' ALLAH BAKHSH KHAN, J.-Ghulam Sarwar (40) faced his trial under section 302, P. P. C. For committing the murder of Atiqur Rehman by firing at him and under section 307, P. P. C. For attempting at the life of Gul Rehman by firing at him effectively on 2-8-1979 at about 8 p. m. Within the limits of village Tangi Nasratzai, Tehsil Charsadda. He was convicted under section 302, P. P. C.
And sentenced to death. A fine of Rs, 5,000 was imposed on him and in default of payment thereof he was to undergo 2 years' R. I. He was to pay Rs, 3,000 as compensation to the heirs of the deceased or in default to undergo 6 months' R. I. His conviction was recorded under section 307, P.
P. C. And he was sentenced to undergo 3 years' R. I. And to pay a fine of Rs, 2,000 or in default to undergo 1 year R. I. Half of the fine, if realised, was to be paid as compensation to the injured Gul Rehman. If the sentence of death was commuted to any other sentence both the sentences were to run concurrently as directed by Mr. Khan Akbar Khan, Additional Sessions Judge, Charsadda per his order dated 15-7-1981. The convict has come on appeal whereas murder reference is before us for confirmation of the sentence of death. We propose to dispose of the appeal and the reference per this judgment.
2. The facts of the persecution case briefly are that on 2-8-1979 at about 8 p. m. Atiqur Rehman and his father Gul Rehman were on their way to the bus stand and when they reached the house of Yousaf Baghban, the appellant armed with a topak' was found standing nearby. On seeing them the appellant fired one shot each at Atiqur Rehman fell down on the spot. The incident was witnessed by Saifur Rehman, a brother of Gul Rehman, and Yousaf Baghban. Both the injured were removed to the police station where Gul Reiman lodged the report which was recorded by S. H.
0. Falak Niaz Khan (P. W. 9). The latter prepared the injury sheet of Gul Rehman. It appears that Atiqur Reitman breathed his last at the police station and, as such, his dead body was sent to the mortuary under the escort of F. C. Rehanuddin (P. W. 4). The inquest report was prepared by S. I.
Shah Nawaz Khan (P. W. 2) in the hospital. The case had been registered under section 307, P. P. C.
And on the death of Atiqur Rehman, section 302, P. P. C. Was added in the F.
1. R.
3. Dr. Shamshad Ali (P. W. 3) examined Gul Rehman on 2-8-1979 at 8.30 p. m. And found the following injuries on him:-
(1) A fire-arm entrance wound I (1/2)" x(1/2) i" on anterior-lateral aspect of lower part of chest on right side.
(2) An exit wound 1/3" x 1/3" on back of right side chest. Surgical ecphysems present.
(3) Two fire-arm entrance wounds each 1/3" x 1/3" on front of right upper half at a distance of 3' in between.
(4) Two fire-arm exit wounds each r x r (1/2)opposite to wound No,
3. The injuries had been caused by fire-arm within 2 hours.
4. The doctor performed post-mortem examination on the dead body of Atiqur Rehman the following day at 6.10 a. m. And the following injuries were found on it:-
(1) 7 fire-arm entrance wounds each 1/3' x 1/4' on back of abdomen within an area of 6" diameter.
(2) 5 fire-arm exit wounds each 1/3" X 1/3" on front of abdomen on left side within an area of 7" diameter. 2 big size pellets were recovered from under the skin in this area.
' On internal examination the stomach, abdominal walls, peritoneum pancreas, spleen, small and large intestines were found injured. The contents of the stomach were fresh and the large and small intestines were empty. Death was due to haemorrhage and shock. Time between injuries and death was within 15 to 30 mintutes and between death and post-mortem examination 10 to 12 hours.
5. S. H.
0. Falak Niaz Khan (P. W. 9) on arrival at the spot prepared the site plan on the Plantation of Saifur Rehman (P. W. 8) and collected blood-stained earth. He searched for the appellant but could not apprehend him. D. F. C. Mutiullah (P. W. 5) was entrusted with the warrant for the arrest of the appellant but he could not execute it. He effected service of the proclamation under section 87, Cr.
P. C. It was on 18-7-1980 that the appellant was arrested by A. S. I. Riazuddin (P. W. 6) who took into possession an unlicensed shotgun with some cartridges from him.
6. The motive attributed to the appellant for taking the life of Atiqur Rehman and attempting at the life of Gul Rehman is that once he had suffered injuries and had charged Atiqur Rehman and his brother Inayatur Rehman therefor. Lnayatur Rehman was still in the judicial lock up.
7. The appellant denied the allegations of the prosecution and pleaded not guilty to the charge. He produced no defence.
8. The entire edifice of the prosecution case rests on an eye-witness account of the incident furnished by the complainant Gul Rehman (P. W. 7) and Saifur Rehman (P. W. 8), besides motive for the crime and abscondence of the appellant. Gul Rehman is the brother of Saifur Rehman and father of the deceased Atiqur Rehman. The relations between them and the appellant have been inimical and they are locked in criminal litigation. F. I. R. No, 516 dated 4-11-1976 under section 363/366, P. P. C. At the instance of Mst. Nasreen daughter of Gul Rehman was lodged against the appellant Gulam Sarwar. It was followed by F. I. R. No, 486 dated 7-12-1977 lodged by the appellant under section 307/34, P. P. C. Wherein he charged Atiqur Rehman and Inayatur Rehman for firing at him effectivey. It was the appellant who lodged F. I. R. No, 824 on 14-7-1979 under section 324, P. P. C.
Against Atiqur Rehman for inflicting knife blows on him. It may be pointed out that in both the F. I.
Rs, lodged by the appellant the motive alleged by him was that Mst. Nasreen had eloped after him.
It is evident that both the witnesses Gul Rehman and Saifur Rehman are not only closely related to the deceased but are also on inimical terms with the appellant. With this background we would proceed to examine their testimony with care and caution.
9. Gul Rehman deposed that on the day of incident at about 8 p. m. He and his son Atiqur Rehman were on their way to the bus stand to collect a pair of clothes which the latter had left in a bus.
When they reached the house of Yousaf Baghhan he saw the appellant armed with a `topak'. They passed by him and had taken 5.6 paces when the appellant opened fire on them. Atiqur Rehman was hit, fell down and expired. He turned round and wanted to catch hold of the appellant but the lettar fired at him and he was injured whereupon the appellant decamped from the spot. The incident was witnessed by Saifur Rehman who brought a cot and the dead body was placed on it.
He escorted the dead body to the police station where he lodged the report. Saifur Rehman (P. W.
8) stated that after breaking the fast he came out of his house to attend the call of nature and saw Gal Rehman and Atiqur Rehman passing by his house. On his enquiry they told him that they were going to the bus stand. He too proceeded on the same path and when reached the house of Rehmauddin he saw the appellant armed with a `topak'. The latter opened fire when Gul Rehman and Atiqur Rehman crossed the house of Yousaf Baghban. Atiqur Rehman who was hit fell down dead whereupon Gul Rehman turned and was fired at by the appellant. He took shelter in the dwerhi of Faqir Muhammad and came out after the appellant had left the spot. He brought a cot from his house and accompanied by his son and other villagers came to the spot and placed the dead body on the cot.
10. Gul Rehman bears the stamp of injuries on his person and his presence at the scene of the crime cannot be doubted. Notwithstanding the injuries on his person which are not self-suffered this fact would not by itself indicate that he has told the truth as observed in Said Ahmed v.
Zamurrad Hussain and 4 others . He and Saifur Rehman have given a consistent ocular account of the incident and they find support from various pieces of circumstantial evidence. The learned counsel for the appellant strenuously contended that being closely related to the, deceased and inimically inclined towards the appellant they could not be relied upon unless they were corroborated by independent witnesses. He 'added that Yousaf Baghban had been mentioned as an eye-witness in the F.1. R. But he was not produced by the prosecution and it can be presumed that had he been produced he Would not have supported the prosecution case. These witnesses, according to him, find no corroboration either from the medical evidence or from other circumstances of the case. In Wasiullah v. Mirza Ali and others , it was' remarked that when the main direct evidence be that of interested persons, i. e. Enemies of the persons charged, it is proper to ask that the evidence in corroboration should be exceptionally strong, almost, if not quite, sufficient by itself to establish the guilt of individual accused persons, beyond reasonable doubt.
The question of the credibility of an interested witness came up for consideration in Sohni v.
Bahaduri and 5 others , and the following observation was made at page 113:- ' The question of his reliability must depend upon the circumstances of each case and the quality of his evidence. If his testimony is found reliable the Court may accept it even without any corroboration. But as a matter of prudence the Court insists on corroboration of his evidence when he is inimically disposed towards the accused.
11. It was the month of Ramazan and after breaking their fast Gul Rehman and his son Atiqur Rehman left their house for the bus stand and were en route met by Saifur Rehman who followed them at some distance. It is alleged that when the father and the son reached the house of Yousaf Baghban, the appellant was seen with a gun. They passed him but he fired a shot at Atiqur Rehman who was hit on his back and when Gul Rehman turned round the appellant fired a shot at him too. Blood was found at Point No. 1 where Atiqur Rehman fell down on receipt of the injuries and this point is situate in the close vicinity of the house of Yousaf Baghban. The incident is said to have1 2 3 taken place at 8 p. m. Whereas the report was lodged at the police station one furlong away at 8.20 p. m. Since the F. I. R. Was lodged with great promptness the probability of false implication was entirely eliminated. The learned counsel for the appellant emphatically urged that it was dark when the incident took place and the assailant could not be identified. The sunset time on the eventful day was 7.22 and it was the 8th of Ramazan. Neither Gul Rehman nor Saifur Rehman was questioned about the factum of visibility and in the absence of factual plan it would not be appropriate to proceed on mere hypothetic premises. The sunset was followed by `Azan' and twilight was to prevail for sufficient time the duration of which could not be brought on the record positively. That Atiqur Rehman had taken his meals after the `Azan' is borne out by the medical examination. The contents of his stomach were found fresh whereas large and small intestines were empty. Moreover, the appellant was not a stranger to the deceased and these witnesses. A look at the site plan shows that the appellant was at Point No, 2 when he fired at Atiqur Rehman who was at Point No, I and at Gul Rehman who was at point No,
2. The distance between Points Nos.
3 and 1 is five paces and between Points Nos 3 and 2 six paces. We are of the view that the identity of the assailant was not, in the circumstances, doubtful and questionable.
12. Both the witnesses asserted that a topak' had been used by the appellant. The doctor recovered two pellets of big size from the dead body of Atiqur Rehman and ascribed the injuries of Gul Rehman to a shot gun. The learned counsel for the appellant, however, contended that the testimony of both the witnesses was in conflict with the medical evidence and it merited to be discarded altogether. He referred to Sardar Baig v. The Stare , wherein medical evidence was preferred to the testimony of an injured eye-witness and relying on State v. Abdul Sattar , and Bagh Ali v. State , it was observed that whenever there is a contradiction between the medical evidence and the ocular evidence on material points the medical evidence' should be preferred. In the instant case this dictum was not attracted because the testimony of these witnesses is not in conflict with the medical evidence.
13. Gul Rehman had a fire-arm entrance wound r X 1" on his chest and two fire-arm entrance wounds 1/3" x 1/3' each on his arm. The doctor opined that "the possibility cannot be excluded that wound No. 1 on the person of Atiqur Rehman and wound No, 3 on the person of Gul Rehman are caused by pellets of different calibre and it is possible with two different shots". The prosecution story, however, is that one shot only was fired at Gui Rehman. The difference in the dimension of both the entrance wounds prima facie shows as if two shots were fired at the victim. It is true that generally a cartridge contains pellets of the same size in order to ensure the velosity but it is a fact often noticed that in the country-made cartridges pellets of different size are filled in. It cannot by any stretch of imagination be said on the basis of different dimension of the entrance wounds that these had been caused by different shots and could not be caused by one and the same shot if the cartridge was locally filled in. It is pertinent to note that the deceased had 7 fire-arm entrance wounds each 1/3" x 1/4" with 5 exit wounds each 1/3' x 1/3". The fact that the entrance wounds of the deceased had somewhat similar dimension as the entrance wound of Gul Rehman negatives the suggestion that different weapons were used for firing at them. No empty was recovered from the spot and, according to Saifur Rehman, the appellant had a D. B. Shotgun, He made this disclosure during the course of his cross-examination and in view of the fact that a D. B. Shotgun was used the recovery of an empty from the spot stands eliminated.
14. The deceased had 7 fire-arm entrance wounds within an area of 6 inches in diameter. The site plan shows that he was fired at from a distance of 5 paces. The learned counsel for the appellant contended that such an injury could not be caused if the shot was fired from a distence of 5 paces but the contention, in or view, is without any force and substance. Generally a pace is equivalent to thirty inches (2 1/2 feet). The question that arises is whether from a distance of 12 1/2 feet entrance wounds within an area of 6 inches in diameter could be caused.4 5 6 ' The answer lies in the affirmative and in this context we would refer to Medical Jurisprudence and Toxicology by Modi (5th Edition) wherein at page 232 the following observation is made:- ' At a distance of twelve feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter, but without causing blackening, scorching or tabooing of the surrounding skin. This scattering of shot depends upon the size of the gun, the charge of the powder and the distance of the gun from the body.
' It is manifest that the aforesaid injury vis-a-vis the distance indicated above lends support to the testimony of these witnesses and serves as one of the factors to furnish corroboration to them.
15. The doctor opined that the injuries of GuI Rehman could probably be caused by 2 different shots but his opinion is not gospal truth. The view of this Court expressed in State v. Aminullah and another , however, is that the opinion of a medical witness however eminent need not be read as conclusive of the fact which the Court has to try and that the statement of an expert stands on precisely the same footing as that of any other witness and may ' or may not be accepted by the Court. In Yaqoob Shah v. State it was remarked that it is well established that the expert evidence, may it be medical or that of a ballistic expert, is entirely in the nature of confirmatory or explanatory of direct or other circumstantial evidence. But if there is direct evidence which is definite, forthright and at the same time creditworthy, confirmatory evidence is not of much significance. It cannot, at any rate, outweigh the direct evidence unless it for any reason is deficient in quality. M. Monir in his Law of Evidence (1974 Edition) has observed at page 612 that .- ' The evidence of a medical man or other skilled witness, however eminent, as to what he thinks may or may not have taken place under a particular combination of circumstances, however, confidently he may speak, is ordinarily a matter of mere opinion and or may stands on precisely the same footing as that of any other accepted by Court.
' The mere opinion of the doctor based on probabilities cannot be preferred to the testimony of the ocular witnesses. It being so, it can be said that the appellant had fired one shot each at Atiqur Rehman and Gul Rehman and that the possibility of the user of two weapons on Gul Rehman can be safely excluded altogether.
16. Yousaf Baghban figures in the F. I. R. As an eye-witness but he was not produced by the prosecution. Now it is well settled that the prosecution is not bound to produce all the witnesses and it may abandon any of the witnesses for certain reasons. The non-production of such a witness would not invariably give rise to a presumption against the prosecution. The incident took place near the door of Yousaf Baghban. There was sharp enmity between the parties and it appears that he chose to abstain from meddling with their affairs and earning displeasure of any of them who happened to be his co-villagers. Now it is a common phenomenon that disinterested persons avoid to appear as witnesses in cases between inimical parties and do not run the risk of being identified with any of them. The non-production of Yousaf Baghban would, therefore, in no way adversely affect the prosecution case.
17. The learned counsel for the appellant highlighted the conduct of both the witnesses and urged that it was not natural and they had twisted certain facts. Both the witnesses asserted at the trial that Atiqur Rehman had died at the spot but their assertion stands negatived by certain pieces of evidence brought on the record. Gul Rehman is the maker of the F. I. R. And he had not alleged in it that his son Atiqur Rehman had succumbed to the injuries. The police proceedings at the foot of the F. I. R. Show that Atiqur Rehman had received injuries on his abdomen and back and could not talk. His injury sheet was, therefore, prepared by the S. H. O. Falak Niaz Khan who had recorded the F.
1. R., under section 307, P. P. C. It appears that Atiqur Rehman breathed his last soon after it, his inquest report was prepared by S. I. Shah Nawaz Khan (P. W. 2) in the hospital where the dead body was escorted by F. C. Rehanuddin (P. W. 4) and later section 302, P. P. C. Was added in the F.7 8
1. R. The fact that Atiqur Rehman was alive till the recording of the F. I. R. Cannot be doubted inasmuch as his death was not instantaneous and, according to the doctor, the time between injuries and death was within 15 to 30 minutes. The incident is alleged to have taken place at 8 p. m, whereas the report was lodged at 8.20 p. m. At the police station one furlong away from the spot.
The assertion of both the witnesses that Atiqur Rehman had died at the spot is obviously erroneous.
Both of them stated that many people from the' neighbourhood were attracted to the spot but they did not narrate the incident to them nor charged the appellant for the crime. It does not stand to reason that they would not have narrated the incident to the villagers who had gathered at the spot. They have not spoken the truth about this fact for the reasons best known to them alone.
Notwithstanding their conduct referred to above their presence at the spot and their claim to have seen the appellant opening fire at Gul Rehman and Atiqur Rehman cannot be brushed aside.
18. The learned counsel for the appellant next urged that the presence of Saifur Rehman at the spot was not free from doubt. Saifur Rehman stated that he had accompanied the dead body to the police station but his name, according to the learned counsel, does not figure in the F. I. R. To have accompanied it. It is pertinent to note that the names of the persons who had carried the cot to the police station have not been mentioned at all in the F. I. R. The Police Station, as remarked above, is hardly a furlong from the spot and it is possible that Saifur Rehman was one of the parsons who had carried the cot and after leaving it at the police station where Atiqur Rehman breathed his last he rushed back home to arrange for the obsequies. This possibility finds support from the fact that when the I.
0. Arrived at the, spot he sent for Saifur Rehman, prepared the site plan on his potation and examined him at the spot. The presence of Saifur Rehman on account of non-mention of his name in the F. I. R. As one of the persons who had carried the cot cannot be doubted as an eye-witness.
19. The relations between the parties have not been happy since quite some time. When questioned in this regard at the trial the appellant stated that the daughter of Gul Rehman had eloped after him and he was inimical towards him. Exh. P. W. 9/1 is a copy of F. I. R. No, 516 dated 4- 11-1976 lodged by Mst. Nasreen under section 363/366, P. P. C. Against the appellant charging him for her abduction. The appellant lodged F. I. R. No, 486, copy Exh. P. W. 9/3, on 7-12-1977 under section 307/34, P. P. C. Charging the deceased Atiqur Rehman and his brother Inayatur Rehman for firing at him. He lodged another F. I. R. No, 824, copy Exh. P. W. 9/2, on 14-7-1979 under section 324, P.
P. C. Charging Atiqur Rehman for stabbing him. In both these F. I. Rs, the motive alleged by him was elopement of Mst. Nasreen Gul Rehman admitted in the present F. I. R. That the appellant had charged his sons for causing him the injuries and that his son Inayatur Rehman was still in judicial lock up. It is evident that the relations between the parties have been extremely inimical and the appellant was motivated to take the life of Atiqur Rehman who had attempted at his life previously more than once.
20. The appellant is said to have absconded soon after the incident. A warrant under section 204, Cr. P. C. Against him could not be executed by D. F. C. Mutiullah (P. W. 5) and the latter effected service of proclamation under section 87, Cr. P. C. The appellant, however, remained a fugitive from law till he was arrested on 18-7-1980 by A. S. I. Riazuddin (P. W. 6) and a case under section 13, Arms Ordinance was registered against him for being in possession of an unlicensed shotgun. The appellant denied to have absconded and averred that on the day of incident he was not present in his village and when he came to know of his false implication in the case he did not come back home. According to him, "Since I could not get sufficient finances to engage a counsel for myself I stayed away and later I surrendered myself to the police." One fact which prominently emerges is that soon after the incident he made himself scarce and his ascendance would go a long way to point to his guilt. Thus all the facts and circumstances when taken into consideration lead to the irresistible conclusion that it was the appellant who had caused the fatal injuries to the deceased and simple injuries to Gul Rehman with his gun. His conviction under sections 302 and 307 is well founded and merits no interference.
21. The learned counsel for the appellant emphatically urged that the penalty of death was not called for inasmuch as the immediate cause of attack had not been established. He in this context referred to Muhammad Sharif v. The State and Khariat Illahi v. The State . Both these authorities pertain to the peculiar facts of each case dealt with therein and we have given or anxious thought to the quantum of sentence in the instant case. It is true that the relations between the parties have been inimical and more than one criminal case had been registered between them but it is equally true that the incident appears to have taken place all of a sudden and the immediate cause is shrouded with mystry. The deceased and his father left their house together after 'Mari' and were to collect the clothes from the bus stand. The deceased had travelled in a bus but had left his clothes when he got down from it. Their departure for the bus stand was an uncommon phenomenon and were met on the way by the appellant. No body knows as to what happened when they were passing by him. There was sharp enmity between them and something must have taken place which prompted the appellant to open fire. No body knows as to what was the immediate cause for user of the gun by the appellant. Since the immediate cause of occurrence is not known, it would be appropriate if the sentence of death is not awarded to the appellant We would, therefore, maintain the conviction of the appellant under section 302, P. P. C. But alter the sentence to imprisonment for life. The sentence of fine for this offence and the sentence of imprisonment as well as fine for an offence under section 307, P. P. C. Are maintained. The sentence of death is not confirmed and the murder reference dismissed. 1981 SCMR 795 PLD 1963 SC 25 PLD 1965 SC 111 1978 P Cr. L I 690 1973 SCMR 312 P D 1973 SC 321 PLD 1972 Pesh. 92 PLD 1976 S 53 PLD 1971 Lah. 708 1975 P Cr. L J 1301