1. AMIRUDDIN AHMAD, J. -The appellants along with another man, named Nazra, were tried and convicted by the Additional Sessions Judge, Gujrat, on a charge under section 302/34 of the Pakistan Penal Code, for the murder of one Muhammad Khan on the morning of the 8th March at village Kotha Bhola. The appellants were sentenced to death and Nazra was sentenced to transportation for life. The case came up before the High Court of West Pakistan at Lahore on appeal by the convicted persons, and for confirmation of the death sentences. Their appeal was dismissed and the death sentences were confirmed.
2. The prosecution case was that the deceased Muhammad Khan with one Shahu was cutting fodder in the former's field, when the three persons came riding on two horses, the appellant Salehon armed with rifle on one, and the other two on the other horse armed with spears. They dismounted near the field and Salehon challenged Muhammad Khan saying, "get ready". I have come to avenge the murder of my father. Immediately after that Salehon fired from his .303 bore rifle at Muhammad Khan, who was hit in the shoulder and began to run away, and was chased by the three persons. Salehon fired two more shots, while he was running, but missed. In the meantime, Muhammad Khan after running some distance fell down and was overtaken by the appellant SaeeD and the other man, who inflicted injuries on him with their spears. After that Salehon came up and fired a shot at the ear of the fallen man from point blank range, after receiving which Muhammad Khan died.
3. The prosecution case was supported by the evidence of four eye-witnesses, Ahmad Khan, Sardar Khan, Muhammad Inayat and Shaba. Besides the eye-witnesses, there was the evidence of the Police Officers supported by the evidence of two search witnesses, in whose presence on the night of 9th March that is the day following the murder, Salehon produced before the police a rifle and 9 live cartridges, which were taken possession of by the police and the rifle was sent on the 12th March to the Director, Forensic Science Laboratory, C. I. D., Lahore for examination along with an empty cartridge, which had been picked up at the place of murder. The Ballistics Expert was summoned on behalf of the prosecution to depose at the trial, but in spite of the issue of summons and a wireless message sent to him, his presence could not to secured. The learned Sessions Judge was unwilling to further adjourn the case and the trial proceeded with the witnesses, who were present and resulted in the conviction of all the three, as stated above. When the case came up before the High Court, the Public Prosecutor applied for examination of the Ballistic Expert as a Court witness along with some formal witnesses connected with the production of the rifle before him. In an affidavit in support of his petition the Public Prosecutor stated as follows :- "That I then represented to the Court that his arrival might be awaited for sometime and the Court again adjourned the case for about one hour on the 25th May 1956. When the case was recalled Mr. Abdul Majid was still not in attendance and in deference to the learned Sessions Judge's wishes I gave up Mr. Abdul Majid Director, Forensic Laboratory, as the learned Sessions Judge had expressed a desire to finish the case earlier and had observed that the evidence already on the record, if believed, was sufficient."
4. The learned Judge of the High Court after considering the decision of the Federal Court, reported in Ali and another v. Crown (PLD 1952FC71), allowed the Public Prosecutor's petition with the following remarks :-- "After considering the arguments we are of the opinion that the facts of All's case were different from the facts of the present case. In this case we are not being asked to summon partisan witnesses, and the question of inviting perjured evidence does not arise. Mr. Majid is a responsible officer of the Government. He submitted a report after examining the rifle and the empty cartridge, and his report is already on the record. The other witnesses are police officials. Their evidence will be purely of a formal nature."
5. We think the High Court was right in allowing the additional evidence to be led. They also allowed the appellants to lead evidence in rebuttal, and three witnesses were examined for the purpose. As against the evidence of the Expert that the empty cartridge was fired from the rifle, which was produced by the appellant Salehon, the first witness for the appellant stated that he handed the rifle over to the A. S. L, which was unserviceable at the time, as there was a piece of lead, which appears to have jammed in the barrel about 6 inches from the breach.
6. He further stated that he asked one Ghulam Ali to load the rifle but he could not do it. As lead was jammed ; that he did it out of curiosity, and that he did not bring it to the notice of anybody that the rifle was unserviceable. The second witness on behalf of the appellant simply stated that he was asked by the appellants Salehon and SaeeD to go to the first witness and get the rifle from him, which he and the said witness took to the A. S. I. The third witness examined on behalf of the appellants, namely Mr. Arthur John Wilson, Managing Director of Walter Locke & Company, Lahore, contradicted the first witness when be stated that there was no evidence of any metal having been jammed in the barrel.
7. Of the four eye-witnesses in the case, the High Court found that three were related to the deceased, and the fourth witness, Shahu was an independent person. But except that Shaba was a beggar by profession, no relationship, however, could be elicited in his cross-examination by the accused. The learned Judges of the High Court, therefore, looked for corroboration in order to base their judgment on safer grounds. They found this corroboration in the case of Salehon, who produced the rifle with which the offence was committed, and SaeeD at whose instance a blood- stained spear was recovered. Some weapons were recovered also at the instance of the other accused Nazra, but no blood-stains were found on them. The High Court, therefore, acquitted Nazra and confirmed the death sentences of the appellants.
8. In support of this appeal it was urged that the High Court was wrong in allowing the additional evidence to be led and in thus permitting the prosecution to fill up gaps in their evidence, and that in doing so they accepted the evidence of Zaka Ullah Khan, who offered explanation for the delay of three days in sending the rifle to the Expert, which was accepted by the High Court. As regards the first part of this argument, we have already dealt with it in the earlier part of this judgment and have held that in the circumstances the High Court was justified in allowing additional evidence to be led in the case. As regards the question of delay, it does not appear that any point was raised before the High Court. The second point was that the eye-witnesses could not be relied upon, as their evidence had been rejected by the High Court as being interested. It does not appear that the High Court rejected the evidence of the eye-witnesses as unreliable, but that by way of abundant caution they sought for corroboration before accepting it. It was also urged that one of the eye- witnesses Shahu, who had been described as an independent witness, is really a party---man and was challaned for beating some men of the family of the accused persons. A question put to this witness to establish a connection of the assaulted man with the family of the accused failed, as the witness said that he did not know if Qaim was the son of Taja, although he stated that Taja was the grand--father of Salehon and SaeeD, accused. It was also urged that the two search witnesses, who proved the production of the rifle before the police and thus connected Sulebon with the crime, have not been shown to have been independent. In this connection we may only state that according to the second witness produced by the appellant before the High Court, the rifle was taken to the A. S. I. By him at the instance of Salehon, and that nothing could be elicited from the search witnesses in their cross-examinations to show that they were partisan witnesses. It was finally urged that no fresh examination under section 342, Cr. P. C. Of the accused persons was made by the High Court in relation to the fresh evidence taken before them. On examination of the record we find that questions relating to the rifle and the bullets and the empty cartridge were put to the accused Salehon by the Sessions Judge and he denied all connections with them. He was then asked why the case was B brought against him and he said that it was due to enmity of certain persons. It may be noted here that the additional evidence only relates to the rifle, which was concerned with Salehon alone. In view of the replies given to these questions we do not think any prejudice had been caused to the appellant Salehon by fresh questions not having been put to him in this connection. The result, therefore, is that this appeal is dismissed.