1. MUHAMMAD HALEEM, J.-This appeal, by special leave, arises from the judgment of the Peshawar High Court, Peshawar, dated 26th of October, 1970, by which Criminal Appeal No. 9 of 1970 was accepted and the first respondent was acquitted.
2. 'The prosecution case is that at 8-45 a.m., on 7th of May, 1967, while Capt. Mahmood Jan was sitting at the door of his orchard, by the side of the road, he heard a gunshot followed by 5 or 6 other gunshots upon which he went in that directionand on the way towards his village Pishtakhara, he saw Ghulam Muhammad lying dead on the path near the orchard of Abdul Qayyum and Saliheen. Taus, Haleem and Amir Muhammad, standing near the dead body had happened and the acquitted accused Baidullah Tamas Ataullah, Muhammad Gul and Momeen, armed with Topaks, accosted the deceased ; and from amongst them the first respondent fired -a shot at the deceased who, on being hit, fell to the ground. Thereafter, they fired at them but the shots proved ineffective. The appellants then escaped towards their Hujra.
3. Capt. Mahmood Jan next got the dead body removed to the house and, thereafter, went in his car to Police Station Tehkal, District Peshawar, where he lodged the first information report at 10 am the same day.
4. Several reasons were imputed for the murder. It was firstly alleged that there was civil litigation, between Capt.
5. Mahmood Jan and Baidullah, the step-father of the first respondent, over the mutation of two Kanals of land.
6. Baidullah is distantly related to Capt. Mahmood Jan. The sister of the grand-father of Baidullan was Capt.
7. Mahmood Jan's maternal grand--mother. On the demise of the paternal aunt of Capt. Mahmood Jan, two kanals of land, belonging to her, was mutated in his name. Baidullah resisted it by filing an appeal before the Collector and then followed it up by another appeal to the Commissionerand on being unsuccessful, he filed a suit which was decided in favour of Capt. Mahmood Jan. The deceased was the nephew of Capt. Mahmood Jan and had joint property with him. As Capt. Mahmood Jan was old, he had helped him in the litigation which annoyed Baidullah who nursed a grievance against him.
8. Secondly, in the last B. D. Elections, Capt. Mahmood Jan supported the candidature of a barber, Abdul Malik, as against Baidullah and finding that he had no support of the voters, Baidullah removed his ballot box and did not contest the election.
9. Thirdly, the immediate provocation was that Muhammad Nawaz, a brother of the deceased, while proceeding from the orchard to his house in a Tonga, sarcastically laughed on seeing the first respondent and his servant standing by the road side and carrying baskets full of eggs and chickens which led to an exchange of abuses and the first respondent, thereupon, threatened him with dire consequences and it was, therefore, that on the same evening the first respondent, along with the others, raided his Kandi and as Muhammad Nawaz and the deceased had got information about it beforehand, they prepared themselves to meet the attack which deterred the attackers and they retired without causing any harm to Muhammad Nawaz and the deceased.
10. From the spot, blood-stained earth was secured and three pellets were extracted from the body of the deceased.
11. Baidullah, Momeen and Ataullah were arrested on 8th of May, 1967, 16th of May, 1967 and 18th of May, 1967, respectively ; while Tamas and Muhammad Gul, were taken into custody on 7th of June, 1967. They were tried and acquitted by the Additional Sessions Judge, Peshawar, by his judgment dated 7th of December, 1967. After their acquittal, the first respondent surrendered at the Police Station Tehkal on 4th of July, 1968, and he was arrested by Adam Khan, A. S.I.
12. At the trial, the prosecution examined Saliheen, P. W. 9, Amir Muhammad, P. W. 10, and Haleem, P. W. 11, to furnish ocular version in the case. Muhammad Nawaz, P. W. 12,. Was examined to establish the incident, which, according to the prosecution, provided the immediate provocation of the murder of the deceased. The first respondent explained the abscondence stating that he had gone to Afghanistan to visit the shrines; and on hearing that he was falsely charged in a murder case, he surrendered himself for being tried. It was further pleaded by him that Capt. Mahmood Jan had differences with his step-father, Baidullah, but he had no knowledge of any ensuing civil litigation. As for the prosecution witnesses, he stated that they were under the influence of Capt. Mahmood Jan as he had helped them to secure jobs.
13. The trial Court held that there was no delay in the lodging of the F. I. R. As the time consumed was sufficiently explained. It further held that the motive was established and that the P. Ws. Were disinterested and had no reason to falsely implicate the first respondent. The trial Court was further of the opinion that the P. Ws. Had explained their presence for the reason that they had accompanied the deceased to see the opening of the bee- hive box and the traffic of bees as it was a novel affair not only in cities but also in villages which prompted them to witness it.
14. Lastly, the trial Court disbelieved the explanation furnished by the first respondent for his abscondence and held it to be an incriminating circum--stance which corroborated the ocular version. Accordingly, it convicted the first respondent under section 302, P. P. C. And sentenced him to death.
15. On appeal and reference, the High Court acquitted the first respondent. It disbelieved the motive and held that the P. Ws. Had no reason to accompany the deceased and further, that the story as to the firing of the ineffective shots at them was fabricated as they had failed to point out the Pullah or the wall of the orchard of Abdul Qayyum Khan behind which they had taken the refuge. Another circumstance which weighed with the High Court was that the evidence was disbelieved as against five others who were acquitted by the trial Court, which rendered their presence extremely doubtful at the spot. The High Court was further impressed by the fact that the injury on the deceased was from "above downward". From this the High Court inferred that the probability was that "somebody fired at the victim from over the wall of the garden of Abdul Qayyum and escaped unnoticed."
16. Leave to appeal was granted to examine the reasons for the acquittal of the first respondent.
17. The first question which we are called upon to decide is about the presence of the eye-witnesses at the spot. It may here be mentioned that Capt. Mahmood Jan's orchard is about 250 paces away from the spotand as asserted by, him, he heard the first gunshot followed by 5 o 6 other gunshots and he, thereupon, went in the direction o his village and on the path near the orchard of Abdul Qayyum, he saw the deceased lying dead and the P. Ws. Standing there. After making arrangements for the removal of the body to the house, he proceeded to the Police Station and lodged the F. I. R. At 10 a.m., after A an interval of an hour or one hour and a half. He also stated that he took the longer route for the fear of his own life as the shorter one was near about the Hujra of the first respondent. He disclosed the names of the witnesses in the F. I. R. And if they had not been present there, it is difficult to believe that he would have still mentioned them in the F. I R. In the absence of any material to show that they would have supported the prosecution case. Further, there is no deliberation and in that event it is also far-fetched to accept that he would select the eye-witnesses for this purpose. The cross-examination of these witnesses shows their complete disinterestedness and there is no factor either that being unconnected they were nonetheless under his influence. As it usually happens in the villages, people go to while away time on holidays to their amenders or elders and chit-chat on different topics. It being a Sunday, the presence of Saliheen, Amir Muhammad and Haleem, in the Hujra of Capt. Mahmood Jan, in the morning, cannot, therefore, be regarded as an unusual feature. Saliheen served as an "Incharge Jamadar in the Cantonment Board" at Peshawar while Amir Muhammad was a Ward Orderly in the Lady Reading Hospital and Haleem was a petty contractor engaged in contract work in the Peshawar University and the University Town. All these 'persons have not given any definite reason; and all that they had stated is that they were per chance there but the above purpose is nevertheless obvious.
18. Again it is in the evidence that the deceased, who lived with Capt. Mahmood Jan, apprised him that he had bought a bee-hive box from Tarnab Farm, Peshawar, which he had kept in the orchard, outside the villageand that he intended to go there to open the . Box and allow the traffic of bees. This was the attraction which prompted the P. Ws. To accompany him and as the trial Court had said that it was a novel affair, we are inclined to agree with it that this was the reason for them to accompany the deceased. Therefore, in the absence of any material to show that the deceased had not bought the bee-hive box, we are inclined to say that the witnesses could not have been interested to this extent to concoct a reason for their presence in the context of the fact that they pursued different avocations and had no interest in the parties.
19. The High Court in para. 10 of the judgment held the presence of the P. Ws. In the Hujra to be doubtful as on their own showing they bad no business with either Capt. Mahmood Jan or the deceased. Further, the High Court, was of the view that the reason given for their presence at the spot was also artificial. Bo t we consider it to be, inadequate for the High Court, while assessing their presence to be doubtful, has not cumulative taken all the factors into consideration and also failed to notice as to why these witnesses would lend themselves to support the prosecution case in case they were not there. In our view, there were compelling reasons for holding their presence to be free from doubt.
20. The next circumstance for disbelieving them was that their version qua the firing of shots at them was false as they failed to show the Pullah or the wall behind which they took refuge coupled with the absence of any evidence of the shots having been fired at them. In this connection the Investigating Officer had stated :-. ---------No pellet or bullet marks were seen, nor did I recover any spent bullet, pellets, wads or empty shells from the spot."
21. The High Court seems to have been impressed by these two features in holding them to be liars. The P. Ws.
22. Were following the deceased who was ahead of them. It is true that two of them, namely, Saliheen and Amir Muhammad had stated that they had taken refuge behind the Pullah which was a yard high while Haleem had stated that he took refuge behind the wall of the orchard of Abdul Qayyum. However, it seems to us that on seeing the deceased being hit by the gunshot they must have runaway in panic not actually seeing as to whether the shots were fired at them or in the air and this is a natural conduct for the intuition is to save one's own life by this recourse. Moreover, the first respondent and the other acquitted accused had no interest to kill the P. Ws. As they had nothing against them and, therefore, it is eminently plausible that they must have fired in the air to scare them. It is for this reason that the Investigating Officer had not noticed any evidence, of the other shots having been fired at them. The fact, however; remains that they were seen at the spot by Capt, Mahmood Jan who could not be imputed the intuition of selecting them in that moment of panic, if they had not been there.
23. It seems that the High Court had not applied its mind to this aspect while holding them to be false witnesses.
24. Again, the High Court has held that if they were, following the deceased in a line, they were also liable to be hit by the pelets, which is not the case here. This reason is on the face of it fallacious for the injury on the deceased shows that the pellets had entered in a mass causing a hole in his chest. There was, therefore, no spreading of pellets. If this is so then the risk of the pellets hitting the witnesses does not arise. The High Court did not notice this feature while holding so.
25. Further, the High Court concluded that it was a blind murder committed by a person who had escaped unnoticed. For this conclusion, the High Court rested its opinion on the medical evidence which pointed to the direction of the injury as from "above downwards." The High Court thus formed the opinion that the shot was fired from a higher level by some body and the only place from where such a shot could have been fired was from over the' wall of the orchard of Abdul Qayyum Khan. While examining this reasoning we find from the evidence that though the orchard was surrounded on all the four sides by a wall yet no question was suggested as to how high it was in order to conclude that the shot was fired front a higher level.
26. Again, the distance of the wall from the deceased is not apparent from the record and we find from the injury that it is a hole caused by the entry of the pellets in a mass which eminently shows that the shot must have been fired within 12 feet as stated by Modi in his book on Medical Juris--prudence and Toxicology, 21st Edition, at pages 220 and 221. Therefore before the High Court could conclude, as it did, the distance between the deceased and the wall should have been established and so also its height which is, however, not apparent from the record. The doctor had merely stated that the injury was which above downwards from the pictorial of the post-mortem report which,, in our view, is insufficient for we find from his evidence that the pellets had not deflected downwards and had taken the straight course causing injuries to the viscera immediately below the entry wound. Therefore, the conclusion of the High Court; in the light of the above reasons cannot be sustained.
27. As regards the abscondence, the trial Court held that he had surrendered after the acquittal of his accomplices and not for the reason given by him. We agree with it and in this event, it corroborates the ocular testimony.
28. The High Court next disbelieved the motive. In regard to the civil litigation, the High Court was of the view that the deceased could not have helped Capt. Mahmood Jan as he was employed in Badber Scheme and except for Sundays, he could not have been available on week days to pursue the litigation, the moreso without any power of attorney. It is true that be was employed but Capt. Mahmood Jan was not questioned as to bow the deceased had made himself available on week days, and in what manner he rendered the help. Hence, in the absence of any explanation in this behalf, it was conjectural for the High Court to conclude that he could not have assisted Capt. Mahniood Jan in the litigation.
29. Further, as no report was lodged nor a mention of it was made in the F. I. R in regard to the incident in which Muhammad Nawaz had sarcastically laughed at the first respondent who led an attack later in the evening to avenge the insult which, however, proved abortive, the High Court held that the latter incident was concocted to provide a motive. But as regards the incident itself, the High Court held that it was so trivial that it could not motivate the first respondent to kill the deceased. It is true that Muhammad Nawaz neither disclosed that incident to Capt. Mahmood Jan nor himself lodged the report. For this reason it cannot be concluded that the incident was of a trivial nature as in the background of the civil litigation in which his step-father had been unsuccessful the insult could have adversely re-acted in his mind. It is of common knowledge that person---s re- act differently in a given situation. Therefore, it is not possible to agree with the High Court that the first respondent would have condoned it in the facts and circumstances of the' case, even if it be accepted that the second incident did not happen. Accordingly, the trial Court was justified in holding that E the first respondent had the motive to kill the deceased.
30. The High Court lastly held that the eye-witnesses were liars, as they were not believed in the case against the acquitted accused. This reasoning could not be pressed into service as firstly, the judgment was not properly exhibited in the case and secondly, it is irrelevant unless the existence of the judgment is a fact in issue under section 43 of the Evidence Act which is F conclusive of its existence as distinguished from its truth. Therefore, it is only the legal effect as distinguished from the accuracy of the decision rendered which is relevant under this provision. The High Court, accordingly, unjustly took the reasons of the acquittal into consideration.
31. In the result, for these reasons, we allow the appeal, set aside the judgment of the High Court and restore that of the trial Court. The first respondent should be arrested to undergo the sentence.