1. SAJJAD AHMAD, J.-Abdul Karim, the appellant herein, was tried under section 302, P. P. C. By the Additional Sessions Judge, Peshawar, Camp Bannu, for the murder of Nur Aslam Khan, on the 1st of September 1966, who acquitted him. On a State appeal under section 417, Cr. P. C., a Division Bench of the High Court reversed the acquittal order, and convicted the appellant for the aforesaid murder, and sentenced him to transportation for life ; hence the appeal to this Court as a matter of right.
2. According to the prosecution case, the deceased, who was a Sub-Inspector of Police, had two days before the occurrence demolished a portion of his wall enclosing the courtyard of his house situated in village Nar Sahib Dad, with a view to construct a new pacca wall. P. Ws. Muzaffar and Sarwar Din were employed as labourers, and had started clearing the foundations. The appellant, who is a neighbour of Nur Aslam Khan, objected on the ground that his land had been encroached upon. The deceased offered to have a demarcation made by the Patwari. This happened a. Day before the actual day of the occurrence.
3. On the fateful day (1-9-1966) at 8 a.m., the appellant again visited the site, armed with a 7 mm rifle and abused the deceased, as he had not heeded to his protest to stop the construction of the wall.
4. P. Ws. Muzaffar and Sarwar Din were present at that time also. The deceased once again offered to have the demarcation done by the Patwari, but the appellant aimed his rifle at the deceased and fired a shot at him, injuring him on his left thigh. The deceased was carried to the Civil Hospital, Naurang, and subsequently P. W. Hassan Khan reported the matter at the Naurang Police Station at 9-15 a.m. The same day. During the investigation, a spent bullet, Exh. P. 8, and an empty shell of 7 mm. Rifle were recovered from the spot, and sealed into a parcel. The appellant, who was arrested from his baithak, produced a 7 mm. Rifle, Exh. P. 2, and a bandolier, Exh. P. 3, containing 30 live cartridges. He was a licensee of the rifle mentioned above. The rifle and the 7 mm. Empty shell, Exh.
5. P. 7, and the spent bullet, Exh. P. 8, were sent to the Ballistics Expert, who gave the opinion that the Exh. P. 7 had been fired from the rifle belonging to the appellant, which had been produced by him.
6. The medical examination of Nur Aslam Khan showed a wound of entry on the front medial aspect of left thigh lower third and a corresponding exit wound 4" in diameter on the upper third of the left thigh. His death was due to hemorrhage and shock, as the big blood vessels in the thigh were cut.
7. The prosecution case was supported by the testimony of Muhammad Aslam Khan, P. W. 4, Nasir Muhammad Khan, P. W. 6, Sarwar Din, P. W. 7 and Muzaffar, P. W.
8. The first two claimed to have been present in their hujra some distance away from the scene when they heard a noise and rushed towards the spot. They stated that they had seen the appellant from a distance of 15 paces, first quarrelling with the deceased and then firing at him. Sarwar Din and Muzaffar, who were engaged as labourers for the construction of the wall, also charged the appel--lant for the murder of the deceased. 7 he trial Judge disbelieved Sarwar Din and Muzaffar mainly on the ground that their names did not figure in the First Information Report lodged by Hassan Khan, who had reached the spot immediately after the occurrence. He had sated in the report that Muhammad Aslam Khan and Nasir Muhammad Khan had told him that they had seen the occurrence. He had further said that some villagers were also present at the spot. He explained at the trial that by villagers ha had meant the eye-witnesses, including Muzaffar and Sarwar Din. The learned trial Judge did not consider this as a plausible explanation for the omission of the names of Muzaffar Khan and Sarwar Din, in the F. I. R because Muzaffar Khan belonged to a different village, named Hayat Khel.
8. Sarwar Din was a resident of village Nar Sahib Dad, but he was disbelieved for the additional reason that his uncle was a tenant of P. W. Muhammad Aslam Khan, a relation of the deceased.
9. Muhammad Aslam Khan and Nasir Muhammad were disbelieved by the trial Judge on the ground that their hujra was shown to be at a distance of 300 paces from the spot, and these two witnesses could not have heard the noise from that distance which attracted them to tile spot, as claimed by them. The learned Judges in the High Court have rightly remarked that the rejection of the evidence of the eye. Witnesses in this case was done by the learned trial Judge purely on a conjectural basis.
10. We have been taken through the evidence of the eye-witnesses and we consider that they are truthful witnesses, and have not been guilty of exaggerations or falsehood. There was no enmity between the appellant and the deceased. The quarrel between them arose over the construction of the wall, which is not disputed. Muzakfar and Sarwar Din, who were employed as labourers for the construction, are natural witnesses, and so are the other two, namely, Muhammad Aslam Khan and Nasir Muhammad, whose hujra is situated in the vicinity of the scene of occurrence at a distance of 300 paces. Their claim that they were attracted by the noise, and they saw the occurrence, was discounted by the trial Judge on hypothetical grounds. The recovery of the crime empty, Exh. P. 7, which matched with the licensed rifle of the appellant, is a corroborative piece of evidence, which confirms the appellant's guilt.