1. ABDUL RASHID, C. J.-This is an appeal, by special leave, preferred by Abdul Rauf, from a decision of the Judicial Commissioner of the N.-W. F. P. Confirming the sentence of death awarded to him under section 302 of the Pakistan Penal Code by an Additional Sessions Judge of Peshawar.
2. Muhammad Azim Khan, an uncle of the appellant, was shot dead in broad day-light on the 24th September 1942, at about 9-0. a.m. Near a butcher's shop. At noon the First Information Report was lodged by Muhammad Umar Khan (P. W. 3) at the police station to the effect that while he was resting in the village he was informed by several people that his brother Muhammad Azim Khan had been fired at and killed by Abdul Rauf near a butcher's shop. He went towards the shop and saw Azim Khan's body being brought to the village. People told him that Azim Khan was at the butcher's shop when he was fired at by Abdur Rauf. Abdul Rauf had approached Muhammad Azim Khan for the hand of his daughter in marriage. The deceased had refused to marry his daughter to Abdul Rauf about four years ago.
3. After the incident, Abdul Rauf absconded for several years. He was, therefore, proclaimed as an outlaw and proceedings under section 512 of the Cr. P. C. Were taken against him. During these proceedings several witnesses were examined and as, some of them had died, their statements were transferred to the record of the Sessions Court at the trial. Muhammad Umar Khan, who had lodged the F. I. R., was one of these witnesses.
4. The Prosecution relied on the statements of six eye-witnesses, namely, Sardar (P. W. 4), Malik Zargul Khan (P. W. 8), Mohd. Gul (P. W. 9), Abdul Sattar (P. W. 10), Shahzad Gul (P. W. 11), and Pakar (P. W. 12).
5. The learned Judicial Commissioners considered that no reliance could be placed on the statements of four out of these six witnesses, namely, Sardar, Mohd. Gul, Abdul Sattar and Pakar.
6. Their reasons for discarding the testimony of these witnesses may be reproduced in extenso :---- "Another contention raised on behalf of the appellant is, that Sardar, Mohd. Gul, Abdul Sattar, and Pakar do not deserve to be believed, on the short ground that they were not even casually referred to in the first information report. The learned Advocate-General, while he places no reliance on the evidence of Pakar, argues that there is no sufficient reason to disbelieve the testimony of the rest of the witnesses just named above. We think that it would be extremely unsafe to act upon the evidence of P. Ws. Sardar, Mohd. Gul, and Abdul Sattar, 4pd that the evidence of Pakar will have to be excluded from consideration, since it is not even relied upon by the learned Advocate-General.
7. Sardar, Mohd. Gul, and Abdul Sattar were not named in the first information report as eye- witnesses to the occurrence. No cogent reason exists, and none has been shown why they should not have been specifically mentioned in the first information report, if in fact, they were such material witnesses as they pose to be more so when the maker of the same report, after being informed in his village of the occurrence, proceeded to the spot, and saw the dead body being brought by the people. Out of these witnesses, Sardar was a servant of the deceased, while Mohd.
8. Gul was not only a tenant of the deceased, but was related to him as well, inasmuch as his father's aunt was the deceased's mother. Abdul Sattar alleges that he did not disclose the occurrence to anyone before his examination by the police. He admits that he was produced before the police by the deceased's son, Mohd Yusuf Khan. It is, therefore, a mystery how he was dug out by Mohd. Yusuf Khan, unless he was connected with the latter. But what is more surprising about the evidence of this witness is the fact that he says that the accused was holding in his hand something like a sugar-cane, a stick or a shotgun though it was then broad day-light. In these circumstances, we think that it would be hazardous to place any reliance on the evidence of Sardar, Mohd. Gul and Abdul Sattar. We accordingly discard their evidence."
9. I agree with the learned Judicial Commissioners that the evidence of the above- mentioned four witnesses must be discarded in its entirety.
10. Malik Zargul Khan (P. W. 8) is the principal witness in the case. His statement was recorded by the Sessions Judge on the 20th August 1952. He deposes that at about 10-00 a.m. He met the deceased Mohd. Azim Khan. He was sitting on the bridge near the butcher's shop on the day of occurrence.
11. The deceased asked him to find somebody to carry the meat, which he wanted to buy from the butcher's shop, to his village. The witness went to the shop of Abdul Ghani, who was selling some goods to the customers, and asked him to get up and carry meat which the deceased Mohd. Azim Khan was going to buy. While he was returning from the shop of Ghani, he heard a shut. When he reached the bridge, where he bad left the deceased, he found him wounded. He got the deceased put up on a cot. In the meanwhile, people from his village, which was roughly less than a mile from the place of the occurrence, arrived, and he was removed to the village. After Muhammad Zargul Khan had made this statement, the Public Prosecutor requested that the witness may be confronted with the statement which he had made `to the Committing Magistrate on the 17th December 1951, and that that statement may be transferred to the record of the Sessions Court under section 288 of the Cr. P. C. Permission was given by the Additional Sessions Judge to the Public Prosecutor to cross-examine this witness. He then deposed that he had stated to the Committing Magistrate that he had heard two shots and that when he arrived at the place of occurrence, he was told by the persons who were present that the deceased was by Abdul Rauf who was being pursued by a number of persons. He further admitted having told the Committing Magistrate that he had a revolver with him and fired three shots, but the cartridges misfired. He also admitted that he might have stated to the Committing Magistrate that he fired three shots at a man entering a sugarcane crop and that the man entering the crop was Abdul Rauf appellant.
12. When he was confronted with the contradictions in the statement made by him before the Additional Sessions Judge and that made by him before the Committing Magistrate, he deposed that the statement which he was making before the trial Court to the effect that he was told by the persons who were present there that Abdul Rauf had murdered the deceased was correct. It is clear from a comparison of the two statements that he did not pose to be an eye-witness even in his statement before the Committing Magistrate in the sense that he was definite that Abdul Rauf was the person who was running towards the sugarcane field. He had stated before the Committing Magistrate also that it was generally rumored that the deceased was murdered by Rauf. He had been the assailant entering the crops from a distance of 120 to 160 paces. Before the Committing Magistrate, the witness had stated that Rauf had got six brothers and he did not at that time know which of the brothers was known as Rauf. People had told him that the culprit was Rauf. A careful examination of the statement of this witness shows that he tried to fire three shots at a person who was said to be Rauf, and whom he saw from the back from a distance of 120 karams just as he was disappearing into some crops. None of the persons who gave this information to Zargul has been placed in the witness-box. In these circumstance, the testimony of Zargul as to the identity of the assailant is of no value. No explanation has been given why none of the persons who gave the name of the assailant as Rauf to Zargul was not produced by the prosecution. As soon as the deposition of this witness had been recorded by the Sessions Judge, he passed an order that the witness should be detained so that proceedings under section 193 of the P. P. C. May be taken against him. This has highly prejudiced the case of the accused as Shehzad Gul, the other witness, on whom reliance has been placed by the Courts below, had yet to be examined.
13. Shehzad Gul is the second witness on whom reliance has been placed by the learned Judicial Commissioners. He deposes that he had slaughtered an animal for meat and the people to whom he was selling meat had gathered round him. Azim Khan deceased at that time was walking on the road, and he placed an order with him for some meat. In the meantime, the witness heard two shots. People who had gathered round him, told him on his enquiry that Azim Khan had been shot by his nephew, whom he did not know, and whose name he did not enquire. He added that Azim Khan deceased had eight nephews and that Rauf was one of them. He added in answer to a question put by the court that he had not seen Abdul Rauf himself on that day. At the end of his statement the learned Session Judge made a remark to the effect that the witness had been evasive in his replies to Court question.
14. It appears to me that the statement of this witness does not carry the case of the prosecution any further as he merely states that the people who were crowding round his shop told him that it was Abdul Rauf appellant who had shot at Azim Khan. He however, did not give the name of any of these persons and none of them was examined at the trial.
15. The evidence of motive is not of much value. It was contended on behalf of the defence that the deceased had refused to marry his daughter to the appellant four years ago and that this fact could not actuate the appellant to murder the deceased. This contention was repelled by the lower Court on the ground that as the deceased had given his daughter in marriage to some--one else "sometime" after the appellant's proposal had been turned down, it had added fuel to the fire and had actuated the appellant to murder the deceased. The words "sometime" do not indicate how long after the refusal to marry his daughter to the appellant had the deceased given his daughter in marriage to someone else. In any case, it is not known whether it was the appellant alone who had a motive to murder the deceased. This evidence and the evidence of his absconding do not materially help the case for the prosecution. The observation of the learned Judicial Commissioners to the effect that it is seldom that an accused person absconds in the Frontier Province unless he is guilty of the offence with which he has been charged does not in my opinion serve to establish the guilt of the appellant beyond reasonable doubt in view of the unsatisfactory nature of the two alleged eye-witnesses on which reliance was placed by the learned Judicial Commissioners.
16. I am of the opinion that the evidence of Malik Zargul and Shahzadgul does not inspire confidence and cannot be held to be conclusive in view of the fact that the persons from whom they derived their information had not been produced by the prosecution. This is a case of practically "no evidence." I would, therefore, accept this appeal, and acquit the appellant.