1. HAMOODUR RAHMAN, C. J.-The petitioner was tried and convicted for the murder of one, Haji Gul, and sentenced to death. He was also convicted under section 13 of the West Pakistan Arms Ordinance, 1965, and sentenced to rigorous imprisonment for 3 years for being in possession of an unlicensed pistol and some cartridges.
2. On appeal and reference, a Division Bench of the High Court of Peshawar has upheld his convictions and confirmed his sentences. The petitioner now seeks special leave to appeal.
3. The alleged murder was committed on 23-11-69, 20 or 25 minutes before Maghrib prayer time, while the deceased was talking to Mohibullah (P. W. 9) near the shop of the deceased in Landi Arbab. The petitioner, it is said, came there, fired three shots at the deceased with a pistol and ran away. He was chased by Yaqub Shah (P. W. 10) and one, Abdul Latif. The petitioner entered the hujra of Arbab Inayatullah Khan (P. W. 6). The latter took the pistol away from him and detained him when he was told by Mohibullah (P. W. 9) that the petitioner had murdered a man.
4. It was Arbab Inayatullah Khan, who first informed the Badaber Police Station over the Phone. On this information the Sub-Inspector of Police (P. W. 11) came to Landi Arbab stare and recorded the statement of Mohibullah Khan at 6-40 p.m. This was treated as the first information report and sent to the police station for registration of the case. Mohibullah Khan also produced before the said officer three empty shells and one spent bullet stating that he had picked them from near the body. These were taken into possession. From there the Police Officer went to the hujra of Arbab Inayatullah Khan and arrested the petitioner. The pistol said to have been taken from him by Arbab Inayatullah Khan was made over to the Police Officer and sealed into a parcel. The pistol, according to the Police Officer, smelt of fresh discharge.
5. The petitioner denied killing the deceased. He also denied that any weapon was recovered from him. According to him, on the previous day the deceased had expressed sentiments of love towards him but the petitioner had rebuked him and left his shop. On the day of the occurrence about 2 hours before Aza time the deceased again met the petitioner at the Tonga Adda and gave him a severe beating. After that the petitioner went to the hujra of Arbab Inayatullah Khan and was waiting there when he was arrested and falsely charged with the murder of Haji Gul.
6. The prosecution examined Mohibullah Khan and Yaqub Shah as eye-witnesses of the incident.
7. Mohibullah was a first cousin of the deceased but Yaqub Shah, who also ran a vegetable shop at the same place, was in no way connected either with the deceased or with the petitioner.
8. The crime empties and spent bullet recovered from the spot were sent to the ballistics expert along with the pi pistol seized by Arbab Inayatullah Khan from the petitioner.Latter, however, opined that the crime empties and the spent bullet did not match the pistol. Nevertheless, the Courts below relying on the evidence of Mhullet Khan and Yaqub Shah convicted the petitioner.
9. Mohibullah Khan had in his evidence slightly shifted his ground and stated that the crime empties were handed over to him by a small boy when he returned to the spot after the petitioner bad been secured by Arbab Inayatullah at his Hujra.
10. Learned counsel, however, draws our attention to his statement recorded by the police and treated as the first information report where he had stated that he himself had to picked up the came empties and the spent bullet which he had made over to the police. Unfortunately, Mohibullah was not confronted with this statement in the first information report and, therefore, this discrepancy cannot now be utilised. The first information report is not substantive evidence. It can only be used for contradicting or corroborating the maker thereof.
11. There is no reason, however, to doubt the veracity of Yaqub Shah and Arbab Inayatullah.
12. Inayatullah was not cross---examined at all and the only criticism that could be made of the evidence of Yaqub Shah was that he had admitted in cross-examination that he might have stated to the people present at the spot that the petitioner had fired at the deceased, because, many people were present there and were talking about the incident. In the committing Court, on the other hand, he had stated that he did not have any talk with anybody about the incident. This discrepancy is not a material discrepancy and does not affect his veracity, so far, as the incident itself is concerned.
13. In any event, these are all questions pertaining to the appreciation of the evidence, which is not undertaken by this Court, unless there has been some flagrant disregard of any rule relating to the appreciation of the evidence. No such defect has been pointed out to us. This petition is, accordingly, dismissed.