehead "between the two eye-brows" and as the injuries caused by his falling on the ground were on his chin and lips, it is clear that the person, who fired the shot at the deceased, was standing in front of him. But, as according to all the prosecution witnesses, the respondent had fired after they and the deceased had walked past the respondent, how could the respondent have fired at the deceased "from his front side?" In order to overcome this difficulty, Liaqat Ali stated that the deceased had turned round on hearing the first shot fired by the respondent. Mr. Nazirullah Khan stressed the fact that Liaqat Ali's statement was not supported by that of the other so-called eye-witnesses and similarly, I iaqat All had not stated in his F. I. R. That the deceased had turned round on hearing the first shot.
14. Mr. Aman Khan however submitted that .Liaqat All was not required to give the details of the occurrence in the F. I. R. And that the reaction of the deceased in turning round was a natural reaction.
15. I am inclined to agree with the submission that a person who hears shot fired from behind him would instinctively glance backwards. But, here it is not a case of the victims merely glancing backwards. If the deceased had merely glanced backwards, he could not have been hit between the two eye-blows. The shot would have hit at an angle. This is so obvious that Mr. Aman Khan stated that the deceased must have turned round sufficiently in order to be hit in the. Manner in which he was, I am not impressed by learned counsel's submission. As the deceased and his brother and friends were supposed to be walking from north to south, the deceased could have been hit between the eye-brows only if he had stopped walking towards the south, turned round and faced his assailant. But, as all the eye-witnesses claimed to have seen the respondent as they walked past him, the respondent too would have seen him, and as the respondent had threatened to kill him, it is possible that the deceased may have glanced backwards on hearing a shot, whilst walking away as fast as possible, but it is impossible to believe that he would have stopped walking on hearing the shot, turned round to face his enemy and become, so to say, sitting duck for his enemy to fire at. Next, as to Mr. Aman Khan's submission about the F. I. R., it is in such detail that it even refers to the bore of the pistol which the respondent was supposed to be carrying, therefore, if Liaqat Ali had seen the deceased, turn round to face his enemy, he Would certainly have stated so in his F. I. R. But, as he did not, in the circumstances discussed, this casts some doubt about his presence at the occurrence, and, therefore, the view taken by the High Court was a possible and reasonable view, and as submitted by the learned Advocate-General, no case has been made out for interfering with the finding of the first appellate Court that Liaqat Ali was a dishonest witness.
16. ' Mr. Aman Khan, however, submitted that Liaqat Ali had no motive to implicate the respondent falsely and as this was a circumstance which impressed the Sessions Court, I have given the matter anxious thought. But, in my humble opinion, the prosecution has failed to prove that the respondent had any motive to kill Khairul Ibrar, the deceased. It is true that Liaqat Ali said that there had been a quarrel between his brother and the respondent and that the respondent had threatened to take revenge on his brother. It is also true that the other eye-witnesses have supported Liaqat Ali's evidence and it is relevant to emphasize here that the learned Sessions Judge was of the view that the quarrel was between the deceased and Obedullah on the one side and the respondent on the other. But, unfortunately for the prosecution, no question was put to the respondent about this alleged quarrel by the learned Sessions Judge, therefore, the prosecution cannot rely on evidence of motive.
17. Additionally, I pointed out that the finding of the learned Sessions Judge' that Muhammad Aqil, Obedullah, and Asghar had falsely claimed to have witnessed the occurrence reacts against Liaqat Ali's veracity, because Liaqat Ali had said that these three eye-witnesses had witnessed the occurrence. In order to overcome this difficulty, Mr. Aman Khan criticised the rejection of the evidence of these three eye-witnesses by the learned sessions Judge. But, for example, Obedullah had said in his earlier statement that-he and the deceased had both insulted the respondent Therefore, if the respondent had a motive for killing the deceased he also had a motive for killing Obedullah. Yet although he was alleged to have fired three shots, and although Obedullah was only one fact from the deceased, it is the prosecution case that the respondent did not even attempt to fire at Obedullah. In view o these and other circumstances, the learned Sessions Judge was of the view that Obedullah was not present at the occurrence and not only is this view based on evidence, but in my opinion, no other view is possible.
18. ' Next, as to the other eye-witnesses, in a careful appreciation of th evidence, the learned Sessions Judge examined the explanation given by the four eye-witnesses as to why they were together at the time of the occurrence, and he rejected their explanation as false for reasons which are very cogent. 'The learned Sessions Judge then examined the discrepancies between the Police statements of Muhammad Aqil and Mian Dad, and the discrepancie between the evidence of Mian Dad and the three eye-witnesses about th manner in which they had chased the respondent.
19. Finally, the learned Sessions Judge pointed out that as these eye witnesses had many enemies, and as they were unarmed, it was highly improbable that they would chase any armed assailant.
20. Once again, in my opinion, the view taken by the Sessions Court is an eminently reasonab'e view and as the first appellate Court agreed with it, I agree with the submission of the learned Advocate-General that we cannot interfere with the concurrent findings of the two Courts about the veracity of Muhammad AO, Obedullah and Asghar. But, this finding reacts strongly against the evidence of Liaqat Ali.
21. I would, however, recall' bete that the learned Sessions Judge was of the view that Liaqat evidence was corroborated by evidence of motive, by evidence of the appellant's abscondence and by evidence of the recoveries, because the Ballistic Expert's report was positive.' I have explained why the prosecution cannot rely on evidence of motive. Next, as to the respondent's abscondence, abscondence is always a weak form of corroboratory evidence and as in the instant case, the period of abscondence was about three months only, in my opinion, it cannot furnish corroboration of Liaqat Ali's evidence. Finally, as to the recoveries, the difficulty in the way of the prosecution is that although the pistol was produced by the respondent's brother, the prosecution did not lead evidence to show how the respondent had obtained his brother's pistol. And, although the respondent said in his statement to the Sessions Court that the bullet recovered from the body of the deceased had not been fired from his pistol, no question was put to him about whether he had borrowed or used his brother's pistol. In these circumstances, the recoveries have hardly any corroborative value. Therefore, in my humble opinion, the view taken by the learned Judges of the High Court is supported by evidence and as submitted by the learned Advocate-General, it is a possible and reasonable view, therefore, we would not he justified in interfering with it in this second appeal. Accordingly I would dismiss the appeal and order the release of the respondent unless required on any other charge.