1. ABDUL KADIR SHAIKH, J.-The appellant Muhammad Nasim Khan was tried for offences under sections 302 and 307 of the Pakistan Penal Code by the Additional Sessions Judge, Karachi for having committed the murder of one Ghulam Shah as well as having made a murderous assault on P. W. Muhammad Qasim on 12th March 1965 at about 11-30 a.m. He has been found guilty for both the offences and has been sentenced to death under section 302 and also to pay a fine of Rs.
2. 1,000, in default to suffer R. I. For 6 months. The amount of fine, if recovered, has been directed to be paid to the heirs of the deceased Ghulam Shah as compensation under section 554-A, Cr. P. C. For the offence under section 307, P. P. C. The appellant has been sentenced to 3 years' R. I. In addition to pay a fine of Rs. 500 in default to undergo further 3 months' R. I. The amount of fine if paid has been directed to be given to P. W. Muhammad Qasim as compensation. The convict has filed an appeal which was heard along with the reference made under section 374, Cr. P. C. For the confirmation of the death sentence.. The prosecution case may briefly be stated as under :- Ghulam Shah deceased was employed as a line-man in the Regent Cinema at Karachi. About a month before the, incident a quarrel occurred between the appellant and the deceased in the cinema-hall as the appellant refused to take of his feet from a seat in front of him which was resented to by the deceased who was on duty in the cinema-hall: It is said that the appellant was greatly annoyed and he gave' out threats of dire consequences to the deceased. Subsequent to this the appellant is alleged to have attempted at the life of the deceased by running him over with his truck in Nazimabad area Ghulam Shah deceased however saved himself by running on the footpath. There was next a fight between: the to near the old Indian High Commission Building at Jehangir Road, Karachi which was averted on the intervention of some people who were present.
3. It is the case of the prosecution that with this background the appellant came accompanied by to the Haji Hotel where the deceased Ghulam Shah was taking tea on the day of the incident at about 11-30 a.m. He called the deceased in abusive language to come out of the hotel. The latter tried to escape from the side door but could not evade the appellant who fired to shots from a pistol carried by him. The second shot struck the deceased in his head with the result that he fell' down on the ground. The appellant then boarded a motor rickshaw which happened to pass by and tried to run away from the scene.
4. He was, however, followed by another rickshaw driver Ghiasuddin who with the assistance of Police Constable Riaz Hussain overtook the appellant after covering some distance and successfully apprehended him. At the, the the appellant was confronted by the constable and the- rickshaw driver he fired another shot from his pistol which struck, a by Muhammad Qasim. The appellant was then taken to the New Town Police Station where he was arrested and the weapon of offence, namely, the pistol was also secured from his person.
5. The appellant in his statement during the trial admitted that he was at the spot on the day of occurrence and that the incident took place in which Ghulam Shah sustained a pistol shot in the head. He admitted that on a previous occasion there was an altercation between him and Ghulam Shah when he had visited the Regent Cinema where the deceased was employed as a line-man.
6. The version of the incident given by him may be stated in his own words:- "About a month or so before the date of occurrence, I had gone to see a picture in Regent Cinema in the company of some friends. Ghulam Shah, who was an employee of the cinema, came there and addressed me in a rude manner. I protested and there was an altercation; the picture had not yet started. Some other persons intervened and further' incident was avoided, but Ghulam Shah threatened to see me. On the day of occurrence, I had gone to the house of my friend Iqtedar Khan, who lived in Patelpara, Jehangir Road. Iqtedar Khan had asked me to go to him at about 10 o'clock, as we; had an appointment and intended to go out for shopping. I went to the house of Iqtedar Khan, but learnt that he had gone out, and would be available in Baloch Hotel. I then came to Baloch Hotel where I met Ghulam Ahmed, a neighbour of Iqtedar Khan. I sat with him for some the in the hotel, but Iqtedar Khan did not turn up. I then came out of the Hotel, and had covered a distance of about five or six paces, when Ghulam Shah came running out of the Haji Hotel. On reaching me; he caught hold of my waist. Ghulam Shah was accompanied by to or three other persons, including P. W. Haji Muhammad Shafi and Sattar. I then raised cries "Save me, Save me".
7. Many persons collected on hearing my cries. Just at the, a motor-rickshaw came up and stopped nearby. I freed myself from the clutches of Ghulam Shah and ran into the rickshaw. Ghulam Shah, however, ran after me, caught hold of me, and tried to drag me down from the rickshaw. I tried to free myself but in the struggle that ensued, Ghulam Shah had half dragged me out. At that the, Ghulam Shah took out a pistol and I caught hold of the hand in which Ghulam Shah held the pistol.
8. After I caught hold of the hand of Ghulam Shah, there was a struggle between us, and the pistol went of. Ghulam Shah then fell down and I did not care to see what has happened. At that the, the people who had collected there raised cries, "Catch him, Catch him he has killed a person". I became nervous and picked up the pistol which had fallen down on the ground, I asked the rickshaw driver to drive away from the place. After covering a distance of about to furlongs, I got down from rickshaw. I found some persons chasing me, and I also ran, but stumbled and fell down.
9. At4hat the, another bullet went of from the pistol. Then some persons caught me, and I was taken to the Police Station. The deceased was wearing a shalwar, and I cannot say from where he had taken out the pistol. I am innocent. I did not fire the pistol. The bullet went of accidentally, and appears to have killed Ghulam Shah. I had only tried to save myself."
10. The prosecution produced five witnesses in support of the first incident in which Ghulam Shah was done to death. These are Muhammad Shafi, the owner of Haji Hotel, his to employees Abdul Sattar and Muhammad Ramzan and the to rickshaw drivers Ghiasuddin and Mirza Ismail. Muhammad Shall claimed to have known the deceased Ghulam Shah as his old customer for about 10/12 years.
11. The deceased lived at a distance of about 3 furlongs from the hotel. Muhammad Shafi also mentioned having seen the earlier incident between the appellant and the deceased which took place about If months prior to the present incident. He had 'advised Ghulam Shah to leave the scuffle and go away to the place of his duty at the Regent Cinema. After that the appellant also left saying that he will see Ghulam Shah. Muhammad Shafi stated that on the day of occurrence which was a Friday he was present at the hotel at the the Ghulam Shah was taking tea. Someon6 called out from out--side "Ghulam Shah come out". He recognised the caller as the appellant who was also accompanied by some one else. He told the appellant "my son go away, it is not good to fight."
12. In the meantime the deceased went through another door of the hotel and immediately thereafter he heard a pistol shot. On going out Muhammad Shafi saw the appellant holding a pistol in his hand and Ghulam Shah deceased fallen on the ground. He raised cries for help and in the meantime a rickshaw approached in which the appellant got in and tried to escape. Muhammad Shafi then picked up the injured Ghulam Shah with the assistance of his employee Muhammad Ramzan and brought him on the foot-path. An elder brother of Ghulam Shah then came there and with his assistance he took the injured in a taxi and brought him to the Civil Hospital. They were advised to take the injured to the Jinnah Hospital and accordingly, they took him to that Hospital but the injured could not survive for more than to hours.
13. Abdul Sattar and Muhammad Ramzan the bearer and the baker at the Haji Hotel also claim to have seen the occurrence. Their version of the incident with slight but natural variations is practically the same as that of their master Muhammad Shafi.
14. P. W. Ghiasuddin the rickshaw driver stated that at the relevant the he was passing near the Valika Mahal and he saw the appellant firing a pistol at the deceased Ghulam Shah who fell down on the road. He stopped the rickshaw near the place as a large number of persons had collected there.
15. The assailant then got into another rickshaw and that rickshaw drove away. Ghiasuddin went on to say that he then rushed to the New Town Police Station and on the way he met Traffic Constable Riaz Hussain to whom he gave the news. Both of them then followed the rickshaw in which the appellant had escaped. The first rickshaw went into the lane near a wine shop and then turned on the road at the junction where the Jamaet Khana is situated. Ghiasuddin followed the first rickshaw driver who proceeded towards the Soldier Bazar and then turned to old exhibition and then to Qaidabad. Ghiasuddin closely followed the first rickshaw and in order to apprehend the culprit he deliberately dashed his motor-rickshaw against the first rickshaw carrying the appellant. As the result of the collision the appellant fell down from the rick--shaw and started running. Riaz Hussain also got down from the rickshaw and chased him. The culprit then stood at some distance and pointed his pistol at the police constable threatening to kill him unless he gave up the pursuit. In the meantime Ghiasuddin came to his rescue by bringing his rickshaw into which Riaz Hussain jumped so as to escape the shot fired by the appellant. He however escaped but the bullet struck an innocent bystander, a by, Muhammad Qasim standing nearby. Riaz Hussain then managed to apprehend the culprit and snatched the pistol from his hands and subsequently he brought the culprit to the New Town Police Station.
16. Mirza Ismail the owner of the rickshaw which had carried the appellant stated that he was driving his empty rickshaw near about Haji Hotel at the relevant the when the appellant came and got into his rickshaw and asked him to drive it on. He said that he was reluctant to proceed further because he heard sound like that of a punctured tyre but the appellant threatened him at the point of a pistol and he therefore was forced to continue driving and stopped at the corner of Britto Road where the appellant got down and ran. He saw a constable getting down from another rickshaw and running after the appellant: As to the second incident in which Mohd. Qasim the innocent by was injured the prosecution case rested on the ocular testimony of tie injured himself as well as three other witnesses P. Ws. Riaz Hussain, Ghiasuddin and one Muhammad Rafique Khan. Muhammad Qasim stated that' he was sitting in his house in the New Town Area at about 11-30 arm on the day of the incident when he heard some sound resembling the accident of a rickshaw. On coming out he saw a person running followed by a constable and a rickshaw driver who was shouting "Catch him, Catch him". He then saw the first person firing a pistol shot which bit `him at the abdomen. The person who fired the shot then himself fell down on the ground and was caught by the constable and the rickshaw driver. The pistol carried by the assailant was also recovered under Mashirnama Exh. 18 which was attested by him. The version of the other witness need not be discussed at this stage as it has been summarised in the earlier part.
17. In view of the statement of the appellant at the trial admitting the participation in both the incidents, the question for decision in this case is whether the fire which hit the deceased Ghulam Shah was the result of an incident as alleged by the appellant or whether the appellant caused the murder of the deceased as is the prosecution case. The motive alleged by the prosecution for the 'incident has practically been admitted by the appellant himself and it is therefore not necessary to deal with this aspect of the case. There can be no doubt as to the presence of Muhammad Shall the owner of the hotel where the incident occurred. The presence, of the to employees at the hotel, namely, Abdul Sattar and Muhammad Ramzan at the relevant the cannot also be doubted. Nor can there be any legitimate doubt as to the presence of Ghiasuddin, the motor rickshaw driver who followed the rickshaw in which the appellant tried to escape after the shot at the deceased was fired. It may be stated here that neither of these witnesses are shown to be hostile to the appellant at any the previous to the day of occurrence. All that was said against Muhammad Shafi was that he was a close friend of the deceased and therefore the narration of the incident given by him and his to employees should not be accepted in toto. Another criticism levelled against the statement of these witnesses was that their. Version of the incident was contradictory inter se, and it cannot therefore be said definitely as to how and in what manner the shot that hit the deceased was actually fired.
18. Whilst it is true that there are certain discrepancies, in the version of the three witnesses namely Muhammad Shafi and his to employees Abdul Sattar and Muhammad Ramzan it cannot be forgotten that slight variations in the narration of an incident as in the instant case are bound to occur in the case of true witnesses. All these three witnesses were not sitting at the same spot at the relevant the. Muhammad Shafi was at the counter of the hotel. He was changing his clothes for Juma prayers. Abdul Sattar was busy serving the customers at the hotel while Mohd. Ramzan the baker at the hotel was at his normal duties of baking bread in the kitchen of the hotel. All. These persons stated with one word that the deceased was in the hotel at the relevant the taking a cup of tea. These three are definite on the point that it was the appellant who had come to the hotel and had called out to the deceased in abusive language asking him to come out. Muhammad Shafi owner of the hotel stated that he advised the appellant to go away as it was not good to fight. It is therefore difficult to believe the version of the appellant that while he had come out from Baloch Hotel covering a distance of 5-6 paces Ghulam Shah came running out of the Haji Hotel and caught hold of his waist.
19. The learned counsel for the appellant pointed out that according to Muhammad Shafi the deceased left by the kitchen door whereas according to Abdul Sattar he left by the back door and Muhammad Ramzan stated that he left by the door which opens on the Jehangir Road. The learned counsel pointed out from the sketch that all these doors are different and therefore there are three different versions of the incident. The learned counsel further contended that a photograph of the deceased was hung in the hotel after the incident anal this by itself shows the interest of these three witnesses in the deceased, Admittedly the deceased collapsed at a place about 44 ft. Away from, the Haji Hotel on the Jehangir Road. It appears from the sketch of the scene of offence produced on the record that there is a back door of the hotel and it cannot be said that this does not open out on the Jehangir Road. It appears that the back door also served as the kitchen door of the hotel because no other door has been described as the kitchen door. According to Muhammad Shafi the appellant came from outside door along with another person and the deceased afterwards moved towards another door of the hotel. Abdul Sattar stated that Ghulam Shah was advised to go from the back door towards his house. According to him the deceased had gone out from a smaller door and not from the kitchen door which was broken and could not be used. Muhammad Ramzan the baker stated that the kitchen door was so small that no one could pass out .Of it and the deceased had gone out of the door which opens on the Jehangir Road. It therefore clearly appears that the deceased had not gone out of the door at which the appellant had come and threatened him to come out. The discrepancy pointed out by the learned counsel for the appellant as to the manner in which the deceased left the hotel stands explained by the evidence of the three witnesses themselves. It was then urged that these witnesses are not clear as to the actual spot where the deceased was hit and fell down. It was pointed out that according to Muhammad Shafi this spot was 8-10 paces and not 25 paces from the hotel whereas according to Abdul Sattar it was 10/12 paces and Muhammad Ramzan had put the distance as 7-8 paces. The distance given by the witnesses was an estimate according to each of them and is not very material because according to the sketch it is given as 44 ft. And it has not been denied that the deceased was hit at any place other than the spot outside the Haji Hotel.
20. Muhammad Shafi denied having himself hung up the photograph of the deceased in his hotel. He explained that after the murder of Ghulam Shah his brother had hung up the photo for some days but he subsequently took it away. It appears that the photo had remained on the walls of the hotel for some period of the but it cannot be said that on that account the evidence of the owner of the hotel, Muhammad Shafi, or that of his to employees should be rejected as being thus interested in the deceased. Muhammad Shafi categorically stated that the deceased had been his old customer and he may have allowed the brother of the deceased to hang the photograph of the victim in his hotel for sentimental reasons and the tragic manner of his death.
21. We find, therefore, no reason to reject the version of the incident given by the natural witnesses of the spot where the deceased, was done to death namely Muhammad Shafi and his to employees Abdul Sattar and Muhammad Ramzan.
22. These three witnesses are fully supported by another independent witness. As P. W. Ghiasuddin the rickshaw driver who stated that it was the appellant who had fired the pistol at the deceased.
23. According to this witness the firing was not accidental. It was on that account that Ghiasuddin followed the appellant all along after securing the assistance of the Police Constable Riaz Hussain.
24. It was with his efforts that the appellant was ultimately apprehended.
25. The defence theory set up by the appellant was supported by to witnesses Shoaib Ahmad and Ghulam Ahmad. Admittedly Shoaib Ahmad was on friendly terms with the appellant having known him for more than three years ago. Ghulam Ahmad also had connections with the appellant and his friend Iqtedar Khan and P. W. Shoaib Ahmad. Both these witnesses stated that they gave their version of the incident to the police officer but no such question was put to Syed Akhtar Hussain S.
11. O. In the cross-examination. The S. H. O. On the contrary categorically stated that no other eye- witness except those cited above were produced before him. The evidence of these to defence witnesses would, therefore, not advance the defence case any further. We have no doubt that looking to the weight of the prosecution evidence of the eye-witnesses; the circumstances of this case, and his being apprehended by the police constable in the hot chase after the commission of the crime, the appellant set up this theory as the only defence theory available to him. The defence version set up by the appellant also appears to be unnatural for there was no reason for him to pick up the pistol of the deceased after the shot was fired at Ghulam Shah. It is true that normally even an innocent person seeing the commission of a crime by accident may become nervous and try to escape from the scene but there was no reason in this case for the appellant to pick up the pistol of the deceased which had fallen on the ground and take it with himself. The appellant then tried to shoot that pistol at the police constable who was trying to apprehend him. The defence theory therefore appears very unnatural apart from the fact that we have rejected it in the face of very cogent and reliable evidence of eye-witnesses, produced by the prosecution.
26. Much was sought to be made of the injury in the middle of the vertex of the deceased to support the defence theory as to the firing of the pistol by accident. We have considered this argument with great care but this circumstance also cannot necessarily support the defence version and belie the prosecu--tion story. On the contrary seeing the appellant armed with the pistol and the shot also being fired simultaneously from it, the natural reaction of the victim would be to bend himself possible in a possible attitude of some defence specially the head, so as to avoid or escape the bullet. The ocular evidence in this case is therefore not contradicted by the medical evidence, on the contrary it is in consonance with the prosecution version.
27. We do not see how the defence theory of firing through accident is available to the appellant in respect of the offence under section 307 in which the by Muhammad Qasim was injured. The injured himself has categorically stated that the appellant had fired at him and so is the evidence of the Police Constable Riaz Hussain and Ghiasuddin rickshaw driver. There is no reason whatever to reject the reliable evidence of these three witnesses. The guilt of the accused for this offence is therefore well founded and is without exception in this appeal.
28. We have therefore no hesitation in upholding the convic--tions and sentences awarded to the appellant in this case, and reject the appeal filed by him. The death sentence imposed upon the appellant is accordingly confirmed.
29. We cannot part with this case without making certain observations as to the companion of the appellant at the the of the commission of the crime. The first informant Abdul Sattar stated in the F.
30. I. R. That the appellant had come with a com--panion to the Haji Hotel and both of them got themselves seated in a motor rickshaw after the commission of the crime and ran away. The name of the companion transpired during the police investigation and he is Iqtedar Khan. The Investigating Officer Syed Akhtar Hussain himself stated in the Sessions Court as follows:- "So far as I remember the presence of one companion of the accused was mentioned in the F: I. R. It is correct that I had sent for Iqtedar Khan because his name was mentioned to me by P. W. Haji Mohammed Shafi. P. W. Sattar had also pointed out that Iqtedar Khan was a person who had run away from the place of occurrence in the company of- the accused. When Iqtedar Khan was called at the police station P. W. Sattar had stated that he was the person who had accompanied the accused to the place of the occurrence and run away with him after the occurrence was over: I did not rely on the statement of P. W. Shafi and Sattar as regards the participation or presence of Iqtedar Khan because during the course of investigation I came to the conclusion that Iqtedar Khan was not present at the place of occurrence at the the of the occurrence."
31. We found it strange that an accused person concerned in a murder case should not have even been challaned in a Court of law on the ground that the Investigating Officer was of the opinion that he was not present at the spot at the the of occurrence in spite of the fact that certain witnesses had mentioned his presence. The Investigating Officer in this case had gone even (further by disbelieving the eye-witnesses. We therefore called for his explanation and sent for the relevant papers. We tried our best to secure all these papers but the most relevant one were not made available to us. Since in the proceedings before us we were concerned mainly with the question of guilt or innocence of the present appellant we did not make further a attempt by way of inquiry on this aspect. We however direct that a probe should be made as to the circumstance that led to the discharge of the accused Iqtedar Khan at the investiga--tion stage. The copies of this judgment as well as our orders recorded in the order-sheet shall be forwarded to the Home Secretary to the Government of West Pakistan for necessary action. The final result shall be communicated to this Court.