1. NASIM HASAN SHAH, J. This appeal by Special leave is directed against the judgment and order dated 26-6-1973 passed by the former High Court of Sind & Baluchistan at Karachi in Criminal Appeal No. 403 of 1971 and Confirmation Case No. 3 of 1972, whereby the appeal of respondent No. 1 (Muhammad Siddik son of Abdur Rashid Dahri) was allowed (by majority) and his conviction under section 302, P. P. C. And sentence of death passed against him was set aside and he was set at liberty.
2. The facts which form the background briefly stated are that Abdur Rashid son of Muhammad Siddik, respondent No. 1, had been murdered. Muhammad Siddik (respondent No. 1) suspected Ghulam Kader to have conspired with some others for this murder. He accordingly filed a complaint under section 302 read with sections 34 and 149, P. P. C. In the Court of the Sub-Divisional Magistrate, Moro, against Ghulam Kader and 6 others. Process was issued against Ghulam Kader and others in this complaint, which was subsequently transferred to the Court of the Joint Civil Judge and F. C: M., Nawabshah. While this matter was pending Ghulam Kader moved the High Court of and & Baluchistan at Karachi for quashment of the proceeding initiated against him and by an order passed on the 23rd of August, 1968, the proceedings against him were quashed by M.
3. Jamil Asghar, J. When the case, relating to the murder of Abdul Rashid, came up for hearing in the Court of the Joint Civil Judge and F. C. M., Nawabshah, on the 26th of August, 1968, Ghulam Kader, as an accused person in the complaint, attended the Court. Muhammad Siddik complainant is alleged also to have attended the Court and was present in the Court room. The other co-accused, who were in custody, were produced before the Court by Ajaib Hussain Shah, Police Constable.
4. Ghulam Kader filed an affidavit to the effect that-the High Court by its order passed on the 23rd of August, 1968, had quashed the proceedings against him. Consequently, the learned trial Court adjourned the proceedings to a future date. As the order passed by the Court on the said date will be referred to in the sequal it is reproduced hereunder:- "Accused Ghulam Kader present on bail. Other accused present in custody. D. P. P. (District Public Prosecutor) and D. A. (Defence Accused) present. No. P. W. Present. Application/affidavit of accused Ghulam Kader that proceedings against him have been quashed. He is directed to produce the order of the High Court by 29th of August, 1968. Issue summons to P. Ws. For 9th September, 1968.
5. Those present directed to attend."
6. After the case was adjourned, Ghulam Kader came out of the Court room and was talking to Jan Muhammad (P. W. 5), Ghulam Muhammad (P. W. 6) and Jewat Mal (P. W. .8) outside the Court room when Muhammad Siddik, respondent No. 1, and the complainant in the case fired at him with his gun. The shot hit the deceased on the left side of the chest who fell down bleeding. The incident was witnessed by the above-named three witnesses and amo. (P. W. 4) who was the driver of Ghulam Kader and had come with him to the Court. Constable Ajaib Hussain Shah (P. W. 7) who had brought the under trial persons to the Court on that date also witnessed the occurrence. He chased Muhammad Siddik who had begun to run away along with his gun and he was joined by Samo (P. W. 4) and some other persons. Police Inspector Muhammad Pinjal (P. W. 9), who was closeby having heard the gun report and seeing a person running with a gun joined in the chase.
7. They all overtook Muhammad Siddik near the office of Mr. Amanullah Memon, Advocate, at a distance of about 200 paces from the scene of the occurrence. Muhammad Siddik levelled his gun at the chasers and under the order of Inspector Muhammad Pinjal, Constable Ajaib Hussain Shah fired his gun in the air whereupon Muhammad Siddik lowered his gun and surrendered before the Police. Inspector Muhammad Pinjal arrested Muhammad Siddik and secured the gun from has possession in the presence of Masheers, Sain Dad and Pir Muhammad Waris (P. W. 3). He found that the gun contained one live and one fired cartridge of L. G. And that the gun smelled of recent firing. He prepared mashirnama and then took Muhammad Siddik and his gun etc. And produced them before the A. S. I. Police, Zarrar Khan (P. W. 12), who was during that period, incharge of the New Town Police Station, Nawabshah, Samo (P. W. 4) on Muhammad Siddik's surrendering before the Police returned to the scene of the offence where he found that Ghulam Kader had succumbed to his injuries. He then went and lodged the First Information Report at New Town Police Station, Nawabshah, at 10-30 a.m. On the same day alleging that Muhammad Siddik, respondent No. 1, had murdered Ghulam Kader deceased in the circumstances mentioned above. The Superintendent of Police, Nawabshah, on the same evening entrusted the investigation of this case to Pir Bux, Deputy Superintendent of Police (P. W. 13). During the investigation, the Police sent the gun and the empty cartridge, secured from the possession of Muhammad Siddik, to the Ballistic Expert (Sardar Saeed Gul Khan) P. W. 10, who gave his opinion that the empty cartridge had been fired front the gun which was secured from the possession of Muhammad Siddik accused respondent No. 1.
8. At the trial, prosecution relied on the occular evidence furnish by Samo (P. W. 4), Jan Muhammad (P. W . 5), Ghuiam Muhammad (P. W. 6), Ajaib Hussaim Shah (P. W. 7) and Jawat Mal (P. W. 8) ; Ajaib Hussain Shah (P. W. 7); Muhammad Pinjal (P. W. 9) and Pir Muhammad Waris (P. W. 3) were produced to prove the circumstances in which Muhammad Siddik was arrested with his gun soon after the occurrence. The Ballistic Expert, Sardar Saeed Gul Khan (P. W. 10) was produced to prove that '12 bore crime empty marked ac `C' was fired from the right barrel of the afore--said gun".
9. In his statement recorded under section 342 of the Criminal Procedure Code Muhammad Siddik denied having committed the murder of Ghulam Kader deceased. He stated that he was not present in the Court or outside the Court on the day of the occurrence. He admitted the recovery of the gun and empty cartridge from his possession and stated that it was his licensed gun and that he had fired his gun on a dog while corning from his village to Nawabshah. He alleged that he was not arrested by Ajaib Hussain Shah but by Zarrar Khan, A. S. I. Of Police in the Bazar at Nawab--shah and was then implicated in this case. He stated that his son had been got murdered by the deceased but the proceedings were quashed and he came to know of the quashment after the murder of Ghulam Kader. He further alleged that there was political enmity with the deceased and that he had been implicated due to that enmity and that all the witnesses were interested and inimical. He pleaded innocence and in his defence produced the order passed by the Court on the 26th of August, 1968, in his complaint case which did not show his presence in the case on that date. He also produced the trial Magistrate. Mr. Ayyub Hasan in defence to prove that order.
10. The learned Ex Officio Additional Sessions Judge, Nawabshah who tried Muhammad Siddik caine to the conclusion in his order dated the 11th of October, 1971 that the case against Muhammad Siddik had been proved beyond the possibility of any reasonable doubt. He, accordingly, convicted trim under section 302, P. P. C. And sentenced him to death. Aggrieved by the said order, Muhammad Siddik preferred an appeal against it before the High Court of Sind & Baluchistan at Karachi (Criminal Appeal No. 403%71). The case was also referred to the High Court for confirmation of the death sentence. The appeal and the confirmation case were heard by a Division Bench of the said Court consisting of Mr. Justice Dorab Patel and Mr. Justice Abdul Hayee Kureshi. Mr. Justice Dorab Patel came to the conclusion that the prosecution had failed to prove the guilt of Muhammad Siddik beyond reasonable doubt and allowed his appeal. On the other hand, Mr. Justice Abdul Hayee Kureshl was of the view that the prosecution case had conclusively established his guilt and that, therefore, the appeal was liable to be dismissed. He accordingly, dismissed the appeal and confirmed the sentence of death. The case was then referred to a third Judge, namely, Mr. Justice Muhammad Haleem, The referee Judge agreed with the findings of Mr. Justice Dorab Patel with the result that the appeal was allowed and the conviction and sentence of Muhammad Siddik accused was set aside. This order was passed on the 26th of June, 1973.
11. Dissatisfied by the aforementioned judgment and order of the High Court, this appeal has been filed with the leave of the Court.
12. Mr. Noor Ahmad Noori, Advocate-on-Record appearing on behalf of the appellant has mainly relied upon the judgment of Mr. Justice Abdul Hayee Kureshi. The learned Advocate-General has also supported the findings and reasoning given by Mr. Justice Abdul Hayee Kureshi upholding his conviction and submitted that this appeal may be allowed. Mr. Hayat Junejo has naturally contended that the finding recorded in the judgment of the majority holding that the guilt of the, appellant has not been proved beyond reasonable doubt is correct. After giving our anxious consideration to all the aspects of the case, we are inclined to agree with the plea of the appellant that this appeal be allowed. Although there was some justification for the learned Judges forming majority to hold that the eye-witnesses were interested but no such interest could be attributed to Constable Ajaib Hussain Shah (P. W. 7). The presence of Ajaib Hussain Shah has been admitted by all the learned Judges in the High Court as the person who had produced the co-accused before the Court. We feel that it was altogether natural ' m after the conclusion of the hearing of the case against Ghulam Kader he should have come out along with the co-accused and as the incident took place immediately thereafter his giving a chase to the culprit was only to be expected and he successfully captured the accused at the distance of about 200 yards. The rejection of his evidence on the reason advanced by the learned Judges cannot be accepted by us and we consider that his sole evidence proved the guilt of the respondent Muhammad Siddi beyond reasonable doubt. As regards the other eye-witnesses, the main reason which influenced the High Court to discard their testimony was that their statements were not recorded by the Police soon after the occurrence but were recorded a couple of days later. While arriving at this finding, the High Court did not take into consideration the circumstance that soon after the occurrence these witnesses had accompanied the dead body of the deceased to the hospital and from there to his village and had also participated in his burial and it was only later on that they were required to appear before the Police to make their statements. Their names as eye--witnesses had already been mentioned in the First Information Report which was lodged at 10-30 a.m. i.e. Half an hour after the incident on the same day. This circumstance was not given its proper effect. But as observed already even if the evidence of the other P. Ws. Is ignored, that evidence of Ajaib Hussain Shah, P. W. 7 was sufficient to establish the prosecution case.
13. The other factor which influenced the majority in the High Court is that although the occurrence had taken place during the Court hours outside the Court room and must have been witnessed by many people but no one from the locality was produced as an eye-witness. This argument was addressed before the learned Additional Sessions Judge as well and he had considered it in paragraph 42 of his judgment and order, which reads as under :- "It is also argued by the learned counsel for the accused that there are number of offices in the same building where the Court of Joint Civil Judge and F. C. M. Is situated, there is a hotel at a distance of few paces from the scene of offence, and there were a number of persons at the scene of offence at the time of incident but none of them has been examined. It cannot be doubted or denied that number of persons must have witnessed the incident, and it is also an admitted fact that none of them has been examined by the pro--secution except the witnesses already mentioned above. As already pointed out, a very influential and powerful man of the district had been murdered in broad daylight outside the Court where a number of Police personnel were also present and near the Police Station. Such a high-handed act was bound to create terror amongst the people present there, and their reluctance to go to give evidence is understandable because of their fear of life. It was a sort of political murder, and on both sides the parties were very influential and a common man cannot be blamed for this reluctance to come to give evidence and thus render himself as possible next victim of such atrocities. Furthermore, however, much we may lament, but it is a fact that we have not in this country developed moral courage to stand up and speak the truth. Under the circumstances prevailing in our country, this cannot be taken as a ground for disbelieving even those few persons who still have the courage to come forward to give evidence. As already pointed out amongst the eye-witnesses, besides the witnesses interested in and connected with the deceased, we have got independent and natural witness in P. W. Ajaib Hussain Shah."
14. The other aspect which weighed with the majority in the High Court was that the First Information Report was not recorded at 10-30 a.m. On the day of the occurrence and there was some over- writing in the First Information Report in order to show that it was lodged at 10-30 a.m. This very objection was taken in the trial Court as well and had been dealt with by the learned trial Judge who had explained that what had happened was that the format of the report included two columns; one was of the time of occurrence and the other was of the "time of report". The time of occurrence i.e. 10 a.m. Was erroneously mentioned in the wrong column relating to the "time of report" and the time of report i.e. 10-30 a.m. Was similarly inadvertently entered in the column relating to the "time of occurrence". This error was subsequently rectified and the learned trial Court after perusing the original record had made the following note in the relevant proceedings :- .
15. Note.-To the naked eye it appears that the 3 have been over-written on `0' in the column regarding date and time of the report. This makes the position absolutely clear that it appears that this was a bare clerical mistake or error which was corrected innocently and honestly."
16. We agree with this assessm ent and would like to point out that in addition there is the independent evidence on this point furnished by the testimony of Abdul Hanan Shah, Foot Constable Police (P.
17. W. 2) who states that at about 10-30 a.m., the A. S. 1. Police gave him the dead body of the deceased Ghulam Kader to be taken to the Civil Hospital for post-mortem examination. This was done obviously after the first information report had been recorded.
18. Reliance has also been placed by the majority in the High Court on the testimony of Mr. Ayub Hassan who appeared as D. W.
1. He was produced by respondent No. 1 with the specific purpose of proving that respondent No. 1 had not attended the Court on the 26th of August, 1968, but curiously the specific question whether Muhammad Siddik, respondent No. 1, had not attended the Court on that date was not put to this witness by him. This aspect of the case was specifically dealt with by the learned trial Judge in the concluding part of paragraph 38 of his judgment in the following words :- "It will be pertinent to note that though Mr. Ayub Hassan was examined in defence by the accused, still no direct question has been put to him as to whether the accused had attended his Court on that day or not. He was only shown the diary which he states to have been correctly recorded by him. In cross-examination he had admitted that mistakes through oversight in recording the absence or presence of the witnesses in the diary are sometimes possible."
19. We may observe that the consideration of all the circumstances in the light of the entire evidence indicates that Muhammad Siddik though he is not a resident of Nawabshah admits that he was arrested in Nawab--shah; that at the time of arrest a gun was recovered from him; that the case against Ghulam Kader Dahri was fixed on the date and, therefore, it was only to be expected that he should have come to Court on that date.
20. In these circumstances there appears no reason to doubt that he was the true culprit who fired at the deceased with his gun from which one fired empty cartridge and one live cartridge were found.
21. He took the plea that he fired one shot at a dog but was unable to point out the place where the dog was shot and was lying dead.
22. This brings' us to the question of sentence. We find that sometime before the incident Abdur Rashid son of Muhammad Siddik had been murdered and Muhammad Siddik suspected the deceased to have got him murdered through his party men. He had, therefore, filed a complaint against him and bad come to Court on the date fixed for hearing of the complaint. In the course of the hearing he discovered that the proceedings against the deceased had been quashed by an order of the High Court passed a few days earlier. He must have realised to his dismay, that the real man, in his eyes, responsible for his son's murder was going scot---free. He had come to the Court armed with a gun which he left outside in the verandah wrapped in a cloth. In a state of disappointment and rage, on coming out of the Court room he took his gun and fired upon the deceased to take revenge for the alleged murder of his son arranged by him. The learned trial Judge did not accept the plea for lesser sentence on the ground that the respondent had come armed with a gun which showed that it was the premeditated affair. We do not agree with this assessment. There was enmity between the parties and both went out, for fear of their own safety, armed with guns and that the respondent had used his gun in the heat of the moment on discovering that the deceased had obtained an order of quashment of proceedings in his favour.
23. In all the circumstances, we consider that the imposition of the lesser penalty would be sufficient for the ends of justice in this case. Consequently, while accepting this appeal and convicting the respondent under section 302, P. P. C. We would sentence him to transportation for life.